UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGFLES 
 
 SCHOOL OF LAW 
 LIBRARY 
 
 I
 
 PRACTICAL TREATISE 
 
 OF THE 
 
 LAW OF EVIDENCE, 
 
 VOL. I. 
 
 "1"
 
 LONDOA' . 
 
 Printed by James & Luke J. Hansard, 
 near Liiicolns' Inn Fields.
 
 PRACTICAL TREATISE 
 
 OF THE 
 
 LAW OF EVIDENCE, 
 
 DIGEST OF PROOFS, 
 
 CIVIL AND CRIMINAL PROCEEDINGS. 
 
 THIRD EDITION, 
 
 WITH CONSIDERABLE ALTERATIONS AND ADDITIONS. 
 
 By THOMAS STARKIE, Esq. 
 
 OP THE INNER TEMPLE, ONE OF IIER MAJESTY'S COUNSEL. 
 
 VOL. I. 
 
 LONDON: 
 
 V. AND R. STEVENS AND G. S. NORTON, 
 
 (Successors to the late J. Sf W. T. CLARKE, of Portugal Street,) 
 
 26 AND 39, BELL YARD, LINCOLN'S INN, 
 AND A. MILLIKEN, DUBLIN. 
 
 MDCCCXLIL
 
 St a95" e
 
 
 V 
 
 
 ADVERTISEMENT TO THE THIRD EDITION. 
 
 The Author, in publishing a New Edition of his Treatise 
 on Evidence, cannot but express his concern that 1 a has 
 not been able by doing so at an earlier opportunity to 
 comply with the wishes expressed by many members of 
 the Profession after the Book had been out of print. He 
 trusts that his endeavours to improve the Work will serve 
 to manifest his sense of the favour with which the former 
 Editions have been received, as well as his earnest wish 
 that the present may be deemed worthy of similar 
 indulgence.
 
 ADVERTISEMENT TO THE SECOND EDITION. 
 
 1 HE Author duly impressed with the kind reception 
 which the First Edition of this Treatise has met with 
 from the Profession, and the intimations which he has 
 received that a New Edition would be acceptable, has to 
 regret that he has not been able to comply with them at 
 an earlier opportunity. He begs leave to add, that the 
 delay is in a considerable degree attributable to his 
 anxiety to improve the structure of the original work, and 
 he trusts that the numerous alterations and additions 
 that he has made, will be sufficient to evince his earnest 
 desire to render the present Edition useful to the Pro- 
 fession.
 
 [ ix ] 
 
 PREFACE 
 
 TO THE FIRST EDITION. 
 
 THE investigation of truth, the art of ascertaining that which 
 is unknown from that which is known, has occupied the 
 attention, and constituted the pleasure as well as the business of 
 the reflecting part of mankind in every civihzed age and country. 
 But inquiries of this nature are nowhere more essential to the 
 great temporal interests of society than where they are applied 
 to the purposes of judicial investigation in matters of fact. Their 
 importance is obviously commensurate with the interests of jus- 
 tice and of right ; the best and wisest laws are useless until the 
 materials be provided upon which they can safely be exercised ; 
 in other words, the administration of a law assumes the truth of 
 the facts or predicament to which it is applied. 
 
 With those who regard law as a science which rests on certain 
 fixed and equitable foundations, and who view its decisions not 
 as arbitrary precedents, but valuable only as they illustrate the 
 great principles from which they emanate, this branch of jurispru- 
 dence, which comprises the rules and practice of judicial investi- 
 gation, must exceed all others in point of interest. However 
 widely different codes may vary from each other in matters of 
 arbitrary positive institution, and of mere artificial creation, the 
 general means of investigating the truth of contested facts must 
 be common to all. Every rational system which provides the 
 means of proof must be founded on experience and reason, on 
 a well-grounded knowledge of human nature and conduct, on a 
 consideration of the value of testimony, and on the weight due 
 to coincident circumstances. Here, therefore, the object of the 
 . law is identified with that of pure science ; the common aim of 
 each is the discovery of truth ; and all the means within the reach 
 
 VOL. I. b
 
 X PREFACE. 
 
 of philosophy, all the connections and links, physical or moral, 
 which experience and reason can discover, are thus rendered 
 subservient to the purposes of justice. In different systems of 
 law, the great principles on which the rules of evidence depend 
 may be and are variously modified; but every departure from 
 those principles, wheresoever it occurs, must constitute a corre- 
 sponding and commensurate imperfection. 
 
 Notwithstanding, however, the universality of the great prin- 
 ciples of the science, it is essential in practice to guard and limit 
 the reception of evidence by certain definite and positive rules. 
 Nature has no limits ; but every system of positive law must, on 
 grounds of policy, prescribe artificial boundaries, even in its 
 application to a subject which from its independent nature 
 least of all admits of such restraint. These, however, are neces- 
 sarily for the most past of a negative description, the effect of 
 which is to exclude evidence in particular cases, and under special 
 circumstances, on general grounds of utility and convenience ; 
 yet even here so difficult is it to prescribe limits on such a sub- 
 ject, without the hazard of committing injustice, that rules, the 
 general policy of which is obvious, are by no means favoured. 
 Thus, although according to the Law of England he who is 
 interested is also incompetent to be a witness, yet the Courts are 
 ever anxious to apply the objection, as natural reason would 
 apply it, to the credibility rather than to the competency of 
 a party ; to receive and to weigh his testimony, rather than 
 wholly and peremptorily to exclude it. It is true, that in many 
 instances the law may by rules of a positive nature annex a 
 technical and arbitrary effect to particular evidence, which does 
 not actually appertain to it. Thus, by our law, a judgment is 
 frequently absolute and conclusive evidence of the facts which 
 have been already contested ; but one general observation is 
 applicable to this and to most instances of a similar nature, 
 including the numerous cases of legal presumption, that tliey are 
 not used as the means or instruments of truth, but are in virtue 
 and effect nothing more than mere technical and positive rules, 
 which are wholly independent of the principles of evidence (*), 
 and whose only foundation is their general utility and con- 
 venience. 
 
 (*) See the observations on this subject, under the title PaKSUMi'TiON.
 
 PREFACE. XI 
 
 To go farther, and by any positive and arbitrary rules to annex 
 to particular evidence any technical and artificial force which it 
 does not naturally possess, or to abridge and limit its proper and 
 natural efficacy, must in all cases, where the object is simply the 
 attainment of truth, not only be inconsistent and absurd in a 
 scientific view, but what is worse, would frequently be productive 
 of absolute injustice (*). To admit every light which reason and 
 experience can supply for the discovery of truth, and to reject 
 that only which serves not to guide, but to bewilder and mislead, 
 are the great principles which ought to pervade every system of 
 evidence. It may safely be laid down as an universal position, 
 that the less the process of inquiry is fettered by rules and re- 
 straints, founded on extraneous and collateral considerations of 
 policy and convenience, the more certain and efficacious will it be 
 in its operation. 
 
 To pursue such general observations further in this place would 
 interfere too much with the arrangement of the present work, the 
 objects of which are now to be announced. 
 
 It is proposed in the following Treatise to consider the practice 
 of the law in England on the subject of judicial proofs. With 
 this view, the elementary principles by which the admissibility of 
 evidence to prove matters of fact before a Jury is governed will 
 first be considered. A second division will contain an enumera- 
 tion of the different instruments of evidence. In a third, the 
 application of these principles and instruments to the purposes 
 of proof will be considered, as also the distinction between law 
 and fact, and the force and effect of direct and circumstantial 
 evidence; and, lastly, the evidence essential to the proof of par- 
 ticular issues will be detailed, and references made to the leadino- 
 decisions connected with the particular subject of proof. 
 
 Nothing can be more agreeable than to compare the Law of 
 Evidence as it now exists, with the rude practice which formerly 
 prevailed, when its principles were so dubious and unsettled, that 
 the very means devised for the discovery of truth and advance- 
 ment of justice were not unfrequently perverted to the purposes 
 of injustice, and made the instruments of the most grievous and 
 cruel oppression. Whoever institutes that comparison will find 
 
 (*) See tit. Presl JiPTiON.
 
 Ml PREFACE, 
 
 great reason to approve of the changes which have taken place; 
 but no mistake can be more injurious to the Law, as a system, or 
 oppose a greater obstacle to all future improvement, than to sup- 
 pose that the Law of Evidence has attained to its highest perfec- 
 tion. It is, however, far from the Author's present purpose to 
 enter into any discussion on the subject of the imperfections and 
 anomalies which yet encumber this branch of the Law. To the 
 learned judges of modern times the highest praise is due for the 
 strenuous exertions which they have made to reduce the Law ot 
 Evidence to a system, founded on just and liberal principles ; 
 and it is to be hoped not only that those imperfections which 
 still subsist, which have been spared from their antiquity, and 
 exist as a kind of prescriptive evils, will in time be removed by 
 legislative, if they be beyond the reach and scope of judicial 
 authority ; but that such other improvements will be made as 
 reason exercised on mature experience shall warrant.
 
 ANALYSIS 
 
 OF THE 
 
 CONTENTS OF VOL. L 
 
 Vol. I. consists of tliree Parts ; — 
 
 T. Containing the general principles of the Law of Evidence. 
 II. The instruments of evidence, as regards 
 
 The mode of procuring them. 
 
 of using them. 
 Their effect. 
 
 III. The application of the above princij^les and instruments to the 
 proof of issues generally. 
 
 Part I. from p. 1 to p. 76 inclusive, contains, 
 
 Pago. 
 Elementary divisions --------l 
 
 The divisition of laws into substantive and adjective, of adjective 
 
 into preventive and remedial -.___- 2 
 
 The necessity for rules of investigation to effectuate such pro- 
 visions __-__----- ib. 
 
 Issues in fact result from pleadings, and are triable by jury - 3, 4 
 
 Observations on the origin and functions of the jury - - - 5 
 
 on the fitness of the tribunal ----- 8 
 
 What is comprised under evidence ; distribution of the subject - 11 
 The general principles of evidence are the ordinary ones naturally 
 
 used for the purpose of investigating past transactions - - ib. 
 These are subject to artificial rules, which either 7'estram natural 
 evidence, or cT^afe some artificial effect - - - - 11,12 
 
 Sources of evidence - - - - - - - -12 
 
 Principles of evCcZ«fim^ rules - - - - - - -13 
 
 Evidence distinguishable as direct and indirect - - - 15 
 Direct distinguishable as immediate and mediate - - - ib. 
 Principles which regulate tlie admission of mme^/ia^e testimony - 16 
 
 Oath ib. 
 
 Tests of truth ; disqualification from turpitude - - - - ib. 
 
 Disqualification from interest - - - - - - ~ }^ 
 
 Necessity for defining the rule ------- ib. 
 
 Reasonableness of this distinction - - - - - ' }^ 
 
 Nature of the interest --------ib. 
 
 Exceptions ---------- ib. 
 
 Operation of this excluding principle ----- 20 
 
 VOL. I. a
 
 11 ANALYSIS or 
 
 Obligation of an oath --------21 
 
 What belief is necessary - --21 
 
 Force of an oath --------- ib. 
 
 Oath must be judicial --------22 
 
 Declaration by party in extremis ------ ib. 
 
 Affirmation by a Quaker --------23 
 
 Witnesses for prisoners are now to be sworn - - - - ib. 
 
 Test of cross-examination ------- 24 
 
 Excludes hearsay evidence - - - . - - - 25 
 Excejjtion, dying declaration -------26 
 
 Mediate testimony --------27 
 
 Original or secondary -------- ib. 
 
 General reputation --------- ib. 
 
 Reputation in case of pedigree - - - - - - - 29 
 
 Ancient facts ---------- 30 
 
 Presumptions, Avhy founded on reputation ----- ib. 
 
 Reputation, in what cases admissible - - - - - 31 
 
 The facts must be of a public nature ----- ib. 
 
 Must be general --.------33 
 
 Supported by acts of enjoyment ------ ib. 
 
 Direct mediate testimony ------- -34 
 
 Declaration accompanying an act ------ ib. 
 
 Secondarij mediate testimony -------36 
 
 Depositions of witnesses (in former proceedings) since deceased - 42 
 Traditionary evidence -------- ib. 
 
 Derived from persons likely to know the facts - - - - 43 
 
 Must be free from suspicion ------- ib. 
 
 Declarations, &c. made against interest, &c. - - - - 44 
 
 Of Indirect evidence --------47 
 
 Necessity for resorting to indirect evidence - - - - ib. 
 
 Evidence of circumstances connected with the fact - - - 48 
 Juries formerly returned from the vicinage - - - - ib. 
 
 Ancient practice as to juries - ------49 
 
 Foundation oi' presumptions as to motives ----- ib. 
 
 Presumptions from conduct -------50 
 
 Presumptions from conduct as to motive - - - - - 51 
 
 Omission to produce evidence within the knowledge and power 
 
 of the party ---.----^--53 
 
 Presumptions from the course of dealing ----- ib. 
 
 Presumption as to continuance -------54 
 
 Circumstantial and presumptive evidence in general - - - 55 
 General rule that all facts are admissible which afford reasonable 
 
 inferences --.--_---- 56 
 
 Natural course of inquiry on failure of direct evidence - - ib. 
 Circumstantial evidence ..--.---57 
 To what extent admissible ------- ib. 
 
 lies hiter alios acta grounds of the rule ----- 58 
 
 Declarations by strangers ------- ib. 
 
 Acts of strangers --.--,..-59 
 Effect of the rule --.-.-.--CO 
 Does not exclude the acts and admissions of a party - - - 61 
 Or laws and customs -_--__-- ib. 
 
 Or facts which have a legal operation on the question - - ib. 
 
 Effect of the rule as to declarations, &c. ----- 62 
 
 Declarations accompanying acts, why admissible - - - ib. 
 Declarations when part of the ?-c5 //CA7!(F, how proved - - - 64
 
 COiNTENTS OF VOL. I. Ill 
 
 Page. 
 
 A recital may be evidence for some purposes although not for others 64 
 
 Collateral facts and circumstances ------ 65 
 
 Possession, ancient instruments ------ 67 
 
 Declarations admissible as explanatory evidence - - - 69 
 
 On questions of skill -------- ib. 
 
 Exclusion of i'eco?«/ar3/ evidence ------ 70 
 
 Exclusion from iwlicy -_.----- ib. 
 
 In the case of husband and wife ------ ib. 
 
 Confidential communication to a barrister, attorney, &c. - - ib. 
 Extent of the privilege - - - - - - - -71 
 
 A witness not bound to criminate himself ----- ib. 
 
 On grounds of state policy - _ - - . _ _ ib. 
 
 Of ARTIFICIAL and conventional evidence ----- 72 
 
 Records ----------73 
 
 Verdict - -• ib. 
 
 Estoppels --------- 
 
 Presumptions ---------- ib 
 
 vo 
 
 II. Of THE Instruments of Evidence, from p. 77 to p. 410, inclusive. 
 
 Oral EVIDENCE, its natural priority ------ 77 
 
 Of Witnesses ---.-----78 
 
 Compulsory jj/'ocess on witness not in custody - - - - ib. 
 
 Expenses of witness --------- ib. 
 
 Consequence of disobedience .------80 
 
 Where witness is in custody - - - " - - -81 
 
 In criminal cases ---------82 
 
 In bankru|)tcy ----------86 
 
 Proceeding where the witness cannot be procured - - - 87 
 Subpama duces tecum - - - - - - - - ib. 
 
 Writings to be produced where the production will not prejudice - 90 
 Notice to produce a deed -------- ib. 
 
 Witness, obligation of to be sworn, and give evidence - - " p^ 
 Protection of witness -------- ib. 
 
 Objection to competency -------- 92 
 
 Time of objecting -------- -ib. 
 
 Examination as to religious belief ------ 93 
 
 Infant 94 
 
 Incompetency from turpitude - - - - - " -ib. 
 
 Nature of the crime ------- -96 
 
 Proof of the conviction -------- ib. 
 
 Competency, how restored -------97 
 
 Pardon -----------98 
 
 Reversal of judgment - - - - - - " -102 
 
 Effect of disability ib. 
 
 Nature of disqualify ingi^z^ere^^ - - - ■ - - 103 
 
 Must be a legal interest - - - -- - ■ -ib. 
 
 Must be direct and certain, and not contingent or doubtful - 1 05 
 
 Doubtful interest - - - - - - - " -106 
 
 Interest in the result -------- 107 
 
 Right to share, or liability to contribute 109 
 
 Liability over 114 
 
 Interest in the record - - - - - - - -119 
 
 Verdict in criminal proceeding - ------ 121 
 
 In trover - - - - - - - " -i^- 
 
 Stat. 3&4 W.4, c. 42 1-2 
 
 a 2
 
 iv ANALYSIS OF 
 
 Page. 
 
 Witnesses — coufiitiied. 
 
 jVJiignitude of the interest- -_- - - - - -129 
 
 Time and manner of acquiring the interest - . - - - ib. 
 Neutral witness - - - - - - - - -130 
 
 Admission ex necessitate - - - - - - - -132 
 
 Agent - - - - - - - - " - -133 
 
 Party injured ---- ...--- 134 
 
 Effect of the objection with respect to secondary evidence - - ib. 
 Examination on voir dire - - - - - - -135 
 
 Proof of interest by evidence - - - - - - -136 
 
 Time of objecting - - - -137 
 
 Removal of interest - - 138 
 
 Release -------- ---ib. 
 
 Surrender - - - - - - - - - -140 
 
 Payment ---------- 141 
 
 Proof of release --------- ib. 
 
 Release, effect of- -- - . - - - -142 
 
 Interest in particular cases ------- ib. 
 
 Accomplice — expectation of pardon - - - - - - 143 
 
 Co-trespasser - - - - - - - - - -145 
 
 Agent 148 
 
 Factor ib. 
 
 Bail 150 
 
 Witness liable to costs --------ib. 
 
 Creditor ----------- 151 
 
 Competency of prosecutors - - - - - - -152 
 
 Expectation of reward -------- ib. 
 
 Devisee - - - - - - - - - - -156 
 
 Executor --_-_---.- ib. 
 
 Heir-at law - - - - - - - - - -157 
 
 Informer ----------ib. 
 
 Inhabitant ---------- ib. 
 
 Parishioner - - - - - - - - - -160 
 
 Joint interest - - - - - - - - - -161 
 
 Joint interest in subject matter ------- ib. 
 
 Legatee - - - - - - - - - - -167 
 
 Party . - ... 168 
 
 Prochein ami -.-------- ib. 
 
 Surety ----------- ib. 
 
 Trustee ----------- ib. 
 
 Vendor 169 
 
 Examination in chief; leading questions ----- ib. 
 
 When necessary .---_. ---ib. 
 When allowed - - - - ^ - - - -171 
 
 Witness as to what examinable - - - - - -173 
 
 His belief --,..__... ib. 
 Questions of skill ---.__-_- 174 
 General result - - -'- - - - - -175 
 
 Wiiness may refresh his memory ---..- ib. 
 Examination as to hearsay - - - - - - -181 
 
 Reputation -.--._.._. ib. 
 Matters of hearsay - - - - - - - - -184 
 
 Matter of confidence ----.---ib. 
 
 Cross-examination - - - - - - - - -186 
 
 Practice as to CROSS-EXAMINATION ------ i87 
 
 Leading questions - - - - - - - - -188
 
 CONTENTS OF VOL. I. V 
 
 Page. 
 
 Witnesses may be examined apart from each other - - - 188 
 Cross-examination as to collateral facts _ - - - . isg 
 How far the witness is bound to answer - - - - - 190 
 
 Cross-examination in order to discredit a witness - - - 192 
 Whether a witness must answer a question tending to disgrace him 193 
 Question to be put to warrant evidence in contradiction - - 198 
 Effect of answer on cross-examination - - - - - 199 
 
 Cross-examination as to writings ------ ib. 
 
 Re-examination of witness __---.- 208 
 Recalling witness - - - - - - - - -211 
 
 O/'efZ/^ of witness, how impeached - - - - - - ib. 
 
 By proof of declarations, &c. of the witness - - - - 2 1 2 
 
 Inquiry previous to contradiction - - - - - -213 
 
 Evidence in contradiction - - - - - - -214 
 
 A party not allowed to fZwcrefZiY his own witness - - - 215 
 
 A party when allowed to con^?-«f/«c< his own witness - - - 216 
 Evidence in co?ij^r»?a<ion of witness - - - - - -221 
 
 On appeal ---------- 222 
 
 Proof of PUBLIC DOCUMENTS in general ----- 223 
 
 How procured --------- ib. 
 
 Proof by exemplification -------- 224 
 
 Copies by authorized officers - - - - - - -225 
 
 Proof by office cofy -------- 22G 
 
 Proof of public document by a sworn copy - - - - ib. 
 
 Copy not admissible where the original is produced - - - 229 
 
 Record, &c., how proved when lost ------ ib. 
 
 Public documents, not judicial, admissibility of - - - 230 
 
 Acts of Parliament, public - - - - - - - 231 
 
 Private act of Parliament _.-.--- 232 
 
 Irish statutes 233 
 
 Recitals in acts of Parliament ------- ib. 
 
 Acts of State — Gazette --------ib. 
 
 Journals of the Lords and Commons ------ 235 
 
 Public acts of the Crown - ------- ib. 
 
 Ancient surveys under authority .--.-- 236 
 
 Inquisitions post mortem -------- 238 
 
 Terriers ----------- ib. 
 
 Proof as to place of deposit ..----. 239 
 
 Public licences — grants and certificates - - - - - 241 
 
 Certificates 242 
 
 Public registers of a parish --_---- 243 
 
 Public records of a parish ------- 245 
 
 Parish books ---------- ib. 
 
 Books of public offices .------- 247 
 
 Poll books 248 
 
 Prison books ---------- ib. 
 
 Chancellor's book -- ib. 
 
 Books of clerk of the peace ------- ib. 
 
 Ships' registers --------- ib. 
 
 Heralds' books - - 249 
 
 Official documents --------- 250 
 
 Commissioners' books --------ib. 
 
 Public histories and chronicles ------ ib. 
 
 Public documents, how proved - - - - - -251 
 
 a 3
 
 VI ANALYSIS OF 
 
 Judgments, &c., general principles of admissibility - - - 252 
 
 Conclusive, when _.----.-- 253 
 
 Judr^nient in rem -.------- 254 
 
 Judgment evidence as a fact, and as to all legal consequences - 255 
 
 Judgment in matter of private litigation . - - - - 256 
 
 Identity of parties --------- 257 
 
 Must be against a party or privy ------ ib. 
 
 Those claiming in priority _.-._-. 258 
 
 Against one who might have been a party ----- 260 
 
 Want of mutuality - - - - - - - - -261 
 
 Verdict in civil proceeding, whether evidence in a criminal case - ib. 
 
 Verdict between private parties ------ 262 
 
 Identity of cause of action -__.-.- 263 
 
 Identity of the fact --------- 264 
 
 ifcfa/Mier q/" the adjudication ------- 265 
 
 Application of the judgment in proof ----- 268 
 
 j^jf^/^bci of a judgment --_--._- 269 
 When conclusive - - - - ■: - - - -270 
 
 Fo7-eign judgments, when conclusive ------ ib. 
 
 How far examinable --..---- 276 
 
 Judgments of inferior courts, how far examinable - - - 277 
 
 In private matters, conclusive effect of - - - - - ib. 
 
 Verdicts and judgments in erwir/mZ cases, admissibility of - - 278 
 
 Verdict in criminal case not evidence in civil action - - - 280 
 
 Judgment in criminal cases, effect of in evidence - - - 281 
 
 A penal judgment conclusive as to all legal consequences - . - 282 
 
 Judgments and convictions in inferior courts - - - - 283 
 
 Convictions by justices --..----ib. 
 
 Sentences by colleges and visitors ------ 285 
 
 Judgments in rem, general principles ----- ib. 
 
 Of the ordinary and spiritual court ------ 287 
 
 Sentence of a spiritual court ------- 290 
 
 Of condemnations in the Exchequer - . _ - - ib. 
 
 Admiralty decisions --__---- 292 
 
 Proof of foreign laws --_-_--- 294 
 
 Judgment in quo warranto -_.---- 295 
 
 Conclusive against parties, when ------ 296 
 
 To prove custom, ^-c. --____-- ib. 
 
 Proof of judgments, verdicts, &c. ------ 297 
 
 of a decree in Chancery ------- 300 
 
 Sentences of spiritual courts ------- ib. 
 
 Judgment of an inferior court ------- 303 
 
 Proof of convictions by justices of the peace - - - - ib. 
 
 Of an award ---.----.- 304 
 
 Of a foreign judgment --._-. --ib. 
 
 IIo7v rebutted -----.._-- 305 
 
 Inquisitions when admissible - - 307 
 
 Inquisition of lunacy --..-.-- 309 
 Depositions when admissible - - - - - - -310 
 
 Witness must be dead or absent ------- ib. 
 
 Identity of parties --.-_._-- 312 
 Identity of subject-matter - - - - - - - -313 
 
 Priority of claim ----_._.. 314 
 
 In a legal proceeding ---....-ib. 
 
 Power to cross-examine - - - - - - - -316
 
 CONTENTS OP VOL. I. vil 
 
 PaL'e. 
 
 Depositions when evidence to prove reputation - - - - 319 
 
 Depositions of witnesses resident abroad . - - . - 320 
 India, examination of witnesses in ------ 321 
 
 Bill to perpetuate testimony ------- 322 
 
 General provisions of the statute 1 Will. 4, c. 22 - - - - 323 
 
 Examination under the statute 1 Will. 4, c. 22 - - - - 324 
 
 Existence of a lawful cause ------- 325 
 
 Identity of deponent ------._ 326 
 
 Proof by copy, &c. ---------ib. 
 
 Writit, warra.nts, cj'r., when evidence ------ 328 
 
 For what purposes admissible ------- ib. 
 
 Effect of the writ in evidence - - - ^ - - - 329 
 Sheriff's return on a writ -------- 330 
 
 Writs, PROOF of ----_.-__ ib, 
 
 JBillin equity, vf\\en evidiewce - - - - - - -331 
 
 Answer in Chancery, when evidence ------ 332 
 
 When admissible --------- 333 
 
 The whole of an answer is evidence ---..-- 334 
 Proof of bill and answer -----.--- 336 
 
 Affidavits 337 
 
 Pleadings in an action at law ------- ib. 
 
 Protestations ---------- 338 
 
 Mixed documents - - - - - - - - -ib. 
 
 Court rolls -- 339 
 
 Corporation books --..-.--- 340 
 Books of public companies, &c. - - - - - -341 
 
 Proof of corporation books ------- ib. 
 
 Private roritings - - - - - - - - -343 
 
 Express admissions by a party ------- ib. 
 
 Estopi^el to be pleaded, when ------- 344 
 
 Privies hound by estoppel - - - - - - - -345 
 
 The sense of contracts not to be altered by parol evidence - - ib. 
 Entry by third person ^dim.\?,'&\h\e, \v\\en ~ - - - -346 
 
 Entry or declaration accompanying an act - - - - - 351 
 
 Title deeds ---------- 353 
 
 Surveys and maps -------- -ib. 
 
 Ancient deeds, maps, &c. -------- 355 
 
 lEtntries made against the interest of the Tparty - - - - ib. 
 
 Entries by persons since deceased against their interest - - 356 
 Entries by receivers, stewards, &c. charging themselves - - 357 
 By agents in the course of trade ------ 359 
 
 Entry in the usual course of professional business - - - 302 
 
 Entry by a rector -,--.---- 364 
 
 Declarations by tenants since deceased ----- 305 
 
 Proof of private instruments ------- 368 
 
 Production ---------- ib. 
 
 Stamp 370 
 
 Proof by attesting witness ------- ib. 
 
 Proof of the sea/m^ of a deed ------- 372 
 
 Proof by one of several attesting witnesses - - _ - 373 
 
 State of the instrument -------- 374 
 
 Proof on denial by subscribing witness ----- ib. 
 
 Excuse for the absence of the subscribing witness . - - 375 
 <Secowf/a?'?/ ^roo/" in the absence of the attesting witness - - 379 
 Proof of, when 30 years old - - - - - - -381 
 
 Proof as to custody of ancient documents ----- 383 
 
 a 4
 
 Vlll ANALYSIS OF 
 
 Page. 
 Proof where there is no attesting witness ----- 386* 
 
 Proof of, in ease of /o55 -------- 387 
 
 Evidence of search --------- 388 
 
 Evidence of execution -------- 393 
 
 Proof by secondary evidence ------- ib. 
 
 Of a letter copied by a clerk ------- 396 
 
 Secondary evidence _.--_--- 397 
 
 Of an instrument when in ihe possession of the adversary - - 398 
 Notice to produce the deed, &c. _--_-_ 400 
 
 Proof of notice to produce -----.- 402 
 
 When unnecessary --------- 403 
 
 Proof of deed coming from the adversary's possession - - 405 
 
 V roof of, hy admission -------- 409 
 
 Proof of, by wro/wewi - - - - - - - -410 
 
 Deed to lead the uses of a fine - - - - - - -413 
 
 Recital in a deed --------- ib. 
 
 An intrinsic objection will not preclude the reading - - - ib. 
 The 7vhoIe of an entire document to be read - - - .414 
 Jury to judge of the credit due to the whole, or part - - 410 
 
 III. Of Proofs - - " 417 
 
 General division - - - - - - - - -ib. 
 
 Onus probandi --------- ib. 
 
 Where the negative involves a criminal omission - - - 421 
 
 Where the law presumes the affirmative - - - _ - 422 
 
 Arguments of counsel -------- ib. 
 
 Orf/er o/j^jroo/" where there are several issues - - - - 424 
 
 As to damages -------__ 426 
 
 Justification ---..---». 427 
 
 Appeal ----.----_- 428 
 
 Statement of counsel as to the cause of action - - . - 430 
 
 Evidence must be relevant ------- ib. 
 
 Must correspond with the allegations ------ ib. 
 
 General principles - - - - - - - - -431 
 
 Mere surplusage -------.. 432 
 
 Partial proof --------__ ib. 
 
 Descriptive allegation .-._.-__ 433 
 
 Redundant proof -..-.-.-._ 435 
 
 General inference --------- 436 
 
 Surplusage -----_--__ jb. 
 
 Cumulative allegations ---. .--- 433 
 
 Proof of ^ar^ ----_,-_.._ ib. 
 
 Aggravation --.--_-__» 439 
 
 Omission to prove the whole damage 440 
 
 Number, magnitude, extent ib. 
 
 Sums, &c. - - - - . _ - . _ -441 
 
 Divisibility of averments . - . _ . - _ 442 
 
 Distinction between matters of substance and of description - 443 
 
 Descriptive allegations cannot be rejected - - - - - ib. 
 
 Sums, magnitudes, &c. -----_.- 445 
 
 AllegSitions, when descriptive - -446 
 
 Contract -----..--- 447 
 Prescription - - - - - _ - - - -448 
 
 Actions of tort ----__.-- ib. 
 
 Character --.---_.-. 4,30
 
 CONTENTS OF VOL. I. IX 
 
 Page. 
 
 Title 4p0 
 
 Inducement ---------- ib. 
 
 Formal by lam 451 
 
 Mode of allegation 454 
 
 Videlicet, effect of - ib. 
 
 Partial proof insufficient, when - ------ 456 
 
 Excess of proof, when material ------ ib. 
 
 Contract " 459 
 
 Excess of proof not available to increase the damages - - 461 
 
 Proof of legal effect always sufficient ib. 
 
 Proof of allegation of tenor __----- 463 
 
 Proof of allegations of time ------- ib. 
 
 Place 465 
 
 Name 470 
 
 Misnomer ._.------- ib. 
 
 Of persons - - - - - - - - - -471 
 
 Character ---------- 473 
 
 Act il^- 
 
 Parties ib- 
 
 Consequence ---------- 475 
 
 Agent ..--- 476 
 
 Number of parties - ib. 
 
 Motives and intention - - - - - - ~ -477 
 
 Written instrument --------- ib. 
 
 When alleged according to legal effect . _ - - - 479 
 Variance from legal effect - - - «• - - -484 
 
 Writing vouched by date, &c. - - - , _ _ . 486 
 
 By name .-.------- 488 
 
 Sums - - ■ . ■ . * " ^?*^ 
 
 An estoppel excludes objections as to variance, when - - - ib. 
 Variance where the writing is used as mere evidence - - ib. 
 
 Description of judgments, process, &c. ----- 492 
 Description of courts, process, &c. ------ ib. 
 
 Action -- _---ib. 
 
 Money - - 493 
 
 Description of things --------ib. 
 
 Reconcilement of variance by averment ----- 494 
 
 Amemlmeiit -.-------- 497 
 
 What matters admitted by the pleadings ----- 499 
 
 Quality of evidence -------- 500 
 
 The best evidence must be adduced ------ ib. 
 
 The rule is of a comparative nature - - - - - -501 
 
 In what cases the rule applies ------- ib. 
 
 The rule does not exclude evidence when superior evidence fails - 502 
 Or is unattainable --------- ib. 
 
 Or where no presumption of fraud arises from the substitution - 503 
 Nor in case of an admission - - - - - - - ib. 
 
 A collateral writing does not exclude oral evidence - - - 504 
 Oral evidence of a contract, when excluded _ - - - 505 
 Distinction between secondary and defective evidence - - ib. 
 
 Quantity AND MEASURE of evidence - ----- 506 
 
 Matters judicially noticed ------- 507 
 
 Legal presumptions -„------ 509 
 
 Questions of law - - - - - - - --610 
 
 In special verdicts the jury must ^nd facts, and not mere evidence 511
 
 X- ANALYSIS OF 
 
 Page. 
 
 Law and fact ___------ 512 
 
 General distinction between questions of law and of fact - - 613 
 
 Instances of reaaonnhle time, &c - - - - - - ib. 
 
 General terms involve questions of lam as well as of fact - - 51G 
 
 Reasonable time, when a ctuestion of law, when of fact - - 517 
 
 Notice of dishonour of bill of exchange ib. 
 
 Reasonable time, &c. when a question of fact - - - - 518 
 
 Standard of comparison in the absence of a legal rule - - ib. 
 Reasonable time, &c. is not in the abstract a question of rnere law 
 or w^re fact - - - - - - - - - -519 
 
 Mixed questions of law and fact -_-._- ib. 
 Reasonable time - - - - - - - - -521 
 
 Probable cause .---.---. 522 
 
 Fraud 523 
 
 Malice and intention -...__.- 524 
 
 Negligence, &c. .---.. ^ - - ib. 
 
 Construction of written documents ------ 525 
 
 Collateral matters of law -------- 526 
 
 JBill of exceptions ---. _- ---ib. 
 
 Form" of the bill . - . - - - . . 528 
 
 Course of proceeding upon it------- 529 
 
 Devmrrer to evidence -------- 530 
 
 New trial 531 
 
 Mistake or misdirection of the Judge ----- 532 
 
 Misdirection, waiver of-------- 533 
 
 New trial not granted on an objection not taken at the trial - ib. 
 
 Mistake or misunderstanding of the jury ----- ib. 
 
 Practice as to nonsuits -------- 535 
 
 Charge to juries --. 537 
 
 Province of juries to wei(jh j)robabiUties ----- 539 
 
 Juries, how far limited by law ------- 540 
 
 Juries bound by legal rules ------- 542 
 
 Degrees of evidence - - - - - - - -54S 
 
 Mere preponderance -------- ib, 
 
 JPf'ima facie and conclusive evidence - - _ . . 544 
 
 Direct evidence ------._- 545 
 
 Integrity of witnesses -------- ib. 
 
 Influence -...------ 546 
 
 Manner of the witness -.------ 547 
 
 Ability of witnesses -._ 543 
 
 Number of witnesses .-_-.--. 550 
 Consistency of testimony - - - - - - - -551 
 
 Effect of inconsistency ^- ------- 552 
 
 Partial variances --------- ib. 
 
 Aggregate force -----.--_ 553 
 
 Conformity with experience --.--__ 554 
 
 Conformity with circumstances .-..-- 553 
 
 Grounds of circmnsta?itial proof ..---. 559 
 
 Coincidence between the fects and the hypothesis - - - 561 
 
 Moral coincidences --------- 563 
 
 Conduct and intention .--.---- g65 
 
 Coincidences from ordinary experience ----- ggg 
 
 Absence of evidence tending to a different conclusion - - 567 
 
 Dependent and independent circumstances ----- ib. 
 
 Force of concurrinff proliabilities ------ 568
 
 CONTENTS OF VOL. I. XI 
 
 Basis of circums1;ances - - - - - - - -571 
 
 Number of circumstances - - - - - - - -571 
 
 False circumstances - - - - - - - - - ib. 
 
 Conclusive tendency - - - - - - - -573 
 
 Exclusion to a moral certainty - - - - - - -575 
 
 The corpus delicti must be proved ------ ib. 
 
 Inquiry as to other hypotheses - - - - - - -576 
 
 To the exclusion of all reasonable doubt ----- 577 
 
 Circumstantial evidence ought not to supersede direct evidence - 578 
 Observations on conflicting evidence ------ ii). 
 
 Conflicting testimony -------- ib. 
 
 Positive and negative testimony .-_-.- 579 
 
 Demeanor of the witnesses ----._. sgo 
 
 Consistency of testimony and comparison with circumstances - ib. 
 With written documents --------ib. 
 
 Total rejection of testimony --_-.__ ggS 
 Comparison of direct with circumstantial evidence - - - 534 
 Consistency of positive testimony with circumstances , - - 586 
 Conflict in circumstances -------- ib. 
 
 Rejection of circumstances inconsistent with those which are fully 
 established ---------- 537 
 
 Fraud in circumstances -------- ib. 
 
 Conflict of established circumstances - - . . _ 533
 
 TABLE OF CASES CITED. 
 
 Aaron v. Alexander, iU. 1120 
 Abbot r. Hendrickes, app- ii. iii. 1369 
 
 V. Briiere, ii. 565 
 
 V. Burbage, ii. 139 
 
 V. Hicks, app. ii. iii. 1367 
 
 V. Massey, iii. 754. 785 
 
 V. Parson, i. 532 
 
 V. Plumb, i. 369. 371. 504. ii. 25. 149 
 
 V. Porafret, ii. 142 
 
 Abbotts V. Barry, ii. 84. iii. 1204 
 Abby u. Lill, i. 175. iii. 900 
 Abel V. Potts, i. 247. iii. 879 
 
 V. Sutton, iii. 811 
 
 Abell V. Daniell, ii. 140 
 Abercrombie v. Hickman, ii. 349 
 
 V. Parkhurst, iii. 970 
 
 Abernethy's case, iii. 941 
 
 Abignye v. Clifton, i. 242 
 
 Abington v. Lipscombe, app. ii. iii. 1581 
 
 Abitbol V. Benedetto, i. 471 
 
 V. Bristow, i. 464. iii. 874. 876 
 
 Abney v. Wallace, i. 478 
 
 Abraham v. Bunn, i, 106. 119. 153. iii. 
 
 1187 
 
 V. Du Bois, ii. 257. iii. 1047 
 
 V. George, ii. 148. 167. 173 
 
 V. Newton, i. 323 
 
 Abrahat's case, ii. 611 
 
 Absalon v. Auderton, i. 371 
 
 Abson V. Feuton, iii. 1256 
 
 Acebal v. Levy, ii. 490, 491, 492 iii. 1201 
 
 Acerro v. Petroni, i. 173 
 
 Acey V. Fernie, app. ii. iii. 1526 
 
 Acheson v. Fountain, ii. 218. 361 
 
 Ackerley v. Parkinson, i. 305 
 
 Ackworth v. Kempe, i. 298. 329. iii. 1029, 
 
 1030 
 Acland v. Pearce, ii. 228. 417. iii. 731 
 A'Court v. Cross, ii. 670 
 Adam v. Duncalfe, i. 484 
 
 V. Gibnev, ii. 343. 346 
 
 V. Kerr,"i. 373. 376. 380 
 
 V. Richards, iii. 1220. 1241 
 
 V. Savage, ii. 442 
 
 V. Wilkinson, ii. 196. iii. 1269 
 
 Adams ats. ii. 244. iii. 729 
 
 V. Bankart, iii. 809 
 
 v. Bateson, ii. 268 
 
 V. Binglev, ii. 251 
 
 V. Broughton, iii. 959. 1166. 11 68 
 
 V. Cannon, i. 173 
 
 V. Dansey, ii. 478. iii. 821 
 
 V. Davis, i. 118 
 
 i\ Fairbain, iii. 1036. 1194 
 
 i\ Garrard, app. i. 596. 
 
 Adams v. Hewitt, iii. 1083 
 
 V. Kelly, ii. 622. 625 
 
 V. Lindsell, iii. 1197. 1219 
 
 V. Lingard, ii. 257 
 
 V. Maikin, ii. 127. 193 
 
 V. Oakes, ii. 216 
 
 — — V. Power, i. 496 
 
 V. Sanders, iii. 882 
 
 V. Savage (Terre-tenants of), i. 509. 
 
 ii. 201. 439 
 
 i\ Woodley, iii. 759 
 
 Adams's case, ii. 608. 691 
 Adamson v. Jarvis, app. ii. iii. 1383 
 Adamthwaite v. Singe, i. 229. 304. 414 
 Adderley v. Hart, i. 449 
 Addin v. Round, iii. 1161 
 Addington v. Clode, iii. 946 
 Addison v. Gandaseqni, iii. 1198 
 
 V. Overend, iii. 800. 1165 
 
 V. Round, app. ii. iii. 1437 
 
 Addy v. Grix, iii. 1262. 1290 
 
 Adeane v. Mortlock, app. ii. iii. 1441 
 
 Adey i'. Bridges, i. 415. iii. 1015 
 
 Adey's case, ii. 553 
 
 Adlard v. Booth, app. ii. iii. 1595 
 
 Adney, Ex parte, ii. 185. 478 
 
 Afflalo V. Fourdrinier, i. 110. 401. iii. 799. 
 
 App. ii. iii. 1512 
 African Comp. v. Langdon, ii. 73 
 Agar V. Blethyn, app. ii. iii. 1438 
 
 V. Craven, ii. 627 
 
 V. Morgan, ii. 582. iii. 1117 
 
 Agg V. Davies, ii. 701 
 Agray's (Dr.) case, i. 471 
 Aguttar V. Moses, ii. 212 
 Aicheson v. Sharland, iii. 1054 
 Aicles's case, ii. 403 
 Ailesbury's (Lord) case, iii. 1266 
 Aitcheson v. Maddock, 1. 421. ii. 113 
 Aitken v. Bedwell, iii. 1109 
 
 Ex parte, app. ii. iii. 1381 
 
 Aitkenhead v. Blades, iii. 1104. 1108. 
 
 1138. 1142 
 Aked V. Stocks, ii. 582 
 Akers v. Thornton, iii. 893 
 Alban v. Pritchett, ii. 32. 455. 554 
 Alchorne v. Gomme, iii. 973 
 Alcock If. Andrews, ii. 583. 600 
 
 15. Cooke, i. 236. iii. 915 
 
 V. Taylor, app. ii. iii. 1338 
 
 V. Whatmore, app. i. 635 
 
 Alcorn v. Westbrooke, i. 479 
 Alder r. Savill, iii. 12.30 
 Alderman v. Neate, ajip. ii. iii. 1588 
 Alderson v. Clay, iii. 804 
 V. Langdale, ii. 265
 
 XIV 
 
 T A B L E O F CAS V. S. 
 
 Alderson r. Popo, iii. 807 
 
 V. Tfinplo, ii. 142 
 
 Aldred's case, iii. 742 
 Aldridge v. ISell, iii. 881 
 
 V. Ewcn, iii. 1056 
 
 V. Haines, iii. 1140 
 
 • V. Ireland, ii. 133 
 
 i\ Locke, iii. 1009. 
 
 JSx parte, ii. o8o 
 
 Alexander v. Barker, i. 536 
 
 V. Bonner, iii. 1102 
 
 V. Brown, ii. 26 
 
 ■ V. Comber, ii. 487. iii. 1201. 1222 
 
 V. Gardner, iii. 1202 
 
 V. Gibson, i. 216. ii. 30. iii. 1240 
 
 V. Macauley, ii. 113. iii. 1014 
 
 i\ Southey, iii. 1162 
 
 V. Vane, ii. 75 
 
 Alibrd V. Green, iii. 785. 1273 
 
 Alger V. HefFord, ii. 648 
 
 Alison r. Furnival, i. 275. 304. 392. 394 
 
 Allam V. Heber, ii. 519 
 
 Allan V. Brownsall, iii. 1253 
 
 V. Gomme, app. ii. iii. idll 
 
 V. Gripper, ii. 164 
 
 V. Mawson, ii. 213. 222 
 
 Allanson v. Atkinson, ii. 169 
 AlKlred v. Halliwell, i. 430. iii. 850 
 Alldriff r. Kettridge, ii. 123 
 Allen, Ann, in the goods of, app. ii. iii. 
 1617 
 
 V. Allen, iii. 1246 
 
 V. Ayre, ii. 533 
 
 V. Bennett, ii. 485. 491, 492 
 
 V. Cameron, iii. 1209 
 
 w. Cook, ii. 98 
 
 V, Denstone, app. i. 614. ii. iii. 1322 
 
 • V. Dundas, i. 288. 307. ii. 443 
 
 V. Flicker, app. ii. iii. 1400 
 
 I'. Hartley, ii. 20. 123 
 
 ■ V. Heani, iii. 1233 
 
 V. Impett, ii. 82. iii. 1173 
 
 V. Keevts, iii. 1044 
 
 V. M'Phardu, app. i. 594 
 
 • V. Morrison, iii. 1053 
 
 V. Ormond, ii. 522. iii 747. 1257 
 
 V. Pink, app. ii. iii. 1604 
 
 ■ V. Rivingti'n, ii. 405 
 
 V. Sugrue, iii. 881 
 
 ■■ V. Waldegrave, iii. 1301 
 
 V. Wright, app. ii iii. 1577 
 
 Allen's case, i.601. ii. 458 
 Allesbrook v. Roach, ii. 516, 517 
 Allibone v. Attorney-general, i. 313 
 Allies V. Probyn, app. ii. iii. 1316 
 Aliington v. Bearcroft, i. 167 
 Allison V. Rayner, ii. 561 
 Allnutt V. Pott, ii. 522 
 AUott V. Wilkinson, iii. 1091 
 Allpass V. VVatkins, iii. 1191 
 Allport V. Meek, ii. 203 
 Allwood V. Henckell, iii. 881 
 Almon, (The), app. ii. iii. 1622 
 Alner v. George, iii. 954, 955 
 Alsager v. Spalding, app. ii. iii. 1427 
 Alsept V. Eyles, iii. 1022 
 Alsop V. Bowtrell, ii. 302 
 
 V. Brown, ii. 188 
 
 V. Milton, ii. 93 
 
 V- Stoney, ii. 199 
 
 Alston V. Atlay, app. ii. iii, 1568. 
 
 V. Mills, app. ii. iii. 1504 
 
 V. Scales, ii. 523 
 
 V. Underhill, ii. 109 
 
 Alt (The), app. ii. iii. 1495. 
 
 Althani (Lord) v. Anglesea (Lord), i. 311. 
 
 iii. 783 
 Alves V. Bunbury, i. 304 
 V. Hodgson, ii. 254. 264. iii. 1037. 
 
 1047. 1057. 
 Ambrose v. Clendon, ii. 131, 132. 134. 148. 
 
 193, 194 
 
 V. Hopwood, ii. 210 
 
 V. Roe, ii. 107 
 
 Ames V. Hill, iii. 10.36. 1040. 1040. 1053 
 Amey i\ Long, i. 87, 88. 489 
 Amherst (Lord) v. Somers (Lord), ii. 589 
 Amitie v. Villeneuve (case of the), i. 104 
 Araner v. Clarke, iii. 1043. 
 Amor V. Fearon, app. ii, iii. 1624 
 Amory v. Merreyweather, 1. 464. ii. 61 
 Amos V. Hughes, i. 418 
 Ancaster v. Milling, iii. 1137 
 Anderdon v. Burrows, iii. 1140 
 Anderson v. Arrowsmith, ii. 577 
 
 V. Beck, ii. 222 
 
 V. Buckton, iii. 1115 
 
 V. Hamilton, i. 72. 184 
 
 V. Hayman, ii. 477 
 
 V. Hodgson, ii. 489. iii. 1206 
 
 V. May, i. 369. 404. ii. 108. 110, 111. 
 
 iii. 731 
 
 V. Pasman , app. ii. iii. 1399 
 
 V. Pitcher, iii. 779. 781 
 
 V. Sanderson, ii. 32. 43. G63 
 
 V. Scott, ii. 488 
 
 V. Shaw, i. 536 
 
 I". W^allis, iii. 880, 881 
 
 V. Weston, iii. 1080 
 
 Anderton v. Magawley, i. 310 
 Andre v. Fletcher, ii. 96 
 Andrew v. Robinson, ii. 82 
 Andrews v. Askey, iii. 990,991 
 
 V. Beaucliamp, i. 312 
 
 V. Dixon, iii. 1027 
 
 V. Drever, app. ii. iii. 1567 
 
 (\ Emmett, iii. 771 
 
 i\ Heme, iii. 1233 
 
 r. Marris, app. ii. iii. 1575 
 
 V. Palmer, ii. 1 18 
 
 V. Palsgrave,.iii. 829 
 
 V. Pledger, ii. 564 
 
 V. Russell, ii. 393 
 
 v. Smith, app. ii. iii. 1429 
 
 -E'.x' parte, ii. 648 
 
 Angell V. Angell, i. 323 
 
 Anglesea case, iii. 838 
 
 Anglesea (Marquis of) v. Chafey, ii. 578 
 
 Angus V. Smith, i. 213 
 
 Ankerstein v. Clarke, i. 480 
 
 Annandale (March* of) v. Harris, ii. 21 
 
 Annaudale v. Pattison, iii. 1053 
 
 Annen v Woodman, iii. 889 
 
 Annesley v. Anglesea (Earl of), ii. 322, 323. 
 
 434, 436, 436 
 Anonymous, i. 232. 491. ii. 10. 271.300. 
 
 434, 435. 449. iii. 751. 766. 8-JO. 962. 
 
 1052. 1261. 1269. app. ii. iii. 1457. 1579 
 Anscomb r. Shore, i. 120, 121. ii. 86. 319. 
 
 390
 
 TABLE OF CASES. 
 
 XV 
 
 Ansell V. Ansell, ii. 665 
 
 V. Waterhouse, ii. 2, 285 
 
 Ansley v. Birch, i. 87 
 
 Anstey v. Dowsing, i. 134. 139, 140 
 
 V. Manners, ii. 548 
 
 V. Marden, ii. 479 
 
 Anthony v. Seger, app. ii. iii. 1601 
 Antoine v. Morsliead, ii. 247 
 Antram i'. Chase, ii. 116. 150 
 Anworth v. Jolmson, iii. 1245 
 Apothecaries' Company v. Allen, ii. 48 
 
 V. Bentley, app. ii. iii. 1519 
 
 V. Collins, ii. 47 
 
 V. Fernyhough, iii. 1055 
 
 V. Greenough, app. ii. iii. 1325 
 
 V. Greenwood, ii. 48 
 
 V. Roby, ii. 47 
 
 V. Warburton, ii. 48 
 
 Appleton V. Binks, ii. 46 
 
 V. Braybrooke (Lord), i. 225, 226. 304. 
 
 340 
 
 V. Campbell, iii. 1184 
 
 Appotun V. Dunswell, ii. 369 
 Arbouin v. Tritton, ii. 177. 179 
 
 V. Williams, ii. 154 
 
 V. Willoughby, i. 458. 471 
 
 Archangelo v. Thompson, iii. 875. 879. 900 
 Arcbard r. Hornor, iii. 1297. app. ii. iii. 
 1621 
 
 Archer i'. Bamford, ii. 243. iii. 1213 
 
 V. English, app. ii. iii. 1516 
 
 V. Hall, iii. 1024 
 
 V. Marsh, ii. 351 
 
 V. Walker, app. ii. iii. 1517 
 
 Archer's case, ii. 459 
 
 Arden c. Sharp, iii. 810 
 V. Tucker, ii. 107 
 
 r. Watkins, ii. 244 
 
 & Somerville's cases, ii. 548 
 
 Ardincaple (The), iii. 1300 
 
 Arding i'. Flower, i. 91 
 
 Argent v. Durant, iii. 1118 
 
 Argyle i'. Hunt, i. 508 
 
 Aris V. Stukeley, ii. 83, 84 
 
 Arkwrightr. Cautrell, app. ii. iii. 1497 
 
 V. Gell, iii. 1251 
 
 Arlett V. Ellis, ii. 319. 358. iii. 1129, 1130. 
 1142 
 
 Arlington (Lord) v. Merrick, iii. 966. 1067 
 
 Armfield v. Burgin, app. ii. iii. 1516, 1517 
 
 Armistead, £Jxpa7'te, ii. 165 
 
 Armit v. Breame, iii. 761 
 
 Armitage v. Berry, iii. 1043 
 
 V. Horner, iii. 807 
 
 V. Winterbottom, app. ii. iii. 1527 
 
 Armory v. Delamirie, i. 544. iii. 900. 1153 
 
 Armstrong v. Hewett, i. 2.39. iii. 1082 
 
 r. Jordan, ii. 107 
 
 V. Lisle, i. 99 
 
 Armstrong's case, ii. 612 
 
 Arntield v. Bate, i. 455. ii. 63 
 
 A mitt V. Garnett, iii. 1027 
 
 Arnold v. Bath and Wells (Bishop of), 
 i. 245. ii. 358. iii. 943 
 
 V. Revoult, i. 461. 480. ii. 534 
 
 Arnold's case, iii. 1278 
 
 Arnott V. Redfern, i. 273. 276. ii. 575. 577. 
 579 
 
 Arnsby v. Woodward, ii. 425 
 
 Arrowsmith i;. Barford, ii. 110 
 
 Arrowsmith v. Le Mesurier, ii. 091. iii. 
 
 1113 
 Artaza v. Smallpiece, iii. 1300 
 Arthur v. Barton, app. ii. iii. 1334 
 Arundel (Mayor of) v. Holmes, app. ii. iii. 
 
 1448 
 Arundel r. White, i. 303. ii. 686. 688 
 Arundel's (Lord) case, iii. 1091 
 Arundell v. Falmouth (Lord), i. 339 
 Ashbee v. Pidduck, app. ii. iii. 1374 
 Ashby t'. Ashby, ii. 98 
 
 V. Power, i. 334. iii. 1089 
 
 V. White, iii. 1032 
 
 Ashcombe's case, iii. 827, 828 
 
 Ashey v. Minett, iii. 1030 
 
 Ashford V. Price, ii. 45, 46. 107. 112 
 
 Ashley v. Ashley, ii. 444. app. ii. iii. 1593 
 
 V. Bayley, iii. 732 
 
 V. Freckleton, iii. 865 
 
 V. Harrison, ii. 299. 637, 638 
 
 V. Kell,ii. 182 
 
 v. Killick, app. ii. iii. 1447 
 
 Ashley's (Sir Anthony) case, i. 523. ii. 604. 
 682 
 
 Ashlin V. White, li. 373 
 
 Ashmead v. Ranger, iii. 1101 
 
 Ashmore i\ Handy, app. i. 626. ii. iii- 
 1402 
 
 Ashton V. Freestone, app. ii. iii. 1536 
 
 V. Longes, i. 131. ii. 253 iii. 1067 
 
 V. Poynter, ii. 118 
 
 V. Seal, iii. 978 
 
 Ashton's case, app. ii. iii. 1395 
 
 Askew V. Wilkinson, iii. 1087 
 
 Aslin t'. Parkin, i. 258. ii. 432. 434, 435, 
 436 
 
 Aspinal v. Kerapson, ii. 406. iii. 917 
 
 V. Pickford, ii. 648 
 
 Astey V. Emery, ii. 489 
 
 Astle V. Thomas, ii. 309 
 
 Astley V. Mills, iii. 783 
 
 V. Reynolds, ii. 85. 344. 649 
 
 V. Weldon, iii. 852, 853 
 
 r. Young, ii. 571. 638,639 
 
 Aston V. George, ii. 118 
 
 V. Heaven, ii. 295. iii. 728. 736 
 
 V. Perkes, app. i. 625 
 
 Athe V. Backhouse, ii. 85 
 
 Athea's case, app. ii. iii. 1431 
 
 Atherfold v. Beard, ii. 570. iii. 1233, 1234 
 
 Athol (Duke of) v. Ashburnham (Lord), 
 iii. 835 
 
 Atkil V. Corbet, ii. 505 
 
 Atkin V. Acton, iii. 1070. 1304 
 
 Atkins V. Banwell, ii. 70, seel q. 
 
 V. Barwick, ii. 161 
 
 V. Curwood, ii. 544 
 
 V. Drake, i. 241 
 
 V. Ellis, i. 369 
 
 V. Hatton, i. 239. 241. iii. lOOO 
 
 ■ V. Hill, app. ii. iii. 1416 
 
 V. Humphreys, i. 312 
 
 r. Kilby, app. ii. iii. 1455, 145G 
 
 V. Meredith, i. 401 
 
 V. Owen, i. 392 
 
 1-. Palmer, i. 321, 322 
 
 • V. Seward, ii. 143 
 
 V. Tredgold, ii. 30. 670 
 
 V. Watson, i. 239 
 
 •Atkinson, Ex parte, app. ii. iii. 1346
 
 XVI 
 
 '1' A Ji L E OF CASE S. 
 
 Atkinson r. AtkiiiM))!, i. 8!) 
 
 V. Bell, iii. 1148. 1201. 1297. 1302 
 
 V. IJriiulall, ii. 141. 505 
 
 V. Ciirter, i. 401. ii. 482. iii. 10G3 
 
 V. Coatswortli, i. 400 
 
 V. Elliott, ii. 1 78. iii. 993 
 
 V. Fell, iii. 1040 
 
 V. Ilawdon, app. ii. iii. 1371 
 
 V. Laing, iii. 804 
 
 V. Maling, ii. 159, 160 
 
 w. Matteson, iii. 1015. 1104. 11.33. 
 
 1142 
 
 V. Owen, ii. 81 
 
 i\ Pierjioint, iii. 1181 
 
 V. Teasdale, ii. 316, 317 
 
 V. Thornton, ii. 106 
 
 V. Warne, i. 427. iii. 1132. 1139 
 
 -Ea? parte, iii. 1061 
 
 Atkinson's case, ii. 318. 456. 611. 691 
 
 Atkyns v. Amber, iii. 995. 1198 
 
 V. Batten, iii. 1196 
 
 V. Horde, ii. 404 
 
 Atlee V. Backhouse, app. ii. iii. 1334 
 
 Attersol v. Briant, iii. 1157. 1160. 1162 
 
 Attorney-general v. Baliol College, Oxford, 
 iii. 1214 
 
 V. Bell, app. ii. iii. 1520 
 
 V. Bond, app. i. 593. 622 
 
 V. Bowens, ii. 442 
 
 • i\ Bowman, ii. 304 
 
 V. Bulpit, i. 188 
 
 V. Case, iii. 739 
 
 ■ V. Catt, app. ii. iii. 1600 
 
 V. Cockerel! (Sir C), iii. 1035 
 
 ■ V. Davison, i. 316 
 
 V. Farris, iii. 848 
 
 V. Fullarton, ii. 696 
 
 V. Gauutlett, ii. 319 
 
 V. Gibbs,iii. 1247 
 
 V. Goode, ii. 137 
 
 V. Griffiths, i. 310 
 
 V. Hawkes, i. 473. 
 
 V. Holford, iii. 1035 
 
 ' V. Horton, i. 479 
 
 V. Hotham (Lord), i. 305. ii. 585 
 
 V. Key, app. ii. iii. 1520 
 
 ■ V. King, i. 291 
 
 V. Le Merchant, i. 400. 408. ii. 418. 
 
 iii. 731 
 
 r. Newbury Corporation, iii. 1073 
 
 V. Norwich (Mayor, &c.) app. ii. iii. 
 
 1386.1630 
 
 V. Parker, iii. 775, 776 
 
 V. Parnther, iii. 1276. 1283, 1284 
 
 V. Parsons, ii. 505 
 
 V. Plate Glass Company, iii. 756. 777. 
 
 1271 
 
 V. Eandall, iii. 786 
 
 V. Richards, iii. 1252 
 
 • V. Riddell, ii. 554 
 
 V. Ruper, iii. 1145 
 
 ■ V. Schiers, app. ii. iii. 1522 
 
 V. Siddon, ii. 45. 554 
 
 V. Sitwell, app. ii. iii. 1532 
 
 V. Synionds, ii. 359 
 
 V. Theakstone, i. 233 
 
 V. Tonf^ue, app. ii. iii. 1519 
 
 V. Towns, iii. 850 
 
 0. Warwick (Corp.) i. 340 
 
 -■ V. Woolhousc, app. ii. iii. 1519 
 
 Attrue V. Ansconib, iii. 1044 
 
 V. Scntt, ii. 696 
 
 Attwood V. Munnings, ii. 41 
 
 V. llattcnbnrv, ii. 218 
 
 V. Small, iii. 1038. 1054 
 
 Atty V. Parish, ii. 104. iii. 757 
 
 Atwood V. Griffin, ii. 204, 212. 216. iii. 1044 
 
 V. Partridge, ii. 184, 185 
 
 V. Robins, ii. 15 
 
 r. Taylor, app. ii. iii. 1383. 1451 
 
 Atvvood's case, ii. 15 
 
 Auber v. Lewis, iii. 993 
 Aubert v. Maze, ii. 63. 78 
 
 V. Walsh, ii. 94, 95, 96. 264. iii. 1233 
 
 V. Welsli, iii. 823 
 
 Aubigne v. Clifton, ii. 303 
 
 Aubrey v. Fisher, ii. 358. iii. 1147 
 
 Audley's (Lord) case, iii. 951 
 
 Ault V. Goodrich, iii. 812 
 
 Auncelme v. Auncelme, ii. 334 
 
 Auriol V. Mills, ii. 184 
 
 Austen, Ex parte, app. ii. iii. 1349 
 
 V. Craven, iii. 1223 
 
 V. Fenton, ii. 120 
 
 V. Goble, iii. 978 
 
 r. Howard, iii. 1026 
 
 Austin V. Bewley, i. 509 
 
 V. Blades, iii. 1268 
 
 V. Debnam, ii. 687. 690 
 
 r. Poiner, i. 192 
 
 Ex parte, iii. 1246. 
 
 Avenell v. Croker, app. ii. iii. 1401 
 
 Avery v. Chesslyn, app. ii. iii. 1607 
 
 V. Hoole, i. 537. ii. 271 
 
 Aveson v. Kinnaird (Lord), i. 63. 351. 
 ii. 549. 553 
 
 Axford V. Perrott, iii. 1024 
 
 Aylesbury (Lord) v. Pattison, ii. 505 
 
 Aylesford's (Lord) case, ii. 481 
 
 Aylett's case, ii. 323 
 
 Aylift't). Ayliif, ii. 447 
 
 V. Tracy, ii. 479. 484 
 
 Aymes v. Lettice, app. ii. iii. 1580 
 
 Ayrer, Ex parte, ii. 205 
 
 Ayres v, Davenport, i. 299 
 
 Ayrey v. Davenport, i. 227 
 V. Fearnsides, ii. 201 
 
 Ayton V. Bott, ii. 607 
 
 Baber v. Hamil, ii. 58 
 
 V. Harris, app. ii. iii. 1339 
 
 Bach V. Meats, ii. 394 
 
 V. Owen, ii. 69. iii. 1221 
 
 Bachelor v. Vyse, ii. 150. 390 
 
 Back V. Stacey, iii. 747 
 
 Backhouse v. Harrison, ii. 246. iii. 1150 
 
 V. Jones, app. ii. iii. 1347 
 
 ■ V. Middleton, i. 315 
 
 Backhouse's Executn-s x\ Tarleton, ii. 129 
 Bacon v. Chesney, ii. 33. 511. iii. 1063 
 
 V. Searles, ii. 249 
 
 Bacon's case, ii. 53 
 Baddeley v. Gihnore, i. 322 
 Baddely v. JVJortlock, ii. 707 
 Baddington v. Schleucher, ii. 223 
 Badger t'. Ford, iii. 1143 
 Badkin v. Powell, ii. 292. iii. 1120 
 Badnall v. Samuel, ii. 251 
 Baggaley v. Jones, ii. 34 
 Baglelioic v. Walters, ii. 372. iii. 12J5. 
 1240
 
 TABLE OF CASES, 
 
 XVI I 
 
 Bagnall v. Andrews, ii. 192 
 Bagot (Lord) v. Williams, i. 263 
 Bagster v. Portsruoutli (Earl of), ii. 393 
 
 i\ Robinson, ii. 024 
 
 Baikier. Chandless,i.410, 411. ii. 112, 113 
 Bailey i: Appleyard, app. ii. iii. 1528 
 
 V. Bailey, i. 110. iii. 977 
 
 V. Bellamy and others, app. ii. iii. 1603 
 
 V. Banning, ii. 1G7 
 
 V. Culverwell, ii. 48. iii. 954 
 
 V. Dillon, ii. 188 
 
 I'. Fermor, iii. 1152 
 
 V. Hole, i. 142 
 
 V. Wylie, i. 326 
 
 £!.v parte, app. ii. iii. 1 357 
 
 — — (in the goods of), iii. 1290 
 
 Bailie v. Grant, ii. 147 
 
 Baillie v. Inchiquin (Lord/, ii.663. 6G8 
 
 V. Kell, iii. 1132. 1137. 1303, 1309 
 
 V. Wilson, i. 106 
 
 Bainbridge i: Fermeston, ii. 50 
 
 V. Neilson, iii. 880. 882 
 
 V. Pickering, ii. 558 
 
 Baine, Ex jicirte, app. ii. iii. 1 355 
 Baines v. Jevons, app. ii. iii. 1 430 
 Baker i-. Athill, iii. 1095 
 
 V. Birch, ii. 231. 264 
 
 w. Charlton, ii. 241. iii. 811 
 
 V. Child, iii. 863 
 
 V. Dewey, iii. 757. 954. 967 
 
 V. Fairfax (Lord), i. 311, 312 
 
 V. Garrett, iii. 1025. 1063 
 
 V. Gostling, iii. 1041 
 
 V. Holtpzaffell, iii. 1175 
 
 V. Jardine, iii. 1037. 1053 
 
 V. Jabber, ii. 204. app. ii. iii. 1363 
 
 V. Keen, iii. 1203 
 
 V. Lade, i. 484. iii. 974 
 
 V. Liscoe, ii. 101 
 
 V. Moore, app. ii. iii. 1613 
 
 V. Morley, ii. 354. 357 
 
 V. Paine, iii. 767. 779 
 
 V. Sweet, i. 325 
 
 V. Towry, iii. 878 
 
 V. Tyrwhitt, i. 67. 164. 530 
 
 V. Webb, iii. 853 
 
 V. Whitelocke, iii. 841 
 
 Baker's case, i. 530, 531 
 
 Balby v. Wells, ii. 342 
 
 Balcetti v. Serani, ii. 618 
 
 Baldey v. Parker, ii. 488, 489. ill. 1038. 
 
 1195 
 Baldney v. Ritchie, i. 398. 400. ii. 2 
 Baldwin v. Billingsley, iii. 827 
 
 V. Blackmore, ii. 586 
 
 V.Cole, iii. 1150, 1157, 1158. 1100, 
 
 1161 
 
 V. Dixon, i. 115 
 
 V. Elphinstone, ii. 620 
 
 V. Karver, iii. 764 
 
 — — V. Peach, app. ii. iii. 1537 
 
 V. Richardson, ii. 227. 235 
 
 V. Tudge, ii. 509 
 
 Balfour v. Weston, ii. 421 
 Balis V. Graves, iii. 908 
 Ball V. Cullimore, ii. 420 
 
 V. Dunsterville, i. 372. ii. 179 
 
 V, Herbert, iii. 1253 
 
 V. Mannin, iii. 1282 
 
 V. Rowe, i. 509 
 
 VOL. I. 
 
 Ballantine v. Golding, ii. 186 
 Ballard v. Dyson, iii. 1255. 1257 
 
 V. Way, app. ii. iii. 1594 
 
 V. Wray,iii. 1193 
 
 Ballingalls v. Gloster, ii. 225. 234 
 Ballinger v. Ferris, ii. 597. app. ii. iii. 
 
 1456 
 Balls V. Westwood, iii. 973. 1181 
 Balme v. Hutton, ii. 139. 167. iii. 1028 
 
 V. Jewison, ii. 139 
 
 Balmerino's (Lord) case, iii. 1096 
 Balson v. Meggatt, app. ii. iii. 1553 
 
 V. Reichard, iii. 822 
 
 Balston lu Benstead, iii. 744. 1249 
 
 V. Bird, iii. 876 
 
 Bamfield v. Massey, ii. 305, 306, 307. iii. 
 
 990 
 Bamford v. Baron, i. 523. ii. 137. 175. 495 
 
 V. Burrell, ii. 183 
 
 V. Harris, iii. 993 
 
 V. Jackson, ii. 144 
 
 V. Shuttleworth, app. ii. iii. 1-394 
 
 Ex parte, ii. 133 
 
 Bampton v. Paulin, ii. 478 
 
 Banbury (Duke of) v. Brougliton, iii. 99"^ 
 
 Banbury Peerage case, i. 319. 330. iii. 836. 
 
 839. 842. 1007 
 Bane v. Methuen, ii. 594 
 Banister v. Usborn, iii. 1175 
 Banks v. Angell, app. ii. iii. 1402 
 
 V. Colwell, ii. 253 
 
 V. Kain, i. 130, 131 
 
 Bann v. Dalzcll, ii. 577 
 
 Bannister v. Bannister, app. ii. iii 1392. 
 
 1623 
 Baptiste v. Cobbold, ii. 60. 
 Barbaud v. Hookhara, ii. 632. 638 
 Barbeu. Gooch, ii. 144 
 
 V. Parker, i. 461. iii. 1186 
 
 Barber v. Backhouse, ii. 248. iii. 811 
 
 V. Barber, iii. 1294 
 
 V. Fox, iii. 884 
 
 V. Gingell, ii. 86. 211. 237. 257 
 
 V. Holmes, i. 247 
 
 V. Richardson, ii. 429 
 
 t'. Rollinson, iii. 1110 
 
 V. Tilson, iii. 847 
 
 V. Wood, app. i. 591 
 
 Ex parte, ii. 148. 185 
 
 Barbone v. Brent, ii. 92 
 Barclay v. Bayley, ii. 224 
 
 V. Gooch, ii. 74 
 
 V. Hunt, ii. 690 
 
 I'. Lucas, iii. 1067 
 
 V. Walmesley, iii. 1185 
 
 Ex parte, ii. 225 
 
 Barclay's case, i. 307 
 
 Barden, v. De Keverberg, app. ii. iii. 1410 
 
 Bardsley V. Harrison, ii. 1-33 
 
 Bardwell v. Lydall, iii. 1066 
 
 Barel v. Russell, i. 427 
 
 Barfoot v. Goodall,iii. 813 
 
 V. Reynolds, iii. 1136 
 
 Barford v. Nelson, i. 249. iii. 73ci 
 Barbara, In re, app. ii. iii. 1349 
 Barbara's case, ii. 606. iii. 1059 
 Baring v. Christie, iii. 890 
 
 V. Claggett, i. 292, 293. iii. 890 
 
 V. Corrie, iii. 995 
 
 V. Dav, ii. 649 
 
 b
 
 xvni 
 
 T A B L K OF CASES. 
 
 Hiiring i. Iluialiall, iii. B7t< 
 II. Royul l<:xcliaiiti,c Assurance Com- 
 pany, i. i-'U:). iii. BiJl' 
 Barker r. Angell, app. ii. iii. Il7f» 
 
 r. Barker, iii. 1100 
 
 V. lUakf8,iii. 881 
 
 V. Braham, iii. 1 100, 1 1 10, 1 1 1 1 
 
 V. Chattorton, ii. 10!) 
 
 r. Di.\ie, ii. 549 
 
 D. Green, ii. ;300. 3G4. iii. 1014. app. 
 
 ii. iii. 1552 
 
 V. Kcat, iii. 1101 
 
 V. Kett, ii. 41 
 
 J). Macrae, i. 118 
 
 i; Malcolm, app. ii. iii. 1371 
 
 I'. Ray, i. 348. 307 
 
 V. llicliartlson, iii. JJ14. 1294 
 
 V. Smart, app. Ii. iii. 1559 
 
 r. Stubbs, app. ii. iii. 1599 
 
 11. Taylor, ii.294 
 
 Barlett r. Tucliin, iii. 1190 
 Barlow v. Bishop, ii. 217 
 
 I.. Broadliurst, iii. 1030, 10.37. 1042 
 
 i>. Lcckie, iii. 860 
 
 r. M'Intosh, iii. 875 
 
 V. Rhodes, iii. 125G. app. ii. iii. 1419. 
 
 IGll 
 
 V. Vowcll,i. 130 
 
 Barly's case, i. 325 
 
 Barnard v. Dawson, i. 145. iii. 799 
 
 V. Gostling, iii. 800. 847 
 
 V. Kent, i. 22G 
 
 V. Leigh, ii. 393 
 
 i;. Moss, iii. 1080 
 
 V. Newt, i. 242 
 
 V. Palmer, ii. 145 
 
 V. Vaughan, ii. 133 
 
 Barnard's case, i. 574 
 
 Barnardiston v. Chapman, iii. 1159 
 
 Barne v. Whitmore, i. 334 
 
 Barnes i\ Butcher, app. ii. iii. 1360. 1542 
 
 V. Eyles, iii. 1010. 1020 
 
 V. Freeland, ii. 144 
 
 V. Heady, ii. 70 
 
 r>. Hedley, ii. 247. iii. 1187 
 
 V. Holloway, ii. 297. 619 
 
 1). Hunt, iii. 1131. 1138 
 
 V. Lucas, i. 408. iii. 1024 
 
 V. Mawson, i. 182. ii. 697. iii. 907 
 
 V. Messenger, iii. 1031, 1082 
 
 V. Newman, i. 31 
 
 V. Pendry, iii. 1237. app. ii. iii. 1603 
 
 V. Pnidlen, ii. (i30 
 
 V. Ramson, i. 3.")6 
 
 V. Troinpowski, i. 375 
 
 i\ \Vhiteinaii,app. ii. iii. 1488 
 
 V. Wincklcr, i. 173 
 
 Bainett v. Glossop, ii. 105 
 
 1). Tompkyns, iii. 1187 
 
 V. Weston, iii. 1 152 
 
 Barnsley, Jix parte, iii. 1277 
 
 Barnstaple (Corporation of) r. Lathey 
 
 i. 341. iii. 945 
 Barnwell v. Harris, iii. 1190, 1191 
 Baron v. Bury, i. 130 
 
 V. Husband, ii. 82. 05 
 
 Barons v. Luscombe, ii. 592 
 Earough v. White, ii. 245. 260, 261 
 Barr v. Gibson, app. ii. iii. 1387 
 Ex jnirte, ii. 28 
 
 Barraclough v. Johnston, ii. 525, 52G 
 Barraud v. Arclier, iii. 1213 
 Barrel v. Trussel, ii. 472. 478. 483 
 Barrett v. Barrett, iii. 1247 
 
 V. Crease, i. 183 
 
 V. Deere, iii. 820. 1070 
 
 r. Moss, ii. 110 
 
 1). Wilson, i. 272 
 
 Barrett Navigation (Company of Proprie- 
 tors of the) V. Shower, app. i. 6.35 
 Barrington, Ex jmrtc, app. ii. iii. 1349 
 Barrington's case, iii. 1126 
 Barrow v. Bell, iii. 878 
 
 V. Foster, ii. 130 
 
 V. Guillard, i. 333 
 
 t). Humphries, i. 79, 80 
 
 V. Islip, i.295 
 
 V. Kean, iii. 864 
 
 V. Lewellyn, ii. 620 
 
 V. Mashiter, iii. 1051 
 
 Ex parte, u. 175 
 
 Barrow's case, ii. 467 
 
 Barry v. Alexander, ii. 507 
 
 "i'. Bebbington, i. 44. 358.364 
 
 V. Goodman, app. ii. iii. 1588 
 
 V. Longmore, app. ii. iii. 1469 
 
 V. Nugent, iii. 1 1 75 
 
 V. Robinson, ii. 4.'i3 
 
 V. Rush, ii. 445. 448 
 
 Barryraore V. Taylor, i. 343. 415. ii. 34 
 
 Barsham ?;. Bullock, iii. 1 032 
 
 Barstow v. Kilvington, iii. 767 
 
 Bartelot v. Hawker, ii, 355 
 
 Bartholomew v. Carter, app. ii. iii. 1573 
 
 V. Davis, ii. 126 
 
 V. Stepliens, app. i. 622. app. ii. iii. 
 
 1489 
 
 Barthorp v. Anderson, ii. 125 
 
 Bartlett v. Downes, iii. 916 
 
 V. Emery, ii. 98. 558 
 
 V. Gillard,i. 335. 414 
 
 V. Parnell, app. ii. iii. 1338 
 
 V. Pentland, iii. 874. 883 
 
 V. Pickersgill, i. 153. 261. 280,281. 
 
 ii. 482 
 
 V. Purnell, ii. 492 
 
 Barton I'. Brown, iii. 1165 
 
 V. Cordy, iii. 1118 
 
 V. Fitzgerald, ii. 342. 347 
 
 I'. Glover, iii. 852 
 
 V. Hanson, ii. 285. iii. 805 
 
 V. Mills, ii. 687 
 
 V. Sheriff, app. ii. iii. 1522 
 
 V. Williams, iii. 1159 
 
 Ex 2)cirte, ii. 1 37 
 
 Bartrura v. Caddy, ii. 249 
 
 Barwell v. Adkins, app. ii. iii. 1465 
 
 Barwick v. Matthews, ii. 314. 337 
 
 V. Thompson, ii. 424. iii. 914 
 
 Barzillay v. Lewis, i. 292. iii. 890 
 Baskerv'ille v. Brown, i. 299. iii. 997 
 Bass V. Clive, i. 472. 490. ii. 22. 203,204 
 Bass's case, ii. 613 
 Basset v. Maynard, ii. 240. iii. 1154. 
 Bassett v. Collis, iii. 1242. 
 
 V. Dodgin, i. 131. ii.248. 260. iii. 1062 
 
 V. Mitchell & Smith, iii. 1124 
 
 Bastard i\ Smith, app. i. 590. app. ii. iii. 
 1387. 1391 
 
 — - r. Trutch,app. ii. iii. 1.330
 
 TABLE OF CASES. 
 
 MX 
 
 Basten v. Butter, ii. 73. 105. iii. 1207. 
 
 1200. 1210, 1211. 1243. 1303. 1307, 
 
 1308, 1309 
 
 V. Carew, ii. 587 
 
 Bastin v. Carew, i. 171. 
 
 Batavia (Ship), iii. 1306 
 
 B:itchelor v. Honeywoocl (Sir John), ii. 618 
 
 Batehellor v. Salmon, i. 483. 492 
 
 Bate V. Cartwright, ii. 95. iii. 1234, 1235 
 
 r. Hill, iii. 991 
 
 V. Kinsey, i. 405, 408 
 
 V. Russell, i. 47. iii. 799 
 
 Batenian v. Bayley, i. 348. ii. 131, 132. 134 
 
 V. Joseph, ii. 235 
 
 V. Phillips, i. 340. 370. 406. 483. 569. 
 
 ii. 567. 
 Bates V. Cook, ii. 116. 
 
 V. Graham, iii. 759 
 
 V. Jenkinson, iii. 1078 
 
 I'. Pilling, iii. 1111 
 
 V. Todd, ii. 267 
 
 V. Wells, i. 421. ii. 556 
 
 Bateson v. Green, ii. 317 
 
 V. Hartsiocke, i. 89 
 
 J^x parte, app. ii. iii. 1472 
 
 Bath (Earl of) v. Battersea, i. 314. 334. 
 
 414 
 Bath v. Montague, i. 103. iii. 861 
 Bathe v. Taylo'r, ii. 256 
 Batin's case, iii. 741, 742 
 Batson v. Donovan, ii. 291 
 Batley v. Catterall, ii. 244 
 Batly V. Lewis, iii. 810 
 
 V. Meggott, iii. 1016. 
 
 V. Shearman, app. ii. iii. 1435 
 
 Ex parte, ii. 160 
 
 Batten, l^x parte, ii. 1 26 
 
 Battersby v. Kirk, app. ii. iii. 1451 
 
 Batthews v. Galindo, ii. 553 
 
 Battie v. Gressley, i. 78. 
 
 Battley v. Falkener, ii. 660, 661 
 
 Batty V. Townrow, ii. 499. 
 
 Banerman v. Radenius, ii. 28, 29 
 
 Bawdes v. Amherto, ii. 485 
 
 Bawtree v. Watson, ii. 648. app. ii. iii. 1404 
 
 Bax V, Jones, ii. 582 
 
 Baxter v. Foster, iii. 842 
 
 V. Lewis, iii. 1 188, 1189 
 
 V- Portsmouth (Lord), ii. 103. 396 
 
 V. Pritchard, ii. 139 
 
 V. Robinson, ii. 624 
 
 V. Sykes, iii. 1013 
 
 V. Taylor, iii. 744. 978 
 
 Bayard v. Morphew, ii. 700. 701 
 Bayley v. Ashton, app. ii. iii. 1472 
 
 V. Ballard, ii. 143. 
 
 V. Sunning, iii. 1028 
 
 V. Driver, iii. 1087 
 
 V. Gouldsmith, iii. 1204 
 
 V. Hole, i. 110 
 
 V. Lloyd, i. 142 
 
 V. Merrell,ii. 371. 374 
 
 V. Rimmell, app. ii. iii. 1621 
 
 V. Treeker, i. 455. ii. 63 
 
 V. Warden, i. 280 
 
 V. Wylie, i. 240. 309 
 
 Baylis v. Attorney-general, iii. 754. 1271 
 
 V. Fisher, iii. 1114 
 
 V. Lawrence, app. ii. iii. 1467 
 
 i\ Ringer, apii.ii. iii. 1360 
 
 Baylis v. Strickland, app. ii. iii. 157() 
 
 i\ Wilson, i. 156 
 
 Bayly v. Culverwell, iii. 932 
 
 V. Schofield, ii. 134. 136, 137. 167. 
 
 172 
 
 r. Snelham, iii. 77'^ 
 
 Bayue ?>. Stone, i. 504 
 
 Baynes v. Forrest, i. 488 
 
 Baynham v. Guy's Hospital, iii. 1275 
 
 V. Matthews, i. 486 
 
 Bayntine v. Sharp, iii. 735 
 
 Bayntun v. Cattle, ii. 96. 103. app. ii. iii. 
 
 1374 
 Bazesley's case, ii. 611. 616 
 Beach v. Turner, iii. 847 
 Beachcroft v. Beachcroft. iii. 772. 785. 
 
 1273 
 Beadsworth?'. Torkington,app. ii. iii. 1380 
 Beal V. Thatcher, ii. 373. 
 Beale v. Bird, ii. 568 
 
 V. Nind, ii. 664. 668 
 
 V. Sanders, app. ii. iii. 1606 
 
 Bealy v. Greenslade, ii. 668 
 
 V. Shaw, ii. 316. 395. iii. 744, 745. 
 
 912. 923. 1248, 1249 
 Beamon v. Eliice, iii. 749 
 Bean v. Stupart, iii. 874 
 Beanton v. Eliice, i. 189 
 Bearblock v. Meakins, iii. 1094 
 
 V. Tyler, iii. 1094 
 
 Beard v. Ackerman, i. 131. ii. 257. 322 
 
 V. Boulcot, ii. 76 
 
 V. Webb, ii. 536 
 
 Beardmore v. Cruttenden, iii. 1061 
 
 V. Rattenbury, ii. 658 
 
 V. Shaw, ii. 174 
 
 Beare v. Pinkus, app. ii. iii. 1477 
 Beasleyz?. Bignold, iii. 1217 
 
 V. Clarke, app. ii. iii. 1612 
 
 V. Magrath, i. 333 
 
 Beatson v. Ruddiforth, ii. 532 
 Beatty v. Gibbons, iii. 1148. 
 Beauchamp v. Cash, ii. 234 
 
 V. Croft (Sir R.), ii. 638 
 
 ■ V. Pacy, ii. 29 
 
 V. Parry, ii. 245. 260 
 
 V. Powley, ii. 284 
 
 Beaumont v. Fell, iii. 772 
 
 V. Field, iii. 770. 774 
 
 V. Mountain, i. 233. app. ii. iii. 1560 
 
 Beaurain v. Scott (Sir W.), i. 302. 508 
 Beavan, deceased (in the goods of), app. ii. 
 
 iii. 1618 
 
 V. Delahay, ii. 358 
 
 Beaver v. Lane, i. 480. ii. 534 
 Becher v. Jones, ii. 577 
 Beck V. Bree, iii. 1088 
 
 V. Cleaver, app. ii. iii. 1340 
 
 V. Dyson, iii. 735 
 
 V. Evans, ii. 290, 291, 292 
 
 V. Rebow, iii. 1246 
 
 V. Robley, ii. 249. 256. iii. 1043 
 
 Becke v. Smith, ii. 141. 565 
 
 V. Wells, ii. 109 
 
 Beckett v. Dutton, app. i. 630 
 
 V. Wood, app. i. 597 
 
 Beckford v, Crutwell, ii. 285 
 
 V. Hood, iii. 941 
 
 V. Montague, iii. 1013 
 
 V. Rode, ii. 655 
 
 b 2
 
 XX 
 
 TABLE OF CASES. 
 
 Beckliam i\ Kniglit, iii. 80'J. app. ii. iii. 
 1507 
 
 Beckman v. Caistairs, iii. 880 
 
 Beckquet t). M'Cartiiy, i. 275, 270 
 
 Becktlnviiite i\ Nalgrovc, iii. 880 
 
 Beckwith v. Uminer, i. 400 
 
 ?j. CoiToll, ii. 220. iii. 1157,1158 
 
 V. Elsey, iii. 1101 
 
 V. Fox, iii. 1203 
 
 V. Harding, ii. 358 
 
 V. Pliilhy, i. 523. ii. 002. 004. 081 
 
 • V. Sliomlike, ii. 504. iii. 111!) 
 
 r. Sydebotham, i 175. iii. 889 
 
 ■ V. Wood, ii. 533 
 
 Bedell's case, iii. 758. 940 
 
 Bedford v. Deacon, ii. 250 
 
 V. Mackoul, iii. 990 
 
 Bedle v. Beaid, iii. 916 
 
 Bedle's case, iii. 940 
 
 Bee (case of tlie), iii. 1300 
 
 Beecliey v. Sides, ii. 580. 597. iii. 729. 
 1143 
 
 Beeching v. Gower, i. 93, 137. ii. 214 
 
 Beed v. Blandford, ii. 92 
 
 Beedle-v. Morris, ii. 600 
 
 Beeley v. Wingfield, ii. 247 
 
 Beer v. Ward, i. 382, 383. app. i. 018 
 
 ■ Ex parte, app. ii. iii. 1347 
 
 Beering v. Royal Excliange Ass. Com- 
 pany, i. 292, 293 
 
 Bees V. Williams, app. ii. iii. 1428 
 
 Beeston v. Colly er, iii. 1304 
 
 Beevor v. Beevor, ii. 540. 
 
 Begbie v. Levy, ii. 93. 245 
 
 Beilby r. Scott, app. ii. iii. 1621 
 
 Belbinr. Butt, iii. 818. app. ii. iii. 1390 
 
 Belcher v, Jones, ii. 143 
 
 V. Lloyd, ii. 179 
 
 V. M'Intosh, ii. 348 
 
 V. Oldfield, app. ii. iii. 1353 
 
 V. Prittie, ii. 139. 142, 143 
 
 V. Sykes, iii. 1045, 1040 
 
 Ex parte, ii. 155 
 
 Belfour v. Weston, iii. 970 
 
 Belknap's case, ii. 537 
 
 Belworth v. Hassel, iii. 1214 
 
 Bell V. Ansley, ii. 29. iii. 872 
 
 V. Bell, iii. 880 
 
 V. Bronifield, iii. 890 
 
 V. Burrows, ii. 09 
 
 V. Byrne, ii. 019 
 
 V. Carstairs, iii. 889 
 
 i\Dockley,ii. 590 
 
 V. Francis, app. i. 020. app. ii. iii. 
 
 1507 
 
 V. Harwood, i. 109. 257. ii. 433 
 
 V. Howard, iii. 790 
 
 • V. Hull and Selby Railway Company, 
 
 1.527. app. i. 696 
 
 V. Jutting, iii. 800 
 
 V. Oakley, ii, 690 
 
 V. Puller, iii. 797 
 
 V. Smith, i. 108. 136 
 
 V. Twentyman, app. ii. iii. 1639 
 
 V. Warden, i. 616. 517 
 
 Bellairs v. Elsworth, iii. 1007 
 
 Bellasis v. Hesler, iii. 803. 1073 
 
 Belldonr'. Tankard, ii. 70 
 
 Belshaw v, Marshall, iii. 1029 
 
 Belton V. Hodges, ii. 174 
 
 Belworth v. Hansell, iii. 1214 
 Bendry v. Price, app. ii. iii. 1002 
 Bcndyshe v. Pearse, i. 600 
 Bendy's case, i. 337 
 Uenest v. Pipun, ii. 090 
 Benett v. Coster, i. 339 
 Bengotigh v. Walker, iii. 704 
 Beninian ??. Peacock, iii. 1104 
 Benjamin v. Belcher, app. ii. iii. 1359 
 
 V. Porteous, i. 148. iii. 805 
 
 Bennett v. Alcott, i. 534. ii. 530. iii. 988, 
 
 989. 1108. 1114, 1115. 1122 
 
 V. Barton, app. ii. iii. 1447 
 
 V. Cloue:li, ii. 294 
 
 V. Daniel, iii. 1230 
 
 V. Farnell, ii. 203 
 
 V. Francis, iii. 828, 829. 1179. 1204 
 
 V. Gandy, ii. 194 
 
 V. Grover, iii. 1137 
 
 V. Henderson, iii. 1202 
 
 • V. Hertford (Hund. of), i. 510 
 
 V. Johnson, ii. 048 
 
 V. Martin, iii. 739 
 
 — V. Meller, ii. 500. iii. 727 
 
 V. Neale, iii. 1096 
 
 V. Reeves, ii. 318 
 
 t;. Watson, i. 82, 83. ii, 691. 693. app. 
 
 i. 592 
 Bennett's case, iii. 1282 
 Bennion v. Davison, ii. 19. 101. 105 
 Bennyatt v. Hutchinson, ii. 04 
 Beusley v. Bignold, ii. 103 
 
 r. Clarke, iii. 921 
 
 Benson v. Bennett, ii. 22. iii. 956, 950 
 
 i". Blunt, app. ii. iii. 1378 
 
 V. Chester, i. 322. ii. 314 
 
 V. Garcia, ii. 109 
 
 t;. Maitland, iii. 883 
 
 V. Marshal], ii. 245 
 
 II. Morris, iii. 1198 
 
 V. Olive, i. 310. 324. 334. 414. ii. 305. 
 
 iii. 857. 1089 
 
 V. Port, ii. 570 
 
 I'. Schneider, ii. 82 
 
 Ex parte, ii. 100 
 
 Benstead v. Buck, ii. 640 
 
 V. Levy, ii. 245 
 
 Bent V. Baker,!. 103. 106. 119. 130. 140. 
 
 148. 103. iii. 893 
 
 V. Puller, ii. 100 
 
 Bentall v. Burn, ii. 489 
 
 V. Sydney, app. i. 590 
 
 Bentinck v. Dorrien, ii. 208, 209. 211 
 Bentham d. Cooper, ii. 510 
 Bently v. Cooke, ii. 650 
 
 V. Griffin, i. 524. ii. 540 
 
 V. Northouse, ii. 202 
 
 Benton v. Sutton, iii. 1020 
 
 V. Thornhill, iii. 10.30 
 
 Bentzing v. Scott, i. 496 
 Benyon v. Garrett, iii. 1018 
 Bercsford v. Easthope, app. i. 012 
 
 V. Newton, app. ii. iii. 1629 
 
 Berkeley v. Hardy, ii. 342 
 
 Berkeley Peerage case, i. 43. 222. 319. 
 
 iii. 834. 830. 840,841,842 
 Berkley v. Watling, app. ii. iii. 1372 
 Bermon v. Woodbridge, i. 334. 416. 583. 
 
 ii. 004 
 Bern v. Maltaire, iii. 969
 
 TABLE OF CASES. 
 
 XXI 
 
 Bernard (Lord) v. S;uil,i. '231 
 
 Beniardi v. Motteux, i. 292, 293. iii. 875 
 
 890, 891 
 Bernasconi i'. Anderson, ii. 79 
 
 V. Argyle, ii. 97 
 
 V. Farebrother, i. 60. 220. ii. 129. 
 
 134,135. iii. 1031 
 Berne v. Cambridge, app. ii. iii. 1587 
 Berney v. Davidson, ii. 140 
 
 II. Green, i. 594 
 
 V. Harvey, iii. 1085. 1087 
 
 V. Vyner, ii. 140 
 
 Berriman i\ Peacock, iii. 1127 
 Berrington v. Collis, app. ii. iii. 1591 
 
 V. Parkhurst, ii. 662 
 
 V. Phillip?, app. ii. iii. 1450 
 
 Berolles v. Ramsay, ii. 557 
 
 Berry v. Adaiiison, ii. 687. iii. 1013. 1113 
 
 V. Banner, i. 297. 449 
 
 V. Deigbton, ii. 67 
 
 V. Goodman, iii. 1101. 1125 
 
 V. Heard, iii. 1147 
 
 V. Jolmson, app. ii. iii. 1594 
 
 V. Pratt, i. 79 
 
 t'. Taunton, ii. 346 
 
 V. Young, iii. 1189, 1190. 1193, 1194 
 
 Berryman v. Wise, ii. 24. 106. 307, 308. 
 
 331.627. iii. 1003 
 Berton v. Loughman, ii. 887 
 Bertie v. Beaumont, i. 382, 383, 385. iii. 
 
 1258 
 
 u. Falkland, iii. 761 
 
 Bertram r. (iodfrcy, iii. 726 
 Berty v. Dormer, i. 420 
 Besford v. Saunders, ii. 70. 188 
 Best 0. Angles, ii. 175 
 
 V. Hcightman, ii. 695 
 
 V. Moore, iii. 1117 
 
 V. Osborne, iii. 1242 
 
 V. Saum'ers, iii. 1300 
 
 V. M'ilding, iii. 1075 
 
 Betsworth v. Betswortli, i. 288 
 
 Betteley v. M'Leod, i. 79 
 
 Betterbee v. Davis, iii. 1069 
 
 Bettison v. Bromley (Sir R.), i.56. 168. iii. 
 
 1265 
 Betts V. Gibbins, ii. 76 
 
 V. Jones, iii. 817. app. i. 597 
 
 V. Kimpton, ii. 444 
 
 Bevan v. Bevan, iii. 856 
 
 V. Hill, ii. 266 
 
 V. Jones, iii. 1010 
 
 V. Lewis, ii. 120 
 
 V. Nunn, ii. 141 
 
 V. Rees, iii. 1069 
 
 V. Walters, ii. 649 
 
 V. Waters, app. ii. iii. 1380 
 
 V. Williams, ii. 24. 309. iii. 935 
 
 Beveridge v. Burgess, ii. 236 
 Beverley v. Craven, App. i. 608 
 
 V. Lincoln Gas Company, iii. 1204 
 
 Bevil I'. Wood, ii. 59 
 Bevis V. Lindsel, iii. 11 13 
 Bexwell v. Christie, iii. 1212. 1214 
 Bcynon v. Garratt, app. ii. iii. 1553 
 Bianchi v. Nash, iii. 1204 
 .Bibb V. Thomas, iii. 1286 
 Bick V. Barlow, ii. 548 
 Bickerdike v. Bollman, ii. 149. 230 
 Bickcrton v. Burrell, iii. 729. 1194 
 
 IJickiiell V. Hood, app. ii. iii. 1588 
 
 V. Keppell, ii. ,321. 663. 670 
 
 Bicton V. Burridge, ii. 689. 691 
 Bidden v. Dowse, ii. 117 
 
 V. Leeder, iii. 1217 
 
 Biddle v. Levy, iii. 1204 
 
 Biddlesford v. Onslow, iii. 744. 978 
 
 Biddulph V. Ather, i. 297. iii. 914. 946 
 
 Bid mead v. Gale, iii. 1234 
 
 Bigg V. Spooner, ii. 134 
 
 Biggar, Sarah (in the goods of), app. ii. iii. 
 
 1619 
 Biggs V. Lawrence, ii. 31. iii. 803. 1207. 
 
 1218 
 
 V. Fellows, iii. 802. 814 
 
 Bignold V. Waterhouse, ii. 137. 288. 290 
 
 Ex parte, ii. 155 
 
 Bilhie v. Lumley, ii. 87. iii. 885. 1216 
 
 Billings V. Prinn, ii. 201 
 
 Billinghurst v. Spearman, ii. 450 
 
 Billmore's case, ii. 13 
 
 Billon V. Hyde & Mitchell, ii. 175. 177. iii. 
 
 1236 
 Bilson V. Hodges, ii. 122 
 Bingham i\ Allport, iii. 1070 
 
 V. Dickie, i. 471. 488 
 
 V. Gamault, iii. 1121 
 
 V. Stanley, iii. 985. app. ii. iii. 1363. 
 
 1869 
 Bingley v. Maddison, ii. 148 
 Binns v. Pigot, app. ii. iii. 1 468 
 
 V. Tetley, ii. 191 
 
 V. Towscy, app. ii. iii. 1446 
 
 Birch V. Dawson, iii. 1246 
 
 V. Depeyster, iii. 778, 779. 993 
 
 V. Jervis, ii. 245 
 
 V. Liverpool (Earl of), ii. 482 
 
 I'. Sharland, ii. 185. 
 
 V. Tebbutt, iii 826 
 
 V Wright, ii. 92. 414. 426, 427, 428. 
 
 iii. 1179, 1180.1183 
 Bircham r. Tucker, app. ii. iii. 1602 
 Bird V. Appleton, i. 293. iii. 891 
 
 V. Astock, iii. 1168. 
 
 v. Bird, ii 560 
 
 V. Blosse, ii. 484 
 
 — — V. Dale, ii. 506. iii. 948. 1131 
 
 V. Gammon, app. ii. iii. 1429. 1474 
 
 V- Gunston, ii. 581. iii. 729 
 
 y. Holbrook, iii. 735 
 
 V. Jones, ii 540 
 
 V. Penrice, ii. iii. 1343 
 
 V. Randall, i. 269. ii. 300. iii. 854. 
 
 959 
 
 V. Relph, app. ii. iii. 1606 
 
 V. Thomson, iii. 893 
 
 Bire v. Moreau, ii. 185 
 
 Birk V. Guy, ii. 663 
 
 Birkett v. Willan, ii. 286. 292 
 
 Birkett's case, ii. 14, 15 
 
 Birks V. Trippett, ii. 69 
 
 Birt V. Barlow, i. 238. 244. ii. 252. 353. 
 
 699 
 
 V. Hood, i. 112. ii.4. iii. 817. 1230 
 
 r. Kershaw, i. 132. 151. ii. 259, 2G0 
 
 iii. 1229 
 
 V. Rothwell, 1. 508 
 
 I'. Stephenson, app. ii. iii. 1553 
 
 Bisdee, Ex parte, app. ii. iii. 1252. 1469 
 Bisham v. Cook, iii. 1003 
 I) 3
 
 XXll 
 
 TABLE OF CASE 
 
 Bibliop V. Cliambre, ii. 2(i4 
 
 V. Chichester, iii. 1083 
 
 V. Crawshaw, iii. 114B 
 
 r. Hatch, ajip. ii. iii. 1G02 
 
 ?•. Howard, iii. 1180 
 
 V. Morgan, i. 479 
 
 V. rentlund, iii. 877 
 
 V. Rowe, ii. 232 
 
 V. Shillito, iii. 1148. 11G2. 1224 
 
 Bishops' (Seven) case, ii. G20. 023 
 
 Biss V. Mountain, i. 115. app. i. 59G 
 
 Bize r. Dickinson, ii. 8G. 88 
 
 Bhichford v. Trcston, iii. 1217 
 
 Black V. Brayhrooke (Lord), i. 225, 226. 
 241.304.488. 508 
 
 V. Peele, ii. 252 
 
 V. Smith, iii. 10G9, 1070 
 
 Blackborough v. Davis, ii. 442 
 
 Blackburn i'. Hargreave, app. i. 589 
 
 ^,. Sclioles, iii. 821. 828 
 
 V. Thomson, iii. 123G 
 
 Blacket v. Blizard, iii. 1232 
 
 Blackett v. Lowes, ii. 338. G9G. iii. 907. 
 1147 
 
 V. Weir, i. 1 1 1 , 1 12. 1 6G. iii. 798, 799. 
 
 1230 
 
 Blackford v. Dod, il. G81 
 
 — — r. Preston, ii. G4 
 
 Blackham's case, i. 265. 289. ii. 210. 440. 
 G12 
 
 Blackhan v. Doren, ii. 231 
 
 Blackledge v. Harman, ii. 80 
 
 Blackman v. Simmons, iii. 735 
 
 Blackmore v. Fleming, i. 488. ii. 579 
 
 JEx })arte, ii. 128 
 
 Blackwall v. Harper, iii. 941 
 
 Blacquiere v. Hawkins, i. 509 
 
 Blades v. Blades, iii. 732 
 
 1). Free, ii. 540 
 
 Blagden v. Bradbear, ii. 485. iii. 119G 
 
 Blagraire r. Haley, iii. 989 
 
 Blainfield v. March, ii. 439 
 
 Blake v. Barnard, app. ii. iii. 1327. 1572 
 
 V. Lawrence, iii. 795 
 
 — — V. Nicholson, ii. G49 
 
 i;. Pilfold, ii. 639 
 
 V. Pilford, ii. 638 
 
 V. Pitfield, i. 72 
 
 ■ V. Usbornc, iii. 861 
 
 Blake's case, ii. 16 
 
 Blakenriore v. Glamorganshire Canal Com- 
 pany, i. 259, 260. 281. ii. G60. iii. 1059 
 
 Blaker v. Anscomb, iii. 1147 
 
 Blakey v. Porter, ii. 566 
 
 Blanchard v. Bramble, ii. 585 
 
 V. Bridges, iii. 747. app. ii. iii. 1620 
 
 Blanckenhagen v. Blundell, ii. 215 
 
 Bland v. Ansley, i. 109. ii. 550. iii. 1031 
 
 V. Collett, ii. 89. iii. 1234 
 
 1'. Karr, iii. 1236 
 
 V. SwafFord, i. 79, 80. app. i. 591 
 
 . J^x parte, iii. 1301 
 
 Bland's (Dr.) case, ii. 673 
 
 Blandford v. De Tastet, i. 80 
 
 Blandy v. Allan, iii. 1151 
 
 i, Herbert, iii. 1046 
 
 Blaney v. Hendrick, ii. 576, 577. 588 
 
 V. Whitaker, iii. 742. 1094 
 
 Bh:nkley v. Winslanley, iii. 776 
 
 Bhinuin v. Tavlor, i. 108. 152 
 
 Blatch V. Archer, i. 563. ii. 49. iii. 1009. 
 
 1012,101,3. 1019 
 Blatchcr v. Kemp, ii. 596 
 Bliitchfiird V. Plymouth, Mayor, &c. app. 
 
 ii. iii. 1398 
 Blaxton v. Pye, ii. 507. iii. 1235 
 Blaymirew. Haley, app. ii. iii. 1540 
 Bleaden v. Charles, ii. 74 
 
 V. Hancock, ii. 153. 647 
 
 Bleasby ?;. Crossly, ii. 146. 148 
 
 Bledstyn v. Sedgwick, iii. 786 
 
 Blenkinsop v. Clayton, ii. 490 
 
 Blessby v. Sloman, iii. 1141 
 
 Blewett V. Tregonuing, i. 199. 211. iii. 913 
 
 Blight'. Brewer, app. ii. iii. 1603 
 
 V. Wellesley, i. 388 
 
 (in the goods of) iii. 1290 
 
 Blinkhorne v. Feast, iii. 764 
 Blisset V. Johnson, i. 478. ii. 619 
 Blissett V. Hart, iii. 1252 
 Blizard v. Hirst, ii. 238 
 V. Kelly, ii. 680 
 
 Blogden i>. Bradbear, ii. 485 
 Blogg V. Kent, ii. 567 
 
 V. Phillips, ii. 170 
 
 V. Piukers, iii. 1310 
 
 Bloor V. Davies, app. i. 598, 599. 
 
 Blount V. Pearman, iii. 1048 
 
 Blow V. Russell, iii. 1070 
 
 Blower v. Hollis, i. 300 
 
 Bloxam v. Elsee, iii. 939 
 
 V. Hubbard, iii. 1158. 11 GO 
 
 V. Sanders, ii. 162. iii. 1155. 1222 
 
 Bloxham v. Morley, iii. 1222 
 
 Bloxsom V. Williams, ii. 93. iii. 1222 
 
 Blucher v. Kemp, ii. 596 
 
 Bluck V. Moore, ii. 125 
 
 Bluett V. Osborne, ii. 91. iii. 1207 
 
 Blundell v. Catterall, iii. 1095. 1253, 1254 
 
 r. Howard, iii. 1090. 1093. app. i. 
 
 608 
 
 V. Mawdesley, iii. 1094 
 
 V. Thompson, i. 237 
 
 V. Windsor, iii. 8C3. app. ii. iii. 609 
 
 Blunden v. Baugh, ii. 404 
 
 Blunt V. Beaumont, iii. 1136 
 
 V. Grimes, ii. 502 
 
 V. Heslop, ii. 108. cpp. ii. iii. 1565 
 
 Boardm.an v. Sill, ii. 650. iii. 1166 
 
 Boardman's case, ii. 465 
 
 Boaze v. Jackson, iii. 1048. 1052, 1053 
 
 Bodenham v Bennett, ii. 286. 292 
 
 V. Purchas, iii. 824, 825, 826, 827. 
 
 1067 
 
 Ex parte, ii. 114 
 
 Bodkin r. Powell, iii. 1141 
 
 Body V. Johnson, iii. 746 
 
 Bochm V. Campbell, i. 474. ii. 214. 482, 
 483. 508 
 
 V. Carter, iii. 887, 888 
 
 7). Garcias, ii. 225 
 
 V. Sterling, ii. 243. 253 
 
 Boehtlinck v. Schneider, ii. 459 
 
 Boggctt V. Frier, ii. 548 
 
 Bohtlingk V. Inglis, ii. 163. 459 
 
 Bolam V. Atkinson, ii. 315, 316 
 
 Bold V. Rayncr, ii. 493. iii. 780 
 Boldcn V. Brogdcn, app. ii. iii. 1605 
 
 Bolland v. Bygravc, ii. 648 
 
 )'. Disney, iii. 893
 
 TABLE OF CASES. 
 
 XXlll 
 
 Holland i>. Nasli, ii. 177, 178 
 
 Bollaiid's case, ii. 403 
 
 Bollard v. Spencer, ii. 440 
 
 Bolt V. Stennett, iii. 1258 
 
 Bolton V. Carlisle (Bishop of), ii. 370. 382. 
 
 iii. 1252 
 Bolton V. Corporation of Liverpool, app. ii. 
 iii. 1449 
 
 V. Dugdale, ii. 214 
 
 V. Eyles, iii. 1074 
 
 V. Gladstone, i. 292, 293 
 
 V. Jager, ii. 171 
 
 V. Leicester Corp. iii. 1092 
 
 V. Prentice, ii. 540 
 
 V. Puller, ii. 104. 107. iii. 802. 805 
 
 V. Sherman, iii. 1 138, app. ii. iii. 1585 
 
 V. Sowerby, ii. 128 
 
 V. Tomlyn, app. ii. iii. 1406 
 
 Bonafons v. Walker, i. 440. ii. 441. iii. 
 
 1021,1022 
 Boubonus, Ex parte, ii. 205 
 Bond t;. Downton, iii. 1123. 1129 
 
 V. Douglas, app. ii. iii. 1402. 1465 
 
 V. Gibson, iii. 809 
 
 V. Green, ii. 451 
 
 V. Nutt, iii. 874 
 
 V. Payne, ii. 56 
 
 V. Pittard, app. ii. iii. 1505 
 
 V. Rust, ii. 603 
 
 V. Seawell, iii. 1264 
 
 Jilx parte, np\). ii. iii. 1355 
 
 Bondrett v. Hentig, iii. 877 
 
 Bones v. Booth, ii. 507 
 
 Bonfellow v. Steward, i. 481 
 
 Bonham's case, ii. 121 
 
 Bounell v. Foulkes, ii. 86 
 
 Bonner v. Liddell, ii. 118 
 
 V. Wilkinson, i. 75 
 
 Bonser v. Curtis, iii. 1105 
 
 Boon V. Eyre, ii. 67. iii. 1212 
 
 Boone v. Mitchell, iii. 1046, 1047 
 
 Boorman v. Brown, app. i. 595 
 
 V. Nash, iii. 1201. 1220 
 
 Boot V. Wilson, iii. 1177 
 
 Booth V. Bank of England, app. ii. iii. 
 1506 
 
 u. Charlton, ii. 721 
 
 V. Cooke, iii. 766 
 
 V. Coward, ii. 24 
 
 V. Grove, ii. 213 
 
 V. Henley, ii. 601 
 
 V. Hodgson, ii. 63. 78. 95 
 
 V. Howard, iU. 793. 796. 829. 831 
 
 V. Ibbotson, iii. 1141 
 
 V. Jacobs, ii. 232 
 
 V. Macfarlane, iii. 1180 
 
 V. Wilson, iii. 740 
 
 V. Winter, iii. 738 
 
 Boothbey v. Sowden, ii. 17 
 
 Boothby v. Bailey, iii. 863. 865 
 Boothman v. Surrey (Earl of), iii. 1020 
 Bootle V. Blundell, iii. 764. 1266 
 Bophani v. Swingler, i. 136 
 Bordenave v. Gregory, ii. 61. 68. iii. 1073 
 
 1198.1200. 1220 
 Borrodaile v. Brunton, iii. 1243 
 
 V. Lowe, ii. 237, 238 
 
 Borroughi'. Skinner, iii. 1194 
 Borthwick v. Caruthers, i. 421. ii. 556 
 Bosanquet v. Anderson, ii. 210. 219. 237 
 
 Bosanquet v. Corser, app. ii. iii. 1369 
 
 V. Dashwood, iii. 1 162 
 
 V. Dudman, ii. 220. 648 
 
 V. Forster, app. ii. iii. 1309 
 
 r. Ransford, app. ii. iii. 1512 
 
 I'. Wray, ii. 671. iii. 824 
 
 Bosden v. Thin, ii. 69 
 Bosleyt'. Moore, app. ii. iii. 1514 
 Boson V. Sandford, ii. 285 
 Boss V. Liston, iii. 1120 
 Bostock V. Saunders, ii. 597. 599 
 
 Ex parte, app. ii. iii. 1348 
 
 Bosvil V. Brandon, ii. 176 
 Boswell V. Chi-istie, ii. 103 
 
 V. Smith, iii. 822 
 
 Botcherby v. Lancaster, ii. 139 
 
 Botheroyd v. Woolley, app. ii. iii. 1326 
 
 Botter, Ex parte, ii. 148 
 
 Botting V. Martin, i. 464. ii. 474. iii. 1182 
 
 Bottings V. Firby, i. 268 
 
 Bottomley v. Bovill, iii. 880 
 
 V. Forbes, app. ii. iii. 1499 
 
 V. Wilson, i. 131. ii. 259 
 
 Boughton V. Frere, ii. 212. 708 
 Boulager v. Talleyrand, ii. 232 
 Boultbee v. Stubbs, ii. 251. iii. 1064, 1065 
 Boulter v. Arnott, iii. 1200 
 Boulton 1). Bull, iii. 940 
 
 V. Crowther, iii. 747. 1170 
 
 • V. Welch, ii. 229 
 
 Bounsall v. Harrison, app. ii. iii. 1368 
 Bounty (case of the), i. 145. 285 
 Bourne v. Whitmore (SirT.), i. 333 
 
 V. Freeth, iii. 806 
 
 V. Mason, ii. 56 
 
 II. Tayler, ii. 696 
 
 V. Turner, i. 110. ii. 433 
 
 Ex parte, ii. 175 
 
 Bousfield V. Godfrey, ii. 57 
 Boutflower v. Coates, ii. 185 
 Boiiverie v. Miles, ii. 523. 529 
 Boville V. Moore, iii. 939 
 Bovey's (Sir R.) case, iii. 1109. 1 133 
 Bowcher v. Nordstrom, iii. 737, 738, 739 
 Bowdeu V. Home, i. 263 
 
 V. Vaughan, iii. 888 
 
 V. Waithman, iii. 1012 
 
 Bowditch V. Mawley, i. 489 
 
 Bowen v. Ashley, iii. 1045, 1046. 1053 
 
 t'. Fox, iii. 1166 
 
 V. Jenkins, app. ii. iii. 1380 
 
 Bower v. Hill, ii. 315. iu. 1256. 1260 
 
 V. Major, iii. 1083 
 
 D.Taylor, ii. 118 
 
 Bowerbank v. Monteiro, ii. 448 
 Bowerman v. Sybourn, i. 331 
 Bowers v. Evans, iii. 832 
 
 Ex parte, HTp]). ii. iii. 1346 
 
 Bowes V. Fernil, app. ii. iii. 1313 
 
 V. Howe, ii. 208. 210. 224. 231 
 
 Ex jjarte, ii. 137 
 
 Bowkey v. Williams, ii. 505 
 Bowler v. Brown, ii. 112 
 
 V. Nicholson, app. ii. iii. 1574 
 
 Bowler's case, iii. 1277 
 
 Bowles V. Langworthy, i. 317. 371. ii. 138 
 
 — — V. Neale, app. i. 624 
 
 V. Orr, app. ii. iii. 1423 
 
 Bowman v. Horsey, iii. 779 
 Bowman i'. Manzelmiin, iii. 1297 
 b 4
 
 XXIV 
 
 TABLE OP CASES. 
 
 Bowman v. Nash, ii. 183 
 
 r. Nichol, ii.254 
 
 V. Taylor, ii. 21 
 
 V. Willis, i. 168 
 
 Bowring v. Edgar, iii. 1042 
 
 11. Stevens, ii. 375, 37G. iii. 1054 
 
 Bowry i'. Bennett, ii. 04. iii. 1217 
 
 V. Pope, iii. 741, 742 ' 
 
 Bowsher v. Cally, ii. 31. iii. 1014 
 Bowyer v. Barupton, ii. 240. iii. 1235 
 Box V. Jones, ii. 581 
 Boxer v. Rabeth, i. 379. 381 
 Boyce v. Chapman, app. ii. iii. 1377 
 
 t). Warbnrton, ii. 577. iii. 1201 
 
 . V. Whitaker, i. 479 
 
 Boyd V. Croydon Railway Company, app. ii. 
 
 iii. 1489. 1507 
 
 . V. Dubois, iii. 878. 886 
 
 i: Enimerson, iii. 809. 1042 
 
 V. Siffkin, i. 460. ii. 61 
 
 Boydell v. Champneys, ii. 56:3 
 
 V. Drunnnond, ii. 289. 482. 602. 670. 
 
 iii. 758. 1040 
 
 1% Jones, ii. 627 
 
 V. M'Michael, ii. 155. 157 
 
 Boyes v. Hewctson, app. ii. iii. 1389 
 Boyle V. Boyle, i. 279 
 Boyman v. CTUteli, app. ii. iii. 1592 
 Boys V. Ancell, iii. 852. app. ii. iii. 1388 
 
 I'. Ayherst, ii, 484 
 
 (V pinks, ii. 286. 295 
 
 — — t! AVilliams, app. ii. iii. 1499 
 Boyter v. Dodsworth, ii. 83 
 Bozou V. Bolland, app. ii. iii. 1470 
 Brabin & Tradum's case, iii. 863, 804,865 
 Bracegirdle v. Ileald, ii. 482 
 
 I'. Orford, iii. 1115 
 
 Bradbury v. Anderton, ii. 172 
 
 V. Burch, iii. 866 
 
 ^ V. Grinsell, ii. 396. iii. 745. 913 
 
 Braddick v. Thompson, ii. 118 
 Bradey v. Jones, iii. 1069 
 Bradford v. Levy, iii. 879 
 Bradley v. Clark, ii. 168 
 
 V. Gill, iii. 741,742 
 
 V. Gregory, ii. 10, 17 
 
 V. Holdsworth, app. ii. iii. 1429 
 
 V. Ricardo, i. 216 
 
 V. Waterhouse, ii. 293 
 
 V. Wyndham, iii. 1018 
 
 Bradshaw v. Bennett, i. 406 
 
 i\ Lawson, ii. 695 
 
 r. Maples, app. i. 603 
 
 r. Murphy, i. 191 
 
 Bradshaw's case, iii. 969 
 Bradwin ?>. Harper, iii. 770. 772 
 Brady v. Cubitt, iii. 784. 1287, 1288 
 
 V. Giles, iii. 737 
 
 , IHx parte, app. ii. iii. 1483 
 
 Bragg V. Cole, iii. 1200. 1207 
 
 Braham, v. Partridge, iii. 904 
 
 Brain's case, ii. 723 
 
 Braine v. Dew, i. 183. 
 
 Braithwaite v. Coleman, i. 127, 128. ii, 232 
 
 • V. Jackson, ii. 536 
 
 V. Schofield, iii. 806. 1298 
 
 Bramah r. Abingdon (Lord), iii. 1203 
 
 i: Roberts, ii. 205 
 
 Bramwell?'. Halcomb, app. ii. iii. 1530 
 i\ Lucas, ii. 321 
 
 Branckerw. Molyncux, app. ii. iii. 1585 
 Brand c. Boulcot, iii. 1061 
 
 Brandao v. Barnett, app. ii. iii. 1408. 
 1584 
 
 Brandling r. Barrington, iii. 1026, 1027 
 
 Brandon In re, app. ii. iii. 1340 
 
 t,. Hil)bert, ii. 89 
 
 I'. Old, ii. 66 
 
 V. Pate, ii. 170. 445 
 
 Brandram v. Wharton, ii. 669, 670 
 
 Brandt v. Bowlby, iii. 1162. 1165, 1220. 
 
 1225 
 ?•. Peacock, ii. 687. iii. 1078 
 
 Brausby v. Herridge, iii. 1270 
 
 Branscomb v. Brydges, ii. 301. 389. iii. 737. 
 1108. app. ii. iii. 1401 
 
 Branston (case of the), iii. 1299 
 
 1\ Robins, iii. 956 
 
 Branwell v. Penneck, ii. 580. 590 
 
 Brashford r. Buckingham, ii. 534 
 
 Brashier v. Jackson, app. i. 028,029 
 
 Brass v. Bird, iii. 824 
 
 Brattr. Ellis, iii. 1193 
 
 Bray v. Freeman, i. 455. ii. 63 
 
 V. Hadwen, ii. 225. 
 
 Braye Peerage, app. ii. iii. 1529 
 
 Brayne v. Beal, ii. 30 
 
 Brayshaw,?'. Eaton, App. ii. iii. 1442 
 
 Brazier i: Jones, iii. 1019. 1021 
 
 Brazier's case, i. 94, 222, 352. iii. 950, 
 951 
 
 Breach v. Casterton, i. 531 
 
 Brealey v. Andrew, apj). ii. iii. 1329. 1358. 
 
 Brecknock Navigation i\ Pritchard, ii. 421 
 
 Bredon v. Ilarman, ii. 370. iii. 850. 959 
 
 Bree v. Beck, i. 238. app. i. 608 
 
 V. Holbeach, ii. 90. 659 
 
 Breedou v. Gill, i. 222. 315. 328 
 
 V. Murphy, iii, 730 
 
 Brembridger. Campbell, app. ii. iii. 1375 
 
 V. Osborn, iii. 824. 900 
 
 Bread r. Brend, ii. 334 
 
 Brennan r. Currint, ii. 648 
 
 Brereton's case, i. 476 
 
 Brest V. Lever, app. ii. iii. 1573 
 
 Bretherton v. Wood, ii. 2. 285 
 
 Breton v. Cope, i. 228. 248. 37 1 . iii. 823 
 
 V. Knight, iii. 1131 
 
 Brett V. Beales, i. 183, 282, 341. 386. 
 iii. 906 
 
 Brett i;. Brett, iii. 1265 
 
 V. Close, ii. 248 
 
 V. Jones, ii. 600 
 
 V. J. S. & Wife, ii. 56 
 
 V. Levett, ii. 148, 149. 2.30, 231, 238 
 
 V. Rigden, iii. 1294 
 
 V. Ward, i. 242 
 
 Bretton v. Cope, i. 341. iii. 1200 
 
 Brewer's Company v. Bernan, iii. 945 
 
 Brewer r. Eaton, ii. 426 
 
 V. Palmer, ii. 57. 71, iii. 1056. 1178 
 
 V. Sparrow, ii. 168 
 
 Brewster v. Sewell, i. 391 
 
 Briant v. Eicke, i. 495 
 
 Brice v. Wilson, "ii. 450 
 
 Brickell i: Hulse, app. ii. iii. 1319 
 
 Brickland v. Newsom, ii. 174 
 
 Jjriders v. Smith, iii. 971 
 
 Bridge v. Grand Junction Railway Com- 
 pany, iii, 741
 
 TABLE OF CASES. 
 
 XXV 
 
 Bridge v. Serldall, iii. 1138 
 
 V. Wain, iii. 1237. 1239. 1243 
 
 Bridges v. Berry, ii. 267 
 
 V. Blancliard, ii. 473. iii. 1138 
 
 V. Cliaudos (Duke of), iii. 914. 9G1 
 
 V. Fisher, i. 321 
 
 V. Francis, ii. 110 
 
 & Nicliol's case, ii. 272 
 
 V. Smitli, iii. 1184 
 
 Bridget v. Mills, ii. 189 
 
 Bridgett v. Coyney, ii. 591. iii. 1113 
 
 Bridgewater v. Crutcbley, ii. 702 
 
 Bridgland i: Sliefler, app. ii. iii. 1403 
 
 Bridgmau i\ Jennings, 1. 354 
 
 Bridgwater case, iii. 1033 
 
 Brien i: Bennett, app. ii. iii. 1488 
 
 Brig's case, iii. 1193 
 
 Briggins v. Good, ii. 
 
 Briggs v. Ainsworth, app. i. 027 
 
 V. Calverley, iii. 1071 
 
 V. Crick, iii. 1228. 1243 
 
 I'. Evelyn, ii. 506 581 
 
 V. Wilkinson, iii. 1301 
 
 Briggs' case, app. ii. iii. 1478 
 Bright V. Bevaii, ii. 341 
 
 V. Eynon, i. 531. iii. 968 
 
 V. Furrier, ii. 225 
 
 V. Walker, iii. 919. 921 
 
 Brigstock v. Smith, ii. 99. 666, 667 
 
 Brill V. Crick, ii. 213 
 
 Brimley v. Cripps, ii. 99 
 
 Briud r. Bacon, ii. 259. iii. 1062 
 
 r. Dale, ii. 284 
 
 r. Ilanipsliire, app. ii. iii. 1581 
 
 Brine v. Featlierstoue, iii. 889 
 Bringloe r. Goodson, app. ii. iii. 1317 
 Brinley v. Watson, i. 487 
 Brisbane v. Dacres, ii. 88. iii. 1216 
 Brisco r. Lomax, app. i. 601 
 Bristol (Earl of) v. Wilmore, iii. 1225 
 
 (Governors of Poor of), v. Wait, 
 
 i. 392. ii. 572. iii. 953. 969. 1139 
 Bristow V. Eastman, ii. 22. 84. 179. 556. 
 iii. 955, 956 
 
 V. Havwood, i. 476. ii. 687. 689 
 
 V. Wright, i. 442. 444, 445. 451. 456. 
 
 ii. 59 
 British Linen Co. i'. Drummond, ii. 657 
 British Museum v. White, iii. 1290 
 Brittain v. Kinnaird, ii. 587, 588, 589 
 Britten v. Hughes, iii. 966 
 Britton v^ Jones, ii. 449. app. ii. iii. 1418 
 Broad v. M'Calmar, app. ii. iii. 1329 
 
 V. Pitt, ii. 321 
 
 V. Thomas, ii. 361 
 
 Broadbent v. Ledward, app. ii. iii. 1313. 
 1399 
 
 v. Shaw, iii. 1143 
 
 Broadhurst v. Baldwin, iii. 829 
 
 Broadley v. Wyndham, iii. 1019 
 
 Brock u. Copeland, iii. 735 
 
 Brock V. Kent, ii. 30 
 
 Brocklebank v. Moore, ii. 510. iii. 1063 
 
 V. Sugrue, iii. 866. 1049 
 
 Brocklehurst v. Jessop, app. ii. iii. 1473 
 Broderick v. Broderick, iii. 1263 
 Brodie v. (St.) Paul, ii. 481. 484. iii. 754 
 Brodie's case, ii. 638 
 Brcennenbuigh v. Haycock, iii. 1242 
 Brogdcn r. Marriott, app. ii. iii. 1332 
 
 Bromage v. Prosser, ii. 630, 074. 676 
 
 V. Rice, ii. 517 
 
 Bromfiekl v. Jones, i 437. iii. 1011 
 
 Bromley v. Coxwell, iii. 1157, 115S 
 
 V. Cripps, ii. 99 
 
 V. Frazier, ii. 234 
 
 i: Heseltiiie, iii. 875 
 
 V. Holden, ii. 394 
 
 V. King, ii. 129 
 
 V. Mundee, ii. 175 
 
 V. Wallace, ii. 355 
 
 Bromwich's case, ii. 383. 385 
 
 Brook i\ Biggs, app. li. iii. 158l> 
 
 V. Bishop, ii. 298 
 
 V. Brydges, ii. 435 
 
 V. Carpenter, i, 259 
 
 V. Enderby, iii. 826 
 
 r. Finch, app. i. 633 
 
 V. Middleton, i 534 
 
 V. Montague (Sir Henry), ii. 639 
 
 V. Willet, i. 441. 448. iii. 910 
 
 Brookbard i'. Woodley, ii. 515, 516 
 Brooke (in the goods, &c.) app. ii. iii. 
 1618 
 
 V. Carpenter, ii. 687 
 
 V. Clarke, iii. 938 
 
 V. Guest, ii. 2 
 
 V. Milliken, iii. 847. 941 
 
 V. Mitchell, app. ii. iii. 1343. 1351 
 
 V. Noakes, ii. 394 
 
 V. Pickman, ii. 284 
 
 V. Watts, iii. 973 
 
 „. White, ii. 71. iii. 973. 1204 
 
 Brooker r. Fiehl, app. ii. iii. 1456 
 
 r. Wood, iii. 1218 
 
 Brookes r. Blancliard, i. 495 
 
 V. Hague, ii. 110 
 
 V. Lloyd, ii. 184 
 
 V. Warwick, i. 522. ii. 681. 683, 684 
 
 Brookman v. Rothschild, ii. 47 
 Brooks V. Blancliard, ii. 626. 632. 634 
 
 i: Elkins, app. ii. iii. 1557 
 
 V. Fairlar, app. ii. iii. 1502 
 
 V. Glencross, app. ii. iii. 1348 
 
 V. Humphries, ii. 347 
 
 V. M'Donnell, app. ii. iii. 1527 
 
 V. Mason, ii. 110 
 
 V. Rogers, ii. 185 
 
 V. Stuart, ii. 250 
 
 Brooksbank v. Smith, app. ii. iii. 1472 
 Brooksby v. W^tts, iii. 1084. 1180 
 Broom v. Bradley, app. i. 594. 597 
 
 V. Davis, iii. 1268 
 
 V. Robinson, ii. 407 
 
 Broomfield v. Smith, iii. 1204 
 Broseley, Sx parte, app. ii. iii. 1549 
 Brotherson v. Holt, iii. 729 
 Brotherston r. Barber, iii. 880, 881 
 Brough V. Perkins, i. 609. ii. 232 
 Broughton v. Manchester Waterworks 
 Company, ii. 206. 339. 346 
 
 r. Lengley,ii. 409 
 
 V. Randall, i. 508 
 
 Brounker v. Scott, ii. 58 
 Brown v. Allen, iii. 1106 
 
 V. Babington, iii. 1076 
 
 V. Berkeley, iii. 1235 
 
 II. Brown, i. 112. 145. 165. iii. 709 
 
 - — V. Bulleu, i. 291. 305 
 V. Capel, i. 248
 
 XXV) 
 
 TABLE OF CASES. 
 
 liiown V. Coini)to!i, ii. 599 
 
 V. Crasliaw, i. 100 
 
 V. Croino, ii. G32. G34. G39 
 
 V. Croydon Can. Company, ii. 118 
 
 V. Daubeny, n\)\). ii. iii. 1541 
 
 V. Davis, ii. 73. 253. 200. iii. 1307 
 
 V. Day, ii. 88 
 
 V. Duncan, iii. 1217 
 
 V. Eiigington, app. ii. iii. 1G04 
 
 V. Elkington, app. ii. iii. 1G05 
 
 V. Fleetwood, app. ii. iii. 1448 
 
 V. Fox, i. 110 
 
 V. Frye, iii. 1050. 1241 
 
 V. Gracey, ii. 459 
 
 11. Heathcote, ii. 159, 160 
 
 V. Hedges, iii. 1159. 11G4, 1165 
 
 V. Hill, i. 449 
 
 V. Hodgson, 11. 77. 284. iii. 794, 
 
 795. 
 
 V. Howard, 11. 655. G59, 660 
 
 . V. Jacobs, 1. 48G. 489 
 
 V. Jarvis, iii. 1014 
 
 V. Jenks, app. ii. iii. 1516 
 
 V. Kewley, ii. 265. iii. 827 
 
 V. Knill, 1. 458. 484 
 
 V. Laugley, Iii. 764. 772 
 
 V. Lee, 11. 74. 185 
 
 V. Leeson, Iii. 1234 
 
 V. Leonard, iii. 811 
 
 V. London (Corporation of), ii. 340 
 
 V. Macdermot, 11. 239 
 
 V. M'Kinnally, 1.272. Ii. 87. 92 
 
 V. Maffey, ii. 231. 236. 265 
 
 V. Mllner, iii. 1305 
 
 V. Murray, i. 425 
 
 V. Nairne, ill. 1307. app. 11. 111. 1622 
 
 V. Olive, 1. 260 
 
 V. Parry, 11. 497 
 
 V. Pliilpot, app. 11. iii. 1367 
 
 V. Pigeon, ii. 690 
 
 V. Rawlins, ii. 336 
 
 V. Ricks, 1. 508 
 
 V. Robinson, ii. 48 
 
 V. Rose, 1. 370. Ii. 565 
 
 V. Ruill, ii. 379 
 
 r. Saul, ill. 1068 
 
 —— V. Sayce, 1. 456 
 
 V. Sayer, 11. 62 
 
 V. Selwin, iii. 763, 764 
 
 V. Shuker, ii. 520, 521 
 
 V. Smith, ill. 882 
 
 V. Tanner, 11. 118 
 
 V. Tapscott, app. 11. ill. 1505. 1512 
 
 V. Tayleur, app. 11. ill. 1524 
 
 I'. Thomj'son, iii. 784 
 
 V. Thornton, app. ii. Hi. 1424 
 
 V. Turner, ii. 78. 246. 111. 1220 
 
 V. Vauser,iii. 1041 
 
 • V. Watts, 11. 256. 264. 111. 794. 1057 
 
 V. Windsor, i. 450. ill. 747 
 
 V. Woodman, 1. 394 
 
 V. Wootton, 1. 208 
 
 JJa; pm-te, ii. 155 
 
 Brown's case, i. 317, 318. 11. 276. 278, 279 
 
 552 
 Browncker v. Scott, ii. 960 
 Browne v. Aspinwall, 111. 1258 
 
 V. Carr, ill. 1066 
 
 V. Cuminlng, ii. 667 
 
 V. Joddrcll, 11. 103 
 
 Browne v. Powell, Hi. 975, 97G 
 Browning v. Kinnear, ii. 236. 
 
 V. Morris, 11. 94. 97 
 
 V. Rcld, app. 11. ill. 1448 
 
 V. Stollard, iii. 827. 1196 
 
 v. Wright, ii. 342. 379. iii. 938 
 
 Brownker (Lord) n. Atkins (Sir R.),i. 258. 
 
 260 
 Brownlow v. Tomlinson and others, app. ii. 
 
 iii. 1570 
 Brownsword v. Edwards, 1. 280 
 Bruce v. Bruce, 11. 87 
 
 r. Buck, 11. 702 
 
 V. Hunter, Ii. 576 
 
 V. Hurley, 1. 351. ii. 221 
 
 V. Ruler, ii. 472 
 
 V. Wait, app. 1. 610. 11. ill. 1469 
 
 Briicker v. Fromont, 1. 474. 11. 41. 295. 
 
 298. Iii. 738 
 Brucklesbank v. Smith, 11. 589 
 Brucr v. Roe, iii. 11.56, 1157. 1161 
 Bruges v. Searle, i. 457 
 Bruin's (Sir J.) case, 11. 363 
 Brundrett, Ex j)arte, app. ii. 111. 1345, 
 
 1346 
 Brunsklll v. Robertson, ill. 1025 
 Brunton v. Hall, app. ii. Hi. 1610 
 Brunton's case, ill. 1071 
 Brutt V. Plcard, Hi. 1051 
 Bruyeres v. Halcomb, app. 11. Hi. 1412 
 
 Bryan d. Child v. Wlnwood, 11. 413. 424. 
 696 
 
 V. Horseman, 11. 662, 663 
 
 V. Lewis, 111. 1216. app. 11. HI. 1698 
 
 V. Wagstall, 1. 401 
 
 V. Whistler, HI. 863 
 
 Bryant v. Beattie, app. ii. Hi. 1334 
 
 V. Busk, app. 11. ill. 1593 
 
 V. Christie, Ii. 248 
 
 V. Glutton, Hi. 1110 
 
 V. Flight, app. 11. Hi. 1621 
 
 i;. Loxton, 11. 627 
 
 V. Nix, app. H. Hi. 1582 
 
 V. Withers, H. 148. 175 
 
 In re, Hi. 750 
 
 Bryce, Eleanor, in the goods ^of, app. u. Hi. 
 1616 
 
 Brydgcs v. Plumptree, 11. 664 
 
 V. Walford, Hi. 1023, 1024 
 
 Bryson v. Wylie, ii. 158 
 
 Buchan v. Snath, ii. 98 
 
 Buchanan v. Findlay H. 177. Hi. 825. 1151. 
 1236 
 
 V. Parnshaw, Hi. 1210. 1241 
 
 V. Rucker, 1. 273. 275, 276. 294. 
 
 304. 306. 11. 589 
 
 Buck, £lx jjarte, ii. 146 
 
 Buckljy V. Coles, Hi. 1257 
 
 Bucker v. Booth, ii. 152 
 
 Bucket V. Church, app. 11. iu. 1473 
 
 Buckhouse v. Crosby, Hi. 790 
 
 Buckhurst's case, 11. 387 
 
 Buckingliamshlre (Earl of) v. Drnry, 11. 
 558 
 
 V. Hobart, Hi. 783 
 
 Buckland v. Butterfleld, Hi. 1247 
 
 V. Newsam, ii. 148 
 
 V. Tankard, i. 132. 11. 260. HI. 1229 
 
 Buckle V. Bewes, ill. 1023. 1031 
 
 Buckler v. Buttivant, ii. 184. 242
 
 TABLE OF CASES, 
 
 XXVU 
 
 Buckler v. Millard, iii. 755 
 
 V. Moor, ii. CGI 
 
 Buckley v. Nigiitiiigale, ii. 520 
 
 i\ Smith, i. 37G 
 
 V. Taylor, iii. 1026 
 
 — — V. Williams, ii. 347 
 
 • V. Wood, ii. 038 
 
 Buckman v. Levi, iii. 1206 
 
 Buckmaster v. Harrop, ii. 486. iii. 761. 
 
 1196 
 Buckmore i>. Levi, ii. 286 
 Buckmyre 7). Daruall, ii. 477 
 Biickual V. Roistoii, ii. 497 
 Bucknow's case, i. 369 
 Buckridge v. Ingham, iii. 1126 
 Buekton v. Frost, ii. 120. 173 
 
 r. Smith, iii. 795 
 
 Buckworthi'. Simpson, iii. 1177 
 Biidd, Ex parte, app. ii. iii. 1349 
 Buddie V. Wilson, ii. 285 
 Bufe 11. Turner, iii. 886 
 Buggins V. Good,ii. 393 
 Bniford v. Croke, iii. 969 
 Bulkeley v. Butler, i. 526. 528. 530. ii. 210. 
 219 
 
 V. Lord, i. 463. ii. 511 
 
 V. Nightingale, iii. 979 
 
 Bull V. Price, iii. 1303 
 
 V. Sibbs, iii. 1176. 1206 
 
 V. Stokes, ii. 454 
 
 Bull's case, ii. 616 
 
 Bullard v. Harrison, iii. 1257 
 
 V. Sitwell, iii. 968 
 
 Bullen V. Michell, i. 237. 244. 383, 384, 
 385. 395. 397. 414. 527. ii. 40. iii. 
 1092 
 
 Bullen V. Fisher, ii. 287. iii. 877 
 
 V. Harrison, ii. 83. 89 
 
 Bullin V. Fletcher, iii. 1292 
 
 Bulling V. Frost, iii. 1234 
 
 Bullock V. Dodds, ii. 106 
 
 V. Dommctt, ii. 421 
 
 Bulman v. Birkett, ii. 110. iii. 993 
 
 Bulnois V. Mackenzie, app. ii. iii. 1530 
 
 Bulpit w. Clarke, iii. 971 
 
 Bull V. Burke, iii. 995 
 
 Bulteel V. Jarrold, iii. 1064, 1065 
 
 Bulter V. Ford, ii. 595. 600 
 
 Bulwer v. Buhver, iii. 1101 
 
 Bulwer's case, iii, 1230 
 
 Bunbury v. Bunbury, app. ii. iii. 1381 
 
 Bunn V. Guy, ii. 55. 64 
 
 Ex jMrte, ii. 175 
 
 Bunney v. Poyntz, iii. 1223 
 
 Bunter v. Coke, ii. 409 
 
 ?;. Warre, i. 122. 135, 136. iii. 976 
 
 Bunting's case,i. 288 
 
 Bunton v. Bateman, iii. 865 
 
 Burbidge v. Jakes, i. 468. iii. 849 
 
 Burchell v. Hulse, app. ii. iii. 1555 
 
 V. Slocock, ii. 215 
 
 Burden v. Halton, iii. 1205 
 
 Burdett v. Abbott, ii. 597 
 
 V. Colman, i. 55. iii. 1143. 1174 
 
 V. Withers, ii. 348 
 
 Burdon v. Browning, i. 280, 281. ii. 331 
 
 v.Ricketts, i.251. ii. 439 
 
 Burgess v. Clements, ii. 560 
 
 V. Cuthill, i. 127. ii. 2.59, 260 
 
 V. Foster, ii. 332. 334 
 
 Burgess v. Freelovc, iii. 1104 
 
 Ex parte, ii. 127, 128. 148 
 
 Bnrgli V. Legge, ii. 229 
 
 Burghartv. Angerstcin, i. 245. ii. 115. 557. 
 
 V. Hall, app. ii. iii. 1442 
 
 Burgis's case, ii. 618 
 Burke v. Jo..es, ii. 670 
 
 V. Leo, ii. 154 
 
 V. Stacey, iii. 1295 
 
 Burke's case, iii. 777. 1065 
 Burkctt V Church, ii. 668 
 Burleigh v. Stibbs, i. 372.405. 413. ii. 21. 
 413. 
 
 V. Stott, ii. 669, 670 
 
 Burley v Bethane,ii. 585. 676. 683,684 
 BurUng v. Paterson, app. i. 618. ii. iii. 
 
 1430 
 Burls V. Smith, iii. 1171. 1298 
 Burn V. Carvalho, app. ii. iii. 1469 
 
 V. Miller, iii. 1296 
 
 V. Norris, iii. 1167 
 
 -. V. Phelps, ii. 48. iii. 1184 
 
 Ex parte, ii. 155. 157 
 
 Burnaby's case, iii. 827 
 Burnand ?'. Nerot, iii. 749 
 Burne v. Richardson, ii. 434, 4.35 
 Burnett *'. Bouch, app. ii. iii. 1502. 1622 
 Burnett v. Kensington, iii. 878 
 
 V. Lynch, i. 372. 394. 406 
 
 I'. Taylor, i. 375 
 
 Burr V. Daval, iii. 1283 
 
 r. Harper, ii. 513 
 
 Burrel v. Nicholson, i. 417. 427. ii. 1. 598 
 
 Burrell V. Jones, ii. 46. 114. 576. iii. 1301 
 
 Burridge v. Essex (Earl of), i. 309 
 V. Manners, ii. 226 
 
 Burridge's case, i. 99. 102 
 
 Burrough v. Martin, i. 97. 177,178. 181. 247 
 t>. Moss, ii. 253. iii. 994 
 
 Burrough's case, ii. 397 
 
 Burrowes v. Unwin, i. 510 
 
 Burrows v. Jemino, i. 247. 274. 292. ii. 400. 
 iii. 960 
 
 V. Lock, i. 375 
 
 V. Wright, ii. 533 
 
 Burslem v. Fern, iii. 1111 
 
 Burt u. More, iii. 1102 
 
 V. Moult, ii. 219. 
 
 V. Palmer, ii. 43. 663 
 
 V. Puller, ii. 167 
 
 V. Walker, i. 376, 377 
 
 Burt, in re, in. 1074 
 
 Burtenshaw v. Gilbert, iii. 1286. 
 
 Burton v. Barclay, ii. 349 
 
 V. Bateman, ii. 396 
 
 V. Burchall, i. 169. ii. 349. iii. 1230 
 
 V. Chatterton, ii. 108 
 
 V. Cole, iii. 1033 
 
 V. Eyre, iii. 1022 
 
 V. Green, ii. 146 
 
 V. Hinde, i. 121. 129. ii. 340. 
 
 V. Hughes, iii. 1145. 1153 
 
 V. Kirkby, iii. 1055 
 
 V. Loyd, ii. 194 
 
 V. Payne, i. 400 
 
 V. Plummer, i. 178, 179, 180 
 
 V. Toon, i. 381 
 
 V. WooUey, iii. 815. 
 
 Burton's case, ii. 615 
 
 Burv V. Arnaud, app. ii. iii. 1323
 
 XXVlll 
 
 TABLE or CASES. 
 
 Bury (Corp. of) r. Evans, iii. 1086 
 Busby V. Greenslate,i. 114. 1G9. iii. 1228 
 
 i\ Watsijn, i. 492 
 
 Bush V. Green, ii. 50.j. app. ii. iii. 1431 
 
 V. Locke, app. ii. iii. 1384 
 
 I'. Parker, iii. ] 137 
 
 V. Rawlings, ii. 11, 12. 271. iii. 851 
 
 V. Steiiiman, iii. 738. 1170 
 
 Basil's case, ii. G17 
 
 Bushby v. Dixon, iii. 898, 899 
 
 Busliell V. Ban-ett, i. 96 
 
 V. Busliell, iii. 732 
 
 Busliell's case, i. 284 
 
 Bushwood V. IBond, i. 449. iii. 909 
 
 V. Pond, iii. 975 
 
 Busk V. Davis, iii. 1223 
 
 V. Royal Exchange Ass. Company, 
 
 iii. 877,878. 889 
 
 V. Walsh, ii. 94 
 
 Buske V. Lewis, i. 88 
 Buss r. Gilbert, ii. 184, 185 
 Butcher v. Butcher, iii. 966. 1101 
 
 ■ . V. Easto, ii. 138. 140. 147 
 
 V. Jarratt, i. 403. iii. 1155 
 
 Butchers' Company v. Jones, i. 136 
 Butcher's case, ii. 37 
 Butcher & \ldworth's case, i. 223 
 Butler V. Allnutt, i. 293. iii. 876 
 
 V. Baring, ii. 286 
 
 V. Carver and others, i. 136. 206. 
 
 ii. 153. 169 
 
 i-. Cooke, ii. 191, 192 
 
 V. Do! ant, i. 535 
 
 V. Heane, ii 289 
 
 V. Hobson, ii. 120. 173 
 
 V. Moore, i. 71. ii. 322 
 
 V. Rhodes, ii. 17 
 
 V. Swinnerton, ii. 347 
 
 r. Turlev, iii. 1144 
 
 V. Woolcot, ii. 647, 648 
 
 Ex parte, ii. 176 
 
 Butler's case, i. 404. 421,422. ii. 341. iii. 
 
 895 
 Butlin V. Barry, iii. 1279 
 Butt V. Burke, app. ii. iii. 1541 
 
 V. Howard, iii. 1081 
 
 V. Newman, ii. 595 
 
 V. Read, iii. 1174 
 
 Butter V. H- athly, iii. 746 
 Butterfield v. Burrows, iii. 1242 
 
 V. Forrester, iii. 741 
 
 V. Windle, iii. 848 
 
 Buttermere v. Hayes, ii. 472 
 Butterworth v. Le Despenser (Lord), i.485 
 Button V. Cope, i. 245 
 
 • V. Corder, iii. 1238 
 
 Buttrell V. Summers, iii. 966 
 Butts t7. Swann, iii. 1042. 1055 
 Buxendine v. Sharp, iii. 735 
 B.xton V. Bateman, iii. 864 
 
 V. Bedall, iii. 1039. app. ii. iii. 1557 
 
 • V. Jones, ii. 224 
 
 V. Mingay, ii. 504 
 
 Buxton or Butler v. Yateman, iii. 865 
 Buzzard v. Bousfield, app. ii. iii. 1447 
 
 V. Capel, ii. 49. iii. 969. 971. 1128 
 
 Byam v. Booth, i. 325, 326 
 Byerly v. Windus, iii. 861. 864 
 Byers v. Dobey, iii. 814 
 I'. Southwell, app. ii. iii. 1356 
 
 Byne v. Moore, i. 482. 491. ii. 678. 683 
 
 Ex parte, i 91 
 
 Bynner v. Russell, ii. 214 
 
 Byrne v. Harvey, i. 4Ul 
 
 Byrom v. Thomson, iii. 1052. app. ii. iii. 
 
 '1371 
 Byron v. Lamb, iii. 1094 
 By waters. Richardson, iii. 757. 1238 
 
 Cabell i\ Vaughan, iii. 827 
 Cadaval, Duke de, v. Collins, ii. 93 
 Cadby v. Martinez, app. ii. iii. 1408 
 Cadd, In re, ii. 194 
 Caddell v. Shaw, ii. 537 
 Caddy r. Barlow, ii. 677. 684 
 Cadman's case, ii. 694 
 Cadogan v. Cadogan, ii. 353 
 
 (Lord)z;. Kennett, ii. 495. 497 
 
 Caifey's case, i. 156. ii. 469 
 
 Calborne v. Stockdale, i. 494 
 
 Calcraft v. Gibbs, i. 533. ii. 501, 502. 
 
 505 
 
 V. Harborough (Lord), ii. 355 
 
 Caldecot v. Smythies, app. ii. iii. 1571 
 Caldecott Ex parte, app. ii. iii. 1349 
 Calder v. Rutherford, i. 418-420 
 Call V. Dunning, i. 369. 371. ii. 25 
 Callaghan v. Aylett, ii. 210 
 Callam's case, ii. 276 
 Calland v. Lloyd, app. ii. iii. 1439 
 Callander v. Oelrichs, ii. 44. app. ii. iii. 
 
 1330 
 Calliard v. Vaughan, i. 87. 320 
 Callo V. Brownker, iii. 1304 
 Callonel v. Briggs, iii. 1198, 1 199, 1200 
 Callow t\ Lawrence, ii 218. 249.256. iii. 
 
 1043 
 
 V. Mire, i. 140 
 
 Callcwell V. Clutterbuck, ii. 185 
 Calthorpe v. Gough, iii. 1260 
 Calton ?'. Bragg, ii. 79. 577, 578 
 Calvert v. Baker, ii. 23(' 
 
 V. Bovill, i. 292. 293 
 
 i\ Canterbury (Archbisiiop of), i. 361 
 
 V. Flower, i. 403 
 
 ).. Horsefall, ii. 434 
 
 V. Jolliffe, iii. 1028 
 
 V. Roberts, ii. 255 
 
 Calye's case, ii. 559. 561 
 Carabdenr. Fletcher, app. ii. iii. 1417 
 Cambridge v. Anderton, iii. 880 
 (case of the J, iii. Io06 
 
 University v. Baldwin and others, 
 
 app. ii. iii. 1435 
 
 Camden v. Anderson, i. 249. ii. 637. iii. 
 
 870. 875 
 
 V. Cowley, iii. 867 
 
 V. Morton, ii. 421 
 
 Camelo c. Britton, iii 875 
 Cameron i' Gray, iii. 1231 
 
 V. Lightfoot, i. 337 
 
 V. Reynolds, i. 268. iii. 1009 
 
 V. Smith, ii. 148. 576 
 
 Camfleld v. Gilbert, iii. 1191, 1192, 1193, 
 
 1194 
 Camidge v. Allenby, ii. 266 
 Camoys (Lord) v. Scurr, app. ii. iii. 1584 
 Campbell v. Christie, iii, 8()7 
 
 V. Fleniine, ii. 103. iii. 1227. 1235 
 
 V. Hall, 88
 
 TABLE OF CASES. 
 
 XXIX 
 
 Campbell v. Hassel, iii. 821 
 
 V. Hodgson, ii. 242 
 
 V. Jones, ii, 67, 68 
 
 I'. Maund, app. ii. iii. 1601 
 
 V. Richards, iii. 887, 888 
 
 V. Twemlow, ii. 118, 119. 553 
 
 • V. Wilson, ii. 396. 525. ui. 743, 744, 
 
 745.911.913. 1256 
 
 Ex parte, i. 316 
 
 Campbell's case, ii. 606. 608. 611 
 Campbell, Lady (Case of the), iii. 1305 
 Campion v. Bentley, ii. 450. 453 
 
 V. Colvin, app. ii. iii. 1468 
 
 Campneys v. Peck, ii. 110 
 Candell v. London, i. 522. ii. 681 
 Candle r. Seymour, app. ii. iii. 1455 
 Canev. Baldwin, iii. 1190 
 
 V. Spinks, app. ii. iii. 1502 
 
 Canissa v Lanos, ii. 207 
 
 Cannan v. Bryce, ii. 65.94. 103 iii. 1062 
 
 V. Wood, ii. 171 
 
 Cannell, v. Curtis, app. ii. iii. 1463 
 Canning v. Newman, iii. 965 
 Cannon v. Denew, ii. 128. 171 
 
 V. Meaburn, iii. 1225 
 
 Canot V. Hughes, iii. 1 162 
 
 Capel V. Thornton, ii. 41 
 
 Capper v. Foster, app. ii. iii. 1622 
 
 Capron r. Balmond, iii. 990 
 
 Card V. Hope, iii. 1217 
 
 Carden v. General Cemetery Company, 
 
 app. ii. iii. 1511 
 Cardwell v. Lucas, app. ii. iii. 1389 
 
 V. Martin, iii. 1043 
 
 Careless v. Careless, iii. 769, 770 
 Carew v. Edwards, ii. 187 
 Carev v. Adkins, ii. 32 
 
 'v. Askew, ii. 333, 334 
 
 Cargey, 7w re, ii. 118 
 
 Carleton d. Griffin v. Griffin, iii. 1264 
 
 V. Leighton, ii. 17 
 
 Carlile w Eady, i. 136 
 
 V. Parkins, iii. 988 
 
 Carlisle (Mayor of) v. Blamire, i. 405. 
 
 ii. 21. 338. 351 
 
 (Bishop of) V. Blair, iii. 1087 
 
 (Dean and Chapter of), Case of, i. 
 
 471 
 
 r, Eadv,ii. 192 
 
 V. Garland, iii. 1011. 1028. 1157 
 
 (Case of Cathedral Church of), ii. 
 
 673 
 Carlos V. Fancourt, ii. 215 
 Carlton v. Hutton, iii. 862, 863 
 Carman v. Edwards, app. ii. iii. 1335 
 Carmarthen (Mayor, &c. of ) v. Linns, ii. 
 
 338 
 Carnaby v. Welby, iii. 1131 
 Came v. Brice, app. ii. iii. 1451. 1555 
 Carne dem. NichoU ten, app. i. 617 
 
 V. Nicholl, i. 353. ii. 411 
 
 Carol V Jeans, i. 501 
 
 Carpenter v. Bland ford, iii. 1220. 1228 
 
 V. BuUer, app. i. 597 
 
 V. Wall, app. i. 603. 606. ii. iii. 1540 
 
 Carpenter's case, iii. 975 
 
 Carpenters (Company of) v. Hay ward, 
 
 i. 119. 132. ii. 340 
 Carr v. Browne, ii. 512 
 V. Burdis, i. 406, 407. ii. 139 
 
 Carr v. Clarke, iii. 989 
 
 V. Heaton, i. 260. iii. 1089 
 
 i\ Hinchcliff, iii. 995 
 
 V. Hood, ii. 633. 640 
 
 V. King, ii. 544 
 
 V. Read, ii. 179. iii. 954 
 
 ■ V. Roberts, iii. 1035 
 
 V. Stephens, ii. 105. 254 
 
 Carr's case, ii. 518. iii. 858 
 Carratt«. Morley, app. ii. iii. 1575 
 Carriek v. Blagrave, ii. 349 
 
 V. Vickery, ii. 219 
 
 Carrington (Lord) v. Payne, iii. 1268 
 Carrington v. Taylor, ii. 300. 504 
 Carroll v. Blencow, ii 537. 547 
 Carruthers i\ Graham and others, app. i. 
 611. ii. iii. 1300 
 
 V. Gray, iii. 890 
 
 V. Hollis, app. ii. iii. 1578 
 
 V. Payne, ii. 157. 162. 181. iii. 1148 
 
 V. Sydebotham, iii. 739. 878 
 
 Carstairs 17. Bates, ii. 167 
 
 V. Rolleston, ii. 250. iii. 960. 1066 
 
 i\ Stein, i. 533. iii. 1 187 
 
 Carter v. Abbott, i. 138. 167. ii. 193 
 
 V. Barclay, ii. 176 
 
 V. Boehm, i. 174 
 
 V. Bond, iii. 1044 
 
 V. Breton, ii. 172 
 
 ('.Carter, iii. 974. ajjp. ii. iii. 1401. 
 
 1514 
 
 V. Downish, i. 508 
 
 V. Drew, ii. 128 
 
 V. Johnson, iii. 1128 
 
 V. Jones, i. 427 
 
 V. Murcot,iii. 1253 
 
 V. Palmer, ii. 261 
 
 V. Pearce,i. 106. 150. 150, 157. 168 
 
 V. Picton, ii. 172 
 
 V. Pryke, ii. 313 
 
 V. Royal Exch. Ass. Comp. iii. 873 
 
 V. Toussaint, ii. 489. iii. 1195 
 
 V. Warne, ii. 350. app. ii. iii. 1589 
 
 I'. Wholley, iii. 809. 812 
 
 Carter's case, ii. 466 
 
 Cartridge v. Griffiths, ii. 499 
 
 Cartwright v. Bailey, iii. 1081 
 
 V. Cartwright, iii. 1284 
 
 V. Cooke, ii. 18 
 
 V. Green, ii. 607 
 
 V. Rowley, ii. 87 
 
 V. Vawdry, iii. 771. 1271 
 
 V. Williams, ii. 138. 192. iii. 966 
 
 V. Wright, ii. 626 
 
 Caruthers v. Sheddon, iii. 774. 872 
 
 Carvalho v. Burn, ii. 49. 175 
 
 Carvick r. Vickery, ii. 216 
 
 Cary v. Abbott, iii. 765 
 
 V. Gerrish, ii. 79 
 
 V. Kearsley, iii. 938. 941 
 
 • V. King, iii. 882 
 
 v. Longman, iii. 938 
 
 V. Pitt, i. 174. ii. 461.513,514.517 
 
 V. Stephenson, ii. 653. 6G1 
 
 Casborne v. Barbara, app. ii. iii. 1342 
 
 Casburn v. Reed, ii. 686. iii. 1010 
 
 Case V. Baker, iii. 793 
 
 V. Barber, ii. 472 
 
 V. Barker, ii. 16 
 
 V. Davidson, iii. 1301
 
 XXX 
 
 TABLE OF CASES. 
 
 Case V. Roberts, ii. 85 
 Casli V. Giles, iii. 1209 
 
 V. Young, ii. 170 
 
 Cass V. Cameron, iii. 1033 
 
 Cassell, In re, ii. 116 
 
 Casson v. Dale, iii. 1'2()3 
 
 Castle V. Burditt, ii. 583. iii. 1073, 1074 
 
 Castk'havcn's (Lord) case, iii. 951 
 
 Castlemainc's(Lord) case, i. 100 
 
 Castleman v. Ray, iii. 1044 
 
 Castleton v. Turner, iii. 7G3, 764. 1271 
 
 Castling v. Aubert, ii. 478. 508 
 
 Caswell V. Coore, iii. 1243 
 
 Cater r. Price, iii. 1263 
 
 V. Winter, i. 398. 400 
 
 Cates V. Hardacre, i. 191. 194 
 
 V. Winter, iii. 731 
 
 Catlicart v. Blackwood, ii. 187 
 Catherine of Dover (Case of the), i. 1.33 
 Catherwood r. Chabaud, i. 418. ii. 443, 
 
 444 
 Catlin r.Bell, iii. 1217 
 Catlings. Skoulding, ii. 671 
 Cator r?. Stokes, i. 330. iii. 1023. 1033 
 Catt V. Howard, i. 97, 178. 415. ii. 25. iii. 
 
 766. 1050 
 Catteris v. Cowper, i. 544. iii. 897. 1099. 
 
 1100 
 Cattail V. Corrall, app. i. 620. 622. app. ii. 
 
 iii. 1348 
 Cattle V. Gamble, iii. 1048. app. ii. iii. 1589 
 Catton V. Simpson, ii. 76 
 Cavan v. Stewart, i. 276. 304. 415. ii. 589 
 Cave V. Colman, iii. 1238 
 
 V. Mountain, ii. 591. app. ii. iii. 1453 
 
 Cavenagh v. Such, ii. 285 
 Cawley v. Hopkins, ii. 137 
 Cawthonie v. Holben, iii. 1051 
 Cazalet v. St. Barbe, iii. 880, 881 
 Cazenove v. Vaughan, i. 317, 318 
 Cecil V. Harris, iii. 827 
 Chad V. Tilsed, iii. 776. 915. 1253 
 Chadwick v. Bunting, i. 342. ii. 47 
 
 V. Trower, app. ii. iii. 1394 
 
 Chadwicke v. Sills, iii. 1037 
 
 Chalburyi\ Chipping Farringdon, iii. 1005 
 
 Chalie v. York (Duke of), ii. 576. 578 
 
 Chaloner w. Chaloner, ii. 453 
 
 Chalton v. Alway, app. ii. iii. 1563 
 
 Chamberlain v. Hazlewood, app. ii. iii. 1572 
 
 V. Pickering, ii. 452 
 
 V. Porter, ii. 254. iii. 1054 
 
 v. Williamson, ii. 445 
 
 Chambers i\ Bernasconi, i. 317. .360 
 
 V. Caulfield, i. 534. ii. 356 
 
 V. Chambers, ii. 353 
 
 Z). Donaldson, iii. 1100. 1118. 1131 
 
 t'. Griffiths, iii. 1199 
 
 — — V. Irwin, iii. 990 
 
 V. Jones, iii. 1022. 11-33 
 
 . V. Minchin, ii. 454 
 
 V. Robinson, i. 227. 337. ii. 635. 634. 
 
 686 
 V. Yatman v. the Queen's Proctor, 
 
 app. ii. iii. 1614 
 
 V. Williams, ii. 85 
 
 Chambers's case, ii. 276 
 Chamier v, Clingo, ii. 435, 436 
 
 r. Willett, iii. 1102 
 
 Chamitiou c. Atkinson, i. 105. iii. 940 
 
 Cham])ion }\ Plnmmer, ii. 4P2. 491 
 
 V. Short, iii. 1199. 1212 
 
 ■ V. Terry, ii. 203. 26.'3. iii. 1216 
 
 Champneys v. Peck, i. 361. 363. iii. 731 
 Cluinipnoy's case, app. ii. iii. 1522 
 Chance v. Adams, iii. 849 
 Chandlers. Broughton, iii. 1106.1111 
 
 V. Greaves, iii. 1304 
 
 V. Thompson, iii. 745. 1295 
 
 Chandos v. Brownlow, ii. 471. iii. 732 
 
 Chancy i\ Payne, app. ii. iii. 1452, 1453 
 
 Channel i\ Ditchburn, ii. 669 
 
 Cliannon i\ Patch, iii. 1147 
 
 Chanter v. Hopkins, iii. 1307. app. ii. iii. 
 
 1624 
 
 V. Leese, app. ii. iii. 1531 
 
 Chapel V. Hicks, iii. 1307. 1309 
 Chaplin v. Hawes, iii. 741 
 
 V. Rogers, ii. 488, 489, 490 
 
 Chapman v. Allen, ii. 561 
 
 V. Beard, ii. 428. iii. 1081 
 
 V. Black, ii. 246, 247 
 
 V. Butcher, iii. 1026 
 
 r. Coops, iii. 803 
 
 r, Cowland, i. 182. 239. 339. ii. 336 
 
 V. Davis, app. ii. iii. 1565 
 
 r. De Tastet, iii. 1307 
 
 V. Emden, app. i. 623 
 
 V. Gardiner, ii. 191 
 
 ?'. Gatcombe, app. ii. iii. 1567 
 
 i\ Graves, i. 148 
 
 V. Greaves, iii. 799 
 
 v. Keene, ii. 225 
 
 V. Partridge, ii. 493 
 
 V. Pointon, i. 78, 79, 80 
 
 V. Smith, app. i. 608 
 
 r. Walton, iii. 888 
 
 Chapman's case, i. 104 
 Chappel V. Poles, ii. 91. app. ii. iii. 1362 
 Chappie r. Durston, iii. 994. 997 
 Charles v. Marsden, ii. 243. 253 
 
 Ex parte, ii. 149. 184 
 
 Charlesworth ?\ Rudgard, ii. 581 
 Cliarleton v. Alway, app. ii. iii. 1456 
 Charlton v. Walton, ii. 640 
 
 V. Watson, ii. 642 
 
 Charlwood's case, ii. 612 
 Charman i\ Charman, ii. 176 
 Charnock v. Lumley, app. ii. iii. 1449 
 Charnock's case, iii. 1096 
 Charraud v. Angerstein, 
 Charrington v. Brown, ii. 132 
 
 V. Laing, iii. 852 
 
 r. Milner, ii. 259 
 
 Chartress v. Bayntun, ii. 557 
 
 Chase v. Westmore, ii. 648. 650. iii. 1167 
 
 Chater v. Beckett, ii. 476. 479 
 
 Chaters v. Bell, ii. 232. 234 
 
 Chatfield v. Fryer, iii. 908. 1086. 1092. 
 
 1095 
 
 ?'. Paxton, ii. 87 
 
 Chattock?\ Shaw, app. ii. iii. 1525 
 Chaurand v. Angerstein, i. 175. iii. 778. 780 
 Chawley v. Winstanley, ii. 
 Cheap i\ Cromond, ii. 102, iii. 805 
 
 V. Harley, ii. 250 
 
 Ciieasby v. Barnes, iii. 1133 
 Cheatham r. Harrison, iii. 740 
 Cheek v. Roper, ii. 225 
 Cheescnian v. Hardham, ii. 315, 316. 395
 
 TABLE OF CASES. 
 
 XXXI 
 
 Cheetham v. Butler, iii. 1043 
 
 V. Hampton, iii. 745 
 
 V. Ward, ii. 253 
 
 Chelsea Waterworks (Governor of) v. 
 
 Cowper, i. 381, 382 
 Cheney's case, iii. 763. 7G9. 896. 1269 
 Chenowetli v. Hay, ii. 134. 136 
 Cherrington v. Abney, iii. 745 
 Cherry's case, ii. 605 
 Cheslyn v. Dalby, app. ii. iii. 1473 
 Chesraer i\ Noyse, ii. 233 
 Chester (The), app. ii. iii. 1493 
 Chester (Case of Cathedral Church of), ii. 
 
 673 
 Chesterton v. Farlar, app. ii. iii. 1530 
 Chettle V. Pound, i. 225. 382. ii. 458 
 Chetwynd v. Marnell, ii. 568. 
 Cheval v. NichoUs, iii. 732 
 Cheveley v. Bond, ii. 672 
 Cheyne v. Koops, i. 110. 139. 164. iii. 
 
 1230 
 Chichester v. Lethbridge, iii. 741. 743 
 Chick I'. Smith, app. ii. iii. 1566 
 Child V. Affleck, ii. 631. 640 
 
 V. Chamberlain, i. 1 47 
 
 V. Hardyman, ii. 544, 545 
 
 V. Morley, ii. 75 
 
 Childers v. Bonlnois, iii. 1037. 1050 
 
 Childs V. Monins, ii. 445 
 
 Chillingworth v. Chillingworth, app. ii. iii. 
 
 1590 
 Chilton r. Wiffin, ii. 148 
 CJiinn V. Morris, ii. 604. iii. 1113. 1121 
 Chinncry v. Blackburn, iii. 709 
 Chion, Ex parte, ii. 159, 160 
 Chippendale v, Brigden, iii. 1018 
 Chippindale v. Thurston, ii. 666. 669. iii. 
 
 1185 
 
 V. Tomlinson, ii. 182. iii. 1153 
 
 Chisman i'. Count, app. ii. iii. 1337 
 Chisser's case, ii. 611 
 Chitty i\ Dendy, app. i. 635 
 Cholmondeley (Lord) v. Clinton, ii. 405. 
 
 iii. 911 
 Cholmondely v. Payne, ii. 47. app. ii. iii, 
 
 1434 
 Chorley v. Bolcott, ii. 22 
 
 rCase of the Village of), ii. 596 
 
 Christian v. Coombe, iii. 882. 893 
 Christie v. Fonsick, ii. 661 
 
 V. Griggs, ii 295, 296. iii. 728. 741 
 
 V. Lewis, ii. 649 
 
 V. Peart, app. ii. iii. 1363 
 
 V. Secretan, i. 292. iii. 889. 891 
 
 V. Unwin, app. ii. iii. 1348 
 
 Cliristopher v. Christopher, iii. 1287, 1288 
 
 Ciiristy v. Tancred, app. ii. iii. 1586 
 
 Chubb V. Westley, ii. 635 
 
 Chuck V. Freen, iii. 788 
 
 Church V. Brown, app. ii. iii. 1387 
 
 V. Imperial Gas Company, app. ii. iii. 
 
 1385 
 Churcher v. Stringer, ii. 579 
 Churchill v. Crease, ii. 171, 172 
 
 V. Day, ii. 102 
 
 (Lord) V. Hunt, i. 438. 447 
 
 V. Matthews, ii. 601 
 
 V. Wilkins, i. 458. ii. 59, 60 
 
 Gibber v. Sloper, ii. 355 
 Clancey's case, i. 96 
 
 Cianrickarde (Earl of) v. Denton (Lad v), 
 
 i. 121. 242. iii. 1095 
 Clanrickarde's case, i, 242 
 Clapham v. Higham, ii. 118 
 Clare v. Maynard, app. ii. iii. 1605 
 Clarges v. Sherwin, i. 2'j6 
 Claridge v. Dalton, ii. 230, 231 
 Clark V. Cock, ii. 206, 207 
 
 V. Dignam, app. ii. iii. 1336 
 
 V. Faux, iii. 1188 
 
 i\ Glennie, ii. 99 
 
 V. Godfrey, ii. 110 
 
 V. Hutchins, iii. 1216 
 
 V. Johnson, ii. 89 
 
 V. Mundall, ii. 265 
 
 V. Postan, ii. 680 
 
 V. Wilson, ii. 128 
 
 Clarke (in the goods, &c.), app. ii. iii. 1616, 
 
 1617 
 
 V. Askew, ii. 1 47 
 
 V. Blakestock, ii 2 
 
 V. Bradshaw, ii. 633 
 
 V. Broughton, ii. 591 
 
 V. Calvert, ii. 182 
 
 V. Chamberlain, iii. 1162 
 
 V. Clarke, ii. 321. iii. 1167. app. ii. iii. 
 
 1568 
 
 V. Cogge, iii. 1255. 1257 
 
 V. Crownshaw, ii. 155. 157 
 
 ■ V. Davey, ii. 535 
 
 V. Devlin, ii. 251 
 
 V. Donovan, ii. 108 
 
 V. Eliason, ii. 167 
 
 V. Fell, ii. 178 
 
 V. Figes, ii. 662 
 
 V. Gannon, i. 167 
 
 V. Gray, i. 458, 459. ii. 61. 285. 292. 
 
 648. iii. 830 
 
 V. Harvey, iii. 846 
 
 V. Hawkins, ii. 702 
 
 V. Henty, app. ii. iii. 1 562 
 
 V. Hooper, ii. 666 
 
 V. Hougham, ii. 444. 60i. 669, 670. 
 
 iii. 1049, 1050 
 
 V. Houghton, iii. 1049 
 
 V. Hume, ii. 350 
 
 V. Johnson, ii. 89. 91 
 
 V. King, iii. 1194. 1228 
 
 V. Leslie, ii. 556, 557 
 
 *'. Lucas, i. 116. iii. 1034 
 
 V. Martin, ii. 261 
 
 V. Maynard, ii. 197 
 
 V. Morrell, app. i. 630 
 
 V. Mumford, iii. 1302 
 
 V. Neale, iii. 1216 
 
 V. Palmer, ii. 389 
 
 V. Percival, ii. 201 
 
 V. Periam, i. 494. ii. 636 
 
 V. Pigott, ii. 218 
 
 V. Reed, iii. 1231 
 
 V. Saftrey, i. 171 
 
 r. Sharp, ii. 227 
 
 V. Shee, ii. 10. 84. 93 
 
 i\ Spence, iii. 1148 
 
 V. Stapler, iii. 1081 
 
 V. Taylor, app. ii. iii. 1466 
 
 V. Tucker, ii. 392 
 
 V. Waterton, iii. 973 
 
 V. Wilson, app. ii. iii. 1371 
 
 Clarkson v. Hanway, iii. 760. 791
 
 xxxu 
 
 T An LE OF CASE 
 
 Clarkson i'. Woodhouse, i. 68. 382. 384. 
 
 ii,317. 336 
 Clavill V. Deane, iii. 1093 
 Claj' V. HaiTisoii, iii. 868 
 
 V. Langslow, ii. 2, 3. 
 
 V. Stephenson, i. 323, 324. app. i. 612 
 
 r. Tliackeray, iii. 1130. app. ii. iii. 
 
 1319 
 
 V. Willan, ii. 289 
 
 V. Willis, ii. 444 
 
 Clayton u. Andrews, ii. 487 
 
 V. Blakey, ii. 427. 473 
 
 V. Burtcnshaw, iii. 1035. 1040. 1046. 
 
 1048. 1058. 1178 
 
 V. Goslin, ii. 217 
 
 V. Gregson, iii. 780. app. ii. iii. 1392. 
 
 1500 
 
 V. Hunt, ii. 289 
 
 V. Jennings, iii. 1235 
 
 V. Nelson, ii. 677 
 
 Clayton's case, iii. 825, 826. 840. 1073 
 Cleaver v. Sarraude, ii. 631 
 Clegg V. Levy, ii. 459. iii. 1047 
 
 V. Molyneux, iii. 1117 
 
 Clegge V. Cotton, ii. 230 
 Clementi v. Golding, iii. 938 
 
 V. Walker, iii. 938. 940 
 
 Clements v. Lambert, ii. 316. 318. app. ii. 
 
 iii. 1419 
 
 V. Langley, iii. 1062 
 
 V. Williams, app. ii. iii. 1443 
 
 Clementson v. Gandy, app. ii. iii. 1413 
 
 Clendon v. Diuneford, iii. 1160 
 
 Clere's case, ii. 410 
 
 Clergymen's Sons (Corporation of), v, 
 
 Swainson, ii. 448 
 Clerk V. Bedford, i. 360 
 
 V. Blackstock, ii. 256 
 
 V. Rowell, iii. 898 
 
 V. Smith, ii. 519 
 
 ■ V. Wright, ii. 483 
 
 Gierke v. Martin, ii. 262 
 
 Clermont v. Tullidge, ii. 515 
 
 Cleveland (Duke of) v. Dashwood, ii. 
 
 43 
 Cleverley v. Brett, ii. 448 
 Cleworth i\ Pickford and others, app. ii. 
 
 iii. 1542 
 Cliff V. Gibbons, iii. 762 
 Cliffe V. Littlemore, ii. 583 
 Chfford V. Barton, ii. 32. 43 
 
 V. Hunter, iii. 889 
 
 V. Layton, ii. 542. 546 
 
 1'. Taylor, ii. 567 
 
 • V. Wicks, iii. 863 
 
 Clifton V. Walmesley, iii. 755. 778 
 
 Clifton's case, ii. 337 
 
 Clinan i'. Cooke, ii. 483. 485. iii. 778. 790 
 
 Clinton v. Hooper, iii. 784 
 
 Clipson V. O'Brien, ii. 260 
 
 Clive V. Powell, i. 278 
 
 Close V. Holmes, app. ii. iii. 1582 
 
 V. Waterhouse, ii. 648 
 
 V. Wilberforce, ii. 351 
 
 Clothier v. Chapman, i. 33. 182. iii. 908 
 
 Cloud V. Turfery, ii. 585 
 
 Clow V. Brogden, app. ii. iii. 1388 
 
 Clugasi'. Peneluna, iii. 803. 1218 
 
 Clun's case, ii. 48 
 
 Clunns V. Perry, iii. 1207 
 
 Clutterbuck v. Iluntingtower (Lord), i. 
 
 168 
 Coalheaver's case, ii. 7 
 Coare v. Giblett, i. 474 
 Coates V. Bainbridge, ii. 44 
 
 V. Birch, app. ii. iii. 1380 
 
 V. Hatton, ii. 103. iii. 1217. 1310 
 
 V. Lewis, iii. 821 
 
 V. Perry, iii. 1045, 1046, 1047 
 
 — V. Railton, ii. 164. iii. 1226 
 
 V. Stevens, iii. 796. 818. 1242 
 
 • V. W^ilson, ii. 537 
 
 Cobb V. Bryan, iii. 974 
 
 V. Carpenter, iii. 1179. 1181. 1184 
 
 V. Carr, ii. 685 
 
 V. Stokes, ii. 414 
 
 V. Symouds, ii. 126. 145 
 
 Cobbold V. Caston, ii. 487. 491 
 Cobden v. Bolton, ii. 290 
 
 V. Kenrick, ii. 86. 92. 322 
 
 Cobham v. Downes, ii. 286 
 Cochran v. Retberg,iii. 778. 780 
 Cochrane (Lord) v. Smethurst, iii. 939 
 Cock V. Coxwell, ii. 241. app. ii. iii. 1371 
 
 V. Saunders, ii. 17 
 
 V. Taylor, iii. 1300 
 
 I'. Tunno, ii. 123. iii. 1155 
 
 V. Wortham, i. 148. iii. 989 
 
 Cockburn i\ Wright, app. ii. iii. 1622 
 Cockcroft I'. Smitli, ii. 53. iii. 1135 
 Cocke V. Baker, ii. 479. 706 
 Cocker i\ Cooper, iii. 1252 
 
 V. Crompton, iii. 1123 
 
 Cockerell v. Chamberlayne, iii. 1231 
 Cockerill v. Armstrong, iii. 1128. 1131 
 
 ■ V. Kynaston, ii. 439, 440 
 
 V. Owston, ii. 185 
 
 Cockin's case, ii. 615 
 Cockman i\ Farrer, iii. 899 
 
 V. Mather, i. 250 
 
 Cockram v. Fisher, iii. 874 
 Cockrelly.Gray, i. 483 
 Cocks V. Borrodaile, ii. 216 
 
 V. Masterman, ii. 234 
 
 V. Nash, i. 392 
 
 Cocksedge v. Fanshaw, i. 530 
 
 Cockshott V. Bennett, ii. 63, 64. 70. 94. 
 
 247. iii. 955. 968 
 Codling V. Johnson, iii. 1256. app. ii. iii. 
 
 1610 
 Codrington v. Lloyd, ii. 114 
 Codson V. Freeman, app. ii. iii. 1418 
 Coe V. Clay, ii. 59 
 
 V. Duffield, ii. 509 
 
 V. King, ii. 542 
 
 V. Westernham, i. 301 
 
 Coffee V. Brian, ii. 99. iii. 815 
 Coggs V. Bernard, ii. 285. iii. 726 
 Coghlan v. Williamson, i. 376. 379 
 Cohen v. Cunningham, ii. 149. iii. 827 
 
 V. Hannam, iii. 872 
 
 V. Hiiickly, iii. 873 
 
 V. Morgan, ii. 679, 680. 684 
 
 Coke V. Fountain, i. 314 
 
 Coke & Woodburne's case, ii. 54. 574 
 
 Coker v. Farewell, i. 310 
 
 Col burn v. Patmore, ii. 103 
 
 Colchester (Lord) v. Ellis, iii. 742 
 
 Colchester i: Roberts, iii. 1259 
 
 Coldwell V. Gregory, ii. 157, 158
 
 T A IJ L F. OF CASE S. 
 
 XXXlii 
 
 Cole I'. Blakp, iii. 1060, 1070 
 
 V. Cottingham, app. ii. iii. 1484 
 
 V. Cresswell, app. ii. iii. ]3()7 
 
 V. Davis, ii. 167, 168. 497 
 
 V. Dyer, ii. 483. oO'J 
 
 r. Hadley, app. ii. iii. lo74 
 
 V. Hindson, iii. 1029 
 
 V. Le ScEuf, app. ii. iii. 1330 
 
 V. Parkins, iii. 1052 
 
 ■ V. Rawliuson, iii. 764 
 
 V. Robins, ii. 379. 398 
 
 V. Selby, iii. 1257 
 
 Cole's case, ii. 592 
 
 Coleby r. Manley, iii. 1289 
 
 Coleiireave v. Dies Santos, iii. 1160. 1224. 
 
 1247 
 Colehan v. Cooke, ii. 215 
 Coleman v. Gibson, ii. 490. iii. 1204 
 
 V. Lambert, iii. 1300 
 
 V. Upcot, ii. 484 
 
 Coleman's case, ii. 456. iii. 1096 
 
 Coles {•. Bank of England, app. ii. iii. 1428 
 
 V. Bell, iii. 1071 
 
 =— V. Barrow, ii. 182 
 
 V. Hulme,'i. 480. ii. 268 
 
 I'. Robins, ii. 171 
 
 V. Trecotbick, ii. 485, 486 
 
 V. Wright, ii. 83. 169 iii. 1168 
 
 ■ JSx parte, i. 316 
 
 Colket I'. Freeman, ii. 136 
 CoUard r. Hare, app. ii. iii. 1527 
 Colledge v. Home, ii. 663 
 Collenridge v. Farquharson, ii. 33. 260 
 Colles V. Smith, i. 88 
 Collett V. Jenners, ii. 1 19 
 
 V. Keith (Lord), i. 415. ii. 28 
 
 V. Thompson, iii. 794. 1192 
 
 Colley V. Smith, iii. 799 
 
 V. Strettou, i. 459. 491. ii. 77 
 
 Collier v. Hicks, ii. 594. iii. 1140 
 
 r. Simpson, i. 175 
 
 Collier, E.v parte, app. ii. iii. 1625 
 Collier's case, i. 97 
 
 Colling V. Treweck, i. 403, 404. ii. 110 
 Collinge v. Heywood, ii. 662 
 Collins V. Barron, iii. 1183 
 
 V. Banning, app. ii. iii. 1472 
 
 y Blantern, ii. 248. 268 
 
 i;. Carnegie, i. 342. ii. 308. 627. app. 
 
 ii. iii. 1399 
 
 V. Collins, iii. 1044 
 
 V. Forbes, ii. 150, 151. 161 
 
 V. Godefroy, i. 79 
 
 V Gresley, ii. 565 
 
 V. Gwynne, ii. 268 
 
 V. Jenkins, app. ii. iii. IGOO 
 
 V. Lightfoot, ii. 564, 565 
 
 V. Martin, ii. 166, 167 
 
 V. Maule, app. i. 619 
 
 V. Nicholson, ii. 108 
 
 V. Price, iii. 1296 
 
 V. Prosser, ii. 201 
 
 V. Rose, ii. 389 
 
 V. Rybot, ii. 270 
 
 Collinson v. Hillear, ii. 126 
 CoUis V. Emmott, ii. 215 
 Collop V. Brandley, iii. 1034 
 Collott )'. Haigh, ii. 251. 253 
 Colls r. Coates, app. ii. iii. 1555 
 Collum V. Butler, iii. 972 
 
 VOL. I. 
 
 Colly V. Hunter, iii. 885 
 Collyer v. Howes, iii. 1095 
 
 V. Willcock, ii. (i67 
 
 Ccilman v. Waller, ii. 66 
 
 V. Wathen, iii. 941 
 
 Culogan V. London Assurance Company, 
 
 iii. 880 
 Colpoys V. Colpoys, iii. 755. 785. 1272, 
 
 127*3 
 Colsell V. Bndd, ii. 270. iii. 823 
 Colson V. Selby, iii. 796 
 Colstone v. Histolbs, iii. 969 
 Colt V. Dutton, i. 94 
 
 I'. Netliersoll,ii. 488 
 
 Coltherd v. Puncheon, iii. 1243 
 Coltman v. Marsh, ii. 663. 668 
 Colton I'. Smith, ii. 906 
 Columbeis v. Slim, ii. 253 
 Colvill, 7?.r parte, ii. 154 
 Colvin V. Fniser, iii. 1287 
 
 V. Newberry, iii. 727 
 
 Colyer i-. Spear, 'iii. 1026, 1027 
 Combe v. Capron, ii. 688 
 
 V. WoL.lf, ii. 512. iii. 10G5 
 
 Combs V. Ingram, i. 480 
 
 V. Wether, i. 181. 235 
 
 Compagnon v. Martin, i. 438 
 Compere v. Plicks, iii. 1101. llOi 
 Compton r. Bedford, ii. 138, 139, 140. 142 
 
 V. Chardless, i. 412. ii. 112. 659 
 
 V. Richards, iii. 743. 1295 
 
 Compton's (Dr.) case, iii. 1210 
 
 Comyns v. Boyer, iii. 744 
 
 Concanon r. Letlibridge, iii. 1025 
 
 Congley v. Hall, iii. 1092 
 
 Connop V. Meaks, app. ii. iii. 1590, 1501 
 
 Connor v. Martin, ii. 217 
 
 Conolly V. Baxter, iii. 1176 
 
 V. Parsons, iii. 1212 
 
 Conolly's case, app. ii. iii. 1440 
 Constc'ile v. Andrew, iii. 822 
 
 d. Hill V. Bateman, ii. 599 
 
 Constable's case, ii. 532 
 Constantine v, Barnes, i. 492 
 Conyers v. Jackson, i. 448 
 Cooban v. Holt, ii. 643 
 Cood V. Cood, app. i. 609 
 Coogan's cascj ii. 466. 470 
 Cook V. Butt, iii. 1089 
 
 I'. Caldecott, ii. 1.38. 141 
 
 V. Field, ii. 643 
 
 V. Fountain, i. 169. 312. 314 
 
 V. French, ii. 229 
 
 V. Harris, iii. 1100 
 
 V. Hartle, app. ii. iii. 1584 
 
 V. Leonard, ii. 581 
 
 V. Munstone, i. 458. ii. 60. 72. '^2. 
 
 iii. 1243 
 
 V. Palmer, iii. 1011 
 
 V. Rogers, ii. 1 43 
 
 V. Round, app. ii. iii. 1553 
 
 V. Ward, ii. 625 
 
 Cook's case, iii. 1236 
 Cooke V. Bankes, i. 181 
 
 V. Bootli, iii. 778. 1275 
 
 V. Clarke, ii. 597 
 
 I', Cooke, iii. 704 
 
 V. Deaton, ii. 558 
 
 V. Dixon, iii. 994 
 
 V. Eiphiu (Bishop of), iii. 942
 
 XXXIV 
 
 T A R L K OF CASES. 
 
 Cooke V. Greon, iii. 1008. 1125- 
 
 V, Hughes, ii. (542 
 
 V. Humphrey, iii. 1245 
 
 ■ V. Jackson, iii. 1123 
 
 V. Jenour, iii. 9G6 
 
 V. Jones, iii. 1052, 1053 
 
 V. Leonard, iii. 729 
 
 V. Lloyd, i, 244 
 
 V. Loxley, iii. 937. 944. 973. 1084. 
 
 1180 
 V. Maxwell, i. 72. 90. 439. 502. iii. 
 
 957 
 
 V. Nethercote, i. 189 
 
 V. Oxley,iii. 88G. 1219 
 
 V. Sholl,i. 291. iii. 1079 
 
 V. Stocks, i. 406 
 
 V. Tanswell, i. 40G. 408, 409 
 
 Cooke's case, i. 194 
 
 Coombe v. Pitt, i.43 8. 440. ii. 25. 271 
 
 Coombs V. Beaumont, ii. 155 
 
 Coope V. Eyre, iii. 804 
 
 Cooper r. Amos, iii. 797 
 
 V. Bankes, i. 246 
 
 V. Barber, iii. 745 
 
 V. Bland, iii. 973 
 
 V. Booth, ii. 597. 600 
 
 V. Byron, iii. 1087 
 
 V. Child, ii. 342 
 
 ■ V. Chitty,ii.l67.iii. 1018.1028. 1103. 
 
 1145.1157 
 
 V. Davies, ii. 249 
 
 V. Davis, ii. 259 
 
 V. Eggington, iii. 974. app. ii. iii. 1537 
 
 V. Elston, ii. 487, 488 
 
 V. Gibbons, i. 408. iii. 931 
 
 V. Green, app. ii. iii. 1329 
 
 V. Johnson, ii. 1 17. 511 
 
 V. Jones, iii. 1010 
 
 V. Lawson, ii. 643 
 
 V. Machin, ii. 126. 148 
 
 V. Martin, ii. 546 
 
 V. Meyer, ii. 217 
 
 V. Mouke, iii. 1128 
 
 V. Morecroft, iii. 818. app. ii. iii. 1.39G 
 
 V. Phillips, ii. 70 
 
 V. Smith, i. 41.5. 493. ii. 491 
 
 ■ V. South, i. 249. iii. 1196 
 
 V. Stevens, app. ii. iii. 1472 
 
 V. Turner, iii. 823. 996 
 
 V. Twibill, iii. 1239 
 
 V. Wakley, i. 427 
 
 V. Waldegravc, Earl of, app. ii. iii. 
 
 1423 
 
 V. Whitchurch, i. 496 
 
 V. Young, ii. 370 
 
 £Ix j)arte, app. ii. iii. 1350 
 
 Ccore V. Callaway, ii. 41. iii. 821. 1071. 
 
 1188. 1193. app. ii. iii. 1592 
 Coote V. Berty, ii. 305. iii. 1121 
 
 V. Boyd, iii. 783 
 
 Cootes V. Lewis, iii. 819 
 Cooth V. Jackson, ii. 481 
 Cope V. Bedford, i. 242 
 
 V. Cepe, i. 244. ii. 197 
 
 V. Rowlands, ii. 103 
 
 Copelaud v. Gubbins (Executors of), iii. 
 
 931.1182 
 
 V. Laporte, app. ii. iii. 1387 
 
 V. Lewis, iii. 1151. 1206. 1230 
 
 V. Stanton, i. 317 
 
 Copelaud V. Stein, ii. 103. 176. 648. iii. 
 
 1220 
 
 V. Stephens, ii. .350. 407 
 
 V. Watts, i. 89, 90. ii. 114 
 
 Copeman v. Gallant, ii. 176 
 Copp V. Topliam, ii. 75, 70 
 Coppin V. Craig, iii. 1190 
 
 r. Wiilkcr,iii. 1196 
 
 Coppocke V. Bower, ii. 07 
 
 Corbet v. Brown, iii. 10J6. app. ii. iii. 1553 
 
 V. Corbet, i. 311. 325. 327 
 
 V. Walker, iii. 869 
 
 Corbet's ease, i. 448. ii. 449 
 Corbett v. Poelnitz, ii. 537 
 Corder v. Drakeford. iii. 1040. 1048. 1050. 
 
 1052 
 Cordwell v. Martin, ii. 255 
 Core's case, ii. 457 
 Corfield v. Parsons, ii. 210. app. ii. iii. 
 
 1317 
 CoY\iv. Hartle, iii. 1164 
 Cork V. Tondis, ii. 476 
 Corking v. Jarrard, i. 136. 141 
 Cormack v. Gillis, iii. 1211 
 Carner. Brice, app. ii. iii. 1438 
 Corners. Shaw, app. ii. iii. 1410 
 Corney v. Mendcz de Costa, i. 451 
 Cornfoot v. Fowke, app. ii. iii. 1589 
 Cornforth v. Rivett, iii. 997 
 Cornish v. Pugh, i. 110. 150 
 
 r. Rowley, iii. 1190. 1193 
 
 V. Seareli, iii. 1037. 1 181 
 
 Cornwall v. Richardson, ii. 305 
 
 Cornwall's case, ii, 277. 282 
 
 Corrall r. Cottcll, opp. ii. iii. 1595. 1597 
 
 Correll v. Cattle, app. ii. iii. 1502 
 
 Corsen v. Dubois, i. 90 
 
 Cort V. Birkbeck, i. 297. 319. 530. ii. 696 
 
 Corven v. Pym, iii. 803. 805 
 
 Cory V. Bretton, ii. 664 
 
 — — V. Cory, ii. 390 
 
 V. Scott, ii 231. 234, 235, 230. 265 
 
 Cosio and otliers v. De Bernales, ii. 534 
 
 Cossens v. Cossens, ii. 21 
 
 Cosser n. Collinge, app. ii. iii. 1592 
 
 Cossey v. Diggous, iii. 972. 974 
 
 Cossham v. Goldney, ii. 4 
 
 Coster J). Cowling, iii. 1048 
 
 V. Innes, iii. 873 
 
 V. Wilson, ii. 590 
 
 Cotes V. Davis, ii. 217 
 
 I'. Harris, ii. 071 
 
 V. MichilJ, app. ii. iii. 1575 
 
 Cothay v. Fenuell, iii. 801 
 Cotterell v. Apsey, iii. 831 
 
 V. Cuff, i. 460. ii. 60 
 
 V. Dutton, ii. 055 
 
 V. Griffiths, iii. 743. 747 
 
 V. Hooke, ii. 185. iii. 854 
 
 Ex "parte, apj). ii. iii. 1350 
 
 Cotterill v. Hobby, iii. 977 
 
 r.Starkev, iii. 1120 
 
 V. Tolly, iii. 1117 
 
 Cottin V. James, i. 427 
 
 Cottingham v. King, ii. 430 
 
 Cottle V. Aldrich, ii. 447 
 
 Cotton V. Brown, ii. 682. app. ii. iii. 1475 
 
 i;. Cad well, ii. 590 
 
 V, Goodright, ii. 380 
 
 V. Godwin, apj). ii. iii. 1504
 
 TABLE OF CASES. 
 
 XXXV 
 
 Cotton J'. Jamps, i. G9. ii, 10-2. 138. 080. 
 
 ai)p. ii. iii. 1400 
 
 V. TluirlaiKl,i. 419. ii. 9.">. iii. 1236 
 
 Cottrell V. Apsey, iii. 1297. 1302 
 
 Coupey V. Henley, ii. 001 
 
 Coujjland v. Hardingliam, iii. 734. 739 
 
 Course's case, ii. •'J 
 
 Court V. Cross, ii. 005. 008. 070 
 
 Courteen v. Towse, i. 171, 172. ii. 43, 44. 
 
 iii. 800 
 Courtenay v. Collett, iii. 1107 
 Courtney v. Phelps, i. 309 
 Cousins V. Brown, i. 482 
 V. Paddon, ii. 20. iii. 818. 1202. 1207, 
 
 1212. app. ii. iii. 1.541 
 Coutts V. Gorhani, iii. 743. 1295 
 Covell V. Lanning, ui. 1100, 1107 
 Coverley v. Burrell, iii. 1214 
 
 V. Morley, ii 188 
 
 Cowan i\ Braidwood, app. ii. iii. 1423 
 Coward v. Wellington, app. ii. iii. 1403 
 Cowell V. Edwards, ii. 70. iii. 1001 
 
 V. \l''atts, ii. 444 
 
 Cowen V. Simpson, ii. 375 
 Cowie V. Goodwin, iii. 1184 
 
 V. Halsall, ii. 255. iii. 1051 
 
 V. Harris, ii. 147. 170. iii. 1079 
 
 V. Harrison, app. ii. iii. 1512. 1591 
 
 Cowlan V. Slack, ii. 314. 310. 337 
 
 Cowles V. Dunbar, ii. 001. 003 
 
 Cowley V. Dunlop, ii. 184. 218. 239. 242. 
 
 201. 207 
 
 V. Hopkins, ii. 175 
 
 • V. Robertson, ii. 103. 538 
 
 Cowling V. Ely, i. 333. ii. 28 
 
 V. Higginson, iii. 1257, 12.58 
 
 Cowlishaw v. Clieslyu, iii. 1129 
 Cowne V. Garment, app. ii. iii. 1500 
 Cowper V. Cowper (Lord), iii. 968 
 
 V. Godmond, ii. 059 
 
 i\ Green, app. ii. iii. 1537 
 
 V. Smith, iii. 1005 
 
 Cowper's case, i. 577. ii. 719 
 Cox V. Allingham, i. 302 
 
 i;. Bent, ii. 418. iii. 971 
 
 V. Brain, iii. 828, 829. 1072. 1083 
 
 V. Copping, ii. 509 
 
 V. DufReld, ii. 370 
 
 V. Dugdale, iii. 1114 
 
 V. Joseph, ii. 452 
 
 V. King, app. ii. iii. 1442 
 
 V. Kitclien, i. 533, 534. iii. 853 
 
 V. Matthews, iii. 1294 
 
 V. Morgan, ii. 172 
 
 V. Painter, app. i. 634. 038. ii. iii. 
 
 1401 
 
 V. Parry, iii. 828, 829, 830, 831 
 
 V. Prentice, ii. 83. 87. 89 
 
 V. Reid, iii. 1301 
 
 V. Thomason, ii. 628 
 
 V. Thomson, ii. 341 
 
 V. Troy, ii. 208. iii. 824 
 
 Coxe V. Harden, ii. 103 
 
 Coxhead v. Huish, app. ii. iii. 1513 
 
 Coxon V. Lyon, i. 487. ii. 212. 
 
 Cragg V. Norfolk, i. 413 
 
 Cragg's case, app. ii. iii. 1315 
 
 Craib v, D'Aeth, ii. 28 
 
 Craig V. Cox, ii. 004 
 
 V. Cundell, i. 106. 151 
 
 Craikc, Tn re, app. ii. iii. 1343 
 Cranch v. Kirkman, ii. 071 
 
 V. White, iii. 1103 
 
 Crane v. Odcll, iii. 785. 1273 
 Cranley v. Hillary, ii. 17. iii. 818 
 Cranmer, Ex parte, iii. 1277 
 Craven v. Edmondson, ii. 172 
 
 r. Ticknell, ii. .579 
 
 Crawfoot v. Gurney, iii. 828 
 Crawford i'. Attorney-general, ii. 1 92 
 
 V. Hunter, iii. 807 
 
 V. Middleton, ii. 044 
 
 V. Stirling, iii. 993 
 
 V. Whittal, ii. 09. 441. 445 
 
 Crawshay v. Collins, iii. 802, 803. 815 ■ 
 
 V. Eades, ii. 104. iii. 1220 
 
 V. Homfray, ii. 049, 050 
 
 Cray v. Halls, ii. 34 
 Creach v. Wilmot, ii. 318 
 
 Crease v. , iii. 1 059 
 
 V. Barrett, i. 357. 532. ii. 21. app. i. 
 
 002 
 
 V. Penprase, app. ii. iii. 1449 
 
 Creeveyv. Bowman, i. 120 
 
 ('. Carr, ii. 042 
 
 Creevy v. Carr, app. i. 002 
 Crepps V. Burden, ii. 687. 589 
 Crerar v. Sodo, i. 423 
 Cresby's case, ii. 12 
 Crespigny v. Williams, iii. 1059 
 Creswell v. Bryan, ii. 112 
 
 V. Wdod, app. ii. iii. 1307 
 
 Cripplegate v. St. Saviour's, iii. 998 
 Cripps V. Burden, i. 284. iii. 847 
 
 V. Reed, ii. 85, 80. 90 
 
 Crisdee i'. Bolton, iii. 853 
 
 Crisp V. Anderson, i. 408. ii. 50. iii. 1050, 
 1057 
 
 1-. Bunburv, iii. 1000. app. ii. iii. 
 
 1585 
 
 1'. Churchill, ii. 64. 
 
 E.r parte, ii. 148 
 
 Crispe v. Belwood, iii. 906 
 
 Crispin v. Williamson, i. 455, 456. 460, 
 
 461. ii. 62 
 Critchlow v. Parry, ii. 233, 234 
 Crocker v. Fothergill, ii. 438 
 
 V. Molyneux, iii. 1304 
 
 Crocker's case, ii. 461 . 469 
 Crockford v. Winter, ii. 84. 578 
 Croft w. Alison, iii. 1103. 11 10, 11 1 1 
 
 d. Balbv V. Pawlet, iii. 1262 
 
 V. Howell, ii. 429 
 
 V. Pawlet, iii. 1263. 1268 
 
 ?'. Pcrcival, Lord, app. ii. iii. 
 
 1603 
 
 V. Pyke, iii. 803 
 
 V. Smallwood, ii. 477 
 
 V. Smith, ii. 226 
 
 Crofton V. Poole, ii. 181, 182 
 Crofts V. Marshall, app. ii. iii. 1523 
 
 V. Pick, ii. 350 
 
 V. Pickering, ii. 322, 323 
 
 I'. Stockley, i. 493 
 
 I'. Waterhouse, iii. 736. 74! 
 
 Crogate's case, iii. 1128. 1131 
 Crokatt D. Jones, i. 328. iii. 1076 
 Cromacke v. Ileatiicote, ii. 321 
 Cromibrd i'. Lacy, iii. 807 
 Cromford Railway Co. v. Lacy, iii. 817
 
 XXXVl 
 
 T ABLE OF CASE S. 
 
 Croiiipton V. Bcarcroft, ii. 703 
 
 V. Iliittoiijii. 82. 88 
 
 V. Minsliull, ii. 4-2G 
 
 Cromwell v. llynrow, ii. 22G 
 
 V. llynsoii, ii. 232 
 
 JUx parte, iip]). ii. iii. 1.345 
 
 CroiinveH'i* (Lord) case, iii. 1070 
 Crone v. Odell, iii. 1273 
 Crook V. Sanipsori, iii. 8G3 
 
 t'. Wright, iii. 1111 
 
 Crook's (Japliet) case, ii. 4G6 
 Crooko r. Cmrey, ii. 532 
 
 V. Dowliiig", i. 33G. ii. G8G 
 
 V. Edwards, ii. 103, 1!)4 
 
 ■ V. Jadis, ii. 24(). iii. 1150 
 
 Crookshank v. Thompson, iii. 1061 
 Cropley v. Corner, ii. 257, 258 
 Cropper v. Horton, ii. 591 
 Crosbie, Ex parte, app. ii. iii. 1602 
 Crosby v. Crouch, ii. 142, 143 
 
 I'. Leng, i. 30G. iii. 958. 1120 
 
 V. Levy, ii. 708 
 
 J). Percy, i. 377, 378. iii. 1189 
 
 V. Wadsworth, ii. 473. 480, 481. iii. 
 
 1040. 1102 
 Crosby's case,!. 100, 101 
 Crosley's ease, ii. 455. 579 
 Cross V. Abbott, iii. 11.59 
 
 V. Eglin,iii. 781. 1228 
 
 V. Fox, ii. 191 
 
 V. Harrison, iii. 1105 
 
 V. Johnson, iii. 1141 
 
 i\ Law, app. ii. iii. 1512 
 
 V. Lewis, iii. 913. 1295 
 
 V. Salter, i. 296. iii. 865 
 
 V. Smith, ii. 227. 451 
 
 Crossfield v. Stanley, app. ii. iii. 1355 
 
 Crosskey v. Mills, ii. 95 
 
 Ci'oss Keys Co. v. Rawling?, app. ii. iii. 
 
 1496 
 Cronk v. Frith, app. i. 617 
 Crow V. Rogers, ii. 56 
 Crowder v. Austen, ii. 103. iii. 1212 
 
 V. Davies, ii. 109 
 
 V. Long, iii. 1009. 1011. 1033 
 
 V. Self, app. ii. iii. 1400 
 
 V. Shee, ii. 108, 109, 110 
 
 Crowfoot r. Gurney, ii. 49. 80 
 Crowley v. Impev, ii. 180 
 
 V. Page, i. 213. 500. app. i. 606. 623 
 
 Crowther v. Hopwood, i. 96 
 
 V. Oldiield, i. 453 
 
 -- — V. Ramsbottom, ii. 390. 393. iii. 1139 
 Croxon v. Worthen, ii. 237 
 Croydon Hospital i-. Furley, i. 373 
 Crozer v. Pilling, ii. 674. GS9. iii. 820. 
 
 1022. 1070 
 Crozier v. Cundy, ii. .596. 598 
 
 V. Smith, app. ii. ill. 1383. 1G22 
 
 Cruchley v. Clarance, ii. 204. 216 
 Cruden z\ Fentham, iii. 736. 741 
 Cruikshanks v. Ross, ii. 246. iii. 827 
 Crusoe v. Blencowe, ii. 345 
 
 V. Bugby, ii. 346 
 
 Crutchlcy v. Mann, ii. 210. iii. 1035. 1043 
 
 Cnbitt V. Porter, iii. 1100. 1127 
 
 Cuckson V. Winsor, iii. 1156 
 
 Cudden v. Cartwright, app. ii. iii. 1597 
 
 Cuddington v. Wilkins, i. 100 
 
 Cudlipp r. Rundle, i. 444 
 
 CiifFr. Penn, ii. 401. iii. 761. 789, 790 
 Cull V. Sarn)inc, i. 479 
 Culleni). Butler, iii. 877,878 
 
 V. Morris, iii. 1032 
 
 V. Queensberry (D. of), iii. 1171 
 
 (Lord) V. Rich, ii. 401 
 
 Cullen's (Lord) case, iii. 11G9 
 Culley ('. Spearman, iii. 973 
 Culliford V. Blandfvrd, iii. 8i8 
 Culling V. TufFnell, iii. 1246 
 CuUingworth v. Lloyd, app.ii. iii. 1427 
 Culverson v. Milton, app. ii Hi. 1490 
 Cumber v. Wane, ii. 16, 17 
 Cumberland v. Plumber, iii ii40 
 Cuming i\ French, ii. 238,.^ >9 
 
 V. Sibley, i. 482. ii. 272 
 
 V. Welsford, ii. 170 
 
 Cumming v. Baily, ii. 136. 138 
 
 I'. Brown, iii. 871. 1224 
 
 V. Forrester, iii. 8-2. 995 
 
 V. Roebuck, ii. 182. iii. 1196. 1197 
 
 Cumpston v. Haigh, app. ii. iii. 14(i0 
 Cundell v. Pratt, i. 1 97 
 Cundv I'. Marriott, ii. 230. iii. 1057 
 Cimliffe V. Sefton, i. 37G, 377. 370. 381. 
 
 iii. 1267, 1268 
 
 V. Whitehead, i. 323 
 
 ■ V. Taylor, iii. 1080. 1090 
 
 Cunningham v. Lawrents, ii. 84, 85 
 
 V. Watson, iii. 848 
 
 Curling v. Sedger, app. ii. iii. 1340 
 
 V. Shutlleworth, app. ii. iii. 1592 
 
 Curran's case, ii. 693. 
 
 Currie v. Child, i. 147. 733. ii. 193. 195 
 
 iii. 799 
 Cnrry v. Edensor, iii. 1039 
 
 V. Walter, i. 186. ii. 639. 642 
 
 Curteis v. Willis, ii. 135 
 Curtis V. Curtis, ii. 62G 
 
 V. Drinkwater,ii. 296. iii. 728. 1231 
 
 V. Hannay, iii. 1210, 1211. 1241. 
 
 1243 
 V. Headfort, Marquis of, app. ii. iii. 
 
 1432 
 
 V. Hunt, ii. 449. app. ii. iii. 1417 
 
 1;. Kent Waterworks Company, iii. 
 
 952,953. 1172 
 
 V. Richards, app. ii. iii. 1317 
 
 V. Sheffield, app. ii. iii. 1448 
 
 V. Vernon, ii. 438. 447. 451 
 
 V. Wheeler, i. 418. ii. 424. iii. 972 
 
 V. Wolverton, ii. 403 
 
 Curtis's case, ii. 718 
 Curwen v. Salkeld, iii. 743 
 Curzon v. Lomax, ii. 695, 696 
 Cuthbert v. Cooper, iii. 904 
 
 V. Gostling, i. 116 
 
 V. Haley, iii. 1187 
 
 V. Peacock, iii. 733 
 
 Cutbush 11. Cutbush, app. ii. iii. 141G 
 
 Cutler V. Newlin, ii. 33. iii. 1063 
 
 Cutten V. Sanger, ii. 167 
 
 Cutter V. Powell, iii. 779. 1296. ir>O.J 
 
 Cutts V. Herbert, iii. 7.39 
 
 Cuxon V. Chadley, ii. 80. 
 
 Da Costa v. Firth, iii. 880. 885 
 
 V. Jones, iii. 1233 
 
 V. Pym, ii. 515 
 
 I'. Scandrett, iii. 886
 
 T ABLE O F C A S E S. 
 
 XXXVIl 
 
 Da eosta v. Villa Roal, i. 2GG. -212. 278. 
 
 288. ii. 70G 
 Dacre (Lord) v Tebb, ii. .505 
 Dacre's (Lord) case, ii. 5. 8 
 Dacy w. Church, i. 328 
 Dagglish V. Weatlierby, ii. 22.5 
 Dagnall v. \Viglcy,ii. 245, 246 
 D'Aguilar v. Tobin, i. 533 
 Dagwell V. Glasscock, i. 374 
 Dalby v. Hirst, iii. 782 
 
 V. Pullen, app. ii. iii 151)3 
 
 Dale V. Birch, iii. 1023 
 
 — " V. Hulljii. 281 
 
 r. SoUott, iii. 992 
 
 r. Wood, iii. 1135 
 
 JSx jmrtp, ii. 100 
 
 Dalgleish v Hodgson, i. 293 
 
 Dalison v. Stark, i. 58. ii. 505. iii. 1030 
 Dallman v. King, iii. 1300 
 D'Almaiiie v. Boosey, iii. 938. 941 
 Dalrymple v. Dalrymple, i. 294. ii. 704 
 Dalston v. Reeve, ii. 48 
 Dalton V. Gib, app. ii. iii. 1443 
 
 V. Irvin, iii. 1301 
 
 Dalton's ease, iii. 1187 
 Dalzell V. Mair, iii. 885. 950 
 Damaree and others' ease,ii. 341 
 Darner y. Fortescue, ii. 400 
 Dance v. Gilden. iii. 10G7 
 V. Robs(m,'ii. G41. iii. 988 
 
 V. Wyatt, ii. 502 
 
 Dancer v. Hastings, iii. 973 
 Dand c. Kingscote, iii. 1141 
 Dangerfield v. Thomas, ii. 170. 
 
 1>. Wilby, ii. 203. 204, 205, 200 
 
 Daniel v. Bowles, ii. 707 
 
 V. Cartony. ii. 240 
 
 • V. Cooke, ii. 701 
 
 V. North, ii. 390. iii. 743. 745. 913 
 
 V. Phillips, ii. 591 
 
 I'. Pitt, ii. 30 
 
 V. Wilson, ii. 597 
 
 Daniels v. Potter, iii. 734 
 
 Dann v. Spurrier, ii. 417 
 
 Dantzig packet (The) app. ii. iii. 1022 
 
 Darbisliire v. Parker, i. 519. 522. ii. 223. 
 
 225. 234. 
 Darby v. Boucher, ii. 558 
 
 V. Harris, app. ii. iii. 1400 
 
 V. Smith, app. ii. iii. 1578 
 
 and others v. Smith, ii. 159. iii. 
 
 1142 
 Darkiii's ease, app. i. 592 
 Darley v. Smith, ii. 495 
 Darnall v. Trott, ii. 477 
 Danieli )>. Williams, ii. 243 
 Dartmouth (Countess of) v. Roberts, 
 
 i. 332. 334. 330. iii. 1084 
 Dartnal v. Morgan, iii. 1174 
 Dartnall v. Howard, i. 330,337 
 Darwin v. Lincoln, ii. 658 
 
 • V. Upton, ii. 310. iii. 743. 912 
 
 Daubeny, Ex parte, app. ii. iii. 1345 
 Daubigny v. Duvall, ii. 42. 45 
 Daubney v. Cooper, ii. 594 
 Davenport v. Davis, app. ii. iii. 1503 
 
 V. Nelson, ii. 547 
 
 ■ JEx jiarte, ii. 157 
 
 David V. Ellice, ii. 100. iii. 827 
 Davidson v. Gill, ii. 389. 585. 592 
 
 Davidson v. Seymour, iii. 1020 
 
 Davies v. Acocks, app. ii. iii. 1440 
 
 — — V. Connop, iii. 1118 
 
 V. Davies, i. 151, 152. app. i. 004. 
 
 ii. iii. 1.339 
 
 V. Edwards, iii. 795 
 
 V. Griffith, iii. 1023, app. ii. iii. 15-50 
 
 i\ Humphreys, ajip. i. 010. ii. iii. 1472. 
 
 1502 
 
 • V Humphries, iii. 945 
 
 V. Lewis, i. 182. iii. 908 
 
 V. Mant, ii. 60 
 
 V. Morgan, i. 370. app. ii. iii. 1419. 
 
 1505 
 
 v. Nicholas, iii. 1 1 00. app. ii. iii. 1 584 
 
 V. Pearce, i. 365 
 
 I'. Ridge, ii. 28 
 
 V. Stacey, app. ii. 111.1390. 1514. 1538 
 
 V. Stephens, iii. 1250. 1258 
 
 V. Watson, ii. 87 
 
 V. Wilkinson, iii. 1043 
 
 Davies, Ex parte, app. ii. iii. 1357 
 Davis V. Black, app. ii. iii. 1484 
 
 V. Blackwell, ii,.451 
 
 V. Bowsher, ii. 648 
 
 V. Bryan, ii. 79, 80 
 
 V. Burton, ii. 150 
 
 t'. Capper, ii. 591. iii. 1 139 
 
 V. Carter, i. 102 
 
 i\ Chapman, app. ii. iii. 1552 
 
 V. Dale, i, 187 
 
 V. Dinwoody, ii. 550 
 
 V. Dodd, 11.203 
 
 V. Edwards, iii. 1174 
 
 V. Garrett, iii. 727 
 
 V. Gyde, app. ii. iii. 1538 
 
 V. Hardy, ii. 081 
 
 V. Holding, ii. 245. app. ii. iii. 1358, 
 
 1359 
 
 V. Humphreys, i. 242 
 
 V. James, ii. 284. iii. 1152 
 
 «. Jones, iii. 1240, 1247 
 
 V. Kioge, ii. 32 
 
 V. Lovell, app. i. 591 
 
 V. Lowndes, app. i. 012 
 
 V. Morgan, i. 121. 183. ii. 340. iii. 
 
 1109. 1251 
 
 V. Nicholson, i. 322 
 
 V. Noak, i. 455. ii. 078 
 
 v. Oswell, iii. 1105 
 
 V. Penton, iii. 852 
 
 V. Reynolds, iii. 1044. 1151 
 
 V. Russell,!. .523. ii. 002. 682 
 
 V. Saunders, iii. 1119 
 
 V. Shepley, ii. 182 
 
 V. Smith, ii. 663 
 
 V. Sparling, i. 334 
 
 V. West, i. 259 
 
 V. Willan, ii. 288 
 
 «. Williams, i. 301. ii. 440. iii. 901. 
 
 1037. 1053 
 
 V. Witts, iii. 864, 865 
 
 Davison v. Franklin, d 23 
 
 V. Gill, app. ii. iii. 14S7 
 
 V. Stanley, ii. 474. iii. 1182 
 
 Davy V. Baker, ii- 272 
 
 V. Prendergast, iii. 1064, 1065 
 
 i;. Smith, iii. 1263 
 
 Dawe V Holdsworth, ii. 147. iii. 825 
 Dawes v. Aiistruther, app. ii. iii. 15U1 
 c 3
 
 xxxvin 
 
 TABLE OF CASES. 
 
 Dawes v. Pcckjii. 284. 489. iii. 1151. 1100. 
 1206 
 
 V. Pinner, ii. 100. 570 
 
 Dawney v. Dee, iii. 803, 804 
 Dawson v. Atty, iii. 888. 890 
 
 V. Dawson, ii. 196 
 
 • V. Dyer, ii. 047 
 
 ■ V. Fuller, i. 092 
 
 _ — or Lawson v. Clarke, ii. 596 
 
 V. Leake, iii. 1301 
 
 • V. Linton, ii. 75 
 
 .v. M'Donal(l,ii. 254 
 
 V. Moore, app. ii. iii. 1491. 1019 
 
 ■ V. Morgan, ii. 77. 221 
 
 • V. Norfolk (Dulie of), iii. 913 
 
 V. Rishwortli, ii. 153 
 
 Dawson's ease, ii. 467. 694 
 Dawtree v. Dee, iii. 861. 863. 1104 
 Dax V. Ward, ii. HI. jii- 1309 
 Day V. Beddingfield, iii. 865 
 
 V. Bower, iii. 795 
 
 V. Bream, app. ii. iii. 1 466 
 
 V. Church, iii. 1076 
 
 V. Davis, iii. 797 
 
 V. Edwards, iii. 737. 1106 
 
 ■ V. Fynn, iii. 1214 
 
 V. King, app. ii. iii. 1454 
 
 V. Nix, ii. 243 
 
 V. Pasgrave, ii. 534 
 
 V. Picton, ii. 688 
 
 "■ V. Porter, iii. 1119 
 
 V. Robinson, ii. 629 
 
 V. Stewart, ii. 245 
 
 V. Stuart, ii. 245 
 
 V. Williams, iii. 923 
 
 ■ Ex parte, ii. 122 
 
 Dayrell v. Hoare, app. ii. iii. 1527 
 D'AyrolIes v. Howard, iii. 1133 
 Deacon v. Cock, i. 106 
 
 V. Cooke, i. 158 
 
 V. Stodhart, app. ii. iii. 1370 
 
 Deacon's case, ii. 341. iii. 1096 
 Dcady v. Harrison, i. 333. ii. 34 
 Dean v. Allalley, iii. 1246 
 
 V. Braitliwaite, iii. 738 
 
 • V. Brown, ii. 161. 538 
 
 I'. Clayton, iii. 735 
 
 I'. Crane, ii. 443 
 
 V. Hogg, iii. 1185 
 
 V. James, iii. 1069, 1070 
 
 ,,. Newhall, iii. 966. 1066 
 
 V. Peel, iii. 989 
 
 ■ V. Seholes, app. ii. iii. 1519 
 
 . V. Whitaker, iii. 1030 
 
 Dean's case, ii. 470 
 Deane j'. Thomas, ii. 352 
 Dearden v. Binns, iii. 1042. 1045 
 
 V. Byron (Lord), iii. 917 
 
 . V. Evans, app. ii. iii. 1581 
 
 Death v. Scrwonters, ii. 218 
 
 Do Begnis v. Armistead, ii. 103 
 
 Debenham v. Chambers, app. ii. iii. 1505 
 
 De Berdt v. Atkinson, ii. 285 
 
 De Berenger v. Wheble, iii. 941 
 
 De Berenger's case, i. 71. 170 
 
 De Bergareche v. Pillin, ii. 224 
 
 De Berkora v. Smith, iii. 807 
 
 De Bernales v. Fuller, ii. 81. 578 
 
 V. Wood,ii. 579. iii. 1192 
 
 Debezc i'. Man, iii. 783 
 
 Debney i\ Corbett, app. ii. iii. 1403 
 
 De Cliarme v. Lane, ii. 124, 125 
 
 De Costa v. Atkins, ii. 435 
 
 DcL'ks V. Strutt, ii. 410. 454. app. iL iii. 
 
 1417 
 Deere, Ex parte, ii. 177. 648 
 Deerly v. Mazarine (Duchess of), iii. 853 
 Deffle V. Desanges, ii. 133 
 De Fleming (Lady) v. Simpson, i. 119 
 Defnis v. Davies,ii. 635 
 Defresne i\ Hutchinson, iii. 1157 
 Uefrics v. Davis, app. ii. iii. 1465 
 De Gaillon v. L'Aigle, ii. 40. 548. iii. 1311 
 De Garron v. Galbraith, iii. 888, 884 
 De Gondouin r. Lewis, iii. 1139 
 De Grave v, Monmouth (Corporation of), 
 
 ii. 339 
 De Graves v. Smith, ii. 375 
 De Guiscard's (Marquis of) case, ii. 721 
 De Hahn v. Hartley, iii. 874 
 De Haviland v. Bowerbank, ii. 575. 577, 
 
 578 
 De la Chaumctte v. England (Bank of), 
 
 ii. 42.215, 221 
 De la Croix v. Thevenot, ii. 620 
 Delafield v. Freeman, ii. 562 
 De la Lega v. Vianna, ii. 460 
 Delamotte v. Lane, app, ii. iii. 1538 
 De la Motto's case, i. 211. ii. 518 
 Delane v. Hillcoat, app. ii. iii. 1521 
 Delaney v. Mitchell, i. 424 
 Delany v. Jones, ii. 632 
 De la Torre v. Barclay, ii. 232. 66a 
 Delauneyt). Mitchell, ii. 221 
 
 V. Strickland, iii. 1198 
 
 Del Campo and others v. R. app. ii. iii. 1522 
 Delegal j;. Highley, ii. 635. 637. 639 
 
 V. Naylor, iii. 1165 
 
 De Leira v, Edwards, iii. 821 
 
 De Lemav. Haldimand, iii. 1298 
 
 Delvalle v. Plomer, iii. 1018 
 
 De Medina v. Poison, iii. 1180 
 
 De Metton v. De Mellon, app. ii. iii. 1426 
 
 De Montmorency v. Devereux, app. ii. iii. 
 
 1428 
 Demrinbray v. Metcalfe, ii. 647 
 Denby v. Moore, ii. 88. 
 Dendy v. Powell, iii. 992. 994 
 Denew v. Daverell, ii. 111. iii. 1307, 1308 
 Dengate v. Gardiner, ii. 535 
 Deniiam v. Stevenson, ii. 442. 520 
 Denman v- Hampton, ii. 446 
 Denn v. Abingdon (Lord), ii. 410 
 
 V. Barnard, ii. 405. iii. 897. 900. 914 
 
 V. Cartwright, ii. 414 
 
 V. Fulford, i. 206. 300. iii. 749 
 
 d. Goodwin v. Spring, ii. 686 
 
 {'. Hopkinson, ii. 417 
 
 V. Manifold, iii. 1045 
 
 V. Rawlins, ii. 420. 427 
 
 V. Roakc, iii. 772 
 
 V. Spray, i. 339. ii. 335. 359 
 
 V. White, ii. 435. 
 
 Dennis v. Morrill, ii. 550 
 
 V. Morris, ii. 230, 231. 238, 239 
 
 V. Pawling, iii. 1121 
 
 Dent V. Dunn, iii. 1072 
 
 r. Pepys, iii. 1272 
 
 — V. Priidence, iii. 1145 
 De Pinna i\ Polhill, ii. 101
 
 TABLE OF OASES. 
 
 XXXIX 
 
 D'Epinay v. Saunders, npp. ii. iii. 14*24 
 Derby (Lord) v. Asquitli, iii. 1'245 
 Derby's (Lord ) case, i. 308 
 Derisley r. distance, ii. 330 
 
 V. Neville, iii. 1118 
 
 Da Rosne v. Fairie, app. ii. iii. 1530 
 
 V. Fairlie, i. 104. app. i. 509 
 
 De Rutzen (Baron) v. Farr, i. 359. 532 
 
 V. Lloyd, app. ii. iii. 1481 
 
 De Sailly v. Morgan, i. 212 
 Desborough v. Rawlins, app. ii. iii. 
 
 1381 
 Desbrow v. Wetherley, ii. 255 
 Descard v. Bond, ii. 488 
 Desmond v. Vallance, app. i. 012 
 DeSymmons v. Miucliwick, iii. 1205 
 De Symonds v. De la Cour, i. 117. 119. 
 
 iii. 893 
 
 V. Sheddon,iii. 893 
 
 De Tastet v. Baring, ii. 240 
 
 V. Carroll, ii. 143 
 
 V. Le Ta vernier, app. ii. iii. 1445 
 
 V. Shaw, ii. 458 
 
 Devaux v. Jauson, app. ii. iii. 1524 
 
 V. Steele, app. ii. iii. 1524 
 
 V. Steiiikcller, app. ii. iii. 1397 
 
 De Vaux v. Salvador, iii. 877 
 Devereux v. Barclay, iii. 1157 
 Devisne, Ex parte, iii. 1026 
 Devises] (Mayor, &c.) v. Clark, app. ii. iii. 
 
 1451 
 Devon v. Jones, i. 331 
 
 V. Watts, ii. 139. 141, 142 
 
 Devon's (Earl of) case, ii. 519 
 Devonshire's case, iii. 861 
 Dew V. Clarke, i. 323. iii. 1283 
 
 V. Katz, app. i. 633 
 
 — — I'. Parsons, ii. 85 
 Dewar v. Purday, i. 537 
 Dewdeney v. Palmer, app. i. 596 
 Deweil V. Moxon, iii. 1160 
 Dewes v. Venables, ii. 172 
 Dewey v. Bayntiim, iii. 1018 
 
 V. White, iii. 748 
 
 De Whelpdale v. Milburn, iii. 1090 
 De Wutz V. Hendrieker, iii. 1106 
 Deybel's case, i. 509 
 Dibdin v. Bostock, ii. 633 
 
 V. Morrii, iii. 1050, 1051 
 
 Dicas V. Lawson, i. 81 
 
 V. Stockley, ii. 0.50. app. ii. iii. 1583 
 
 Dickeu v. Neale, ii. 102. 105 
 Dickens v. Gosling, iii. 733 
 
 V. Grenville, i. 486 
 
 Dickenson v. Bowes,!. 473. ii. 209, 210. 
 
 212 
 
 V. Coward, ii. 252 
 
 & Ux. V. Davis, ii. 534 
 
 V. Fisher, i. 482 
 
 V. Foord, ii. 130,137 
 
 V. Lilwall, iii. 1190. 1220 
 
 V. Paul, iii. 1190 
 
 Dickins v. Prentice, ii. 256 
 Dickinson v. Coward, ii. 150 
 
 V. Hatfield, ii. 005 
 
 V. Prentice, i. 131 
 
 V. SLee, i. 187. iii. 1007. 1070 
 
 V. Valpy, iii. 805, 800 
 
 Dickman v. Benson, iii. 1298 
 Dickon v. Clifton, ii. 285 
 
 Dickson w. Cass, ii. 178. iii. 1045 
 
 V. Doveridge, ii. 97 
 
 V. Evans, i. 420. ii. 178. iii. 990 
 
 V. Fisher, ii 271 
 
 V. Lodge, i. 346 
 
 Diddear v. Faucit, ii. 701 
 Dier v. Fleming, i. 27 
 
 Digby I). Atkinson, ii. 421. iii. 937 
 
 V. Stedman, i. 361 
 
 Diggs's case, i. 375 
 
 Dillon ('. Edwards, iii. 1236 
 
 V. Harper, i.508 
 
 V. Langley, iii. 1028 
 
 V. Parker, i. 530 
 
 ■ ) . Rimmer, ii. 251 
 
 Dimock's case, iii. 798 
 Dimsdale v. Lanchester, ii. 262 
 Dingler's case, ii. 384 
 Dingley v. Angrove, iii. 1176 
 Dlngsdale i>. Clarke, ii. 590 
 Dingwall v. Dunster, ii. 252,253 
 Dinsdale v. Eames, ii. 185 
 D'Israeli v. Jowett, i. 247. iii. 875 
 Diteham v. Bond, iii. 1138 
 Ditchburn v. Goldsmith, iii. 1234 
 
 V. Spracklin, i. 249. iii. 807 
 
 Ditcher v. Kenrick, 1. 89. iii. 1046 
 Dix V. Brooks, ii. 535,536 
 Dixon V. Baldwin, ii. 144. 163. iii. 
 1226 
 
 i>. Bell, iii. 734. 739. 990 
 
 V. Chambers, iii. 1043 
 
 V. Cowper, i. 148 
 
 V. Fisher, iii. 765 
 
 V. Fletcher, iii. 1199 
 
 V. Hammond, ii. 47 
 
 V. Hatfield, ii. 510 
 
 V. Hurrell, ii. 645 
 
 V. Nut'all, ii. 214 
 
 I). Parker, ii. 270 
 
 V. Robinson, iii. 1045. app. ii. iii. 
 
 1481 
 
 V. Sanderson, ii. 195 
 
 V. Vale, i. 192 
 
 i\ Walker, app. ii. iii. 1501 
 
 Dixon's case, ii. 467 
 
 Dobbs V. Humphries, ii. 607 
 
 Dobell V. Hutchinson, app. ii. iii. 1597 
 
 w. Stevens, ii. 374, 375 
 
 Dobree v. Eastwood, ii. 235 
 
 i\ Napier, app. ii. iii. 1324 
 
 V. Schroeder, app. ii. iii. 1494 
 
 Dobson V. Bell, i. 509. iii. 1074 
 
 V. Bolton, iii. 878 
 
 V. Droop, ii. 100 
 
 V. Fussy, iii. 1140 
 
 V. Lockbart, ii. 179 
 
 V. Sotheby, app. ii. iii. 1520 
 
 Dodd V. Holme, ui. 740, 747 
 
 V. Kyffin, iii. 1118 
 
 V. Norris, 1. 192. ii. 305. 807. iii. 990, 
 
 991 
 Dodd's (Dr.) case, iL 470 
 Doddington v. Hudson, iii. 978 
 Dodge V. Meech, iii. 1270 
 Dodson V. Mackey, ii. 605 
 Dodsworth t>. Anderson, i. 516 
 Doc u. Abbott, ii. 420 
 
 ' V. Acklam, iii. 832 
 
 V. Adderley, app. i. 598 
 
 c 4
 
 xl 
 
 T A B L li OF CASES. 
 
 Doe V. Alderson, app. ii. iii. 1404 
 
 V. Alexander, ii. 4-J3. 432 
 
 ?'. Allbutt, app. i. iJ97 
 
 V. Allen, ii. •26. 420. iii. 7G5. 1270. 
 
 app. ii. iii. 14!)!) 
 
 d. Ambler v. Woodbridtrc, ii. 422 
 
 r. Aiiiey, app. ii. iii. 1320 
 
 V. Anderson, ii. 145 
 
 i>. Andrews, ii. 323. 350 
 
 V. Archer, ii. 418, 419 
 
 d. Askew v. Askew, ii. 335 
 
 11. Avis, iii. 1038 
 
 i\ Bamford, app. ii. iii. 1412 
 
 V. Banckes, ii. 424, 425 472 
 
 d. Banning v. Griffin, ii. 3G5. iii. 
 
 845 
 
 V. Barber, ii. 405 
 
 • d. Barclay v. Booth, ii. 427 
 
 • V. Barford, iii. 1289 
 
 V. Barnard, i. 301 
 
 V. Barnes, i. 244. 420 
 
 d. Barrett v. Kemp, ii. 530. 097 
 
 i\ Barton, iii. 835 
 
 ■ V. Bateman, ii. 422 
 
 V. Batten, ii. 420 
 
 d. Batten v. Murless, iii. 1033 
 
 V. Bay tup, ii. 424. app. ii. iii. 1404 
 
 d. Beach r. Jersey (lilarl of), iii. 773 
 
 V. Bcaunio;it, ii. 414 
 
 V. Bell, ii. 411. 413, 414 
 
 V. Benjamin, app. ii. iii. 1428 
 
 t: Bennett, app. i. 018 
 
 d. Bennington v. Hall, i. 339. ii. 332. 
 
 334. 430 
 
 V. Benson, i. 403. ii. 303. 410, 417. iii. 
 
 781 
 
 V. Bevan, ii. 340 
 
 V. BeynoD, app. i. 018. app. ii. iii. 
 
 1499 
 
 V. Biggs, ii. 409. 554 
 
 ■!;. Billyard, ii. 405 
 
 V. Bingham, i. 109. 370. 399. 412. 
 
 422 
 
 d Bingham v. Cartvvright, i. 505 
 
 (/. Birch V. Phillips, iii. 793, 794 
 
 V. Birch, app. ii. iii. 1388 
 
 V. Birclimore, ii. 433 
 
 V. Bird, ii. 27. 348. app. ii. iii. 1317 
 
 d. Birtwhistle v. Vardiil, ii. 519 
 
 V. Blackburn, app. ii. iii. 1414 
 
 V. Blair, ii. 417 
 
 d. Bland v. Smith, i. 330. ill. 1033 
 
 V. Bliss, ii. 424 
 
 V. Block, iii. 992 
 
 V. Bluck, i. 225. ii. 405 app. ii. iii. 
 
 1405 
 
 V. Bolton, iii. 1 191 
 
 V. Booth, iii. 1 173 
 
 I'. Boulcott, ii. 174 
 
 V. Boulter, app. ii. iii. 1400 
 
 V. Bower, iii. 771 
 
 r. Bowles, app. i. 598 
 
 ■ V. Bradbury, ii. 422. 444 
 
 d. Bradshaw v. Pk wman, ii. 430 
 
 ■ I'. Braham, ii. 515 
 
 V. Bramston, ii. 400 
 
 V. Bray, i. 244. 420 
 
 V. Breach, iii. 1191 
 
 r. Briggs, ii. 26 
 
 V. Brightwen, ii. 335. 401 
 
 Doe V. Brindley, ii. 422. 424, 425, 420 
 V. Bristol and Exeter Railway Com- 
 pany, app. ii. iii. 1533 
 (l. Bristowe v. Pegge, ii. 405. 427. iii. 
 
 910 
 d. Bromfield v. Smith, ii. 421. iii. 
 
 1178 
 
 • V. Brookes, ii. 419. app. ii. iii. 1398 
 
 d. Brookes v. Fairclough, ii. 413 
 
 d. Brown v. Brown, iii. 702. 774. 
 
 1270 
 
 V. Brown, iii. 973. app. ii. iii. 1404 
 
 V. Brydges, ii. 422 
 
 V. Brynder, app. i. 018 
 
 V. Burdett, i. 382. iii. 1290 
 
 d. Burdett v. Wright, iii. 916 
 
 d. Burgess v. Purvis, ii. 432 
 
 d. Burrell v. Perkins, ii 403 
 
 d. Burrough v. Reade, ii,430 
 
 V. Burt, iii. 773 
 
 V. Burton, app. i. 016 
 
 V. Cadwallader, ii. 427 
 
 V. Calvert, i. 206. ii. 415. 426. iii. 
 
 823. 911 
 1'. Capertou, app. i. 017, 018, 019. 
 
 ii. iii. 1404 
 
 d. Capes v. Somerville, ii. 429 
 
 d. Carr v. Bcllyard, iii. 918 
 
 V. Carter, ii. 138. 1 70. 840. 128. iii. 
 
 1237 
 
 V. ('artvvrifflit, i. 358. ii. 57. iii. 1036 
 
 V. Cawdor, ii. 420 
 
 *d. Cawdor (Lord) v. King, ii. 420 
 
 d. Challnor v. Da vies, ii. 413 
 
 V. Chamberlaine, app. ii. iii. 1409 
 
 V. Chambers, app. i. 017 
 
 d. Chandless v. Robson, ii. 422 
 
 d. Cheere v. Smith, ii. 340 
 
 d. Chichester v. Oxenden, iii. 774 
 
 V. Chippenden, ii. 2 
 
 V. Church, ii. 419 
 
 d. Clark v. Spencer, ii. 502 
 
 V. Clarke, i. 104. ii. 400. 406. 420. 
 
 424. 432, 433. iii. 751 
 
 d. Clarke v. Grant, ii. 430 
 
 d. Clarke v. Ludlam, ii. 333 
 
 d. Clements i'. Scudamore, i. 508 
 
 V. Cleveland (Marquis) i. 405. ii. 457. 
 
 iii. 897.957. 1125 
 
 V. Clifford, iii. 1200 
 
 v. Clifton, app. ii. iii. 1411 
 
 V. Cockell, i. 159. 409. ii. iii. 1379. 
 
 1412 
 
 d. Colclough V. Miller, ii. 413 
 
 v. Cole, i. 503. app. ii. iii. 1319 
 
 d. Compere v. Hicks, ii. 002 
 
 d. Cook V. Danvers, ii. 333 
 
 V, Cooke, ii. 400 
 
 V. Cooper, app. ii. iii. 1409 
 
 d. Cooper v. Runcorn, ii. 429. 458 
 
 d. Coore v. Clare, iii. 1178 
 
 d. Copley V. Day, iii. 1037. 1055 
 
 r. Corbett, i. 420. iii. 1289 
 
 r. Coulthred, ii. 21 
 
 V. Cowley, ii. 430 
 
 )'. Cox, ii. 419 
 
 d. Coyles r. Cole, i. 394 
 
 1'. Creed, ii. 414 
 
 V. Crick, ii. 417,418 
 
 r, Crisp, ii. 334. app. ii. ill, 1491
 
 TABLE 01' CASES. 
 
 xli 
 
 Doe d. Croydon (Churchwiirdcns of) v. 
 Cook, i. 3-10 
 
 V. Cuff, ii. 432 
 
 d. Cuff t). Stradlinpr, ii. 432 
 
 V. Culliford, ii. 41!J 
 
 V. Danvers, ii. 333, 334. 404. 653 
 
 d. J)avenport v. Duncanuon, ii. 402 
 
 V. Davidson, ii. 117 
 
 v. Davies, app. ii. iii. 1421 
 
 d. Davis v. Davis, ii 402, 403. 434, 
 
 435 
 
 V. Day, iii. 1053 
 
 V. Deakiu, ii..3G5. iii. 845. 1267. 
 
 1269 
 
 V. Deanford, ii. 417 
 
 V. Derby (Earl of), i. 259 
 
 V. Derry, app. ii. iii. 1410. 15G0. 
 
 1588 
 
 d. Digby V. Steel, ii. 26. 407. 409 
 
 ■ d. Dillon V. Parker, ii. 414 
 
 d. DilMot I'. Dilnot, iii. 1288 
 
 t\ Dobell, app. ii. iii. 1587 
 
 V. Donovan, ii. 417 
 
 • V. Drinn-, iii. 704 
 
 d. Duckett v. Watts, ii. 402 
 
 V. Dunbar, ii. 418 
 
 V. Durnford, i, 371,372. ii. 418 
 
 d. Duroure c. Jones, ii. 403. 672 
 
 V. Dyeball, ii. 405 
 
 d. Dyke !'. \Vhittinyhani, iii. 1054 
 
 V Dyson, ii. 423 
 
 • r. Edgar, ii. 404. 421. app. ii. iii. 
 
 1446 
 
 V. Edlin, app. ii. iii. 1614 
 
 v. Edmonds, ii. 654 
 
 V. Edwards, 1. 497. ii. 430. iii. 973. 
 
 1038. 1041. app. ii. iii. 1540. 1580 
 
 V. Egremont ( Earl), app. i. 593 
 
 d. England (Bank of) v. Chambers, 
 
 i. 371 
 
 d. England v. Slade, iii. 974 
 
 V. Errington, i. 497. ii. 431. 437. app. 
 
 ii. iii. 1414. 1587 
 V. Evans, i. 379. ii. 27. 388. £62. iii. 
 
 936. 1287 
 
 d. Eyre i'. Lambley, ii. 22 
 
 ■ V. Fairclongb, ii. 419 
 
 V. Fenn, ii. 430, 431, 432 
 
 d. Fenwick v. Read, iii. 915. 923, 924. 
 
 926 
 
 V. Fereday, app. ii. iii. 1556. 1559 
 
 I'. Fernside, ii. 421 
 
 V. Finch, ii. 458 
 
 V. Fisher, i. 526 
 
 d. Fisher v. Giles, ii. 428 
 
 d. Fisher v. Prosser, ii. 429 
 
 d. Fleming v. Fleming, ii. 705 
 
 ('. Fletcher, ii. 429. iii. 965 
 
 d. Flower v. Peck, ii. 422 
 
 V. Flynn, ii. 420, 421 
 
 d. Foley v. Wilson, ii. 696 
 
 V. Ford, app. ii. iii. 1500 
 
 V. Forster, ii. 26. 415 
 
 d. Fester v. Derby, 1. 313 
 
 d. Foster I'. Sisson, i. 182, 183 
 
 • — d. Foster v. Williams, i. 109. ii. 458 
 
 — V. Francis, ii. 418. 424 
 
 t». Frankis, app. ii. iii. 1558 
 
 V. Frond, ii. 410, 420 
 
 ■ r. Frye, iii. 1016 
 
 Doe L\ Fucliau, ii. 423 
 
 V. Fuller, app. ii. iii. 1404 
 
 V. Fyldes, iii. 764 
 
 i\ Galloway, i. 525 
 
 - V. Gartham, i. 306 
 V. Gatacre, app. i. 609 
 
 (/. George i\ Jesson, ii. 672. iii. 835 
 
 V. Gibbons, app. ii. iii. 1405 
 
 V. Gibbs, ii. 435 
 
 V. Gitford, iii. 901 
 
 d. Gigner v. Roe, ii. 429 
 
 V. Giles, ii. 428 
 
 V. Gillett, ii. 565 
 
 V. Gleij field, ii. 561 
 
 V. Glenn, ii. 438 
 
 v. Goldvvin, app. ii. iii. 14U) 
 
 ■ V. Gore, app. ii. iii. 1441 
 
 v. Gosley, iii. 1289. app. ii. iii. 1406 
 
 d. Graham!'.Scott,ii. 115.iii.918.944 
 
 V. Grant, ii. 413. iii. 828 
 
 V. Gray, app. ii. iii. 1560 
 
 d. Greaves v. Roby, ii. 432 
 
 ?'. Green, i. 366. ii. 413. 433. app. i. 
 
 617. ii. iii. 1406 
 
 V. Gregory, ii. 399. 458 
 
 d. Grey de Wilton (Lord), ii. 416 
 
 V. Griiiin, ii. 365. iii. 832. 835 
 
 d. Grimes v. Gooch, iii. 1187 
 
 V. Grubb, ii. 420 
 
 d. Grundy i-. Clarke, ii. 424 
 
 V. Gunning, i. 301 
 
 V. Guy, i. 401, 402. 404. ii. 409, 410. 
 
 app. ii. iii. 1417 
 
 V. Haddon, i. 285 
 
 i'. Hales, ii. 427 
 
 V. Hall, iii. 1046 
 
 d. Hammond v. Cooke, iii. 918 
 
 d. Hanson v. Smith, ii. 333. 409 
 
 V. Harbrow, ii. 434 
 
 V. Harcourt, i. 238 
 
 d. Harding v. Cooke, ii. 405 
 
 r. Hardy, ii.562. app. ii. iii. 1445 
 
 V. Hare, iii. 994 
 
 v. Harlow, app. ii. iii. 1411 
 
 I'. Harris, ii. 415. iii. 964. 1279. app. 
 
 ii. iii. 1378. 1614 
 
 d. Harris v. Masters, ii. 423 
 
 d. Harrop v. Green, iii. 799 
 
 V. Harvey, ii. 412. 435, 436 
 
 V. Hawthorn, i. 422 
 
 I'. Hazell, ii. 415 
 
 V. Heakin, ii. 411. ajjp. ii. iii. 1481 
 
 V. Heather, i. app. 630. ii. iii. 1404 
 
 V. Heddon, iii. 901 
 
 V. Hellier, i. 339. ii. 335 
 
 d. Hellings v. Bird, ii. 429 
 
 V. Heraing, i. 406 
 
 V. Hersey, ii. 412 
 
 V. Hertford (Marquis of), app. ii. iii. 
 
 1407 
 
 V. Hicks, ii. 4.35 
 
 V. Hilder, ii. 406. 410. iii. 916,917. 926 
 
 d. Hill V. Lee, ii. 436 
 
 d. Hindley v. Rickarby, ii. 34. 423 
 
 d. Hindson v. Kersey, iii. 1266 
 
 V. Hirst, ii. 377- 382. iii. 899 
 
 V. Hodgson, ii. 24. 26. iii. 1056. app. i. 
 
 619. ii. iii. 1411 
 
 d. Hodsden r. Staple, iii. 917 
 
 i: Hogg, api"". ii. iii. 1389
 
 xlii 
 
 T A 15 L E O r CASES. 
 
 Doe I'. Iloiiifray, ii. 409 
 
 V. llovno, ii. -l"2i). app. ii iii. 1411 
 
 v. Horner, ii. 1 18 
 
 V. Ilorseley, ii.422 
 
 d. Hotclikiss V. Pcarce, iii. 903 
 
 V. Howard, ii. 3(i;3. 41 G 
 
 r. Iliuldart, i. 270. ii. 43G 
 
 fl. Huglies V. Dyeball, ii. 40G 
 
 V. Hughes, app. ii. iii. 1408 
 
 d. Hull V. Benson, ii. 419 
 
 V. Hull, ii. G/J3 
 
 V. Ilulnie, ajip. ii. iii. 1407 
 
 d. Human v. Pettet, i. SoS. ii. 34.401 
 
 r. Humphreys, ii. 420. iii. 1095 
 
 d. Iluugate v. Gascoigne, iii. 843 
 
 d. Huuter v. Boulcot, iii. 1039 
 
 V. Hutliwaitc, iii. 774. 1270, 1271 
 
 V. Inglis, ii. 420. 429 
 
 d. Irwin v. Roe, iii. 1047 
 
 d. Jackson v. Ashburner, iii. 1178 
 
 V. Jackson, i. 441. ii. 348. 418. 420 
 
 d. James v. Brown, ii. 42. iii. 1033 
 
 d. James v. Harris, i. 409 
 
 d. James v. Stanton, ii. 432 
 
 V. Jauncey, app. ii. iii. 1404 
 
 d. Jeiferies v. Wliittick, ii. 414 
 
 V. Jenney, ii. 337 
 
 V. Jersey (Earl of), i. 454. 528 
 
 V. Jesson, ii. 365. C55. iii. 845 
 
 V. Johnson, ii. 414, 415. 42G 
 
 d. Johnson v. Johnson, i. 376 
 
 d. Johnson v. Pembroke (Earl of), 
 
 iii. 842 
 
 I'. Jones, ii. 348. 414. 458. iii. 1100 
 
 V. Keene, ii. 411. iii. 899 
 
 V. Keightley, ii. 413. 419 
 
 V. Kelly, app. i. 593 
 
 V. Kemp,Mii. 1125. app. ii. iii. 1609 
 
 V. Kendrick, ii.414 
 
 j;. Kent, iii. 1294 
 
 V. Kersey, i. 134. 139 
 
 V. Kilner, i. 395 
 
 d. Kirby v. Carter, ii. 428, 429 
 
 V. Knebell, app. ii. iii. 1410 
 
 V. Kneller, ii. 422 
 
 d. Kniglit V. Nepean, ii. 3G4 
 
 (/. Knight V. Rowe, ii. 425 
 
 V. Lakin, i. 354 
 
 V. Lambc, ii. 415 
 
 d. Lamble v. Lamble, ii. 399. 432 
 
 V. Lambley, ii. 415 
 
 d. Lam bourn v. Pedgriph, iii. 1030 
 
 V. Laming, ii. 345. app. ii. iii. 1389 
 
 d. Lancashire v. Lancashire, iii. 1287, 
 
 1288 
 
 V. Land, ii. 462 
 
 V. Langton, iii. 783. 1271 
 
 V. Larder, app. ii. iii. 1560 
 
 V. Lawder, ii. 420. iii. 1191 
 
 V. Lawcs, ii. 334 
 
 V. Lawley, ii.405 
 
 V, Lawrence, ii. 403 
 
 d. Lawrence v. Shawcross, i. 530. 
 
 ii. 423 
 
 r. Lea, ii. 416, 419. iii. 759 
 
 V. Leacli, app. i. 630. 
 
 d. Le Clievalier i'. Huthwaite, iii. 785. 
 
 1273 
 
 V. Letlierlin, app. ii. iii. 1408 
 
 V. Levi, ii. 418 
 
 Doe r. Lewis, ii. 420. 429. iii. 1047. app. 
 
 ii. iii. 1405. 1410 
 d. Lewis v. Bingham, ii. 377. 382. 
 
 433 
 
 d. Lidgbird v. Lawson, iii. 904 
 
 V. Liston, ii. 150 
 
 V. Litherland, ii. 420. 434 
 
 V. Llewellyn, app. ii. iii. 1384 
 
 V. Lloyd, i. 244. ii. 406. app. i. 022. 
 
 ii. iii. 1435 
 
 d. Lloyd V. Deakin, iii. 835 
 
 d. Lnckwood v. Clarke, ii. 422 
 
 1\ Long, app. i. 628. ii. iii. 1404. 
 
 1409 
 
 V. Loveless, ii. 335 
 
 d. Lowden v. Watson, ii. 424 
 
 V. Lucas, ii. 418 
 
 d. Lucas V. Fulford, iii. 1040 
 
 d. Lushington v. Landaff (Bishop of), 
 
 iii. 1288 
 1.'. Lyford, iii. 774 
 
 d. M'Leod v. East London Water- 
 works Company, ii. 42 
 
 V. Maisey, i. 156. ii. 428. 433. 053 
 
 V. Manifold, iii. 1263 
 
 V. Manning, i. 523 
 
 d. Mansfield i'. Peach, iii. 902, 903 
 
 V. Maple, i. 104. app. ii. iii. 15tiO 
 
 11. Marchetti, ii. 421 
 
 d. Marsac v. Read, ii. 430 
 
 V. Martin, i. 400. ii. 45. iii. 772 
 
 V. Martyn, iii. 897. 91 7 
 
 r. Mason, i. 339. ii.335. 407 
 
 V. Masters, ii. 423 
 
 V. Mee, i. 340. iii. 1046 
 
 ih Mellersh, app. ii. iii. 1384 
 
 V. Meux, ii. 426 
 
 V. Milburn,ii. 434 
 
 V. Miller, i. 471. ii.426 
 
 d. Milner ii. Brightwen, iii. 897 
 
 V. Mills, ii. 407. 424 
 
 V. Milward, app. ii. iii. 1428 
 
 V. Mitchell, ii. 151 
 
 d Jlitchinson v. Carter, ii. 346 
 
 V. Mizem, ii. 417. 424 
 
 d. Moorcroft v. IMeux, ii. 421 
 
 i\ Morgan, iii. 775 
 
 ■ V. Morris, i. 398. ii. 58. 405. iii. 1178 
 
 d. Morris v. Williams, ii. 419 
 
 ' V. Morse, ii. 324 
 
 V. Mulliner, ii. 096 
 
 V. Murless, ii . 419. 430. iii. 1030. 
 
 1195 
 V. Murrell, app. i. 598. ii. iii. 1409. 
 
 1412. 1608 
 
 V. Musgrave, app. ii. iii. 1404 
 
 V. Needs, iii. 754 
 
 V. Nepean, ii. 364, 365. app. ii. iii. 
 
 1394 
 
 d. Nepean v. Budden, ii. 22. 405 
 
 d. Newby v. Jackson, iii. 1191 
 
 ' V. Newman, ii. 411 
 
 V. Newton, ii. 516, 517, 518. app. ii. 
 
 iii. 1435 
 d. Nicholl V. M'Koeg, ii. 414 
 
 V. Nicholls, ii. 409 
 
 d. Nightingale v. Maizey, i. 119 
 
 d. Nowcll V. Adam, ii. 420 
 
 d. Northey v. Harvey, iii. 835 
 
 I'. Nutt, ii. 410
 
 TABLE OF CASES. 
 
 xliii 
 
 Doe d. 01<lcrsliaw x\ Breach, ii. 41 
 
 d. Okllmiii V. Wolley, iii. 833. 1-2G7 
 
 V. Oliver, ii. 457 
 
 V. Olley, app. ii. iii. 1384. 1410 
 
 t'. Ormerort, iii. 842. app. ii. iii. 1517 
 
 d. Orrell v. Madox, i. 244 
 
 d. Osborne v. Spencer, ii. 459 
 
 d. Otiey V. Manning, ii. 494 
 
 ■ V. Ovens, ii. 442 
 
 V. Owen, i. 392. ii. 410. ajip. i. H08 
 
 d. Oxendon v. Chichester, iii. 765. 
 
 774. 785 
 
 V. Oxenham, app. ii. iii. 1470 
 
 V. Paine, ii. 426 
 
 d. Palk V. Marchetti, ii. 422 
 
 V. Palmer, ii. 426. iii. 937. 1095 
 
 V. Parker, ii. 55. 349. 421 
 
 d. Parker v. Bonlton, ii. 414 
 
 d. Parry v. James, ii. 494 
 
 • V. Pasquali, ii. 419, 420 
 
 d. Pattisliall v. Turford, i. 363 
 
 V. Paul, i. 376. ii. 422 
 
 V. Payne, ii. 346. 424. app. ii. iii. 
 
 1405 
 
 d. Peacock v. Raffan, 11. 41 5 
 
 V. Pearce, ii. 339. app, ii. iii. 1412. 
 
 1613 
 
 V. Pearsey, iii. 1125. 1127. 1258 
 
 V. Pearson, ii. 58 
 
 d. Pearson v. Ries, i. 398. 400. iii. 
 
 1177 
 
 V. Pedley, iii. 754 
 
 V. Penfold, app. i. 617. ii. iii. 1394. 
 
 1527 
 
 V. Penry, i. 533 
 
 d. Perkes v. Perkes, iii. 1286 
 
 V. Perkins, i. 97. 177, 178, 179, 180. 
 
 ii. 402, 403. 458. iii. 964 
 
 V. Perrin, app. ii. iii. 1408 
 
 V. Pett, app. ii. iii. 1405. 1422 
 
 V. Phillips, ii. 421. app. ii. iii 1557 
 
 V. Pike, iii. 964 
 
 V. Pitcher, iii. 1233 
 
 d. Pitt V. Hogg, ii. 421 
 
 V. Pittman, ii. 420 
 
 V. Plowman, ii. 406. iii. 917 
 
 V. Porter, ii. 445. 450 
 
 V. Powell, i. 376. ii. 345. app. ii. iii. 
 
 1342 
 
 V. Preece, i. 110. ii. 433 
 
 V. Preston, iii. 1042 
 
 V. Price, ii. 420 
 
 d. Priestly v. Colloway, ii. 332. 334 
 
 ■ V, Prosser, ii. 401 
 
 i\ Pullen, iii. 1191. app. ii. iii. 1407 
 
 V. Putland, iii. 917 
 
 d. Putlaml V. Hilder, iii, 926 
 
 V. Pye, ii. 19. 433 
 
 V. Quigley, iii. 1191 
 
 V. Raby, ii. 399 
 
 V. Ramsbotham, ii. 424. iii. 973 
 
 d. Raper v. Lonsdale, ii. 430 
 
 V. Rawlins, i. 365 
 
 V. Reade, ii. 401 
 
 d. Reay v. Huntington, ii. 697 
 
 V. Reed, ii. 407. 417, 418. 430, 
 
 431 
 
 = 1'. Rees, ii. 426. 696 
 
 d. Richardson v. Watson, iii. 771 
 
 I'. Rickarby, i. 353, app. ii. iii. 1389 
 
 Doe I'. Ri<lgway, ii. 368. iii. 834 
 
 V. Ries, i. 404 
 
 d. Rigge V. Bell, ii. 474 
 
 d. Roberts v. Roberts, ii. 438. 472 
 
 V. Robinson, ii. 417 
 
 V. Robson, i. 348. 363. ii. 422. app. i. 
 
 616 
 
 d. Roby )). Maisey, ii. 428 
 
 V. Roe,'ii 530. iii. 1055. app, i. 630. 
 
 ii. iii. 1322. 1404. 1411. 1449 
 
 d. Rogers v. Cadwallader, ii. 428 
 
 ('. Ross, iii, 785, app, i. 613, 619,620. 
 
 ii. iii. 1412. 1421 
 V. Rosser, i. 272. 304. ii. 116. 119. 
 
 407 
 
 V. Rowe, iii. 1049. app. ii. iii. 1431 
 
 V. Rowlands, app. i. 624. ii, iii. 1388. 
 
 1390 
 
 V. Rudall, ill. 835. 842 
 
 d. St. John V. Hore, i. 405. iii. 1055. 
 
 1057 
 
 V. Sabin, app, ii. iii. 1340 
 
 • ". Salter, i. 469 
 
 V. Samples, app. i. 618 
 
 V. Samuel, ii. 413, 414, 415 
 
 • V. Sandham, i, 518 
 
 V. Saunders, app, ii. iii, 1441 
 
 I'. Sayer, iii. 1191 
 
 d. Scales v. Bragg, ii. 433 
 
 V. Scott, ii. 414,415 
 
 d. Scott V. Miller, ii. 426 
 
 V. Seaton, i. 250 
 
 V. Sellon, ii. 562 
 
 V. Selwyn, ii. 414, 415 
 
 V. Shawcross, ii. 423 
 
 d. Shearwood v. Pearson, i. 505 
 
 v. Sheffield, iii. 1294 
 
 V. Shelton, ii. 21. app. ii. iii. 1414. 
 
 1529 
 d. Shirley v. Carter, ii. 422 
 
 d. Shore v. Porter, ii. 431 
 
 V. Simpson, iii. 1293 
 
 V. Skegss, ii. 346 
 
 • V. Skirrow, ii. 424 
 
 d. Small V. Allen, iii. 765 
 
 I'. Smart, i. 426. app. i. 624 
 
 V. Smith, i. 516. ii, 35, 189, 334, 346. 
 
 419. 430. iii. 1041. 1055. 1117. 1119. 
 
 1191. app. ii. iii, 1408 
 • d. Smyth v. Smyth, ii, 412. iii. 
 
 977 
 
 V. Smythe (Lady), ii. 425 
 
 ■ V. Snowden, ii. 363. 416 
 
 V. Somerville, ii, 414 
 
 d. Sore v. Eykins, ii. 425 
 
 d. Southouse i'. Jenkins, iii. 732 
 
 ■ V. Spence, ii. 363. 416 
 
 d. Spencer v. Clarke, ii. 561 
 
 d. Spicer v. Lea, ii. 368 
 
 V. Spicer, ii. 416 
 
 I,. Spiller, ii. 419 
 
 d. Spilsbury v. Burdett, i. 381 
 
 V. Spittv, i. 401 
 
 V. Stacey, i. 358. iii. 1179 
 
 V. Stagg_, iii. 1067 
 
 !'. Stauuion, ii, 420 
 
 d. Stansbury v. Arkwright, i, 250 
 
 I', Staple, ii, 404. iii, 916 
 
 r. Stapleton, ii. 414,415
 
 xliv 
 
 TABLE OF CASES. 
 
 Doe V. Statliam, }ij)p. ii. iii. loUO 
 
 V. Steelo, ii. 4:26 
 
 V. Stennett, ii. 4'21 / 
 
 V. Stephenson, i. 221 
 
 V. Stevens, ii. 421 
 
 . V. Steward, ii. 176. 436 
 
 d. Stewart v. Denton, ii. 4-30 
 
 V. Stillwell, ii. 117 
 
 V. Stock, ii. 457 
 
 v. Story, app. ii. iii. 1445 
 
 V. Stratton, ii. 413, 414 
 
 ■ V. Street, ii. 420 
 
 d. Strode v. Beaton, i. 258 
 
 d. SufReld v. Preston, iii. 1041 
 
 V. Suckermore, ii. 513. 515, 516, 517 
 
 V. Summersett, ii. 418. 430. app. ii. 
 
 iii. 1407 
 
 V. Sutton, app. ii.iii. 1387. 1410 
 
 d. Sweeting i'. Hellard, ii. 117 
 
 V. Svboiirn, i. 331. iii. JJ16 
 
 r. Tatchell, iii. 1173 
 
 d. Tatham v. Wright, i. 35, 64, 267. 
 
 iii. 1266 
 
 d. Tavlor v. Johnson, ii 426 
 
 V. Taylor, iii. 898 
 
 ■ — — v. Taylor, Sophia, iii. 897 
 
 IK Teage, i. 1.56. iii. 1266 
 
 V. Tellers, app. ii. iii. 1445 
 
 r. Telling, ii. 563. iii. 966 
 
 d. Teiiiplcuian r. Martin, iii. 771 
 
 i: Terry, app. ii. iii. 1379 
 
 d. Tcyijiiam (Lord) v. Tyler, i. 532 
 
 d. Thanet (Lord) v. Garthaui, i. 277. 
 
 ii. 590 
 V. Thomas, i. 32. 89. 183. ii. 382. 
 
 475. iii. 908 
 . V. Thompson, ii. 400. 420. app. ii. iii. 
 
 1406 
 
 i\ Thomson, app. i. 589 
 
 V. Thorn, iii. 1032 
 
 V. Thynne, i. 359 
 
 d. Tilman v. Tarver, ii. 517. iii. 840 
 
 d. Tindale v. Roe, ii. 424 
 
 V. Tindall, i. 424 
 
 V. Tooth, i. 18. 29. 140. ii. 240 
 
 V. Trapaud, i. 893. 
 
 V. Tresidder, app. ii. iii. 1405 
 
 V. Trueman, ii. 335 
 
 V. Trye, app. ii. iii. 155-3 
 
 V. Tucker, i. 426 
 
 d. Tucker v. Morse, ii. 425 
 
 V. Turford, i. 347 
 
 . V. Turner, app. ii. iii. 1410. 1470 
 
 .^ V. Tyler, i. 107. 109. ii. 433 
 
 d. Tyrrel v. Lyford, iii. 1270 
 
 r. Vardill, app. ii. iii. 1360 
 
 d. Vernon v. Vernon, ii. 430 
 
 r. Vince, ii. 416. 419 
 
 V. Vowles, i. 362. app. i. 615, 616 
 
 V. Wagscatf, app. ii. iii. 1411 
 
 i;. Wainwright, i. 394. 406, 407. app. 
 
 ii. iii. 1318. 1407 
 
 . d. Waithman v. Miles, iii. 812. 816 
 
 d. Walker v. Groves, iii. 1178 
 
 (-;. Walker D. Stephenson, i. 221. iii. 
 
 1268 
 
 V. Walley, i. 381, 382 
 
 V, Wallinger, ii. 514 
 
 V. Walters, ii. 417,418 
 
 r. Ward, iii. 937 
 
 Doe d. Warry i'. Miller, ii. 43J 
 
 d. Wartney v. Grey, i. 91 
 
 r. Warwick Canal Company, app. ii. 
 
 iu. 1498 
 
 V. Waterton, i. 412, iii. 914. 1059 
 
 V. Watkins,ii. 363. 416. 418 
 
 - — - V. Watson, ii. 25. 55. iii. 756. 771. 
 
 app. ii. iii. 1318 
 
 V. Watt, ii. 421 
 
 V. Watts, ii. 425. 427. iii. 1180 
 
 d. Wayman v. Cliaplin, ii. 418. 430 
 
 V. Webber, i. 259. 368. ii. 404. app. L 
 
 610. 614 
 
 V. Webster, app. ii. iii. 1378 
 
 V. Welch, ii. 430 
 
 d. Welland v. Hawthorn, iii. 765 
 
 I'. Weller, iii. 1180 
 
 i\ Vi'ells, app. ii. iii. 1409 
 
 V. Vrestlake, iii. 756. 771. 774 
 
 V. Wharton, ii. 408. 428 
 
 d. Wheeldon v. Paul, i. 380. 
 
 I'. Wheeler, iii. 1047. app. ii. iii. 1498 
 
 V. WhitaJier, ii. 334 
 
 V. Whitcomb, ii. 434, 435, 436 
 
 V. White, ii. 421 
 
 d. White V. Cuffe, ii. 429 
 
 r. Whitcfoot, i.393. app. ii. iii. 1613 
 
 V. Whitehead, app. ii. iii. 1410 
 
 V. Whitroe, ii. 424 
 
 V. Whittick, ii. 420 
 
 d. Whittick v. Jolinson,ili, 907. 1125 
 
 11. Whittingham, iii. 1046 
 
 d. Wigan v. Jones, ii. 410 
 
 V. Wilde, i. 109. 412. ii. 433 
 
 V. Wilford, iii. 773 
 
 I". Wilkins, app. i. 622. ii.iii. 1404 
 
 I'. Wilkinson, ii. 400. app. ii. iii. 1408 
 
 V. Williams, i. 110. 365, 366. ii. 351. 
 
 366. 400. 407. 418. 42.3. 433. 571. iii. 
 
 964. app. ii. iii. 1389. 1408. 1411. 1481 
 t;. Wilson, i. 524. ii. 337. 432. 901. 
 
 app. ii. iii. 1384 
 
 d. Wilson i\ Phillips, ii. 414 
 
 V. Wilton (Lord Grey de), ii. 416 
 
 d. Winckley v. Pye, ii. 26 
 
 V. Wippel, ii. 432 
 
 V. Wolley, ii. 365. iii. 1269 
 
 V. Womljwell, ii. 415 
 
 w. Wocd,ii. 417. 
 
 d. Wood V. Morris, i. 505. ii. 58 
 
 d. Wood V. Teage, i. 120 
 
 V. Woodbridge, ii. 425,426 
 
 d. Woodmas v. Mason, i. 224 
 
 V. Woodman, ii. 339. 418 
 
 ■ V. Worscley, ii. 346 
 
 r. Wright,'i'. 327. 362. ii. 406. iii. 917. 
 
 1128. 1282 
 
 d. Wright V. Manifold, iii. 1263 
 
 V. Wrightman, ii. 419 
 
 V. Wroot, ii. 404. 406 
 
 Doidge r. Bowers, app. ii. iii. 1587 
 
 Dokerr. Hasler, ii. 158 
 
 DoHiy r. lies, iii. 829. 1180. app. ii. iii. 1517 
 
 JS.T parte, app. ii. iii. 1349 
 
 Doldcrr. llnntingiield, iii. 1236 
 Doman i: Dibden, ii. 241. 576 
 Domett V. Beckford, iii. 1300 
 Dommett v. Bedford, ii. 176 
 Don ?'. Lippraan,ii. 657 
 Donaldson r. Forstcr, iii. 781
 
 TABLK OF CASES. 
 
 xlv 
 
 Donaldson v. Thompson, i. 292, 293 
 
 Donally v. Crowtlior, ii. 646 
 
 Donally's case, ii. 311 
 
 Doncaster (Mayor of) v. Day, i. 184. 327 
 
 Doncaster r. Hewson, ii. 618,619 
 
 Donellan v. Read, app. ii. iii. 1589 
 
 Donolly's case, ii. 573 
 
 Donovan v. DufF, ii. 174 
 
 Doniiison ?•. Elsely, i. 182 
 
 Doran's case, app. i. 589 
 
 Dore V. ^Vilkinson, iii. 969 
 
 Donnaa v. Jenkins, ii. 560 
 
 Dormer r. Fortescue, i. 148. ii. 433. iii. 
 
 899 
 
 i\ Williams, app. ii. iii. 1482 
 
 Dome I'. Cashford, i. 453 
 Dorset (Lord) v. Carter, ii. 29 
 Doswell V. Impey, iii. 1112. 1140 
 Doubleday r. Muskett, iii. 806 
 Dougal V. Wilson, iii. 743. 912 
 Douglas r. Brown, iii. 809 
 
 In re, ii. 161 
 
 V. Forrest, i. 273. 276 
 
 V. Russell, ii. 154 
 
 V. Patrick, iii. 1068. 1070 
 
 Peerage case, i. 564. iii. 839 
 
 V. Scowgall, iii. 889 
 
 Doulan v. Brett, ii. 688 
 Doulson V. Matthews, iii. 1230 
 Douthat, Ex parte, ii. 148. 185 
 Dover v. Maester, iii. 851. 1058 
 Dowbiggen v. Bourne, iii. 1066 
 
 r. Harrison, ii. 440 
 
 Dowdale's case, ii. 520 
 Dowden v. Fowle, ii. 29. 195 
 Dowdeswell r. Nott, ii. 340 
 Down V. Fromont, ii. 292 
 
 V. Hale, i. 32 
 
 V. Hailing, ii. 220. iii. 1145 
 
 Down's case, i. 44 
 Downes v. Back,ii. 269 
 
 V. Moreman, i. 228 
 
 V. Richardson, iii. 1043, 1044. 1051 
 
 V. Skrymshyre, iii. 1136 
 
 r. Timperon, ii. 554 
 
 Downes's case, ii. 465 
 Downing v. Butcher, app. i. 603 
 
 V. Nutt, iii. 1211 
 
 Downingham's case, app. ii. iii. 1405 
 Downman v. Mathews, ii. 647 
 Dowsett V. Sweet, iii. 770. 772. 774 
 Dowsland v. Thomson, iii. 993 
 Dowson V. Leake, iii. 870' 
 Dowton i\ Cross, ii. 149 
 Dowthwaite r. Tibbutt, ii. 663 
 Doxon V. Haigh, i. 394. 409 
 Doyle V. Dallas, iii. 877. 880 
 Doyley v. Roberts, app. ii. iii. 1463 
 Drake v. Lewin, iii. 829 
 
 V. Marry att. iii. 893 
 
 V. Mitchell, iii. 822 
 
 r. Shorter, iii. 1168 
 
 V. Smyth, i. 244. iii. 1091, 1092 
 
 V. Sykes, ii. 686. iii. 1011, 1012, 1013 
 
 Drakeford v. Hodges, iii. 760 
 
 Drant v. Brown, iii. 1037. 10.56 
 
 Draper v. Garratt, i. 434. 437, 444. iii. 
 
 1024 
 
 V. Thompson, ii, 512 
 
 Drax V. Seroope, ii. 107 
 
 Drayton v. Dale, ii. 182. 219 
 Drew V. Bird, iii. 1300 
 
 V. Cliifo-d, ii. 110 
 
 V. Coliou, iii. 1033 
 
 v. Denborough, i. 399 
 
 Drewrll r. Towler", i. 449 
 Drewctt v. Slieard, iii. 1251. 12.59 
 Drewry v. Twiss, i. 467 
 Dreworth v. Johnson, ii. 343 
 Driffield v, Orrell, iii. 1087. 1090 
 Drinkwater v. Goodwin, ii. 648. iii. 822 
 
 V. Porter, app. i. 602. ii. iii. 1528 
 
 Driver r. Thomson, i. 536. iii, 1260. 
 
 1276 
 Drovefield v. Archer, ii. 690 
 Drovey v. Archer, ii. 702 
 Druce ??. Dennison, iii. 771 
 Drue V. Thorn, ii. 99, 100 
 Drummond v. Pigou, ii. 682 
 Drury v. Defontaine, ii. 93 
 
 V. Drury, ii. 555 
 
 Dry V. Boswell, iii. 805 
 
 — ; — V. Davy, 510 
 
 Dryden v. Frost, app. ii. iii. 1593 
 
 Dryer v. Mills, iii. 1122 
 
 Du Barre v. Livette, ii. 321 
 
 Du Barre's case, ii. 320 
 
 Du Belloix v. Waterpark, ii. 249. 577 
 
 Duberley v. Gunning, i. 534. ii. 355 
 
 Duberly v. Page, ii. 317 
 
 Dubois V. Keats, app. ii. iii. 1475 
 
 V. Ludert, ii. 2 
 
 Du Bosti;. Beresford, i. 28. ii. 301. 629 
 
 Dubbs V. Humphries, ii. 666 
 
 Ducarrey v. Gill, ii. 42 
 
 Dtick V. Braddyll, iii. 1026. 1038. 1044. 
 
 1047. 1247. 
 Ducker v. Wood, i. 534 
 Duckhain v. Wallis, ii. 33. 260 
 Duckworth r. Alison, app. ii. iii. 1541 
 
 V. Harrison, ii. 119 
 
 Duclos V. Rylaud, ii. 42 
 Dudley v. Folliott, ii. 348 
 
 v. Smith, ii. 295, 296. iii. 736 
 
 V. Vaughan, ii. 136, 137 
 
 and Ward (Lord) i\ Robins, iii. 1039. 
 
 1054 
 
 (Lord) V. Ward (Lord), iii. 1246 
 
 Duel V. Harding, i. 148 
 Dufauru. Hutchinson, ii. 204 
 DufF.y. Budd, ii. 284. 286, 287. 291 
 Duflerin's (Lord) case, app. i. 607 
 Duffield V. Creed, ii. 249 
 
 I'. Scott, ii. 76 
 
 Duffillr. Spottiswoode, iii. 1156 
 Duffin V. Smith, ii. 323 
 Duffit V. .lames, iii. 1310 
 Dufresne v. Hutchinson, ii. 17 
 
 Ex parte, ii. 145 
 
 Duhammel v. Pickering, ii. 247 
 Duins i;. Donovan, i. 244, 245 
 Duke V. Aldridge,ii. 29. iii. 1063 
 
 V. Pownal, i. 142 
 
 V. Ventris, i. 510 
 
 Dumas, Ex parte, ii. 165, 166 
 
 Dunbar v. Harvie, i. 243 
 
 V. Roxburghe (Duchess) app. ii. iii. 
 
 1-500 
 Duncan v. Blundell, iii. 1308, 1309, app. 
 
 ii. iii. 1596
 
 xlvi 
 
 TARLE OF CASES. 
 
 Duncan i\ Cafe, app. ii. iii. 1594 
 
 V. IIani])lon, ii. 44!) 
 
 V. Lowndes, iii. 809 
 
 V. Scott, i. 300. 3-27. ii. 26. 220 
 
 Dunchurch (Bailiffs, &c. of) v. Sterry, 
 
 iii. 1152 
 Duncombe ??. Daniell, ajip. ii. iii. 14G4 
 Dunk V. Hunter, iii. 970, 971. 1178 
 Dunlop V. Lambert, app. ii. iii. 1377 
 
 V. Waugh, ii. 373. iii. 1238 
 
 Duumore v. Bigt^, ii. (532 
 
 • V. Taylor, ii. 049. iii. 993 
 
 Dunn V. Aslett, i. 211 
 
 V. Fulford, i. 32(5 
 
 V. Lowe, iii. 1035 
 
 V. Murray, i. 2G3. ii. 1 19. iii. 1310 
 
 V. O'Keefe, ii. 236. 
 
 V. Slee, iii. 1060. 1063. 1066 
 
 V. Walker, ii. 419 
 
 V. Wane, ii. 419 
 
 V. Whitaker, iii. 1156 
 
 Dunn's case, ii. 463. 614 
 Dunne v. Anderson, ii. 633. 640 
 Dunsley v. Westbrowne, i. 148 
 Dunstable's (Prior of) case, iii. 744 
 Dunston v. Tresider, ii. 19. iii. 1130 
 Dunwich v. Sterry, iii. 1103 
 Dupay V. Shepherd, i. 233. iii. 1236 
 Dupen V. Keeling, ii. 114 
 Duppa V. Mayo, ii. 409 
 Durant i\ Boys, iii. 953 
 
 V. Titley, ii. 545 
 
 Durden v. Cripps, i. 305 
 
 Durham (Bishop of) v. Beaumont, i. 221 
 
 Durham's case, ii. 15 
 
 Darling and another v. Loveland, app. ii. 
 
 iii. 1616 
 Durore's case, i. 466 
 Durrant v. Blurton, app. ii. iii. 1003 
 Durrell v. Bederley, iii. 887, 888 
 Durston v. Tatham, i. 455. ii. 63 
 Dutch V. Warren, ii. 91 
 Dutchman r. Tooth, ii. 509 
 Dutliwaite v. Luntlev, iii. 1051 
 Dutton V. Colt, i. 22, 317 
 
 V. Morrison, ii. 138, 139. 145. iii. 803 
 
 V. Pool, ii. 56 
 
 -u. Soloraonson, ii. 71. 284. 489. iii. 
 
 1151. 1205,1206 
 Dutton's case, i. 318 325 
 Dye V. Leatlierdale, iii. 1120 
 Dyer v. Ashton, iii. 828 
 
 V. Bowley, iii. 970. 974 
 
 V. Hargrave, ii. 374. iii. 1215 
 
 V. Hudson, ii. 128 
 
 V. Pearson, iii. 1151 
 
 Dyke v. Aldridge, ii. 33 
 
 V. Duke, iii. 1013 
 
 Dykes i\ Blake, app. ii. iii. 1597 
 
 Dymoke's case, ii. 581 
 
 Dyson v. Collick, iii. 1099, 1100 
 
 ■ V. Warris, app. i. 633 
 
 •!;. Wood, i. 303 
 
 Dyster v. Battye, ii. 662 
 £!x imrte, ii. 157 
 
 Eaden V. Titchmarsh, iii. 1203. app. ii. iii. 
 
 1498 
 Eades v. Vandeput, ii. 84. iii. 991 
 Eager v. Dyot, ii. 678 
 
 Eager v. Harman, ii. 680 
 
 I'agleton v. Kingston, ii. 513 
 
 Eules V. Dicker,'^ ii, 2(52. 264 
 
 Ealing Grove (Ciasc of the), iii. 1305 
 
 Earner v. Merle, ii. 641 
 
 Eardley v. Price, ii. 73. iii. 1304, 1305 
 
 V. Turnock, i. 449 
 
 Earitli v. Schroder, ii. 125 
 
 Earl V. Baxter, ii. 349. 40.5. iii. 914 
 
 V. Lewis, i. 239, 240, 241. 384 
 
 Early v. Bowman, ii. 204 
 
 V. Garratt, iii. 1213, 1214. 1228 
 
 East V. Chapman, i. 192. 198. ii. 642 
 Eastby v. Crockford, iii. 1150 
 Easterby v. Pulleu, ii. 067. 670 
 East India Company v. Glover, ii. 20 
 
 V. Gosling, i. 148 
 
 V. Hensley, iii. 1240 
 
 V. Prince, ii. 669 
 
 V. Pullen, ii. 284. 560 
 
 V. Tritton, ii. 87. 89 
 
 V. Vincent, iii. 745. 1214 
 
 East London Waterworks Company n. 
 
 Bailey, ii. 339. app. ii. iii. 1385 
 Eastmure v. Laws, iii. 998 
 Easton v. Pritchett, i. 419 
 Eastwick i\ Harman, app. ii. iii. 151.3 
 Eastwood V. Brown, ii. 162. 495. iii. 1030 
 V. Kenyon, ii. 472. 478. app. ii. iii. 
 
 1333 
 Easum v. Cato, ii. 177, 178 
 Eaton V. Bell, ii. 2. iii. 1170, 1171 
 
 V. Jaques, ii. 351 
 
 V. Jervis, ii. 517 
 
 V. Lyon, iii. 1275 
 
 V. Southby, i. 514. ii. 390 
 
 Eccles V. Hill, i. 229 
 
 Eccleston v. Petty al Speke, i. 333. iii. 
 
 1263 
 Eckhardt v. Wilson, ii. 130. 139 
 Eckstein v. Reynolds, app. ii. iii. l.'iGS 
 Edden v. Read,' ii. 88. iii. 1194 
 Eddowes o. Hopkins, ii. 575. 579 
 Eden i\ Bretton, app. ii. iii. 1579 
 
 V. Parkinson, iii. 1239 
 
 V. Smith, iii. 923 
 
 Edgar v. Blick, iii. 1036 
 
 V. Fowler, ii. 95. iii. 885 
 
 Edge V. Parker, ii. 181. iii. 1143 
 
 V. Shaw, app. i. 634 
 
 V. Strafford, ii. 480. iii. 1175 
 
 Edgecombe v. Rodd, ii. 16 
 Edgell V. Francis, app. i. 636 
 Edgington v. Ni.xon, app. ii. iii. 1501 
 Edict'. East India Company, ii. 210.218. 
 
 301. iii. 779 
 Edinburgh v. Crudell, i. 371 
 Edinburgh and Leith Railway Company v. 
 
 Hebblewhite, app. ii. iii. 1510 
 Edis V. Bury, ii. 213. 222 
 Edleston v. Speke, iii. 1285 
 Edmeads i;. Newman, ii. 177 
 Edmonds v. Chapman, iii. 1228 
 
 V. Groves, i. 419. ii. 20 
 
 I'. Lowe, i. 113. 118. 133. 150, 151. 
 
 ii. 258 
 
 11. Rowe, 94 
 
 — — V. Walker, i. 1 7 1 
 
 ('. Walter, i. 214. ii. 014 
 
 Edmondson v. Machell, iii. 989. 1 110
 
 T A n 1. E OF CASES. 
 
 Xh 
 
 Edniondson v. Stevenson, ii. O;')!. GIO 
 Ediuonstone v. Plaisted, i. 331 
 
 Webb, i. 501. ii. 187 
 
 Edmunds r. Cox, ii. 117, 118 
 
 V. Harris, iii. 1204, 1205 
 
 V. Wilkinson, app. ii. iii. 1330 
 
 Edmundson, E.v parte, ii. 175 
 Edmunston v. Wriglit, iii. 809 
 Edwards v. Bell, if. 043 
 
 V. Brewer, app. ii. iii. 1354 
 
 • V. Bridges, iii. 102'J 
 
 V. Brown, ii. 208 
 
 1'. Buchanan, iii. 807 
 
 V. Chapman, iii. 1211 
 
 V. Cooper, iii. 757. 988 
 
 V. Crock, ii. 354. 350 
 
 V. Dick,ii. 210. 225. 246. 508. iii. 1235 
 
 %i. Edwards, ii. 450 
 
 V. Etherington, iii. 117G. 1183 
 
 V. Evans, i. 137. 532. ii. 11. 271 
 
 V. Farebrothcr, iii. 1029 
 
 V. Ferris, app. ii. iii. 1453. 1578 
 
 V. Footner, iii. 888. 890 
 
 V. Goodwin, app. i. 598 
 
 V. Grand Junction Railway Co. app. 
 
 ii. iii. 1332 
 
 V. Groves, ii. 245 
 
 V. Hallinder, iii. 742 
 
 V. Harben, i. 523. ii. 44G. 495. 497 
 
 V. Hetherington, iii. 1184 
 
 V. Hodding, ii. 83. 89. iii. 1194, 1195 
 
 V. Jones, app. ii. iii. 13G7. 1G19 
 
 . V. Kelly, ii. 608 
 
 V. Lawley, app. ii. iii. 1356 
 
 V. Lucas, i. 486. iii. 1010 
 
 V. Rees, apj). i. 615 
 
 V. Ronald, ii 186 
 
 i\ Scott, app. ii. iii. 1352 
 
 V. Sherratt, ii. 293 
 
 V. Smith, iii. 1198. 1203 
 
 V. Stone, ii. 2G9 
 
 i;. Yesey, ii. 571 
 
 r. Yates, iii. 1072 
 
 Edward, Ex parte, app. ii. iii. 1345 
 Edwin (The), app. ii. iii. 1625 
 Eftbrd V. Burgess, iii. 1184 
 Efibrt (The), iii. 1299 
 Egan V, Threlfall, ii. 220 
 Egerton v. Matthews, ii. 482, 483. 491 
 Egg V. Burnett, iii. 823 
 Egginton's case, ii. 277. 279 
 Egglesham v. Haines, ii. 193 
 Eggleston v. Speke, ii. 28 
 Egler V. Marsden,iii. 1175 
 Egremont (Earl of), v. Saul, i. 532 
 
 (Lord) V. Pulman, iii. 1252. 1255 
 
 Eicke V. Nokes, ii. 99. 109. 111. 182. 321. 
 
 666 
 Ekins V. Ashton, iii. 1022 
 
 V. Maclish, iii. 779 
 
 Eland v, Ker, iii. 997 
 
 Elden v. Keddell, i. 301. ii. 439. 446 
 
 Eldridge v. Knott, iii. 904. 911. 915. 919. 
 
 923 
 Elford V. Teed, ii. 222 
 Elgie V. Webster, app. ii. iii. 1511 
 Elizabeth (Case of the), iii. 1306 
 Ellershaw v. Robinson, ii. 641 
 Elliott II. Blake, i. 485 
 V. Callow, iii. 828 
 
 Elliott?). Danby, ii. 151. 194 
 
 V. Edwards, iii. 1191 
 
 V. Martin, app. ii. iii. 1373 
 
 ?'. INIorgan, app. ii. iii. 1347 
 
 V. Nicklin, iii. 990. 1311 
 
 V. Pylius, ii. 490 
 
 V. Rogers, iii. 1175. 1177 
 
 V. Thomas, ii. 105. 488. 490. iii. 121 1 
 
 Elliotson V. Feetham, iii. 748 
 
 Ellis (in the Goods of), aj)]). ii. iii. 1G17 
 
 V. Bowen, ii. 444 
 
 V. Chinnock, app. ii. iii. 1005 
 
 V. Galindo, ii. 253 
 
 V. Hamlin, ii. 72, 73. iii. 1208. 1297. 
 
 1303. 1307 
 
 V. Hunt, ii. 163. iii. 1226 
 
 V. Mason, iii. 1043 
 
 V. Schmceck, iii. 806 
 
 V. Smith, iii. 1261, 1262. 128G 
 
 V. Tliomson, app.ii. iii. 1499 
 
 V. Turner, ii. 292 
 
 V. Watson, i. 249. iii. 808 
 
 Ex parte, ii. 160, 205 
 
 Ellison V. Cookson, iii. 784 
 
 • V. Dozell, ii. 249 
 
 V. Isles, app. i. 627. ii. iii. 1613 
 
 Elliston, Ex parte, app. ii. iii. 1353 
 Ehnes V. Willes, ii. 242 
 Elmsley's case, app. ii. iii. 1478 
 Elmore v. Kingseote, ii. 491 
 
 V. St. Briavell's (Hund. of), ii. 533 
 
 V. Stone, ii. 489. iii. 1195. 1221 
 
 Elsam V. Fawcett, ii. 356, 357 
 
 Elsee V. Smith, ii. 599. iii. 1110. 
 
 Elseworth v. Cole, ii. 246 
 
 Elseworth's case, ii. 467 
 
 Elsom V. Brailey, ii. 191 
 
 Eltham v. Kingsman, ii. 89. 95. iii. 1233. 
 
 1235 
 Elton V. Brogden, iii. 1242 
 
 V. Larkins, i. 190. ii. 27 
 
 Elverd r. Foster, app. ii. iii. 1446 
 Elvin V. Drumraond, i. 493 
 Elwes r. Elwes, ii. 353 
 
 r. Maw, iii. 1245, 1246 
 
 El wis V. Lombe, iii. 1123 
 Elworthy r. Bird, ii. 538 
 Ely (Bishop of) v. Bentley,i. 285 
 
 (Dean, &c.) v. Caldecott, i. 357 
 
 (Dean of) r. Stewart, i. 381. 383. ii. 
 
 332 
 Emanuel v. Constal^le, Hi. 1265 
 
 V. Dane, iii. 1243 
 
 Emden's case, i. 337 
 Emerson v. Blonden, ii. 32. 43 
 
 Ex parte, app. ii. iii. 1359 
 
 Emerton v. Selby, ii. 315 
 
 Emery v. Clarke, ii. 20. iii. 733. app. ii. iii. 
 
 1491 
 
 V. Grocock, iii. 923 
 
 Ernes V. Widdowson, ii. 104 
 
 Emiey v. Grey, ii. 176 
 
 Emly V. Lye, iii. 808 
 
 Emmerson v. Boville, iii. 1287 
 
 r. Heelis, ii. 480. 486. 492, 493. iii. 
 
 1038. 1040. 1191 
 Emmett v. Bradley, ii. 193. iii. 799 
 
 V. Butler, i, 147. iii. 799 
 
 v. Lyne, iii. 1113 
 
 V. J>forton, ii. 543
 
 xlviii 
 
 TABLE OF CASES. 
 
 Eminott r. Keams, ii. 509 
 
 Empson i'. Fairfiix, app. ii. iii. 14G0 
 
 V. Griflin, iipp. i. ():34 
 
 V. Soden, iii. 1'24G 
 
 Enderby, Ex ■parte, ii, 157 
 
 England v. Boiirke, i. 270. 200. ii. 6-43 
 
 r. Davidson, app. ii. iii. 1328 
 
 — Davison, app. ii. iii. 1343 
 
 (Hank (/f) V. Newman, ii. 284 
 
 V. Roper, i. 374 
 
 V. Slade, ii. 400. 424. iii. 973 
 
 d. Sybourn v. Slade, iii. 91G. 1181 
 
 Engler v. Twisden, app. il. iii. 1418 
 Englisli ?•- Blundeil, app. ii. iii. 133G 
 
 ■ V. Darky, ii. 249,"250, 251. iii. 10G5 
 
 V. Purser, iii. 1104 
 
 Entick ?\ Carrington, i. 408. ii. 595, 59G. 
 
 G20, 021 
 Entwisle v. Shepherd, ii. 577 
 Eolidcs, (The) app. ii. iii. 1495. 
 Erish i\ Rivers, iii. 1200 
 Erie's case, app. ii. iii. 1478 
 Ernest v. Brov\'n, iii. 796. 818. app. i. 028. 
 
 633. iii. 1514. 
 Ernst 11. Seiaccaluga, ii. 188 
 Errington's case, app. ii. iii. 1394 
 Erskine v. Murray, i. 508 
 
 V. Rufie, iii." 1092 
 
 Erving v. Peters, ii. 453 
 Esdaile t\ Oxenham, iii. 1146 
 
 V. Sowerby, ii. 231. 236 
 
 Ess V. Truscott, app. ii. iii. 1316 
 Essex (Earl of) v. Capel, ii. 505 
 Essex's (Earl of) case, ii. 40. 383 
 Estwick V. Caillaud, i. 523. ii. 472. 494. 497, 
 
 498 
 
 V. Cooper, i. 509 
 
 Etches V. Fellowes, iii. 795 
 
 Etherington v. Parrott, ii. 539 
 
 Etherton v. Popplewell, ii. 389. 391. iii. 
 
 1122. 
 Eugene, (The) iii. 1299 
 Evans v. Beattie, iii. 1063 
 V. Bicknell, ii. 406. iii. 917, 918. 924. 
 
 1152 
 
 V. Birch, i. 421. ii. 598. iii. 824 
 
 V. Brander, iii. 1025 
 
 V. Brown, ii. 182. iii. 1153 
 
 V. Cramlington, ii. 210. 217 
 
 tj. Curtis, i. 377 
 
 V, Davis, ii. 666 
 
 V. Drummond, iii. 813 
 
 V. Elliott, ii. 427. iii. 975 
 
 V. Evans, app. ii. iii 1587 
 
 V. Forster, ii, 58 
 
 V. Fryer, app. i. 629 
 
 V. Getting, ii. 251 
 
 V. Gold, ii. 191 . 
 
 V. Hunter, iii. 850 
 
 V. Jones, iii. 1234 
 
 V. Judkins, iii, 1069 
 
 V. Kymer, iii. 1151. 1164 
 
 — — V. Lewis, ii. 213 
 
 V. Lisle, app. ii. iii. 1495 
 
 V. Man,ii. 121 
 
 V. Martlett, iii. 1224 
 
 .^ V. Ogilvie, ii. 19. iii. 1130 
 
 • V. Philpott, app. i. 590. ii. iii, 1835. 
 
 1588 
 V. Prosser, iii. 992. 997 
 
 Eva'ns v. Rees, ap]). i. 592. 601. 
 
 V. Roberts, ii. 480. iii. 1039. 1102 
 
 • V. Soule, ii. 293 
 
 V. Steevens, iii 848 
 
 V. Sweet, i. 400 
 
 V. Taylor, app. i. 608 
 
 V. Truenian, iii. 1150, 1 151 
 
 V. Tweedy, a])p. ii. iii. 1473 
 
 V. Underwood, ii. 2!5 
 
 V. Vaughan, ii. 347, 348 
 
 V. Verity, ii. 98 
 
 V. Whyl'e, ii. 512 
 
 V. Williams, i. 118. 131. 133. iii. 1229 
 
 V. Yeatherd, i. 110. 164, iii. 1230 
 
 Evans's case, ii. 341 
 
 Evelyn v. Chichester, ii. 557 
 
 (Sir Fred.) v. Haynes, iii. 959 
 
 Everest v. Glynn, ii. 080 
 Everett v. Collins, ii. 72. iii. 822 
 
 V. Desborough, iii. 886 
 
 V. Goocb, iii. 1172 
 
 V. Lowdham, i. 189 
 
 V. Tindall, iii. 840 
 
 V. Wells, app. ii. iii. 1602, 1603 
 
 t'. Youells, i. 535 
 
 Everingham v. Roundell, app. i. 620, 621 
 Everth v. Bell, iii. 830, 831. 
 
 V. Blackburn, iii. 892 
 
 V. Hannam, i. 292. iii. 880 
 
 V. Tunno, iii. 876 
 
 Ewell Grove, (The) iii. 1300 
 
 Ewens v. Gold, ii. 191 
 
 Ewer r. Ambrose, i. 212. 216. 219, 220. 
 
 320. 332. 33G, 337 
 
 V. Clifton, iii. 827 
 
 Ewers v. Ilutton, ii. 543. 545, 546 
 
 Exall V. Partridge, ii. 75, 76, 77 
 
 Exeter (Dean and Chapter of) r. Trewin- 
 
 nard, i. 419 
 
 (Mayor of) v. Coleman, iii. 945 
 
 Exon V. Russell, ii. 213. 262 
 Ex parte Adney, ii. 185. 478 
 
 Aitken, app. ii. iii. 1381 
 
 Aldridge, ii. 585 
 
 Andrews, ii. 648 
 
 Armistead, ii. 165 
 
 Atkinson, iii. 1061. app. ii. iii. 1346 
 
 Austen, app. ii. iii. 1349 
 
 Austin, iii. 1240 
 
 Ayrer, ii. 205 
 
 Bailey, app. ii. iii. 1357 
 
 Baine, app. ii. iii. 1355 
 
 Bamford, ii. 133 
 
 — — Barber, ii. 148. 185 
 
 Barclay, ii. 22.5 
 
 Barnsley, iii. 1277 
 
 Barr, ii. 28 
 
 Barrington, app. ii. iii. 1349 
 
 Barrow, ii. 175 
 
 Barton, ii. 137 
 
 Batson, ii. 160 
 
 Beer, app. ii. iii , 1 347 
 
 Belcher, ii. 155 
 
 Benson, ii. 160 
 
 Betten, ii. 126 
 
 Bignold, ii. 155 
 
 Binmer, ii. 175 
 
 Bisdee, app. ii. iii. 1352 
 
 Blackinore, ii. 128 
 
 Bland, iii. 1301
 
 TABLE OF CASES. 
 
 xlix 
 
 Ex parte Bodenham, ii. 114 
 
 Bonbonus, ii. 205 
 
 Bond, app. ii. iii. 1355 
 
 Bostock, app. ii. iii. 1348 
 
 Better, ii. 148 
 
 Bourne, ii. 175 
 
 Bowes, ii. 137 
 
 Brady, app. ii. iii. 1483 
 
 Brown, ii. 155 
 
 Buck, ii. 14G 
 
 Budd, app. ii. iii. 1349 
 
 Bunn, ii. 175 
 
 Burgess, ii. 127, 128. 148 
 
 Burn, ii. 155. 158 
 
 Butler, ii. 176 
 
 Byne,i. 91,92 
 
 Caldecott, app. ii. iii. 1349 
 
 Campbell, i. 316 
 
 Charles, ii. 149. 184 
 
 Chion, ii. 159, 160 
 
 Coles, i. 316 
 
 Collier, app. ii. iii. 1625 
 
 Colvill, ii. 154 
 
 Cooper, app. ii. iii. 1350 
 
 Cotterell, app. ii. iii. 1350 
 
 Cranmer, iii. 1277 
 
 Crisp, ii. 148 
 
 Crosbie, app. ii. iii. 1602 
 
 Dale, ii. 160 
 
 Davenport, ii. 157 
 
 Davies, app. ii. iii. 1357 
 
 Day,ii. 122 
 
 Deeze, ii. 177. 648 
 
 Devisne, iii. 1026 
 
 Dolby, app. ii. iii. 1349 
 
 Douthat, ii. 148. 185 
 
 Dufresne, ii. 145 
 
 Dumas, ii. 165, 166 
 
 Dyster, ii. 157 
 
 Edmundson, ii. 175 
 
 Edwards, app. ii. iii. 1345 
 
 Ellis, ii. 160. 205 
 
 Elliston,app. ii. iii. 1353 
 
 Emerson, app. ii. iii. 1359 
 
 Enderby, ii. 157 
 
 • Fairlie, ii. 147 
 
 Fallon, iii. 1073. app. ii. iii. 1602 
 
 Farquhar, iii. 1073. 1079 
 
 Farr, ii. 171 
 
 Findon, iii. 1061 
 
 Foord, ii. 1-38, 139, 140 
 
 Foster, ii. 136 
 
 Franks, ii. 127 
 
 Frere, ii. 152 
 
 Gane,ii. 122 
 
 Gardner, app. ii. iii. 1602 
 
 Garland, ii. 128 
 
 Gee, iii. 1062 
 
 Gellar, iii. 805 
 
 Gifford, iii. 1065. app. ii. iii. 1370 
 
 Gilham, iii. 1277 
 
 . Gill, ii. 587 
 
 Gillow, iii. 809 
 
 Glendinning, iii. 1065 
 
 Glyn and Masterman,app. ii. iii. 1515 
 
 Goldney, ii. 177 
 
 Gordon, ii. 482 
 
 Grace, iii. 899 
 
 Ex parte Granger, ii. 185 
 
 Grant, ii. 175 
 
 Gray, app. ii. iii. 1349 
 
 Grove, app. ii.iii. 1469 
 
 Guillebert, app. ii. iii. 1590 
 
 Gullimore, ii. 128 
 
 Gwydir (Lord), iii. 1253 
 
 G Wynne, ii. 163. iii. 1226 
 
 Hall, ii. 127. 146. 175. app. ii. iii. 
 
 1349 
 
 Hamper, iii. 805 
 
 Harcourt, ii. 194 
 
 Hare, app. ii. iii. 1353 
 
 Harrison, ii. 155 
 
 ■ Harrow, iii. 994 
 
 Hasell, app. ii. iii. 1406 
 
 Hawthorne, ii. 147 
 
 Healey, ii. 181 
 
 Heath, ii. 236 
 
 Hill, ii. 184 
 
 Hills, ii. 194 
 
 Hippings, ii. 165 
 
 Holding, ii. 148 
 
 Holdsworth, app. ii. iii. 1350 
 
 • Holyland, iii. 1285 
 
 Howell, ii. 148 
 
 Hunt, app. ii. iii. 1581 
 
 Hunter, iii. 1062 
 
 Husbands, ii. 205 
 
 Huth, app. ii. iii. 1353 
 
 — — Irtglis, ii. 165 
 
 James, ii. 190. app. ii. iii. 1350 
 
 Jennings, ii. 154 
 
 Johnson, ii. 226 
 
 Johnstone, ii. 122 
 
 Jones, ii. 150 
 
 Kilner, ii. 13i 
 
 King, ii. 181. app. ii. iii. 1-352 
 
 Kirby, ii. 193 
 
 Lancaster Canal Co. ii. 147. 154 
 
 Leaf, a])p. ii. iii. 1 350 
 
 Lee, ii. 146 
 
 Leeds Bank, ii. 165 
 
 Levi, ii. 136 
 
 Lewis, app. ii. iii. 1357 
 
 Lloyd, ii. 155 
 
 Lobbon, iii. 1061 
 
 Lynch, ii. 145.148 
 
 Lyne, i. 92 
 
 M'Gae, ii. 167 
 
 Malkin In re Adams, ii. 193 
 
 Manor, ii. 136 
 
 Marks, iii. 1062 
 
 Marrable, ii. 157 
 
 Marsh, ii. 159, 160 
 
 Marshall, ii. 178 
 
 Martin, ii. 122. 160 
 
 Masterman, app. ii. iii. 1352 
 
 Matthews, iii. 1061 
 
 Meynolt, ii. 28 
 
 Michie, app. ii. iii. 1357 
 
 Milner,ii. 175 
 
 Minet, ii. 482 
 
 MofFatt, app. ii. iii. 1596 
 
 Morgan, app. ii. iii. 1347 
 
 Morrison, app. ii. iii. 1603 
 
 Morton, ii. 148. 175 
 
 Murton, app. ii. iii. 1350 
 
 Neirinckx, app. ii. iii. 1345 
 
 d
 
 I 
 
 TABLE OF CASKS. 
 
 Eu: parte Newull, ii. 1"27 
 
 Ncwinuii, ii. 180 
 
 Nisbitt, ii. 048 
 
 Norrish, ii. 498 
 
 Nosey, ii. 148 
 
 Nutt, ii. 128 
 
 Ockenden, ii. 049 
 
 Ord, app. ii. iii. 1352 
 
 Osborn, ii. 193 
 
 Page, ii. 590 
 
 Palmer, ii. 134 
 
 • Patterson, ii. 127, 128, 129 
 
 Pauli, ii. 101 
 
 Paxton, ii. 140 
 
 Pease, ii. 100 
 
 Phillips, app. ii. iii. 1349 
 
 Poucher, ii. 184 
 
 Prichett, ii. 108 
 
 Proudfoot, ii. 170 
 
 Puddy, ii. 148 
 
 . Quautock, ii. 189 
 
 Quincey, iii. 1240 
 
 Randleson, ii. 140 
 
 Rhodes, iii. 1073 
 
 ■ Richardson, iL 155. 100. 180 
 
 Robinson, ii. 205 
 
 Robson, ii. 194 
 
 Roffey,ii. 149 
 
 Roscoe, i. 78 
 
 Rowe, app. ii. iii. 1348. 135G 
 
 Rowlandson, iii. 805 
 
 Ruffin, iii. 803 
 
 Ryswicke, iii. 1001 
 
 Sargeant, ii. 105, 100. iii. 1002 
 
 Scarth, app. ii. iii. 1353 
 
 Serjeant, iii. 1002 
 
 Shirley, ii. 334 
 
 Shuttle-worth, ii. 148. 158 
 
 Silvester, ii. 601 
 
 Skinner, app. ii. iii. 1025 
 
 Smith, ii. 251. iu. 1005 
 
 Smithers, ii. 155 
 
 Soutliall, app. ii. iii. 1349, 1350 
 
 Spencer, ii. 154 
 
 Stadgroom, ii. 100 
 
 Stanton, app. ii. iii. 1358 
 
 Stevens, ii. 127. iii. 994 
 
 Stevenson, ii. 147 
 
 Sutton, ii. 148 
 
 Swinburne, ii. 179 
 
 Symes, ii. 28 
 
 St. Pancras auditors, app. ii. iii. 1530 
 
 Taylor, i. 244. ii. 154 
 
 Teald, app. ii. iii. 1348 
 
 Temple, ii. 428 
 
 Terrewest, app. ii. iii. 1591 
 
 Thomas, ii. 148 
 
 Thompson, ii. 100 
 
 Tillotson, i. 81 
 
 Towgood, ii. 105 
 
 Treacher, ii. 194 
 
 Twogood, iii. 994 
 
 Vallance, app. ii. iii. 1352 
 
 Vauxhall Bridge Company, ii. 154 
 
 Vernon, ii. 140 
 
 Wakefield Bank, ii. 105 
 
 Walker, ii. 242. iii. 1001 
 
 Waring, ii. 105 
 
 .. Warren, iii. 730 
 
 Ex parte Watkins, ii. 160 
 
 Watson, ii. 122 
 
 Whitby, iii. 1073 
 
 White, ii. 137. iii. 1052 
 
 Wilks, app. ii. iii. 1345 
 
 Williams, ii. 108 
 
 Wilson, ii. 155 
 
 Woodward, ii. 149 
 
 Wyndliam, app. ii. iii. 1345 
 
 Yale, ii. 180 
 
 Ex relatione Gurney, i. 197 
 Eyles V. Faikney, iii. 1034 
 Eyre v. Bartrop, iii. 1005 
 
 V. Dunsford, ii. 373 
 
 V. Everett, iii. 1000 
 
 V. Nosworthy, iii. 1137 
 
 V. Palsgravej i. 228. iii. 870 
 
 Fabian v, AVinston, ii. 422 
 
 Fabrigas v. Mostyn, i. 529 
 
 Facey v. Hurdoni, i. 518. iii. 1095 
 
 Fachina v. Sabine, i. 21 
 
 Factor v. Beacon, app. ii. iii. 1378 
 
 Faikney v. Reynous, ii. 77, 78 
 
 Fair i;. M'lver, ii. 179. iii. 994. 990. 1235 
 
 Fairburn v. Eastwood, ii. 189. app. ii. iii. 
 
 1390 
 Fairclaim v. Shackleton, ii. 429 
 Fairfax v. Houldsworth, iii. 1091 
 Fairlee v. Herring, ii. 200 
 Fairlie v. Birch, iii. 1009. 1015 
 
 V. Denton, i. 04. ii. 79, 80. 309 
 
 V. Hastings, ii. 31. 40 
 
 Ex jmrte, ii. 147 
 
 Fairnian v. Gamble, ii. 048 
 
 V. Ives, ii. 038, 039 
 
 Fairtitle d. Mytton v. Gilbert, i. 75 
 Faith V. East India Company, ii. 049 
 
 V. M'Intyre, i. 124. 120. 423. ii. 200. 
 
 app. ii. iii. 1302 
 
 V. Richmond, iii. 811. app. ii. iii 1508 
 
 Faithorne v. Blaquire, ii. 547 
 Falconer v. Hanson, i. 312. 414 
 Faldo r. Ridge, i. 453 
 Fallon V. Anderson, iii. 1133 
 
 Ex parte, iii. 1073. app. ii. iii. 1002 
 
 Falmouth (Earl of) v. Moss, i. 91. 408 
 
 V. Thomas, iii. 1039 
 
 (Lord) V. George, i. 119. 121. 132. 
 
 iii. 907 
 • 11. Swann, ii. 23. 
 
 Fanshawe t\ More, iii. 1087 
 
 V. Rotheram, iii. 923 
 
 Fanwell v. ChafFey, iii. 853 
 
 Farebrother v. Ansley, ii. 70. iii. 1002. app. 
 ii. iii. 13.32 
 
 V. Simmons, ii. 480. 492. iii. 1190 
 
 Farley d. Canterbury (Mayor, &c. of) r. 
 Wood, ii. 3. 431 
 
 Farmer v. Arundel, ii. 92 
 
 V. Davis, ii. 42. 40, iii. 1301 
 
 V. Joscpli, iii. 989 
 
 V. Hitchingman, i. 298 
 
 ■ r. Legg, iii. 889 
 
 V. Robinson, ii. 493 
 
 V. Rogers, ii. 474 
 
 V. Russell, ii. 94 
 
 Farnworth v. Chester (Bishop of), iii. 94S 
 
 V. Pack wood, ii. 559, 500, 501
 
 TABLE OF CASES. 
 
 li 
 
 Farnsworth r'. Garrard, ii. 105. 111. iii. 
 
 1207. 1209. 1307, 1308. 
 Farquhar v. Farley, iii. 1192. 1194 
 
 V. Morris, ii.'269. 576 
 
 V. Southey, ii. 250. 252 
 
 £:.v parte, iii. 1073. 1079 
 
 Farquharson v Farquharson, ii. 702 
 Farrv. Ovven, ii 116 
 
 V. Price, ii. 254. 264. iii. 1054. 1057 
 
 V. Ward, ii. 577 
 
 Ex parte, ii. 171 
 
 Farr'scase, ii. 280. 465. 607 
 Farrant v. Thompson, iii. 1154. 1247 
 Farrar v. Hutehinson, app. ii. iii. 1535 
 Farrell's case, ii. 605 
 Farrer v. Beswick, iii. 1159. 1165 
 ' V. Granard (Countess of), ii. 548 
 
 V. Niglitingale, iii. 1191. 1193 
 
 Farrington v. Clarke, ii. 47 
 
 V. Lee, ii. 671 
 
 Farrington's case, ii. 52. 676 
 Farwig v. Coekerton, app. i. 634 
 Fasset v. Browne, i. 379. 386 
 Faulderi'.Silk,i. 291.309 
 Faulkner v. Clievell, app. ii. iii. 1522 
 Fausset v. Carpenter, ii. 651 
 Favenc v. Bennett, iii. 820, 821. 826 
 Fawcett y. Fowlis,ii. 586,587. 589 
 
 • V. Weathall, i. Ill 
 
 Fayle v. Bird, ii. 209. 255 
 Fazakerly v. Wiltshire, i. 509 
 Fearn v. Lewis, ii. 664. 667 
 Feame v. Wilson, ii. 108 
 Fearnley v. Morley, ii. 85 
 
 ■ V. Wright, app. ii. iii. 1365 
 
 Fearon v. White, app. i. 611 
 Featherstonhaugh v. Johnston, iii. 1167 
 Feaubert v. Turst, ii. 460 
 Feise v. Wray, ii. 163, 164. 649. iii. 1226. 
 
 app. ii iii. 1354 
 Feize v. Aguilar, iii. 880 
 Fell v. Wilson, iii. 1083. 
 Fellingham v. Sparrow, app. i. 596 
 Fellowes v. Stewart, ii. 700, 701 
 Feltham v. Cartwright, iii. 1138 
 
 V. Terry, ii. 84, 85. 92. 594 
 
 Femings v. Jarrat, ii. 447 
 Fendall v. Nokes, app. ii. iii. 1341 
 Fenn v. Cooke, ii. 432 
 
 V. Dixin, iii. 1116 
 
 V. Grafton, app. ii. iii. 1491 
 
 V, Granger, ii. 433 
 
 V. Griffith, i. 504, 505. ii. 412 
 
 V. Harrison, ii. 30. 45. 233 
 
 — — V. Johnson, i. 426 
 
 d. Matthews v. Smart, iii. 979 
 
 d. Pewtriss v. Granger, iii. 797 
 
 ■ V. Smart, ii. 426 
 
 V. Wood, ii. 432 
 
 Fennel v. Ridler, ii. 93. iii. 1080 
 Fenner v. Duplock, iii. 973, 974 
 
 V. Mears, ii. 104. iii. 758 
 
 Fennings v. Grenville, iii. 1159 
 Fenny v. Child, ii. 414. 
 
 V. Durrant, ii. 410 
 
 d. Eastham v. Child, iii. 1178 
 
 Fentiman v. Smith, ii. 473. iii. 748. 1252 
 Fenton v Boyle, iii. 970 
 — V. Brown, iii. 1213. 
 — — V. Corria, ii. 109 
 
 Fenton v. Dublin Steam Packet Company, 
 
 iii. 1302 
 
 V. Emblers, ii. 482 
 
 V. Goitndry, ii. 210 
 
 t'. Holloway, ii. 396 
 
 V. Logan, ii. 389, 390 
 
 Fentum v. Pocock, ii. 244. 251. 253. iii. 
 
 759. 1066 
 Fenwick v. Reid, i. 382 
 
 I'. Thornton, ii. 28 
 
 Fenwick's (Sir John) case, i. 24 
 Fereday v. Wightwick, iii. 1185 
 
 Ferguson v. , iii. 1245 
 
 V. Carrington, iii. 1205. 1236 
 
 V, Cristall, iii. 1156. 1158 
 
 V. Mahon, app. ii. iii. 1503 
 
 V. Norman, iii. 1149 
 
 V. Spring, iii. 1186 
 
 Fergusson v. Speacer, app. ii. iii. 1344. 1360 
 
 Fermor v- Phillips, iii. 1012 
 
 Fermor's case, ii. 458 
 
 Fernandez v. Glynn, ii. 208 
 
 Fernley v. Worthington, app. ii. iii. 1576 
 
 Ferrers's (Earl) case, iii. 1278 
 
 (Lord) V. Shirley, ii. .513, 514 
 
 Ferry v. Williams, iii. 1188 
 Fetter v. Beal, ii. 659 
 Few V. Backhouse, i. 488 
 Fidgeon v. Sharpe, ii. 140, 141. 144 
 Field V. Beaumont, i. 88. 90 
 
 V. Bellamy, ii. 137. 175 
 
 V. Carr, iii. 824 
 
 V. Curtis, i. 138. ii. 191 
 
 V. Hemming, app. ii. iii. 1318 
 
 V. Mitchell, i. 1 16. ii. 392, 393 
 
 V. Robins, app. ii. iii. 1374 
 
 V. Serres, ii. 545 
 
 V. Smith, app. ii. iii. 1553 
 
 V. Thrush, iii. 732 
 
 V. Woods, ii. 254. app. ii. iii. 1.556 
 
 Fielder v. Hooker, iii. 1190 
 
 V. Ray, ii. 57. iii. 1057 
 
 V. Starkin, iii. 1211. 1241 
 
 Fielding v. Kymer, ii. 42. 45. iii. 1225 
 Figgins V. Cogswell, i. 477. ii. 627 
 Filewood v. Clement, iii. 1021 
 Fillieul V. Armstrong, app. ii. iii. 1624 
 Filiiter v. Minchin, ii. 513 
 Filmer v. Gott, iii. 765. 791 
 Finch??. Black, iii. 1168 
 
 V. Blouut, iii. 1164 
 
 V. Brook, iii. 1071 
 
 V. Durham, ii. 695. 
 
 V. Messing, app. i. 614 
 
 Finch's case, ii. 605 
 
 Finchett v. Howe, ii. 108 
 
 Finden v. Westlake, ii. 632 
 
 Findon, Ex parte, iii. 1061 
 
 Fineux v. Hovendon, app. ii. iii. 1613 
 
 Finleyson v. Mackenzie, app. ii. iii. 136G 
 
 Finly v. Jowle, ii, 556 
 
 Finnerty v. Tipper, ii. 636. 640. app. ii. iii, 
 
 1465 
 Finney r. Finney, iii. 762 
 Firbank v. Bell," iii. 1036. 1042. 1044 
 Firkin v. Edwards, app. i. 621 
 Firmin v. Crucifix, ii. 20 
 Firth V. Harris, app. ii. iii. 1337 
 
 t. Thrush, ii. 226. 235 
 
 Fischer v. Aide, app. ii. iii. 1513 
 
 43
 
 lii 
 
 TABLE OF CASES. 
 
 1-ish v. Ilutcliinaon, ii. 479 
 
 r. Piirkinson, iii. 880 
 
 Fisher t\ Houcher, ii. I'M. i\\>\>. ii. iii. l'!47 
 
 V. Clemuiit, ii. 0"29 
 
 V. Dewick, iii. 939 
 
 V. Fallows, ii. 75, 76, 77. iii. LOGO 
 
 V. Lane, i. 277. 303 
 
 V. Leslie, iii. 1030. ]050 
 
 V. Lynn, iii. 1203 
 
 V. Miller, ii. 49 
 
 V. Ogle, i. 292, 293. iii. 891 
 
 V. Pomfret, ii. 218 
 
 V. Rieliartlson, ii. 56 
 
 V. Samuda, ii. 105. 111. iii. 1208. 1308 
 
 V. Waiuwright, app. ii. iii. 1503 
 
 Fisher's case, ii. 40 
 Fisherwood v. Cannon, iii. 1109 
 Fitch V. Fitch, ii. 364 
 
 1'. Rawling, ii. 358 
 
 t'. Sutton, ii. 16, 17 
 
 Fitchett V. Adams, ii. 403. iii. 954 
 
 Fitz V. Robbetts, i. 387 
 
 Fitzgerald v. Elsec, i. 375. 379. 380 
 
 V. Eustace, i. 413. ii. 21 
 
 V. Fancomb, iii. 702 
 
 V. Williams, ii. 2.J0 
 
 Fitzherhert v. Shaw, iii. 1246. 1248 
 
 V. Mather, ii. 45 
 
 Fitz-Jeffries's case, iii. 1022 
 Fitzmaurice v. Waugh, ii. 555 
 Fitzpatrick i'. Kelly, iii. 1233 
 Fitzroy r. Gwyllim, ii. 85. 649. iii. 1162 
 Fitzsimmons v. Inglis, i. 475. iii. 741 
 Fitzwalter's (Lord) case, iii. 1254 
 Fitzwilliam's case, iii. 1079 
 Flack r. Jones, ii. 146 
 Flanagan v. Watkins, iii. 1062 
 Fleetwood v. Curley, ii. 629 
 Fleming v. Cooper, iii. 1127 
 
 V. Crisp, iii. 795 
 
 V. Gooding, iii. 1181 
 
 ■ V. Haynes, ii. 70. 188 
 
 V. Simpson, ii. 243 
 
 Flemyiig v. Hector, app. ii. iii. 1508 
 Fletchers. Bowsher, ii. 376 
 
 V. Braddick, iii. 739 
 
 V. Braddyll, ii. 622 
 
 ~— V. Dyche, ii. 620, 621. 724. iii. 852, 
 853. 993 
 
 V. Froggatt, ii. 237 
 
 V. Gillespie, iii. 785 
 
 V. Greuwell, iii. 730 
 
 V. Harcott, ii. 76 
 
 V. Heath, iii. 872. 1151 
 
 V. Inglis, iii. 877 
 
 ?". Ingram, iii. 728 
 
 t'. Lee, iii. 996 
 
 V. Masters, iii. 1090 
 
 V. Webb, ii. 684. 690 
 
 V. Wilkins, ii. 594. ui. 969 
 
 i\ Woodmass, ii. 193 
 
 Flewellan v. Rann, iii. 1 1 47 
 
 Flewster v. Royle, iii. 1109, 1110. 1120 
 
 Flight V. Bentley, app. ii. iii. 1387. 1389 
 
 V. Salter, iii. 1237 
 
 V. Thomas, app. ii. iii. 1493. 1528 
 
 Flindt V. Atkiiis, i. 304 
 
 Flinn v. Calow, app. ii. iii. 1326 
 
 V. Headlam, iii. 886. 888 
 
 i\ Matthews, iii. 1224 
 
 Flinn v. Tobin, iii, 880 
 Flint r. Booth, iii. 1213 
 
 V. Fiemyng, iii. 867. 872 
 
 Flint V. Pike, ii. 639 
 Floeke v. Jones, ii. 141 
 Flower v. Adam, iii. 738. 741 
 
 V. Adams, app. ii. iii. 1625 
 
 V. Ileebee, ii. 22 
 
 V. Herbert, ii. 191 
 
 V. Martin, app. ii. iii. 1537 
 
 V. Pedley, i. 438. ii. 619 
 
 V. Young, i. 249. iii. 807. 870 
 
 Flureau v. Thornhill, iii. 1192, 1193 
 Foiston V. Crachroode, ii. 357 
 Foley v. Wilson, ii. 316 
 Folkard v. Heramett, ii. 317 
 Folkes V. Chad, i. 174 
 
 V. Scudder, ii. 124 
 
 Folkir.gliam v. Croft, app. ii. iii. 1387 
 
 Fonnereau v. Pointz, iii. 770. 785. 1273 
 
 Fonsick t\ Agar, i 312 
 
 Foord, I?.r parte, ii. 138, 139, 140 
 
 Foot V. Prowse, iii. 948 
 
 Foote V. Hayne, ii. 320. 707, 708 
 
 Forbes i\ Aspiuall, iii. 880 
 
 V. Middleton (Lord), ii. 658 
 
 (Lord) V. Nelson, iii. 7-32 
 
 V. Skelton, ii. 671 
 
 V. Wale, i. 383, 384. iii. 823 
 
 Ford V. Fothergill, ii. 557, 558 
 
 V. Gray, i. 332. 413. iii. 898 
 
 V. Gregy, ii. 21 
 
 V. Hopkins, iii. 779 
 
 V. Leeke, iii. 1016 
 
 V. Maxwell, ii. 110 
 
 V. Skinner, iii. 1112 
 
 I). Webb, ii. 108 
 
 Fordyce v. Willis, iii. 788 
 Foreland v. Hornigold, i. 484 
 Fores v. Johnes, iii. 1217 
 
 V. Wilson, iii. 989. 
 
 Forley v. Wood, ii. 363 
 Forman i'. Drew, ii. 565 
 
 V. Jacob, ii. 212. 214 
 
 Forrester v. Pigou,i. 105. 108. 130. iii. 889. 
 
 893 
 Forsdick v. Collins, iii. 1156, 1157 
 Forshaw v. Chabert, iii. 867. 889 
 Forster v. Cooksou, app. ii. iii. 1554 
 
 V. Jourdison, ii. 228 
 
 r. Surtees, ii. 184 
 
 Forsyth r. Jervis, iii. 1039. 1204 
 Forte i". Vine, ii. 347 
 Fortune i\ Lingham, iii. 1228 
 Forty r. Imber, i. 441. iii. 972 
 Forward v. Pittard, ii. 287 
 Foss i\ Raine, ii. 389 
 
 V. W'agner, app. ii. iii. 1556 
 
 Fosset V. Franklin, iii. 1093 
 Foster v. Allanson, ii. 99, 100. 182 
 V. Barkins, iii. 1 265 
 
 v. Blakelock, ii. 46. 114. 448, 449. 
 
 iii. 1035. 1298. app. ii. iii. 1417 
 
 V. Bonner, iii. 1071. 1076 
 
 V. Charles, ii. 371 
 
 V. Compton, i. 299 
 
 V. Frampton, iii. 1220 
 
 V. Hilton, iii. 1028 
 
 V. Lev, ii. 76 
 
 r. Munt, iii. 783
 
 TABLE OF CASES. 
 
 illl 
 
 Foster v. Pi'arson, ii. 24G. 347. iii. 1150 
 
 ?\ Pointer, app. i. 622. 031. ii. iii. 
 
 1467 
 Foster v. Stewart, iii. 1170. 1301 
 
 f. Tliaekcry, iii. 1233 
 
 V. \Veston,"^ii. 570 
 
 V. Willmer, iii. 873 
 
 Ex parte, ii. 13G 
 
 Foster's case, ii. 595. aj)p. ii. iii. 1560 
 Fostou V. Carleton, iii. 1007 
 Fotheringham i'. Greenwood, i. 104, 105.1 10 
 Foukliug ?'. Schroder, a})p. ii. iii. 1335 
 Foullces V. Chad, ii. 461 
 
 V. Sellway, ii. 305. 707 
 
 Fowler v. Chattertoii, ii. 065 
 
 r. Coster, i. 417. 428. ii. 1. 122 
 
 V. Dowdney, app. ii. iii. 1462 
 
 V. Down, ii. 182. iii. 1146. 1 1.52, 1153 
 
 V. Forrester, ii. 606 
 
 V. Fowler, iii. 783 
 
 V. Jones, iii. 995 
 
 V. Kymer, ii. 163. iii. 1226 
 
 r. Macreth, iii. 1309 
 
 V. Markell, ii. 105 
 
 V. Padget, ii. 131. 133 
 
 v. Port, app. i. 596 
 
 V. Round, app. i. GOO 
 
 Fowler's case, i. 465 
 Fowles V. Dineley, ii. 544 
 Fox V. Burbridge, ii. 108 
 
 V. Chester (Bishop of), iii. 944 
 
 V. Clifton, iii. 800, 807 
 
 V. Cutworth, ii. 81 
 
 V. Fisher, ii. 160 
 
 V. Gaunt, ii. 602. 604 
 
 V. Hanbury, iii. 802, 803. 1159 
 
 V. Keeting, iii. 846 
 
 V. Mahoney, ii. 1 24 
 
 V. Swan, ii. 346. 433. 
 
 V. Waters, app. ii. iii. 1415. 1418 
 
 Foxcroft V. Devonshire, i. 523 
 
 V. Lister, ii. 481 
 
 Foxcroft's case, ii. 197, 198 
 Foy V. Bell, iii. 956 
 
 Wm. Henry (in the Goods of), app. 
 
 ii. iii. 1616 
 Fradley v. Fradley, app. ii. iii. 1462 
 Fragans v. Long, ii. 286 
 France & Hill v. White, app. ii. iii. 1540 
 France v. Lucy, i. 402. ii. 231 
 
 V. Parry, ii. 559 
 
 V. White, iii. 994. app. ii. iii. 1439 
 
 Francia's case, i. 404. ii. 518. iii. 1096 
 Francis v. Baker, app. ii. iii. 1334 
 
 V. Doe, ii. 425 
 
 V. Ley, iii. 864. 866 
 
 V. Neave, iii. 1012 
 
 V. Roose, app. ii. iii. 1463 
 
 V. Wilson, ii. 269. 576 
 
 Francis's case, ii. 40 
 Francisco v. Gihnore, i. 321, 322 
 Franco v. Nalusck, app. ii. iii. 1524 
 Frank v. Frank, app. ii. iii. 1013 
 
 V. Mainwaring, app. i. 000 
 
 Frankes v. Cary, i. 358 
 Frankland v. Frankland, ii. 700 
 
 V. M'Gusty, i. 270. ii. 205 
 
 V. Nicholson, ii. 700, 701 
 
 Franklin v. England (Bank of), ii. 441 
 
 — — V. Featherstonhaugh, ii. Ill 
 
 Franklin (Executors of) v. Frith, ii, 578 
 
 I'. Holmes, iii. 1086 
 
 V. Hosier, ii. 049 
 
 Franklin's case, i. 235 
 
 Franks v. La Pienue (Duchess de), ii. 547 
 
 v. Morris, iii. 1133. 1135 
 
 jE.v parte, nA27 
 
 Frankum v. Falmouth (Earl of), i. 498. iii. 
 
 733 
 Fraser v. Berkeley, ii. 033. app. ii. iii. 1573 
 
 I'. Hopkins, i. 249 
 
 V. Marsh, i. 140. iii. 067. 1301 
 
 1. Swansea Canal Co., ii. 154. 389 445. 
 
 659. iii. 1147 
 Frazer v. Bunn, app. ii. iii. 1621 
 Freake v. Cranefeldt, ii. 672 
 Freakley v. Fox, ii. 249. 253 
 Frederick v. Lookup, iii. 849 
 Free r. Hawkins, ii. 236. 242. iii. 750 
 
 V. Kingsffon, iii. 1069 
 
 Freem v. Dane, iii. 863 
 Freeman v. Arkell, i. 391 
 
 V. Birch, ii. 284 
 
 V. Crofts, iii. 810. app. ii. iii. 1513 
 
 V. East India Corai)any, iii. 1225 
 
 i;. Glover, iii. 886 
 
 V. Hyatt, iii. 093 
 
 V. Jury, iii. 1181 
 
 V. Morrison, ii. 450 
 
 V. Moves, ii. 440 
 
 r. Phillips, i. 183.310 
 
 Freestone v. Butcher, app. ii. iii. 1439. 1441 
 Freeth's case, ii. 456 
 Fremoult v. Dedire, i. 305. ii. 460 
 French v. Andrade, iii. 994 
 
 V. Backhouse, i. 163 
 
 V. Brookes, ii. 68 
 
 V. Patten, iii. 867 
 
 Frere, JEx jxirte, ii. 152 
 
 Friedlander v, London Assurance Comp. 
 
 i. 216. 219 
 Friend's case, i. 191. 194. 222. iii. 1236 
 Friere v, Woodhouse, iii. 886 
 Frith V. Gray, i. 467. ii. 62 
 Frodsham v. Round, app. i. 634 
 Frograorton v. Scott, ii. 429 
 Fromont v. Copeland, ii. 99. iii. 738 
 Frost V. Bengough, ii. 663. 663 
 
 V. Holloway, i. 197 
 
 Frowd V. Stillard, ii. 109, 110 
 
 Froysell v. Lewelyn, ii. 27 
 
 Fry v. Chapman, app. ii. iii. 1320 
 
 V. Hill, i. 518. ii. 223. 681. iii. 1216 
 
 V. Malcolm, ii. 248 
 
 V. Monckton, app. ii. iii. 1579 
 
 u. Wood, i. 310, 311. 381. 383 
 
 Fryer v. Browne, ii. 203 
 
 V. Coombes, app. ii. iii. 1527 
 
 V. Johnson, ii. 358 
 
 Fryett d. Harris v. Jefferys, ii. 425 
 Fulham v. Down, ii. 85 
 Fuller V. Abrahams, iii. 1213 
 
 V. Lane, iii. 862. 866 
 
 V. Prentice, i. 78. 80 
 
 V. Prest, iii. 1016 
 
 V. Smith, ii. 87 
 
 Fuller V. Fotch, i. 228. 284. 291. 303. ii. 
 
 588 
 Fulwood's case, ii. 552 
 Furdson v. Clegg, app. i. 613 
 d 3 J
 
 \\y 
 
 T A B L Ji OF C A tt K S. 
 
 Furley i<. Newnham, i. 82. 320 
 
 1). Wood, ii. 339. 417. 4li) 
 
 Furncau.x v. Bradley, iii. 880 
 
 V. F<)tlierl)y, ii. 394. iii. 1119. 1121 
 
 V. Ilutchijis, i. 183. ii. 359 
 
 Furnell v. Thomas, iii. 1306 
 Furness v. Cope, i. 34G. 502 
 Furrab ik Keate, i. 81 
 Fyson v. Kemp, ii. 110 
 
 Gabay i-. Loyd, iii. 867 
 Gaby v. Driver, ii. 576 
 V. Wilts & Berks Canal Company, 
 
 ii. 580. 660 
 Gadd V. Bennett, i. 488. 492. ii. 687 
 Gage V. Acton, a])p. ii. iii. 1538 
 
 V. Radford, ii. 687 
 
 Gabau v. Mainjay, i. 272 
 
 Gaillou V. Victoire Ilarel L'Aigle, iii. 1198 
 
 Gainsford v. Blackford, ii. 373 
 
 V. Carroll, iii. 1220 
 
 V. Grammar, ii. 30. 115. 320.321 
 
 ■ V. Griffiths, ii. 342 
 
 Galbraith v. Neville, i. 271. 274 
 Gale V. Capern, i. 356. ii. 20. iii. 997 
 
 t\ Dalrymple, iii. 1136 
 
 V. Half knight, ii. 128, 129 
 
 V. Walsh, ii. 232 
 
 Galen (The) case of, i. 105 
 
 Galers v. Madevley, ii. 534 
 
 Gallov/ay v. Bleaden, app. i. 631 
 
 Gallway v. Matthew, ii. 205. iii. 810 
 
 Galwayr. Baker, app. i. 635 
 
 Gambrell v. Falmouth, app. ii. iii. 1400 
 
 Gammon v. Schmoll, ii. 210 
 
 Gandall i'. ^ontigny, ii. 73. iii. 1304. app. 
 
 ii. iii. 1621 
 Gaue, Ex parte, ii. 122 
 Ganer v. Lanesborough (Lady), i. 305. 
 
 ii. 353. 460. 703. 705 
 Gantt V. Mackenzie, ii. 241 
 Gape V. Handley, iii. 776 
 Garbutt v. Watson, ii. 487. iii. 1039. app. 
 ii.iii. 1557 
 
 V. Wilson, ii. 666 
 
 Garden v. Cresswell, i. 80, 81 
 
 Gardiner I'.Childs, iii. 804. 1055. app. ii. iii. 
 1507 
 
 V, Croasdale, i. 440. ii. 100. iii. 882 
 
 V. Davis, iii. 821 
 
 V. Gray, iii. 760. 1239 
 
 V. Jadis, ii. 356 
 
 V. Williamson, iii. 971 
 
 Gardner Peerage case, i. 63 
 
 Gardner v. Alexander, iii. 1204 
 
 V. Lachlan, app. ii. iii. 1353. 1398 
 
 . V. Salvador, iii. 877 
 
 V. Walker, i. 470. ii. 708 
 
 Ex parte, app. ii. iii. 1602 
 
 Garey v. Pike, app. ii. iii. 1595 
 
 Garforth v. Fearon, ii. 64. iii. 1217 
 
 Gargrave t'. Smith, iii. 1133 
 
 Garland v. Carlisle, ii. 167. iii 1028. app 
 ii. iii. 1451 
 
 V. Schoones, i. 299 
 
 Ex parte, ii. 128 
 
 Garland's case, ii. 279 
 
 Garlick v. Sangster, ii. 146 
 
 Garment v. Barrs, iii. 1242 
 
 Gainer v. Shelley, ii. 499 
 
 Garnett v. Ball,ii. 30 
 
 V. Ferraud, iii. 1112 
 
 i;. Willan, ii. 291 
 
 V. Woodcock, ii. 223 
 
 Garnons v. Barnard, ii. 366 
 
 t;. Smith, i. 409 
 
 V. Swift, i. 393. iii. 1053 
 
 Garr v. Fletcher, iii. 1118 
 Garrard v. Woolner, ii. 17. 68. 104 
 Garratt v. Theophilus Biddulph, ii. 174 
 Garrell v. Lister, i. 302 
 Garrells v. Alexander, ii. 51 3 
 
 V. Kensington, i. 292 
 
 Garrett v. Handley, ii. 508. iii. 801 
 
 V. Moule, ii. 136 
 
 Garrick v. Williams, i. 226. 411 
 
 Garritt v. Sharp, iii. 1296. app. ii. iii. 
 
 1619 
 Garside v. Trent and Mersey Navigation 
 
 (Proprietors of), ii. 283 
 Garth v. Earnshaw, ii. 545 
 
 V. Howard, ii. 45. 
 
 Gascoyne v. Smith, iii. 938 
 Gaskell v. Gaskell, iii. 827 
 
 V. Winter, iii. 785. 1273 
 
 Gas Light and Coke Co. v. Turner, ii. 351 
 Gaters v. Madeley, app. ii. iii. 1439 
 Gates V. Bayley, iii. 1098. 1133 
 Gateward's case, ii. 527 
 Gaunt V. Hill, ii. 510 
 
 I'. Wainman, i. 281 
 
 Gayler i\ Farrant, app. i. 632 
 Geary v. Bearcroft, iii. 1101 
 
 V. Hoskins, i. 341 
 
 V. Physic, ii. 234. 492 
 
 Geddes v. Pennington, iii. 1238 
 
 Gedge v. Mine, ii. 505 
 
 Gee, Ex parte, iii. 1062 
 
 Geill V. Jeremy, ii. 226 
 
 GelU-. Watson, iii. 1214 
 
 Gellar, Ex parte, iii. 805 
 
 Genner v. Sparks, iii. 1015. 1112 
 
 Gent V. Tompkins, ii. 70, 71 
 
 George v. Claggett, ii. 649. iii. 821. 995. 
 1203 
 
 V. Pearce, i. 130 
 
 V. Perring, iii. 1031 
 
 V. Pritchard, iii. 1190 
 
 V. Radford, ii. 687. iii. 1113 
 
 V. Reilly, app. ii. iii. 1617 
 
 V. Rookes, app. i. 633 
 
 V. Surrey, ii. 513 
 
 V. Thompson, app. i. 622 
 
 V. Wyburn, iii. 1160 
 
 Gerard v. Baker, ii. 43 
 
 — -- V. De Robeck, iii. 1231 
 
 V. Dickenson, ii. 631 
 
 German v. Royal Exchange Assurance 
 Company, iii. 881 
 
 Germaine v. Burton, iii. 1243 
 
 Gerrard v. Cooke, iii. 1250 
 
 Gervis v. Grand Western Canal Co., i. 285. 
 ii. 21. 194. iii. 956 
 
 Gery v. Hopkins, ii. 570 
 
 V. Wheatley, i. 475. 485 
 
 Gevers v. Mainwaring, i. 116. 149 
 
 Geyer v. Aguilar, i. 290. 292. iii. 891 
 
 Gihb V. Mather, ii. 209
 
 TABLU OF CASES. 
 
 h 
 
 Gibbins i'. Phillips, ii. 141. iii. 1028 
 
 Gibbon v. Caunt, iii. 1288 
 
 V. Coggon, ii. 2;>3. 237,238. ill. 1013, 
 
 1014 
 
 ('. Feathcrstonhaiigh, iii. 823 
 
 V. Paynton, ii. 291, 292 
 
 Gibbon's ca8i', ii. 277 
 Gibbons v. Cross, iii. 1288 
 
 V. Hooper, iii. 1237 
 
 V. M'Casland, ii. ()62. 0G8 
 
 i\ Pepper, iii. 1119 
 
 V. Powell, app. i. 621 
 
 V. Wilcox, i. 141. 148 
 
 Gibbs i\ Merrill, ii. 2 
 
 V. Phillipson, i. 92. 
 
 ■ t\ Ronmey, iii. 783 
 
 Gibbs's case, iii. 1227 
 Gibson i\ Allen, iii. 797 
 
 V. Bell, ii. 177 
 
 V. Boiitts, app. ii. iii. 1347 
 
 • V. Bray, ii. 161 
 
 V. Chater, ii. 689 
 
 V. Courthope, iii. 1176 
 
 V. East India Company, ii. 177 
 
 V. Gell, iii. 785. 1273 
 
 V. Harris, ii. 101 
 
 V. Hawkey, iii. 1136 
 
 V. Hunter, i. 530 
 
 V. Kirk, app. ii. iii. 1586 
 
 V. Macartey, i. 261. 28Q 
 
 V. Minet, ii. 216. 262, 263 
 
 V. Oldfield, ii. 125 
 
 V. Overbury, app. ii. iii. 1352 
 
 V. Wells, iii. 1245 
 
 V. Winter, ii. 28 
 
 V. Wright, iii. 863. 866 
 
 Gibson's case, ii. 281 
 
 Gidley v. Williams, ii. 440 
 
 Gifford, lEx parte, iii, 1065. app. ii. iii. 
 
 1370 
 Gilbert v. Bath, ii. 378 
 
 " V. Dale, ii. 283. 288 
 
 i'. Dee, ii. 452 
 
 V. Fletcher, ii. 556 
 
 V. Stanislaus, i. 442. 445, 446. ii. 116. 
 
 375 
 
 V. Sykes, iii. 1233 
 
 Gilbert's case, ii. 606 
 Gilby V. Copley, ii.,342 
 
 V. Lockyer, iii. 1052 
 
 Gilchrist v. Brown, ii. 547 
 Giles I'. Dyson, ii. 448 
 
 V. Edwards, ii. 72. 92 
 
 V. Grover, iii. 1149 
 
 t;. Perkins, ii. 164 
 
 V. Powell, i. 211 
 
 V. Smith, i. 103. 398 
 
 Giles's case, ii. 464 
 
 Gilham, Ex parte, iii. 1277 
 
 Gilliam's case, ii. 37 
 
 Gill V. Cubitt, ii. 220. iii. 1150 
 
 ■ V. Kymer, ii. 42 
 
 V. Scrivens, ii. 185 
 
 V- Sherry, iii. 772 
 
 JEx parte, ii. 587 
 
 Gillard v. Bates, app. ii. iii. 1381 
 
 V. Sniither, i. 409 
 
 7'. Wiisc, ii. 80. iii. 827 
 
 Gillctt V. Abbott, ai)p. ii. iii. liOS 
 I'. Mavvmiui, i. 78. iii. 993 
 
 Gillett V. Rippon, ii. 107. 512 
 
 V. Wilby, iii. 938. app. ii. iii. l.-sno 
 
 Gillies V. Smithers, ii. 450, 451 
 Gilligan, JSx parte, -dpp.u. iii. 1344 
 Gilling V. Summerset, ii. 27 
 Gillon V. Boddington, ii. 659 
 Gillow, Bx parte, iii. 809 
 Gillum V. Stirrup, iL 303 
 Gilman v. Cousins and others, ii. 124 
 Gilpin V. Enderby, iii. 1186 
 
 1'. Kendle, ii. 63, 64 
 
 Gimbcrt v. Coyney, ii. 596 
 Gimmingham v. Laing, ii. 135, 1 36 
 Girardy v. Richardson, ii. 64. iii. 1184 
 Girdlestone v. Porter, ii. 435 
 Girdwood's case, i. 525. ii. 623 
 Girlington v. Pitfield, ii. 677 
 Girolamo (The), app. ii. iii. 1495 
 Gisborn v. Hart, ii. 118 
 Gist V. Mason, i. 533 
 Gladstone v. Hadwen, ii. 175, 176. iii. 
 
 1225 
 
 I'. King, iii. 886 
 
 V. Neal, i. 460. 462. ii. 62 
 
 V. Nevill, i. 455 
 
 V. Tempest and others, app. ii. iii. 
 
 1618 
 Gladwell v. Blake, ii. 595 
 V. Steggall, iii. 725. app. ii. iii. 
 
 1378 
 Glaholm v. Rowntree, app. ii. iii. 1418 
 Glaister v. Hewer, ii. 148. 648 
 Glandfield's case, ii. 50. 52 
 Glasburne Bridge case, ii. 272, 273 
 Glascot V. Day, iii. 1068, 1069, 1070 
 Glasier v. Eve, iii. 1030 
 Glasscock v. Warren, i. 418 
 Glassington v. Rawlins, ii. 145. iii. 1073 
 Glasspoole v. Young, iii. 1029 
 Glazebrook v. Woodrow, iii. 1188. 1199 
 Glazier v. Glazier, iii. 1285, 1286 
 Gleadow v. Atkins, i. 355, 356. iii. 824 
 Glendinning, Ex parte, iii. 1065 
 Glidstoue's case, app. ii. iii. 1383 
 Glossop V. Colman, iii. 804 
 
 V. Jacob, i. 485. ii. 209 
 
 V. Pole, i. 310. iii. 1019 
 
 Gloucester, case of Cathedral Church of^ 
 
 ii. 673 
 Glove!' V. Coles, i. 483 
 
 V. Cope, ii. 349 
 
 V. Harrison, ii. 124 
 
 V. Lake, ii. 695 
 
 V. Lane, ii. 317 
 
 Glubb V. Edwards, aj)p. i. 618 
 
 Glyn and Masterman, Ex parte, app. ii. 
 
 iii. 1515 
 Glynn v. Baker, iii. 1149 
 7;. Bank of England, i. 312. 356, 357. 
 
 ii. 270. 436 
 Goblet 7;. Beachey, iii. 756. 1271 
 Goddard v. Cox, iii. 824. 826 
 
 V. Hodges, ii. 99. iii. 826 
 
 7;. Smith, ii. 677 
 
 V. Snow, ii. 538 
 
 I'. Vanderheyden, ii. 184. iii. 827 
 
 Goddard's case, 269. 499. ii. 20. iii. 787 
 Godcfrov V. Dalton, ii. 113 
 
 f.Jay, i. 227. ii. 114 
 
 Godfrey t'. Davius, iii. 771. 12? I 
 d 4
 
 Ivi 
 
 TABLE OF CASES. 
 
 Godfrey v. Fnrzo, il. 161. iii. 1151 
 
 V. Macauley, i. 234. iii. 813 
 
 V. Norris, i. 134. 37G. 502 
 
 V. Turiilmll, iii. 813 
 
 (Sir Ediiuuiilbiiry), cnsc of, i. 572 
 
 Godin II. Fcrri;*, ii. 584. iii. 1074 
 Godnuinclicster Bailiffs, &c. v. Pliillips, 
 
 app. ii. iii. 1385 
 Godsou V. Forbes, iii. 1037 
 
 V. Good, ii. 2 
 
 V. Sanctuary, ii. 170. iii. 1070 
 
 Godwin's case, ii. 519 
 
 Guff's case, ii. 590 
 
 GoQ;gerley v. Cuthbert, iii. 1151 
 
 Gold V. Strode, ii. 442 
 
 Gold and Silver Wire-drawers (Company 
 
 of) V. Hammond, i. 105 
 Golden v. Manning, ii. 286, 287 
 Goldie V. Gunstone, ii. 22 
 
 V. Shuttleworth, i. 410. 487. ii. 115 
 
 Golding V. Crowle, i. 522. ii. 681. 685 
 
 V. Davis, ii. 205 
 
 V. Nias, iii. 977 
 
 V. Vaughan, iii. 814 
 
 Goldney, Bx parte, ii. 177 
 Goldsmid v. Bromer, ii. 703 
 
 r. Lewis, app. ii. iii. 1448 
 
 ■ V. Raphael, app. ii. iii. 1358 
 
 Goldsmith v. Sefton (Lord), i. 534 
 
 Goldsmith's case, ii. 694 
 
 Goldson V. Buck, app. ii. iii. 1560 
 
 Goldstone v. Tovey, ii. 204 
 
 Golightly V. Jellicoe, i. 263 
 
 Gomersall v. Serle, ii. 151 
 
 Gomery v. Bond, ii. 88. 104. iii. 1216. 
 
 1235 
 Gompertz v. Denton, iii. 1211. 1228 
 
 V. Levi, ii. 628 
 
 Gondolier (The), iii. 1296 
 Gonzales v. Sladen, iii. 1198 
 Gooch's case, ii. 520 
 Good V. Clieesman, ii. 17. 104 
 
 ~ i;. Coe, ii. 253 
 
 V. Elliott, iii. 1233, 1234 
 
 V. Harrison, ii. 557. iii. 813 
 
 1). Hill, ii. 345 
 
 V. Ilowells, ii. 418. iii. 1083 
 
 V. Watkins, iii. 1117 
 
 Ex parte, app. ii. iii. 1335 
 
 Goodacre v. Breame, i. 164. ii. 4. iii. 1230 
 Goodall V. Dolley, ii. 222. 235, 236. 238 
 
 V. Ray, app. ii. iii. 1368 
 
 V. Skelton, iii. 1206 
 
 Gooday v. Clark, app. ii. iii. 1520 
 Goodburu v. Marley, ii. 507 iii- 1235 
 Goode V. Laugley, iii. 1147. 1153. 1223 
 Goodes V. Wheatley, i. 439. 458. 470 
 Goodhay v. Hendry, i. 136. ii. 192 
 Goodier v. Lake, i. 387. 393. ii. 56 
 Goodinge v. Goodinge, iii. 785. 1273 
 Goodison v. Nunn, iii. 1188 
 Goodland v. Blewith, iii. 819. 1070 
 Goodlight V. Bridge, ii. 321 
 Goodman v. Chase, ii. 477. 482 
 
 V. Cotherington, i. 510 
 
 V. Harvey, ii. 232. 246. iii. 1150 
 
 II. Kennell, iii. 738 
 
 Goodman v. Taylor, iii. 728 
 
 Goodright v. Corder, i. 5"24 
 
 V. Cord went, ii. 425, 420 
 
 i;. Davids, ii. 425 
 
 I'. Davis, ii. 425, 426 
 
 V. Downshire,iii. 78.5 
 
 d. Fowler j;. Forrester, ii. 696 
 
 d. Hare v. Cator, ii. 402 
 
 IV Hicks, ii. 304 
 
 V. Moss, i. 332. ii. 200. iii. 836. 838. 
 
 840,841,842,843. 845 
 
 1'. Rich, ii. 432. iii. 1123 
 
 V. Saul, ii. 198 
 
 V. Straphan, ii. 547 
 
 Goodson II. Forbes, iii. 1053 
 
 V. Leary, i. 475. 
 
 Goodtitle d. Alexander v. Clayton, iii. 
 
 1266. 1268 
 
 V. Braliam, ii. 516. 
 
 d. Bremridge v. Walter, i. 443. 470 
 
 V. Clmndos ( Duke of), i. 362 
 
 d. Chester v. Aimer, ii. 430 
 
 V. Edmonds, iii. 704 
 
 d. Edwards v. Bailey, ii. 404. 407 
 
 d. Estwick V. Way, iii. 1178 
 
 V. Graham, i. 174 
 
 V. Herbert, ii. 420, 421 
 
 V. Jones, ii. 406. iii. 917 
 
 V. Meredith, iii. 1289 
 
 V. Milbum, ii. 147 
 
 V. Morgan, ii. 428 
 
 r. Newman, iii. 899 
 
 d. Norris v. Morgan, ii. 427. iii. 918. 
 
 1237 
 
 V. Otway, ii. 430. iii. 784. 1288 
 
 d. Pinsent v. Lammerman, i. 470 
 
 d. Radford i'. Southern, iii. 1269 
 
 d. Revett v. Braham, i. 425. ii. 517 
 
 V. Saville, i. 399 
 
 V. Southern, iii. 773 
 
 V. Tombs, ii. 434, 435 
 
 V. Walter, i. 468,469- ii. 430. iii. 1177 
 
 V. Welford, i. 140. 156. 168 
 
 V. Wilson, i. 106. ii. 339 
 
 V. Woodward, ii. 418 ajjp. ii. iii. 1407 
 
 Goodwin v. Coates, iii. 1205 
 
 V. West, i. 78. 80 
 
 Goodwright i'. Downshire, iii. 1273 
 
 Goole V. Jordan, iii. 1082 
 
 Goom V. Aflalo, ii. 492, 493. iii. 1196, 1197 
 
 Goostrey v. Mead, ii. 232 
 
 Goram v. Sweeting, i. 440. 450. ii. 396 
 
 Gordon v. Austin, i. 478. ii. 212. 708 
 
 V. Cox, app. ii. iii. 1444. 1563 
 
 V. East India Co., ii. 157, 158. 161 
 
 V. Gordon, i. 485. ii. 381. 519 
 
 V. Harper, ii. 387. iii. 1146. 1154 
 
 V. Martin, ii. 71. iii. 1297 
 
 V. Rimmington, iii. 878 
 
 V. Secretan, i. 405, 406, 407 
 
 V. Swan, ii. 577, 578 
 
 V. Wilkinson, ii. 145, 146 
 
 Ex parte, ii. 482 
 
 Gordon's case, i. 63. 80. ii. 307. 398. 718 
 
 Gorgier v. Mieville, iii. 1150, 1151 
 
 Gorham v. Thompson, i. 234. iii. 813 
 
 Goring v. Edwards, ii. 512 
 
 Gorst V. Hutton, ii. 452 
 
 Gorton v. Dyson, i. 302. ii. 441. 446. app. 
 
 ii. iii. 1416
 
 TABLE () !• CASE S. 
 
 Gosbell V. Archer, ii. 485. iii. 1192 
 Goslin V. Wilcock, i. 5)M 
 Gosling r. Biriiic, ii. 47. iii. IIGG 
 
 V. Witlicrspooii, i. S-Z'.). iii. 107-2. 107G 
 
 Goss t\ Jackson, ii. 585. 51)2 
 
 i\ Nugent (Lord) iii. 703. app. ii. iii. 
 
 1430 
 V. Tracey, i. 134. 1U8. 312. 37G. 
 
 iii. 12G5 
 
 ('. Watlington, i. 358. iii. 10G3 
 
 Gotlic'l) r. Danvcrs, iii. 731 
 Gotliffe i\ Bourne, ii. 287 
 Gouger v. Jolly, ii. 280. 289 
 Gougli v. Bryan, app. ii. iii. 1432 
 
 r. Cecil, i. 379, 380, 381 
 
 V. Davis, ii. 100 
 
 V. Farr, ii. 707. app. i. 605. ii. iii. 
 
 1383. 1427 
 Gould V. Barnes, i. 472. 400. ii. 378. iii. 
 
 1030 
 
 V. llulme, ii. 562, G2G. 632 
 
 V. Johnson, ii. 661 
 
 r. Jones, ii, 514 
 
 f. Oliver, iii. 995 
 
 V. Robson, ii. 251 
 
 V. Shirley, ii. 664 
 
 v. Shoyer, ii. 152 
 
 In re, ii. 193 
 
 Gounam v. Bennett, iii. 1302 
 
 Goupy v. Harden, ii. 223 
 
 Gouthwaite v. Duckworth, iii. 804 
 
 Govett V. Radnidge, ii. 285 iii. 800 
 
 Govier i-. Hancock, ii. 544 
 
 Gowan r. Foster, ii. 6GG. 669 
 
 Gower i\ Popkin, ii. 88. iii. 828 
 
 Gowland v. Warren, ii. 183 
 
 Gozna v. Grantham Corporation, iii. 907 
 
 Grace v. Morgan, app. ii. iii. 1401 
 
 V. Smith, iii. 805. 814 
 
 JSx pat-tc, iii. 899 
 
 Graft V. Bertie, ii. 518 
 Graham r. Barras, iii. 874 
 
 V. Becontree (Hundred of), ii. 532 
 
 V. Dyster, i. 205. 403. ii. 45 
 
 V. Grill, ii. 187 
 
 V. Hope, i. 234. iii. 813 
 
 t'. Jackson, iii. 1199 
 
 V. Mulkaster, ii. 123 
 
 v. Musson, ii. 493 
 
 V. Partridge, app. ii. iii. 1541 
 
 V. Peat, iii. 1099, 1100 
 
 V. Robertson, iii. 1061 
 
 V. Russell, ii. 177 
 
 i\ Thompson, iii. 813 
 
 V. Wichelo, iii. 1182 
 
 V. Wigley, ii. 356 
 
 Graham's case, i. 472. app. ii. iii. 1482 
 Grainger v. Hill, ii. 687 
 
 V. Raybould, app. ii. iii. 1541 
 
 Grand Surrey Canal Company v. Hall, app. 
 
 ii. iii. 1436 
 Granger v. Dent, ii. 68 
 
 V. Furlong, i. 152. ii. 194 
 
 V. George, ii. 658. 660. iii. 1076 
 
 V. Tudor, ii. 194 
 
 V. Worms, iii. 1215 
 
 £!x parte, ii. 185 
 
 Grant v. Astle, i. 442. 445. ii. 58 
 
 Gniuf V. Da Costa, ii. 217 
 
 r. Fietchrr, ii. 493. 566. iii. II'JG 
 
 V. Gould, i. 285 
 
 V. Grant, app. ii. iii. 15(i5 
 
 i: (Junner, ii. 317 
 
 V. mil, iii. 866 
 
 r. ITulton, ii. 500. 506 
 
 r. Jackson, i. 334. ii. 26. 31. iii. 810 
 
 V. Kemp, app. it. iii. 1418 
 
 ('. Vaughan, ii. 215. 220. 262 
 
 r. M'elchraan, ii. 247 
 
 Ex parte, ii. 175 
 
 Grant's case, ii. 458 
 
 Granville v. Beaufort (Duchess of), iii. 76] 
 
 Grater v. Collard, i. 532 
 
 Gratitudine (Case of the), iii. 1225 
 
 Gratland v. Freeman, iii. 1202 
 
 Gratton ?\ Diggles, ii. 351 
 
 Gravenor v. Woodhouse,iii. 973. 1181 
 
 Graves v. Arnold, ii. 581 
 
 V. Key, iii. 956. 1154 
 
 (Lord) V. Fisher, aj)p. ii. iii. 1567 
 
 Gray v. Bond, iii. 911. 1254 
 
 V. Chamberlain, ii. 649 
 
 r. Cookson, i. 284, 285. ii. 556. 585, 
 
 586, 587, 588, 589. 592, 593 
 
 V. Cox, iii. 1239 
 
 r. Fletcher, iii. 909 
 
 V. Forbes, app. i. 627 
 
 i\ Fowler, iii. 1187 
 
 V. Leaf, app. ii. iii. 1344 
 
 V. Mendez, ii. 672 
 
 V. Milner, ii. 210. 213. 222 
 
 V. Palmer, ii. 204, 205. 237 
 
 V. Shilling, ii. 85 
 
 Ex parte, app. ii. iii. 1 349 
 
 Gray's case, i. 441. 448, 449. ii. 281 
 
 CJraysbrook v. Fo.x, i. 338 
 
 Grayson v. Atkinson, iii. 1261, 1262. 1268 
 
 Grazebrook v. Davis, ii. 118 
 
 Greaseley r. Higginbotham, ii. 533 
 
 Greasley v. Codling, app. ii. iii. 1613 
 
 Great North of England Railway v. Bid - 
 
 dulph, app. ii. iii. 1511 
 Greaves v. Ashlin, iii. 761. 1201. 1212 
 
 V. Burbery, iii. 1250 
 
 V. Hepke, iii. 1224 
 
 Green v. Austin, ii. 82 
 
 V. Bartrum, iii. 1136 
 
 V. Beesley, iii. 805 
 
 V. Bevan, i. 523 
 
 7'. Botheroyd, ii. 560 
 
 V. Brown, iii. 879 
 
 V. Button, app. ii. iii. 1397 
 
 V. Chapman, app. ii. iii. 1464 
 
 V. Cresswell, ii. 476 
 
 V. Dalton,ii. 701 
 
 V. Davies, ii. 97, 98. iii. 1042. 1055, 
 
 1056 
 
 V. Deacon, iii. 811 
 
 V. Dunn, ii. 34. iii. 1161, 1162 
 
 V. Eales, app. ii. iii. 1606 
 
 i\ Elmslie, iii. 877 
 
 V. Farmer, ii. 647, 648, 649. iu. 994 
 
 I'. Froud, iii. 902 
 
 r. Gatewick, i. 311. 313 
 
 I', (ioddard, iii. 1136 
 
 V. Greenbank, i. 448. iii. 1243 
 
 V, Haythorne, iii. 1223
 
 Iviii 
 
 TABLE OF CASES, 
 
 Green v. Ilearno, iii. 1311 
 
 V. Hewitt, i. 237 
 
 I'. Jackson, ii. 112 
 
 • • V. Jones, ii. 193 
 
 V. London Cemetery, app. ii. iii. 1686 
 
 V. Marsli, ii. 20 
 
 V. New River Company, i. 115, 116. 
 
 148,140, 150. 266 
 
 V. Parker, ii. 667, 558 
 
 V. Proud, i. 230. 237. iii. 9G2 
 
 V. Rowan, app. ii. iii. 1334 
 
 V, Salmon, app. 1. 599 
 
 V. Smithies, app. ii. iii. 1513 
 
 V. Sutton, app. i. 598 
 
 V. Thomas, iii. 1276 
 
 V. Warburton, i. 126 
 
 V. Weston, iii. 758 
 
 V. AVhite, ii. 172 
 
 V. Youna;, iii. 879 
 
 Greening v. Clarke, ii. 157 
 Greenland v. Dyer, ii. 245 
 Greenlaw v. King, app. ii. iii. 1381 
 Greenough v. Gaskell, app. ii. iii. 1381 
 Greenslade v. Dower, iii. 809 
 
 — V. Halliday, iii. 1250. 
 
 Greenstreet v. Carr, iii. 1154 
 Greenway v. Hindly, ii. 238 
 
 V. Kurd, ii. 88. 97. 680. iii. 730 
 
 V. Titehmarsh, app. ii. iii. 1600 
 
 Greenwood I?i re, app. ii. iii. 1342 
 
 i;. Churchill, ii. 139 
 
 V. Titterington, ii. 116 
 
 V. Woodham, app. ii. iii. 1531 
 
 Greenwood's case, iii. 1283 
 Gregg V. Wells, app. ii. iii. 1684 
 Gregg's case, iii. 1097 
 Gregory v. Bissell, iii. 1066 
 
 V. Derby, app. ii. iii. 1475 
 
 V. Doidge, iii. 973 
 
 V. Frazer, iii. 1059 
 
 V. Hannaii, app. ii. iii. 1417 
 
 V. Hartnell, ii. 101. 105 
 
 V. Hill, iii. 1136 
 
 V. Howard, ii. 27 
 
 V. Hurrill, ii. 149 
 
 1). Merton, ii. 188 
 
 V. Parker, ii. 33 
 
 ,,. Piper, ii. 535. iii. 738. 1107. 1109. 
 
 nil 
 
 V. Tavernon, i. 207 
 
 V. Williams, i. 236 
 
 V. Withers, i. 494. ii. 697 
 
 Gregson v. M'Taggart, ii. 357 
 Grellier v. Neale, i. 375. 379. 386. iii. 809 
 Gremaire v. Le Clerck Valois, iii. 1310 
 Grenfell v. Girdlestone, app. ii. iii. 1615 
 Grenville v. Physicians (College of), iii. 1139 
 Gresham's (Dame) case, iii. 1069 
 Gresley v. Price, ii. 147 
 Greville t). Atkins, ii. 268. iii. 766 
 Grew V. Bevan, i. 523 
 
 V. Milward, iii. 1032 
 
 Grey v. Livesay, iii. 1115 
 
 L V. Smith, i. 415. iii. 1028. 1039, 1040. 
 
 1050. 1053. 1109 
 
 V. Smithy es, ii. 271. iii. 785. 792. 
 
 Grey's (Lord) case, i. 627. ii. 330 
 Grice v. Lever, app. ii. iii. 1673 
 Griesley v. Codlinu', app. ii. iii. 1613 
 Griffin v. Eylcs, ii. 648 
 
 Griffin v. Langfield, ii. 557 
 
 V. Parsons, iii. 1119. 1 135 
 
 V. Scot, ii. 391 
 
 V. Stanhope, iii. 962 
 
 Griffith V. Franklin, ii. 447 
 
 V. Griffith, ii. 441 
 
 V. Harries, app. ii. iii. 1463 
 
 V, Jenkins, i. 508 
 
 V. Moore, i. 413 
 
 V. Smythe, app. ii. iii. 1449 
 
 V. Tombs, app. ii. iii. 1571 
 
 V. Young, ii. 476. 481 
 
 Griffiths V. Ivory, ii. 518. app. ii. iii. 1435 
 
 V. Lee, ii. 286 
 
 V. Marson, i. 475 
 
 V. Matthews, iii. 865. 907. 910. 912 
 
 V. Payne, ii. 241 
 
 V. Stephens, iii. 969 
 
 V. Williams, i. 409. ii. 42. 616. Ui. 731. 
 
 821.832 
 Grigby v. Oakes, iii. 1068 
 Grigg V. Cocks, iii. 825 
 Grigg V. Stoker, iii. 1185 
 Grimaldi v. White, iL 105. iii. 1208. 1211. 
 
 1308 
 Grimman v. Legge, iii. 1176. 1182 
 Grimstead v. Shirley, ii. 440 
 Grimwood v. Barrett, i. 456. ii. 63. iii. 995 
 Grindell v. Godman, ii. 543 
 Gripper v. Bristow, app. ii. iii. 1604 
 Grissell v. Robinson, app. ii. iii. 1333 
 Grocer's Company v. Donne, app. ii. iii. 1494 
 Groenvelt v. Burwell, i. 284. ii. 586 
 Groningi-. Mendham, m. 1206. 1208. 1240. 
 
 1308 
 Groocock v. Cooper, ii. 181 
 Groom v. Chambers, app. i. 626 
 
 ?;. West, ii. 177 
 
 Groome v. Forrester, i. 284. ii. 591 
 Grose v. West, ii. 336. iii. 1126 
 Grounsell v. Lamb, ii. 102. 105. iii. 1212 
 Grove v. Dubois, ii. 177. iii. 995 
 
 V. Morgan, ii. 690 
 
 V. Rutten, i. 28 
 
 V. Ware, ii. 417. iii. 731 
 
 V. Weston, iii. 792 
 
 Ex parte, app. ii. iii. 1 469 
 
 Groves v. Buck, ii. 487 
 
 V. Cowham, iii. 1028 
 
 V. Stalwood (Executors of), i 473 
 
 Growcock v. Waller, app. ii. iii. 1447 
 Growsock v. Smith, iii. 1189 
 Grubbv. Grubb,ii. 419 
 Grugeon v. Smith, ii. 229 
 Gryle v. Gryle, iii. 1261 
 Grylls V. Davies, i. 146 
 Grymes i'. Boweren, iii. 1247 
 Guernsey (Lord) v. Rodbridges, iii. 743 
 Guerroiro v. Peill, iii. 1225 
 Guest V. Caumont, i. 467. iii. 1177 
 
 V. Elwes, i. 498 
 
 Guichard v. Morgan, ii. 42. iii. 1225 
 Guidon v. Robson, iii. 807 
 Guilbert t'. Stone, ii. 575 
 Guillebert, Ex parte, app. ii. iii. 1590 
 Guilliam v. Hardy, i. 223 
 Guillod r. Nocke, iii. 828 
 Guinn v. Phillips, 11.677 
 Guinness r. Carroll, i. 273 
 Guiscard's (Marquis de) case, ii. 721
 
 TABLE OF CASES. 
 
 IIX 
 
 Gullett V. Lopez, ii. 320 
 Gulliinore, Exjxtrtc, li. 128 
 Gulliver v. Driiikwater, ii. 434, 435 
 Gully V. Exeter (Bishop of), i. 105. 109. 
 
 333. 357. 387. ii. 33. 494. iii. 942. 945 
 Gully's case, i. 101 
 Gundry v. Feltliam, ii. 505 
 Gunnis v. Erliart, iii. 757. 761 
 Guuson r. Metz, ii. 225. 237 
 Gunston v. Downs, i. 143. ii. 1.3 
 Gunter v. Clayton, iii. 1010. 1014 
 
 V. Holme, ii. 481 
 
 V. M'Lear, i. 322 
 
 Gunton v. Nurse, iii. 1160. 1162 
 Guntor r. Astor, iii. 992 
 Guppy V. Brittlebank, ii. 604 
 Gurney v. Langlands, i. 174. ii. 518 
 
 r. Rawlins, ii. 442 
 
 V. Sharpe, iii. 822. 995 
 
 Ex relatione, i. 197 
 
 Gurr V. Britton, ii. 159 
 Gutheridge v. Smith, i. 536 
 Guthing V. Lynn, ii. 59. iii. 1241 
 Guthrie v. Fisher, ii. 30 
 
 V. Wood, ii. 497 
 
 Gutteridge v. Munyard, ii. 348 
 
 ■ V. Smith, iii. 828. 1072 
 
 Guy V. Davis, iii. 1050 
 
 V, Gregory, app. ii. iii. 1463 
 
 V. Harris, iii. 1036 
 
 V. Hitchcock, app. ii. iii. 1445 
 
 ■ V. Kitchener, iii. 1134 
 
 i\ West, iii. 1127 
 
 Gwilliamv. Barker, iii. 1027 
 
 r. Burke, ii. 390 
 
 Gwillim V. Holbrook, iii. 1026 
 
 V. Stone, ii. 58. iii. 1190 
 
 Gwimms v. Herbert, ii. 223 
 
 Gwinnet v. Phillips, i. 441. 444. 447. 450, 
 
 451.456. ii. 299. 393 
 Gwydir (Lord), Ex parte, iii. 1253 
 Gwyllim v. Seholey, iii. 1044 
 Gwyn V. Sir W. Houston, app. i. 605 
 Gwynne v. Burnell, app. ii. iii. 1561, 1562, 
 
 1563 
 
 ?'. Davy, app. ii. iii. 1339 
 
 Ex parte, ii. 163. iii. 1226 
 
 Gwynnett's case, ii. 710 
 
 Gye i;. Felton, iii. 1041 
 
 Gyfford t'. Woodgate, i. 330. ii. 686. iii. 786. 
 
 1033 
 Gyles V. Hill, i. 229 
 
 Habershon v. Troby, ii. 690, 691 
 
 Habrey (or Hubner) v. Richardson, ii. 247 
 
 Hacker's case, i. 510 
 
 Haddock v. Bury, ii. 238 
 
 Haddou v. Mills, ii. 688 
 
 Haddow v. Parry,!. 359. ii.267. iii. 871,872 
 
 Hadfield's case, ii. 463. iii. 1278 
 
 Hadley r. Green, i. 263 
 
 Hadwen v. Mendizabel, ii. 265 
 
 Hagedoni v. Laing, iii. 1190. 1201 
 
 V. Oliverson, iii. 872 
 
 V. Reed, i. 361 . 396. 398 
 
 V. Whitniore, iii. 877. 879 
 
 Haggerston ;;. Hanbury, iii. 963 
 Hahn v. Corbet, iii. 877 
 Haigh V. Belcher, app. i. 603 
 r. Brooks, app. ii. iii. 1328. 1368 
 
 Haigh V. De la Cour, iii. 880. 889 
 
 Haille v. Smith, ii. 267 
 
 Haine v. Davey, apj). ii. iii. 1573 
 
 Haire v. Wilson, ii. 629 
 
 Hale t\ Dale, app. ii. iii. 1603 
 
 V. Small, ii. 129 
 
 Hales V. Freeman, iii. 1060 
 Hales's case, ii. 457 
 Halfordi). Hatch, ii. 346 
 
 V. Kymer, iii. 868 
 
 Halhed v. Marke, iii. 868 
 Halifax's (Lord) case, i. 421 
 HalU'. Auty, ii. 97 
 
 V. Bainbridge, ii 343 
 
 V. Benson, app. ii. iii. 1623 
 
 V. Burgess, iii. 1174, 1175, 1176 
 
 V. Cazenove, iii. 787 
 
 V. Cornell, iii. 818 
 
 r.Curzon, i. 111. 145. iii. 817. 1230 
 
 V. Davis, iii. 1099 
 
 r. Doe, ii. 428. 653 
 
 V. Doe d. Surtees, ii. 453 
 
 V. Elliott, ii. 447 
 
 V. Ellis, iii. 863, 864 
 
 V. Farmer, app. ii. iii. 1567 
 
 V. Franklin, app. ii. iii. 1509 
 
 V. Fuller, ii. 87. iii. 725 
 
 V. Godson, app. ii. iii. 15G7 
 
 V. Gurney, ii. 157 
 
 V. Harding, ii. 318 
 
 V. Hill, ii. 32 
 
 V. Hoddesdon, i. 318. 326 
 
 V. Hollander, iii. 989 
 
 t'. Laver, app. ii. iii. 1415. 1593. 1602 
 
 V. Middleton, iii. 819 
 
 V. Pickard, iii. 1104. 1107 
 
 V. Rex, i. 110. 164 
 
 V. Smith, ii. 2. 627. iii. 740. 1170 
 
 V. Stone, i. 263 
 
 V. Swift, iii. 921. 1250 
 
 V. Wallace, app. ii. iii. 1356 
 
 V. Wiggett, iii. 768 
 
 . V. Wilcox, iii. 1067 
 
 V. Wood, iii. 824 
 
 V. Wybourn, ii. 672 
 
 Ex parte, ii. 127. 146. 175. app. ii. iii. 
 
 1349 
 Hall's case, ii. 36 
 Hallard's case, ii. 278 
 Plalletr. Best, iii. 969 
 Hallett V. Cousins, app. i. 606 
 
 tj. Hallett, ii. 117 
 
 V, Mears, i. 79 
 
 Halliday v. Ward, ii. 662. 669, 670 
 Hallidy v. Nicholson, iii. 754. 761 
 Hallifax v. Chambers, app. ii. iii. 1607 
 Halliwell i^. Morrell, app. ii. iii. 1330. 1333 
 
 V. Trappes, iii. 742. 1081. 1094 
 
 Halston v. Seaton, i. 104 
 Halton V. Cove, iii. 964. 1084 
 
 V. Hassell, ii. 26 
 
 Haly 11. Lane, ii. 241 
 
 Hambly i'. Trott, iii. 1179 
 
 Hamborough v. Wilkie, i. 428 
 
 Hamar v. Alexauder, ii.376 
 
 Hamer v. Raymond, i. 465. 468. iii. 743 
 
 Hamerton v. Stead, iii. 970 
 
 Hamilton r. Bwldell, ii. 689 
 
 i\ Jones, ii. 109 
 
 u. Stratton, iii. 1064
 
 Ix 
 
 TABLE OP CASES. 
 
 Hamlet v. Richardson, ii. 02 
 Hamiuersley v. Kiicwlys, iii. 6'26 
 Hammon's case, ii. (i04 
 Hammond v. Aiidersonj ii. 1G3. G49. iii. 
 
 1223. 1'220 
 
 V. Blake, .ipp. ii. iii. 1520 
 
 V. Uulresne, ii. 231 
 
 V. Foster, iii. lO.'Jl 
 
 V. Hicks, ii. 131. 133. 135 
 
 V. Howell, i. 284 
 
 V. Reid, iii. 873 
 
 V. Stewart, i. 78 
 
 V. Toulmin, ii. 184 
 
 V. Wood, ii. 408 
 
 Hammonds v. Barclay, ii. 648 
 Hammonds's case, ii. 604 
 Hamper, Ex parte, iii. 803 
 Hampshire ?■. Pearce, iii. 763. 769 1273 
 Hampton *'. Jarratt, iii. 996 
 Hampton's case, ii. 464 
 Hanbury t'. Ella, i. 496,497 
 Hancke v. Hooper, ii. iii. 1488 
 Hancock v. Baker, ii.604. iii. 1140 
 
 V. CafFyn, ii. 152 
 
 V. Entwisle,- iii. 993 
 
 r. Haywood, ii. 123 
 
 V. Podmore, ii.4t9 
 
 V. Welsli, i. 278. iii. 972. 977 
 
 Handasyde v. Wilson, iii. 730 
 Handey v. Henson, ii. 48 
 Handford v. Palmer, i. 457. 460 
 Handley v. Edwards, app. ii. iii. 1419 
 
 t».'Ward,i. 188 
 
 Hands v. Burton, iii. 1204. 1241 
 
 V. James, iii. 1268 
 
 V. Slaiiey, ii.557 
 
 Hankey v. Cobb, app. ii. iii. 1359 
 
 V. Jones, ii. 128 
 
 V. Smith, ii. 177. iii. 1201 
 
 V. West, app. ii. iii. 1434 
 
 r. Wilson, ii. 216. 219 
 
 Hannaford v. Hunn, i. 269. iii. 1112 
 Hannam v. Mockett, ii. 301 
 
 V. Ormerod, id. 1032 
 
 Hannan v. Dickinson, iii. 1043 
 Hansard v. Robinson, ii. 203 
 Hanson v. Armitage, ii. 489 
 
 V. Meyer, iii. 1223 
 
 V. Parker, ii. 29 
 
 V. Roberdean, iii. 1192 
 
 V, Stevenson, ii. 180. 350 
 
 Hanway v. Boultbce, iii. 1144 
 
 Happy Return (Case of the), iii. 1299 
 
 Harcourt, Ex parte, ii. 194 
 
 Hai'court's case, i. 183 
 
 Hard's case, ii. 262, 263 
 
 Hardcastle v. Netherwood, iii. 993. app. ii. 
 
 iii. 1540 
 
 V. Sclater, i.310 
 
 Hardentj. Cobley.i. 127 
 
 Harding v. Ambler, app. ii. iii. 1536 
 
 V. Bulman, ii. 638 
 
 V. Carter, ii. 43 
 
 V. CoUey, app. i. 596 
 
 V. Cooper, ii. 247,248 
 
 V. Crethorn, ii. 475. 485. iii. 732. 
 
 118l' 
 
 V. Davis, iii. 1068 
 
 V. Greening, ii. 44. 621 
 
 I'. Jones, app. ii. iii. 1365 
 
 Harding ?'. Spicer, iii. 1702 
 
 r. Stokes, app. ii. iii. 1375. 1386 
 
 V. Stone, i. 263 
 
 ?). Wilson, iii. 12.56 
 
 Hardwicke v. Blauchard, i. 131. ii. 258 
 
 c. Thompson, iii. 1244 
 
 Hardwood v. Wallis, iii. 767 
 Hardy v. Alexander, ii. 642 
 
 V. Cathcart, iii 847 
 
 V. Grant, ii. 54.5 
 
 V.Lee, i. 177 
 
 V. Martin, iii. 851. 853 
 
 V. Murphy, ii. 601 
 
 u. Ryle, ii. 587. iii. 1079. 1140. app. 
 
 ii. iii. 1455 1566 
 
 V. Woodroofe, i.485. ii.210. 213 
 
 Hardy's case, i. 71. 180. 185. 188. 191. 
 
 ii. 326, 327, 328, 329. iii. 1098 
 Hardyman v. Whitacre, ii. 500 
 
 V. Whitaker,iii. 800. 847. 849 
 
 Hare v. Cator, i. 446. ii. 55. 350, 351 
 
 V. Groves, ii. 421 
 
 I'. Meller, ii. 638 
 
 V. Munn, i. 164. 417 
 
 V. Rickards, ii. 575 
 
 V. Shearwood, iii. 758 
 
 1% Travis, iii. 873 
 
 1'. Waring, app. ii. iii. 1344. 1347. 
 
 1591 
 
 Ex parte, app. ii. iii. 1353 
 
 (J«re), ii. 118 
 
 Harford v. Morris, iii. 704 
 
 Hargrave v. Le Breton, ii.631. 641. 643 
 
 Hargraves v. Michell, ii. 670 
 
 Hargreave v. Hutchinson, ii. 321. iii. 1 162 
 
 V. Sherwin, iii. 972 
 
 V. Sniee, ii. 510 
 
 Harland v. Bromley, iii. 1175. 1181, 1182 
 Harley v. Greenwood, ii. 189 
 Harman v. Anderson, ii. 163. iii. 1224. 
 ,1226 
 V. Fisher, ii. 1.38. 140, 141, 142, 143. 
 
 161 
 
 V. Gandolph, iii. 1080 
 
 V. Lasbrey, i. 117. 151. ii. 250 
 
 V. Mant, iii. 1080 
 
 V. Thompson, i. 420 
 
 ■ r. Vauhatton, ii. 27 
 
 ■ V. Vaux, iii. 878 
 
 Harmer v. Davis, ii. 22, 23. 175 
 
 V. Killing, ii. 556 
 
 ■ V. Playue, iii. 939, 940 
 
 V. Rowe, ii. 268 
 
 r. Wright, ii. 270 
 
 Harmond v. Pearson, iii. 734. 
 
 Harnett v. Johnson, .ii. 1305. app. ii. iii. 
 
 1624 
 Harper v. Brook, iii. 897 
 V. Carr, ii. 585. 590. 593, 594, 595, 
 
 600. iii. 954. app. ii. iii. 1379 
 
 V. Charlesworth, iii. 862. 1100, 1101 
 
 V. Luffkin, iii. 989 
 
 Harrap v. Armitage, ii. 268 
 Harratt v. Wise, i. 234. -524. iii. 892 
 Harrington v. Caswell, i. 126 
 
 V. Dean, ii. 18 
 
 V. Fry, ii. 514. iii. 1302 
 
 V. Hoggart, ii. 576 
 
 f. Harrington (Earl of) v. Lichfield 
 
 (Bishop of}, ajip. ii. iii. 1531
 
 TABLE OF OASES, 
 
 Ixi 
 
 Harrington v. Macmorris, i. 338. 493. 409. 
 
 iii,790.997. app. ii. iii. lo3.-^ 
 
 V. Price, iii. 1 l-'i'i 
 
 Harris v. Asliley, ii. 120 
 
 V. Baker, iii. 740. 747. 1 170 
 
 V. Benson, ii. 2fJ2 
 
 v. Bernard, i. 492 
 
 V. Butler, iii. 989 
 
 V. Collins, ii. 544 
 
 t). Cooke, i. 470. ii. 391 
 
 1'. Derrick, ii. 2.36 
 
 V. Drewe,iii. 862 
 
 V. Ferrand, ii. 661 
 
 ?'. Fowle, iii. 1204 
 
 17. Goodwyn, apj). ii. iii. 1389 
 
 V. Hill, 1. 89 
 
 V. Huntbach, ii, 79. 261. 477 
 
 V. James, ii. 183 
 
 V. Jones, ii. 348. iii. 124.5 
 
 V. Lee, ii. M^ 
 
 V. Lincoln (Bishop of), iii. 757 
 
 V. Lloyd, iii. 771. app. ii. iii. 1337 
 
 V. Lunell, iii. 1225 
 
 V. Mantle, i. 440. ii. 345. iii. 1245, 
 
 V. Morris, ii. 540. 542. 
 
 V. Oke, ii. 72. iii. 1297 
 
 V. Ornie, ii. 583. iii. 1076 
 
 u. Osborne, ii. Ill 
 
 V. Packwood, ii. 291 
 
 V. Parker, ii. 224 
 
 V. Richardson, ii. 225 
 
 r. Ryding, app. ii. iii. 1493 
 
 V. Saunders, ii. 69 
 
 V. Shipway, iii. 827 
 
 V. Stuart, app. ii. iii. 1454 
 
 V. Tippett, i. 189, 190. 195. 197 
 
 V. Watson, ii. 56 
 
 v.Woolford, ii. 583, 584. iii. 1077, 
 
 1078 
 Harris's case, i. 576. ii. 278 
 Harrison v. Barnby, i. 441. iii. 974. 976 
 
 V. Barry, ii. 391. iii. 1027 
 
 V. Beccles, ii. 449 
 
 1), Bevington, ii. 618, 637 
 
 V. Blades, i. 311.378 
 
 V. Brough, ii. 85. 
 
 V. Cage, ii. 479. 706 
 
 V. Courtauld, ii.251. 253. iii. 1066 
 
 V. Dickson, ii. 241 
 
 V. Douglas, iii. 829 
 
 J,'. Fane, app. ii. iii. 1442 
 
 V. Fitzhenry, i. 474 
 
 V. Gordon, app. i. 597. 603 
 
 V. Gould, i. 428 
 
 V. Harrison, ii. 269. iii. 1262 
 
 V. Hall, ii. 5.39 
 
 V. Hodgson, iii. 1134 
 
 V. Jackson, ii. 179. iii. 809 
 
 V. James, ii. 85. iii. 1272 
 
 V. Parker, ii. 272. 473. iii. 1146 
 
 V. Paynter, iii. 1017. ii. iii. 1554 
 
 V. Richardson, app. ii. iii. 1366 
 
 V. Stone, iii. 1272 
 
 V. Stratton, ii. 619 
 
 V. Vallance, ii. 29. iii- 1155 
 
 V. Walker, ii. 84 
 
 V. Williams, ii. 569. iii. 945 
 
 V. Wilson, i. 462 
 
 V. Wood, iii. 795 
 
 V. Wriglit, iii. 854 
 
 Harrison, E.r parte, ii. 1.55 
 
 Hiirrison's case, i. 222. ii. 383. 609 
 
 llarrod v. Benton, iii. 1018 
 
 Harrop v. Bradshaw, i. 298. iii. 1060 
 
 Hairow, iix parte, iii. 994 
 
 Harry v. Jones, ii. 451 
 
 Hart V. Aldridge, iii. 991 
 
 V. Alexander, iii. 814 
 
 V. Basset, iii. 740 
 
 V. Biggs, iii. 1061 
 
 V. Davis, ii. 62 
 
 V. Dixon, iii. 1199 
 
 V, Harrison, i. 415 
 
 V. Home, ii. 30. 34. iii. 976 
 
 V. Leach, ii. 391. iii. 737 
 
 V. Macnamara, i. 122. 291 
 
 V. Minors, ii. 454. app. ii. iii. 1417 
 
 V. Nash, ii. 668 
 
 V. Newman, ii. 26 
 
 V. Satley, ii. 489 
 
 V. White, iii. 1301 
 
 Hartford v. Jones, ii. 649 
 Hartley v. Case, ii. 226. 229 
 
 ■ V. Cooke, i. 246 
 
 V. Halliwell, iii. 734 
 
 V. Harman, app. ii. iii. 1620 
 
 V. Herring, ii. 036. iii. 1116 
 
 V. Hitchcock, ii. 650 
 
 V. Pehall, iii. 1190 
 
 V. Rice, iii. 1233 
 
 V. Wharton, app. ii. iii. 1442 
 
 V. Wilkinson, ii. 215 
 
 Hartop V. Juckes, ii. 114. iii. 1301 
 Hartshorn v. Slodden, ii. 142, 143 
 Hartshorne v. Watson, app. i. 594. app. ii. 
 
 iii. 1387 
 Harvey v. Archbold, ii. 79. 
 
 V. Brand, i. 509 
 
 V. Collison, i. 121 
 
 V. Crickett, iii. 802 
 
 V. French, ii. 629 
 
 V. Grabham, app. ii. iii. 1430 
 
 — — V. Harvey, iii. 758 
 
 i\ Hewitt, app. ii. iii. 1579 
 
 V. Kay, iii. 806 
 
 V. Martin, ii. 208 
 
 V. Mitchell, app. i. 621 
 
 V. Morgan, i. 402. 473. ii.l23.iii.ll55 
 
 V. Ramsbottom,ii. 136, 137 
 
 (Case of the), iii. 1298 
 
 £x parte, app. ii. iii. 1345 
 
 Harvey's case, i. 288. ii. 37 
 Harwood c. Bartlett, app. ii. iii. 1347 
 V. Goodright, i. 512. 544. 564. iii. 
 
 1285, 1286 
 
 v. Keys, ii. 175. 195 
 
 V. Law, app. ii. iii. 1512 
 
 V. Lester, iii. 1230 
 
 V. Sims, i. 33. iii. 1092 
 
 V. Tooke, ii. 66 
 
 Hary's case, i. 501 
 
 Hasell, Ex parte, app. ii. iii. 1406 
 
 Hasker's ( Dr.) case, iii. 935 
 
 Haslingtoa v. Gill,ii. 497 
 
 Haslocke v. Ferguson, app. ii. iii. 1396 
 
 Hasselden v. Bradney, iii. 914 
 
 Hassell v. Long, ii. 510 
 
 V. Simpson, ii. 139 
 
 Hassen v. Wallis, ii. 84
 
 Ixii 
 
 TABLE OF CASES. 
 
 Hastelow v. Jackson, ii. 05. iii. MX) 
 Hastings (Maniiiis of) v. Hurley, iii. 
 lOW) 
 
 I'. Wilson, ii. 180. 350 
 
 Hastings's case, i. 210. 220. 250. 312 
 Haswell v. Hunt, ii. 144 
 
 V, Thorogood, ii. 184 
 
 Hatch V. Blissett, i. 01 
 
 D. Bluck, ii. 458 
 
 i\ Trayes, app. ii. iii. 13G2 
 
 Hatcher v. Seaton, app. i. 609 
 Hatchett i;. Baddeley, ii. 547 
 
 V. Marshall, iii. 795 
 
 Hatfield v. Hatfield, i. 288 
 
 V. Thorp, iii. 12GG 
 
 Hathaway v. Barrow, i. 280, 281 
 Hatsall V. Griffith, app. ii. iii. 1331 
 Hattam v. Withers, i. 403 
 Hatton I'. Mansel, ii. 706 
 
 V. Morse, ii. 370 
 
 D.Neal, iii. 1118 
 
 Haughton v. Ewbank, ii. 43 
 HaussouUier t;. Hartsiucke, ii. 215 
 Havelock v. (ieddes, iii. 1188 
 
 V. Rock wood, i. 292, 293 
 
 Haviland v. Cook, ii. 22, 187 
 Hawe I'. Leader, ii. 472 
 Hawes r. Ball, iii. 1225 
 
 • V. Forrester, ii. 493 
 
 V. Swain, iii. 1085 
 
 V. Watson, ii. 47. iii. IIGG. 1224. 122G 
 
 Hawke v. Bacon, iii. 1123. 1 130 
 Hawker i'. Saunders, ii. 13G 
 Hawkes v. Hawkey, ii. 297 
 
 V. Salter, ii. 228 
 
 V. Saunders, app. ii. iii. 141G 
 
 Hawkey v. Borwich, ii. 224 
 Hawkins v. Bailey, ii. 502 
 
 V. Cardy, ii. 361 
 
 V. Compeigne, iii. 862 
 
 V. Cooper, app. ii. iii. 1496 
 
 V. Finlayson, i. 115 
 
 r. Gardner, app. ii. iii. 1501 
 
 V. Holmes, ii. 485 
 
 j5. Inwood,i. 138. 150 
 
 V. Kemp, i. 373. iii. 1 1 89 
 
 V. Newman, app. ii. iii. 1520 
 
 tj.Penfold,ii. 172 
 
 V. Plomer,iii. 1015. 1020 
 
 V. Rutt, iii. 823 
 
 1?. Sherman, iii. 1248 
 
 r.Wallis, iii. 1122 
 
 V. Warre, iii. 1050 
 
 V. Whitten, ii. 136. 172. 178 
 
 Hawkins's (Ann) case, ii. 280 
 Hawley t'. Peacock, ii. 376 
 Haworth v. Bostock, app. ii. iii. 1515 
 Haws V. Hand, i. 312 
 Hawse t'. Crowe, ii. 649 
 Hawtayne v. Bourne, app. ii. iii. 1322 
 Hawthorne, Ex parte, ii. 147 
 Hay V. Deey, iii. 994 
 
 V. Fairbairn,ii. 156, 157 
 
 V. Goodwin, ii. 123 
 
 V. Wenly, ii. 688 
 
 Haycraft v. Creasy, ii. 373 
 Haydon v. Gould, ii. 698,699. 704 
 
 V. Hayward, iii. 1199. 1207. 1304 
 
 r. Williams, ii. 665. 670 
 
 Hayes (in the Goods, &c.), app. ii. iii. 1617 
 
 Hayes v. Baily, iii. 017 
 
 V. Warren, ii. 69 
 
 r. Watts, ii. 701 
 
 Hayler i\ Sherwood, iii. 903 
 Hay ling ?•. Mulhall, ii. 249 
 Hayman ?". Molton, iii. 1225 
 Hayne v. Maltby, i. 75. ii. 424 
 
 V. Sliarpe, iii. 733 
 
 Haynes v. Birks, ii. 227. 235 
 
 V. Hare, iii. 755. 759 
 
 V. Holliday, ii. 67. iii. 780 
 
 V. Wood, iii. 1152 
 
 Hays V. Perkins, ii. 42. iii. 731 
 Hay slip v. Gymer, i. 351 
 Hayward v. Fiott, app. ii. iii. 1622 
 
 V. Firmion, i. 244. iii. 836. 838 
 
 V. Haswell, iii. 971 
 
 Haywood v. Collinge, app. ii. iii. 1476 
 
 V. Hague, iii. 1071, 1072 
 
 Haywood's case, ii. 694 
 Hazard v. Treadwell, ii. 43 
 Head r. Diggon, iii. 1213 
 
 V. Head,i. 168. ii. 197 
 
 Headges's case, ii. 616 
 Headlam v. Hedley, iii. 1126 
 Healey, Ex parte, \i. 181 
 
 V. Thatcher, i. 416 
 
 Heane v. Rogers, ii. 22. 127, 128. 182. iij. 
 
 1154 
 Heanny v. Birch, ii. 128, 129. 147 
 Heard r. Wadham, ii. 67. iii. 1189 
 Hearle, q. t., v. Moulton, i. 516 
 Hearn t;. Tomlin, iii. 1179. 1183. 1191 
 Hearne v. Benbow, iii. 1245 
 
 V. Edmunds, iii. 878 
 
 Heath v. Elliott, app. ii. iii. 1380 
 
 V. Freeland, iii. 1302 
 
 V. Hall, i. 152. 156. ii. 189. 194 
 
 V. Hubbard, iii. 870. 1159 
 
 V. Milward, iii. 1128 
 
 V. Pryn, ii. 428 
 
 V. Sansom, ii. 221. 242. iii. 809. 811. 
 
 app. ii. iii. 1368 
 
 V. Wilson, iii. 737 
 
 Ex parte, ii. 236 
 
 Heathcote v. Cruikshanks, ii. 16 
 
 V. Mainwaring, iii. 1085. 1095 
 
 Heatherington v. Robinson, app. ii. iii. 1343 
 Hcathorn v. Darling, app. ii. iii. 1374 
 Hebden v. Hartslnk, iii. 822. 996 
 
 V. Henty, ii. 500 
 
 Heckscher v. Gregory, iii. 1200 
 Hector (The), iii. 1300 
 Hedge's case, ii. 616. iii. 1059 
 Hedgeborrow v. Rosender, iii. 1234 
 Hedgeley v. Holt, ii. 555. 558 
 Hedger v. Stevenson, ii. 229 
 Hedges v. Chapman, ii. 603 
 Hefford r. Alger, iii. 1025 
 Hegan v. Johnson, iii. 074. 1183. 1191 
 Helier v. Benhurst, ii. 531 
 Helliard i: Jennings, i. 156 
 Helliery. Franklin, ii. 269, 270 
 Hellings v. Shaw, ii. 663, 664 
 Hellyr. Hender,ii. 297 
 Helmet'. Smith, iii. 817. 1302 
 Helmsley v. Loader, i. 474. ii. 204 
 Helps V. Glenister, iii. 1150. 1217 
 
 r. Winterbottom, ii. 661. iii. 120S 
 
 Helsby v. Mears, ii. 283
 
 TABLE OF CASES. 
 
 Ixiii 
 
 Helyar v. Hawke, ii. 30. 45. iii. 1238. 1240 
 Heiiiing i: Englisli, i. 142 
 
 V. Wilton, ii. lOU 
 
 Hemings v. Smith, ii. 609 
 Hemming i'. Parey, i. 497 
 
 V. Perry, ii. 484 
 
 ■ V. Trenery and anotlior, app. ii. iii. 
 
 1433 
 
 V. Whittara, iii. 12fi9 
 
 Hemmings ?'. Robinson, ii. 217 
 Hencliet v. Kimpson, iii. 102(3 
 Henderson v. Barnewall, ii. 486. 493 
 
 V. Benson, ii. 508 
 
 V. Bise, iii. 1220 
 
 r. Hay, app. ii. iii. 1387 
 
 V. Slierborne, app. ii. iii. 1498 
 
 V. Smith, iii. 802 
 
 Hendray v. Spencer, i. 480. iii. 1011 
 
 Henfree v. Bromley, iii. 1037 
 
 Henfrey v. Henficy, app. ii. iii. 1618 
 
 Hengist v. Fotliergill, i. 401 
 
 Henkin v. Gucrss, iii. 1234 
 
 Henkle i\ Royal Exchange Assurance 
 
 Company, iii. 767. 779 
 Henley v. Lyme Regis (Mayor, &c. of), 
 
 iii. 743. app. ii. iii. 1386 
 
 V. Lynu (Mayor of), iii. 739 
 
 V. Soper, i. 267. 276. ii. 99. 369 
 
 Henman v. Dickenson, i. 369. ii. 211. 254 
 Hennell v. Fairlam, iii. 997 
 
 V. Lyon, i. 326. 336 
 
 Henry v. Adey, i. 225 304. 508 
 
 V. Lee, ii. 223 
 
 V. Leigh, i. 248. 399. ii. 187 
 
 Hensey's (Dr.) ca^e, iii. 1097 
 Henshall v. Matthew, iii. 1236 
 Henshaw i\ Pleasance, i. 272. 291 
 Hentig v. Staniforth, ii. 97. iii. 885 
 Henwood i\ Oliver, app. ii. iii. 1563 
 Hepper v. Marshal, ii. 563 
 Herbert i\ Ashbume, ii. 570 
 
 V. Champion, iii. 884 
 
 V. Cooke, i. 277. 303. 305. ii. 116 
 
 V. Reid, iii. 773 
 
 V. Tuckal (Sir T.), iii. 841 
 
 V. Walters, i. 531 
 
 V. Wilcox, ii. 563 
 
 Heriot v. Stuart, i. 450. ii. 628 
 
 Herlakenden's case, iii. 1118. 1167. 1245 
 
 Hern v. Nicholls, ii. 375. iii. 738 
 
 Heme v. Hale, iii. 1046. 1052 
 
 Herner v. Batty, ii. 686, 687 
 
 Heron v. Granger, iii. 1039, 1040. 1053 
 
 Herrenden i\ Palmer, ii. 100 
 
 Herring v. Dobell (or Dorell), app. ii. iii. 
 
 1328. 1429 
 Hertford (Earl of) v. Leech, iii. 1085, 1086 
 Herver v. Dawson, ii. 632 
 Hervey v. Hervey, ii. 705 
 
 V. Liddiard, ii. 157 
 
 V. Reynolds, iii. 1137 
 
 ■ (Case of the), app. ii. iii. 1374 
 
 Hervey's case, i. 307 
 Hesketh v. Blanchard, iii. 804. 816 
 Hesse v. Albert, ii. 539 
 Hetchman v. Sliotbolt, i. 471 
 Hetherington v. Kemp, i. 398. ii. 228 
 V. Vane, ii. 316 
 
 Hethriiigton r. Graham, ii. 545 
 Heudc'bourck c. Langston, i. 113. 159. ii. 
 
 80. 530. app. ii. iii. 1412 
 Hevey's case, ii. 462 
 Heward v. Shipley, i. 143. ii. 12. 271. iii. 
 
 851 
 Hewison v. Guthrie, app. ii. iii. 1470 
 Hewitt ('. Adams, iii. 1083 
 
 V. Pigott, i. 336. ii. 567 
 
 — — V. Thomson, app. ii. iii. 1365 
 Hewlett V. Crutchley, i. 534. ii. 6S5. 691 
 Hewlins v. Shippam, ii. 473. 481. iii. 748. 
 
 1252 
 Hewson r. Brown, i. 223 
 
 V. Heard, ii. 126 
 
 Heydon v. Thompson, ii. 216 
 Heyman v. Neale, ii. 487. 492. iii. 1197 
 
 V. Parish, iii. 877 
 
 Heys i\ Heseltine, i. 474. 
 Heyser v. Sase, iii. 1224 
 Heysham i\ Forster, 1. 250 
 Hiard v. Bigg, iii. 805 
 Hibbert ?;. Carter, ii. 267. iii. 1224 
 
 V. Shee, iii. 1191.1199 
 
 Hibblewhite v. M'Morine, ii. 347. app. ii. iii. 
 
 1598 
 Hick 11. Keats, ii. 79 
 
 {In re), ii. 117 
 
 Hickenbotham v. Groves, ii. 155 
 Hickes's case, iii. 848 
 Hickey v. Burt, iii. 966 
 
 i\ Hayter, ii. 449, 450 
 
 Hickling v. Hardy, ii. 265. iii. 1205 
 Hickman i'. Sliawcross, ii. 61 
 
 V. Thome, i. 448 
 
 V. Walker, ii. 659 
 
 Hicks V. Beaufort (Duke of), ii. 238 
 
 I'. Hicks, ii. 90 
 
 Hide V. Dodd, iii. 732 
 Higden v. Williams, ii. 176 
 Higgins V. Livingston, iii. 1171 
 
 V. M' Adam, ii. 145. 148. iii. 1011 
 
 V. Nichols, ii. 211 
 
 t;. Sargent, ii. 577, 578 
 
 t'. Scott, ii. 657 
 
 Higgins's case, i. 268. ii. 691. iii. 960 
 Higginson v. Clowes, ii. 486 
 Higgs V. Dixon, i. 372 
 Higham v. Baddeley, iii. 1068, 1069 
 
 d. Jessop {In re), app. ii. iii. 1565 
 
 V. Rabett, iii. 1130 
 
 V. Ridgwav, i. 45. 348. 355. 362, 363. 
 
 iii. 834, 835. 841. app. 1. 616 
 Highfield v. Peake, i. 212. 226. 312. 320. 
 
 326. 336 
 Highmore v. Primrose, ii.98. 214 
 Hilary v. Walker, iii. 904 
 Hildeys v. Gregory, ii. 108 
 Hildyard v. Blowers, iii, 832 
 
 V. Smith, ii. 568 
 
 Hillt). Allen, ii. Ill 
 
 V. Barnes, ii. 596 
 
 V. Bateman, i. 284. ii. 587. 589. 699 
 
 V. Buckley, iii. 1214 
 
 V. Combe, i. 188 
 
 V. Dobie, ii. 189 
 
 V. EUard, iii. 972 
 
 V. Elliott, ii. 27 
 
 V. Farncll, ii. 171. iii. 1226 
 
 V. Featherstouhaugli, ii. Ill
 
 Ixiv 
 
 TABLE OF CASES. 
 
 Hill i>. Fl(™in>r, i. 14(i 
 
 v.dr.ty, ii..l();i. iii. I'Jl."). ]-2:)S 
 
 V. llalibnl, ii. 215 
 
 V. Harris, ii. 147 
 
 V. Hcyle, ii. 146 
 
 V. Heap, ii. 230 
 
 V. Humphreys, ii. 109 
 
 V. Johnson, iii. 1030 
 
 V. Leigh, iii. 1012 
 
 V. M^chester and Salford Water- 
 works Company, ii. 32 
 
 V. Middlesex (Sheriff of), iii. 1012 
 
 V. Patten, iii. 807. 1049 
 
 I'. Perrott, iii. 1204 
 
 V. Read, ii. 253 
 
 V. Slocorabe, app. ii. iii. 15.56 
 
 • V. Street, i. 497 
 
 ?). Sydney, ii. 110. 1 12. app. ii. iii. 1340 
 
 v. Thompson, i. 537 
 
 V. Tucker, iii. 725. 800 
 
 V. Unett, i. 379, 380 
 
 V. Warren, iii. 746 
 
 V. White, app. ii. iii. 1313 
 
 V. Wright, ii. 110. id. 974 
 
 V. Yates, i. 522. 601. ii. 681. 
 
 Ex parte, ii. 184 
 
 Hillay v. Wather, iii. 917 
 
 Hillhouse v. Davis, ii. 570. 579 
 
 Hilliard v. Cox, ii. 441 
 
 V. Phaley, i. 200. 289 
 
 Hills V. Street, ii. 86 
 
 " Ex parte, ii. 194 
 
 Hillyard v. Grantliam, i. 280 
 
 Hilton V. Fairelough, ii. 227, 228 
 
 V. King, iii. 1261 
 
 V. Parish, iii. 953, 954 
 
 V. Shepherd, i. 518. ii. 225. 227. 230. 
 
 234, 235 
 
 V. Swan, ii. 248 
 
 Hilyard v. Jennings, iii. 1265 
 
 Hime v. Dale, iii. 938 
 
 Hinchcliffe v. Hinchcliffe, iii. 784 
 
 • V. Kinnoul (Earl of), app. ii. iii. 1419. 
 
 1611 
 
 Hinde v. Gray, ii. 351 
 
 V. Whitehouse, ii. 487, 488. 490. 492, 
 
 493. iii. 1196. 1221, 1222 
 
 Hindesley v. Russell, ii. 448 
 
 Hindle v. Blades, iii. 1024, 1025. 1034 
 
 — — V. O'Brien, iii. 1102 
 
 V. Pollett, app. ii. iii. 1606 
 
 Hindley v. Westmeath (Marquis of), 
 ii. 542. 545 
 
 Hindmarsh's case, ii. 710 
 
 Hine v. Allely, ii. 225 
 
 V. Beaumont, ii. 417 
 
 Hippings, Ex parte, ii. 165 
 
 Hirst D. Atkinson, ii. 105 
 
 V. Horn, app. ii. iii. 1590 
 
 V. Smith, ii. 444 
 
 Hiscocks V. Jones, iii. 1022, 1023 
 
 V. Wilmot, iii. 1081 
 
 Hiscox V. Barrett, iii. 872 
 
 X). Greenwood, ii. 648 
 
 Hitchcock V. Coker, ii. 35 1 
 
 V. Giddings, iii. 1237 
 
 V. Tyson, ii. 556. iii. 829 
 
 V. Way, app. ii. iii. 1369 
 
 Hitchen v. Best, iii. 900 
 
 r. Teale, iii. 1106. app. ii. iii, ;571 
 
 Ilitchman v. Walton, ii. 181 
 Hoadleyj;. M'Lainc, ii. 491 
 Hoar V. Mill, i. 442. 486 
 Hoare v. Allen, ii. 355 
 
 V. Cazcnove, ii. 210 
 
 i\ Coryton, ii. 149 
 
 V. Dawes, iii. 804. 809 
 
 r. Graham, ii. 242. iii. 762 
 
 V. Hartopp, ii. 049 
 
 V. Parker, ii. 648 
 
 Hobart v. Hammond, i. 515. 517 
 Hobbs V. Branscomb, ii. 601. 
 
 T. Ferrars, a])p. ii. iii. 1.343 
 
 V. Knight, iii. 1289. 1291 
 
 Hobdel V. Miller, ii. 118 
 Hobhouse v. Hamilton, i. 410 
 Hobson V. Middlcton, ii. 347, 348 
 
 V. Todd, ii. 317. 304. 396 
 
 V. Wadsworth, app. ii. iii. 1484 
 
 Hoby V. Built, ii. 112 
 
 V, Roebuck, ii. 481 
 
 Hocken v. Browne, app. ii. iii. 1447 
 Hockin v. Cooke, iii. 1214 
 Hockless V. Mitchell, i. 142. iii. 1143 
 Hockley v. Lamb, i. 120. ii. 320 
 Hodenpyl v, Vingerhoed, ii. 237 
 Hodge w. Fillis, ii. 213 
 Hodge's case, app. i. 030 
 Hodges V. Atkins, ii. 569. iii. 945 
 
 11. Daly, app. i. 612 
 
 V. Drakeford, iii. 757. 1178 
 
 V. Hodges, ii. 541 
 
 r, Holder, i. 427 
 
 V. Horsefall, ii. 57 
 
 V. Lichfield (Earl of), ii. 691. iii. 1193 
 
 V. Steward, ii. 262 
 
 r. Windham, ii. 355,356 
 
 Hodges's case, i. 181 
 
 Hodgkin v. Queenborough, ii. 351 
 
 Hodgkinson r. Fletcher, ii. 545, 546. iii. 1 1 26 
 
 • V. Hodgkinson, i. 478 
 
 V. Marsden, ii. 269 
 
 V. Willis, i. 336 
 
 Hodgson V. Ambrose, iii. 1294 
 
 V. Anderson, ii. 49. iii. 828 
 
 V. Bell, ii. 184. iii. 1061 
 
 V. Brown, iii. 870 
 
 V. Davis, iii. 1196. 1220 
 
 V. Hutchinson, ii. 484 
 
 V. Le Bret, ii. 388 
 
 V. Loy, ii. 103, 164.649. iii. 1220 
 
 V. Malcolm, iii. 877 
 
 V. Parker, ii. 569 
 
 V. Scarlett, ii. 639 
 
 V. Temple, iii. 1217, 1218 
 
 V. Thornborough, ii. 48 
 
 t'. Williams, ii. 86 
 
 Hodgson's case, ii. 37. 305 
 Hodkinson v. Mayer, app. ii. iii. 1341 
 Hodlett V. Mount-Stephen, iii. 977 
 Hodnett v. Forman, i. 311. 376 
 Hodsoll V. Stallebrass, app. ii. iii. 1393 
 Hodson V. Drewry {In re), app. ii. iii. 1342 
 
 V. Marshall, i. 113. 129. iii. 1185. app. 
 
 ii. iii. 1590 
 
 V. Merest, i. 333. ii. 32 
 
 V. Terril, ii. 95 
 
 Hoe V. Nelthorpe, i. 302 
 
 V. Nettlethorpe, (or Nathorp) i. 228
 
 T A ^^ I. n o i- c a s r. s. 
 
 Ixv 
 
 Iloe ?'. Tiivlor, iii. 110-J 
 Hookin v.'Cooke, ii.dO. mir'S 
 Hoffman i». JIarshall, iii. b78 
 
 r. Pitt, ii. 191. iii. 103;l 
 
 Hogan r. Page, ii. 209. 570 
 
 u, Sharpe, app. ii. iii. 149o 
 
 V. Shep, ii. 84 
 
 Hogg t\ Bridges, ii. 120. 174 
 
 V. Goldnev, iii. 882. 884 
 
 V. Mitchell, ii. 109 
 
 V. Snaitli, iii. 757. 702. 782. 1167 
 
 Hoggett V. Oxley, iii. 1099. app. i, G25 
 Hoil V. Clarke, iii. 128G 
 Holl'atch i'. Warner, iii. 740 
 Holliird i\ Anderson, ii. 494. 498 
 Holbrow r. Wilkins, ii. 2GG 
 Holcombe v. Hewsoii. iii. 1239 
 Holcroft V. Heel, iii. 911, 912 
 
 V. Smith, 1. .31 1, 312. 41 1 
 
 Holden v. Glasscock, ii. 117 
 
 V. Hearn, app. i. 598 
 
 Holder v. Coates, iii. 1127 
 Holderness v. Collinson, ii. 647 
 
 V. Shackell, ii. 649. iii. 810 
 
 Holdfast (/. Aiistey v. Dovvsini;, iii. 1205 
 d. Woollams v. Claphain, ii. 3^2. 334 
 
 430 
 Holding V. Piggott, iii. 781. 783 
 
 Ex parte, ii. 148 
 
 Holdingshaw v. Ray, iii. 1138 
 
 Holditch 17. Desanges, ii. 6.50 
 
 Holdsworth v. Dartmouth (Corp.) app. ii. iii. 
 
 1372 
 
 I'. Dartmouth (Mayor of), app. i. 000 
 
 V- Hunter, ii. 215 
 
 Ex parte, app ii. iii. 1350 
 
 Holford V. Dunnett, app. ii. iii. 1S29 
 
 t\ Hatch, ii. 55. 351 
 
 Holl V. Hadlev, i;. 512 
 Holland v. Duffin, iii. 847. 1058 
 
 V. Plopkins, iii. 794, 795 
 
 r. Jourdine, ii. 106 
 
 r. Palmer, ii. 188 
 
 V. Philips, app. i. 631 
 
 r. Phillips, Ml. 1068 
 
 r. Reeves, i. 207. 404. 415. app. i. 
 
 604 
 HoUiday tJ. Atkinson, ii. 242 
 
 V. Camsell, iii. 1146. 11.59 
 
 Hollingworth v Thompson, iii. 1075 
 
 f. Took, ii. 648 
 
 HoUis V. Freer, app. ii. iii. 1538 
 
 V. Goldfinch, i. 352. iii. 1100. 1127 
 
 V. Smitli, ii. 440, 441 
 
 Hollister v. C mlston, i. r;28. iii. 1076 
 Holloway v. Ai)ell, iii. 991 
 
 r. Bennett, iii. 847 
 
 V. Clarke, iii 1287 
 
 V. Rakes, i. 306 
 
 Holloway's cr.se, iii. 723 
 Holman v. Burrough, i. 487 
 
 V. Johnson, iii. 1218 
 
 Holme V. Barry, ii. 266 
 
 V. Green, ii. 669, 670. iii. 808 
 
 Holmes v. Blogg, ii. 92. 658 
 
 V. Clifton, iii. 1019. app. ii. iii. 1553 
 
 V. Goring, iii. 1267 
 
 V. Higgins, iii. 810 
 
 V. Kerrisoii, ii. 661 
 
 jr. Love, iii. 966. 9G7 
 
 VOL. I. 
 
 Holmes ?•. Muntzc, iii. 80') 
 
 V. Newlands, app. ii. iii. 1471 
 
 r. Pontin, i. 376. iii. 1181 
 
 V. Walsh, i. 307. iii. 95-8 
 
 V. Wennington, ii. 171 
 
 i\ Williamson, ii. 74 
 
 V. Wilson, app. ii. iii. 1578 
 
 Holmes' case, app. ii. iii. 1505 
 Holroyd r. Breare, iii'. 750. 1031. 1112 
 
 I'. Doncaster, iii. 1110 
 
 V. Gwynne, ii. 128. 131, 132. 134 
 
 V. Whitehead, ii. 131. 133. 171 
 
 Holsten r. Jumpson, iii 768. 787 
 Holt V. Brien, ii. 541.662 
 
 V. Miers, app. i. 610. 622. app. ii. iii. 
 
 1360 1591 
 
 t'. Squire, ii. 208. 237 
 
 V. Tyrrell, i. 168. iii. 12G5 
 
 V. Ward, ii. 555 
 
 Holton i\ Shepherd, ii. 681 
 Holylaud, Ex 'parte, iii. 1285 
 Home c. Bentinck, i. 72. 184 
 
 V. Mackenzie, app. i. 601 
 
 Honeywood v. Peacock, i. 371. 376 
 Honsego v. Cowne, ii, 226, 227 
 Houyer v. Lushington, i. 293 
 Hood r. Beauchamp, iii. 834 
 
 V. Reeve, ii. 30. iii. 778. 78;> 
 
 Hooghton, iii. 1.307 
 Hooker v. Wilks, it. 500. 506 
 Hooley v. Hatton, iii. 783 
 Hooper v. Hooper, i. 258 
 
 V. Lusby, iii. 809 
 
 V. Smith, ii. 137, 188, 139. 175 
 
 V. Stephens, ii. 668 
 
 V. Summersett, ii. 447 
 
 r. Till,ii. Ill 
 
 V. Truscott, app. ii. iii. 1405 
 
 Hoost's case, ii. 467 
 
 Hopcroft %\ Keys, iii. 974 
 
 Hope V. Atkins, iii. 759, 760. 1240 
 
 V. Bogue, ii. 454 
 
 V. Booth, ii. 183. iii. 1178. 1183 
 
 V. Fletcher, ii. 150 
 
 V. West, app. ii. iii. 1397 
 
 Hopewell v. De Pinna, ii. 365. 548 
 Hopkins v. Appleby, iii. 1211 
 
 V. Crowe, ii. 603. app. ii. iii. 1577 
 
 V. Grazebrook, iii. 1192 
 
 V. Jones, i. 298, 299 
 
 V. Neale,i. 168 
 
 V. Thorogood, iii. 1260. app. ii.iii. 156S) 
 
 Hopkinson v. Smith, ii. Ill, 112 
 Hopper V. Reeve, iii. 1107. 1112 
 
 I'. Richmond, ii. 146. 576 
 
 V. Smith, app. i. 591 
 
 Hopwood r. Beckett, iii. 1076 
 
 V. SL-hofield, ap). ii iii. 1539 
 
 Hordern i'. Dalton, iii. 728 
 Hore V. Milner, i. 463. iii. 1201 
 
 V. Whitmore, iii. 874 
 
 Horford v. Wilson, i. 137. 532 
 
 Horn «. Baker, i. 525. ii. 155. 153, 159. 
 
 161, 162. iii. 1207. 1248. 1247 
 
 V. B nsusaii, app. ii. ill. 1622 
 
 V. Noel, ii. 703 
 
 u. Swinford, i. 92 
 
 Hornblower v. Boulton, iii. 940 
 
 I'. Proud, ii. 154, 155. 167. '2G7. iii. 
 
 1U8
 
 I XVI 
 
 T A i) L E OF CASE S. 
 
 IIoi'nl)uckle i;. Ilornbuiy, ii. 539 
 
 Hornby v. Houlditcli, ii. 184 
 
 V. Lacy, iii. 1 1 i)8 
 
 Hornciistk; v. Farran, ii. 649, 650 
 
 V. Stuart, iii. 874. 877 
 
 Home V. Adderley, ii. 520 
 
 • -and another v. Mackenzie and ano- 
 ther, app. ii. iii. 1609 
 
 V. Eedfearne, app. ii. iii. 1557 
 
 V. Smith, i. 80 
 
 Horner v. Graves, ii. 06. 351 
 
 V. Liddiard, ii. 701 
 
 Horneyer v. Lushiugton, iii. 890 
 
 Hornidge v. Wilson, app. ii. iii. 1416 
 
 Horsburgli r. Orme, iii. 831 
 
 Horsefall v. Mather, iii. 1245 
 
 V. Testar, i. 458 
 
 Horseley v. Bell, ii. 2 iii. 1170 
 
 Horsey 's case, ii. 186 
 
 Horsfall v. Handley, ii. 83. 88 
 
 i\ Fauntleroy, ii. 45 
 
 Horsly v. Daniel, ii. 436 
 
 Horton v. Horton, iii. 1273 
 
 Horwood V. Hepper, ii. 71. 538. 541 
 
 V. Smith, iii. 1155. 1225 
 
 Hosier v. Arundell'(Lord), ii. 104 
 
 Hoskins v. Knight, iii. 1027 
 
 V. Pickersgill, iii. 886 
 
 V. Robins, ii. 473 
 
 i\ Robinson, iii. 1252 
 
 1'. Slayton, iii. 1301 
 
 Hossack ». Marion, iii. 1167 
 
 Hotham v. East India Company, ii. 67 
 
 Hough V. Marchant, iii. 1140 
 
 r. May, iii. 822. app. ii. iii. 1515 
 
 HoHgham t;. Sandys, iii. 901 
 
 Houghton V. Butler, iii. 1143. 1157 
 
 V. Ewbank, iii. 866 
 
 V. Gildart, app. ii. iii. 1523 
 
 V. Matthews, ii. 648. iii. 821 
 
 Houlditch V. Birch, iii. 1021 
 
 V Canty, app. ii. iii. 1364 
 
 V. Desanges, app. ii. iii. 1583 
 
 V. Donegal (Marquis), app. ii. iii. 
 
 1423 
 
 V. Milne, ii. 478. 508 
 
 Houldsworth v. Wise, iii. 881 
 
 Houle I'. Baxter, ii. 184 
 
 Houliston r. Smith, ii. 541. 546 
 
 Ilounsfield t\ Drury, app. ii. iii. 1445. 
 1476 
 
 Houriet v. Morris, ii. 240 
 
 House V. Bullock, ii. 404 
 
 V. Thames Navigation (Commission- 
 ers of), iii. 1141 
 
 Housego V. Cowne, app. ii. iii. 1364 
 
 Houseman v. Roberts, i. 400, 401 
 
 Housing'. Barrow, ii. 717 
 
 Houstman v. Thornton, iii. 878 
 
 Houston V. Mills, ii. 103 
 
 ti. Robertson, iii. 994 
 
 Hovil V. Browning, ii. 171 
 
 V. Pack, ii. 169 
 
 Hovill V. Stephenson, i, 18. 129, 130. 376. 
 ii. 106. iii. 804 
 
 How V. Hall, i. 403, 404. iii. 1155 
 
 V. Kennett and another, app. ii. Iii. 
 
 1589 
 
 V. Pickard, i. 537 
 
 V. Strode, i. 532 
 
 Howard v. Bnrtonwood, i. 244. ii. 355 
 
 r. Canfield,i. 180, 181 
 
 V. Castle, iii. 1212 
 
 V. Chapman, iii. 819 
 
 V. Chichester (Bishop of), ii. 673 
 
 i;. Duncan, ii. 116 
 
 ?». Hodges, ii. 04. iii. 1185 
 
 V. Peete, iii. 1103 
 
 V. Poole, ii. 180 
 
 V. Ramsbottom, ii. 125 
 
 1\ Shaw, app. ii. iii. 1587 
 
 V. Shipley, ii. 11 
 
 V. Smith, iii. 1054. app. ii. iii. 1556 
 
 V. Tremaiue, i. 817 
 
 V. Tucker, ii. 74 
 
 V. Wemsley, ii. 413 
 
 V. Wood, Ii. 84 
 
 Howarth's case, ii. 693 
 
 Howden v. Haigh, app. ii. iii. 1331. 
 
 1427 
 Howe I'. Bowes, ii. 210 
 
 V. Cooker, iii. 1075 
 
 V. Palmer, ii. 489. iii. 1196 
 
 Howell V. Brodie, iii. 810. app. ii. iii. 1505 
 
 V. King, iii. 1257 
 
 i\ Lewis, app. ii. iii. 1589 
 
 V. Locke, i. 93. 136, 137 
 
 V. Main, ii. 535 
 
 V. Richards, i. 458. 484. ii. 342, 343. 
 
 379 
 
 I'. Stratton, iii. 851 
 
 V. Thomas, i. 497 
 
 V. White, iii. 1030 
 
 r. Wink, iii. 969 
 
 t\ Young, ii. 659, 660 
 
 Ex parte, ii. 148 
 
 (Thomas) in the goods of, app. ii. iii. 
 
 1616 
 Howes V. Martin, ii. 77. 479 
 Howis i\ Wiggins, ii. 185 
 Howitt V. Thompson, ii. 228 
 Howleston v. Smyth, i. 302 
 Howlett V. Haswell, ii. 557 
 
 V. Strickland, iii. 993 
 
 Howson V. Hancock, ii. 95, 96 
 Howton V. Frearson, iii. 743. 1257 
 Hoyd V. Buckland, ii. 481 
 Hoye V. Bush, app. ii. iii. 1570 
 Hoyle V. Hamilton, iii. 771 
 Hubbard r. Bagshaw, ii. 155. iii. 1245 
 
 V. Jackson, iii. 867. 874. 1043 
 
 1'. Johnstone, i. 512 
 
 Hubert v. Grove, iii. 740. 743. app. ii. iii. 
 
 1613 
 
 V. Moreau, ii. 188 
 
 Hncker i;. Gordon, iii. 1024 
 Huckmani'. Fernie, i. 417. app. ii. iii. 1525 
 Hucks V. Thornton, iii. 880 
 Huddlestone v. Briscoe, iii. 1055. 1057 
 Hudson i\ Barton, iii. 827 
 
 V. Brown, app. i. 024 
 
 V. Granger, iii. 822 
 
 V. Harrison, iii. 881 
 
 V. Hudson, iii. 1148 
 
 V. Revett, i. 370. ii. 378 
 
 V. Robinson, i. 112. 132. 164. 278. 
 
 281. ii. 4. iii. 818. 1230 
 Hudson's case, i. 375. iii. 1208 
 Huet V. Le Mesurier, i. 244 
 HufTam r. Ellis, ii. 210
 
 TABLE OF CASES. 
 
 Ixvii 
 
 Huffell V. Armitstearl, app. ii. iii. 1407 
 Husgett V. Montgomery, iii. 737. 739. 
 
 1106. 1108. 11-20 
 Hughes u. Biddulph, ii. 321 
 
 V. Breeds, ii. 487. iii. 1039 
 
 V. Budd, app. i. 621. ii. iii. 1557. 
 
 1579. 1620 
 
 V. Cornelius, iii. 890 
 
 V. Gordon, iii. 778. 1237 
 
 I'. King, iii. 1045 
 
 V Launy, iii. 1307 
 
 V. Marshall, iii. 1218 
 
 V. Morley, ii. 186 
 
 V. Quentin, app. ii. iii. 1494 
 
 V. Rees, app. ii. iii. 1462 
 
 V. Rogers, app. ii. iii. 1435 
 
 V. Thomas, ii. 662. iii. 1101 
 
 V. Thorpe, app. ii. iii. 1337. 1509 
 
 ?'. Watson, i. 247 
 
 V. Wilson, iii. 879 
 
 V. Wynne, app. ii. iii. 1594 
 
 Hughes's case, i. 501. ii. 468. 470. 549 
 Hull V. Heightman, ii. 92. iii. 1304, 1305, 
 
 1306 
 (Mayor of) v. Horner, i. 297. iii. 904. 
 
 1087 
 
 V. Pitfield,ii. 251 
 
 V. Smith, iii. 738 
 
 V. Vaughan, iii. 1179, 1180. 1183 
 
 Hull and Selby Railway, In re, app. ii. iii. 
 
 1609 
 Hullman v. Bennett, i. 475 
 Ilulme V. Coles, iii. 1067 
 
 • V. Heygate, iii. 1 289 
 
 V. Mugleston, app. ii iii. 1357 
 
 Hulton V. Bragg, ii. 649 
 Humbert v. Rudiug, ii. 221 
 Humble v. Hunt, i^ 228. 236. 245 
 
 V. Langston, app. ii. iii. 1330 
 
 V. Mitcliell, ii. 486. app. ii. iii. 1429 
 
 V. Rundall, i. 266 
 
 V. Trott, ii. 453 
 
 Hume V. Bolland, ii. 80 
 
 V. Oldaere, ii. 298. 504. iii. 1105 
 
 r. Peploe,ii. 250. iii. 1071, 1072 
 
 Humphrey v. Miller, i. 104. 167. ii. 629 
 
 • V. Mitchell, app. ii. iii. 1577 
 
 V. Moxon, i. 131. ii. 257 
 
 Humphreys v. Boyce, ii. 32. 554 
 
 V. Bryant, ii. 79 
 
 V. Budd, app. i. 6-35 
 
 V, Partridge, ii. 648 
 
 V. Pensam, i. 314 
 
 V. Pratt, iii. 1062 
 
 V. Carvalho, iii. 1219 
 
 V. Knight, i. 237 
 
 Hungerford v. Earle, ii. 498 
 Hunt V. Alewyn, i. 387 
 
 • V. Andrews, i. 248. ii. 501, 502 
 
 ■ V. Brainer, app. ii. iii. 1501 
 
 • V. De Blaquiere, ii. 541 
 
 V. Hort, iii. 754 
 
 V. Jones, ii. 636 
 
 V. Mortimer, ii. 141 
 
 V. Roy. Exch. Ass. iii. 881 
 
 V. Silk, ii. 72. 92. iii. 1193, 1194. 1209. 
 
 1211. 1228 
 V. Stevens, ii. 440, 441. iii. 1034. 
 
 1056 
 Hunt ?•. Ward, ii. 104. iii. 1226 
 
 Hunt, Ex 2}arte, app. ii. iii. 1581 
 
 Hunter v. Beal, ii. 164. iii. 1226 
 
 • V. Britts, ii. 434. 436 
 
 V. French, ii. 677 
 
 V. King, ii. 470. iii. 1033 
 
 ■ 11. Leathley, i. 149 
 
 V. Parker, app. ii. iii. 1583 
 
 V. Potts, ii. 168. 186 
 
 V. Rice, ii. 119. 407. iii. 1148 
 
 j\ Welsh, iii. 795 
 
 V. Westbrook, iii. 1143 
 
 Ex parte, iii. 1062. 
 
 Huntingtower (Lord) i'. Gardiner, i. 537. 
 ii. 271 
 
 V. Ireland, ii. 271 
 
 Huntley v. Bulwer, app. ii. iii. 1341 
 
 V. Sanderson, ii. 659, 660 
 
 Huntley Peerage, app. i. 607. ii. iii. 1518 
 
 Hupe V. Phelps, iii. 1310 
 
 Hurd v. Brydges, ii. 127 
 
 V. Fletcher, ii. 347, 348 
 
 V. Leach, ii. 109 
 
 Hurd's case, ii. 69 
 
 Hurdyr. Wink, ii. 393 
 
 Hurry v. Mangles, ii. 163. iii. 1226 
 
 V. Rickman, app. ii. iii. 1400 
 
 Hurst V. Beach, iii. 784 
 
 V. Gwennap, ii. 167. 170 
 
 V. Orbell, ii. 91 
 
 V. Parker, ii. 657, 658. 662 
 
 V. Royal Exchange Assurance Com- 
 pany, i. 516 
 
 V. Watkis, iii. 796 
 
 Husbands, Ex parte, ii. 205 
 
 Hussey v. Christie, ii. 649 
 
 V. Cook, ii. 618 
 
 r. Crickett, iii. 1234 
 
 V. Feddall, ii. 153 
 
 V. Jacob, iii. 1234 
 
 Hutchings v. Morris, ii. 388 
 
 Hutchins v. Chambers, ii. 390. 393. iii. 
 
 953 
 V. Scott, ii. 392. iii. 1051 
 
 V. Whitaker, ii. 390 
 
 Hutchinson v. Bell, ii. 375. iii. 992 
 
 V. Bowker, app. i. 635 
 
 — — V. Fernie, ii. 1 
 
 V. Gascoigne, ii. 127 
 
 f. Heyworth, ii. 176. iii. 1043. app. 
 
 ii. iii. 1326 
 
 V. Johnstone, iii. 1017 
 
 V. Lowndes, ii. 591, 592 
 
 V. Morley, iii. 1214 
 
 V. Piper, i. 471. ui. 849. 1076. 1186 
 
 V. Reed, iii. 992 
 
 Hutchinson's case, i. 282. 294 
 
 Huth, Ex parte, app. ii. iii. 1 353 
 
 Hutton V. Gray, ii. 485 
 
 V. Parker, app. ii. iii. 1332 
 
 V. Warren, ii. 413. iii. 783 
 
 Huxham v. Smith, i. 273. 277. 473. ii. 16. 
 iii. 1008. 1070 
 
 Huxley v. Berg, i. 147. iii. 1105. 1116 
 
 V. O'Connor, iii. 1050 
 
 Huzzey v. Field, app. ii. iii. 1322. 1609 
 
 Hyat V. Hare, ii. 59 
 
 Hyde v. Cogan, ii. 533 
 
 V. Johnson, ii. 666 
 
 V. Mersey and Trent Navigation Co.-n- 
 
 p:my,ii. 283.287 
 e"2
 
 Ixviii 
 
 TABLE OV CASES. 
 
 Hyde v. Price, ii. ,')47 
 
 r>. Windsor (Canons o^), ii. 3413 
 
 Hyde's case, ii. 
 
 Hyeling v. Hastings, ii. 70. 557. CG2 
 
 Icely t\ Grew, ii. 103 
 
 Isguldcn V. May, iii. 778. 1275 
 
 Hderton v. Atkinson, i. 118. 130, 131. 151. 
 
 ii. 259. iii. 1221) 
 Illingwortli r. Leigh, i. 241. 325, 32G. 364. 
 
 iii. 1089. 1091, 1092 
 Ilott V. Wilkes, iii. 734, 735 
 Imason v. Cope, iii. 1140 
 Imperial Gas Company v. Clarke, ii. 5G5 
 Iinpey v. Taylor, i. 492 
 Ince V. Hay, i. 487 
 Incledon v. Eeny, ii. (580. 682, 683 
 
 V. Burgess, i. 258 
 
 Industry (The), iii. 1299 
 
 Ingle V. Bell, app. ii. iii. 1578 
 
 Ingleby v. Swift, ii. 21 
 
 Ingledew v. Douglas, ii. 98. 241. 556. 558 
 
 Ingieton v. Butler, ii. 142 
 
 Inglis r. Grant, ii. ISO. 140 
 
 V. M'Dougall, ii. 189. iii. 1062 
 
 V. Spence, ii. 24. 150 
 
 V. Usherwood, ii. 163 
 
 Ex parte, '\. 165 
 
 Ingliss V. Haigii, npp. ii. iii. 1474 
 Ingram v. Dade, i. 136 
 
 V. Luwson,ii. 630. 643. app. i. 613. 
 
 625. ii. iii. 1465 
 
 V. Lea, i. 505. ii. 58. iii. 792. 1036. 1039 
 
 V. Shirley, iii. 1204 
 
 Innes v. Levy, iii. 1032 
 
 V. Stephenson, iii. 819 
 
 In re Addis, ii. 591 
 
 Barham, app. ii. iii. 1349 
 
 Bowness, iii. 1061 
 
 Brandon, app. ii. iii. 1340 
 
 Bryant, iii. 7.30 
 
 Burt, iii. 1074 
 
 Cadd, ii. 194 
 
 Cargey, ii. 118 
 
 Cassell, ii. 116 
 
 . Craike, app. ii. iii. 1343 
 
 Douglas, ii. 161 
 
 Gould, ii. 193 
 
 Greenwood, app. ii. iii. 1 342 
 
 Hare, ii.' 118 
 
 Hick, ii. 117 
 
 Higham and Jessop, app. ii. iii. 1 565 
 
 Hodson V. Drewry, app. ii. iii. 1342 
 
 Leak, ii. 181 
 
 Markby, app. ii. iii. 1326 
 
 Milne, app. ii. iii. 1342 
 
 Murray, Goods of, ii. 555 
 
 Naish, iii. 1185 
 
 Odwin V. Forbes, ii. 186 
 
 Power, ii. 181 
 
 Prangley, app. ii. iii. 1565 
 
 Stein &, Co., ii. 186 
 
 Tandy v. Tandy, app. iL iii. 1342 
 
 — — Wansborough, iii. 1041 
 
 Webb. ii. -283. 287 
 
 Ireland (Bank of) v. Beresford, ii. 244. 1064 
 
 Ireland v. Powell, i. 32 
 
 ■ V. Thompson, app. ii. iii. 1501 
 
 Ireson v. Pearn]an,ii. 112. 113 
 
 Irnham (Lord) r. Child, iii. 7.38. 765. 
 
 Irons V. Sniallpicce, iii. 896. 1148 
 Irving V. Greenwood, iii. 707, 708, 709 
 
 V. King, ii. 68 
 
 (•. Mackenzie, i. 464 
 
 t'. Motley, ii. 41. 45 
 
 V. Veitch, ii. 668 
 
 V. Wilson, ii. 85. .581. 594 
 
 (rwin V. Dearnian, iii. 989, 990 
 Isaac V. Belcher, ii. 182. iii. 1168 
 
 V. Clarke, ii. 457. iii. 912. 925 
 
 Isaacs V. Brand, i. 522. ii, 601. 681. 083 
 
 V. Belcher, iii. 1168 
 
 Ishaui V. Wallace, i. 245 
 
 Israel v. Benjamin, iii. 828. 1056 
 
 V. Clarke, ii. 296. iii. 728 
 
 V. Douglas, ii. 74. 80 
 
 V. Israel, iii. 1036. 10-JO 
 
 V. Simmons, iii. 803. 1179 
 
 Israeli v. Rodon, app. ii. iii. 1015 
 Ivatt V. Finch, i. 357. ii. 33 
 Ive V. Scott and another, app. ii. iii. 1411 
 Iveson V. Couington, ii. 114. iii. 1301 
 
 V. Moore, iii. 740. app. ii. iii. 1613 
 
 Ivey V. Young, i. 497 
 Izett V. Mountain, ii. 290. 292 
 Izod V. Lamb, iii. 1029 
 Izon V. Gorton, iii. 1176 
 
 Jacaud v. French, ii. 249. iii. 802, 803 
 Jacks V. Bell, iii. 11 14 
 Jackson v. Allen, i. 409 
 
 V. Anderson, iii. 814. 11.37, 1 158, 1 159 
 
 V. Attrill, ii. 64 
 
 V. Benson, i. 106 
 
 V Biirleigh, ii. 686. 689, 690 
 
 . V. Cummings, app. ii. iii. 1468 
 
 V. Curwen, ii, 8.5 
 
 V. Duchaire, i. 531. ii. 64. 248 
 
 V. Fairbank, ii. 149. 669, 670 
 
 V. Galloway, app. i. 599 
 
 V. Gisling, ii. -370 
 
 V. Hesketh, i. 427. ii. 1. ill. 1255 
 
 V. Hill, app. ii. iii. 1553 
 
 V. Hunter, iii. 1233 
 
 V. Irwin, ii. 144. 147. 149. 1.58 
 
 V. Jacob, app. ii. iii. 1594 
 
 V. Lomas, ii. 94. 247 
 
 V. Lowe, ii. 491 
 
 V. Nichol, app. ii. iii. 1 354 
 
 V. Porter, ii. 491 
 
 V. Robinson, app. ii. iii. 1.341 
 
 V. Shepherd, iii. 1040 
 
 V. Shillito, iii. 1250 
 
 V. Stacey, iii. 1255. 1257 
 
 V. Tollett, iii. 736 
 
 V. Walker, iii. 1082 
 
 — V. Warwick, ii. 247. iii. 1056 
 
 Jackson's case, ii. 717 
 Jacob V. Dallor, iii. 865 
 
 V. Hart, ii. 255 
 
 V. Humphrey, iii. 1034 
 
 V. Huncjate, app. ii. iii. 1367, 1368 
 
 V. King, ii. 391. iii. 909 
 
 V. Kiik, ii. 492 
 
 V. Lee, i. 402 
 
 V. Lindsay, i. 178. 505. ii. 34. iii. 792. 
 
 1037. 1049. 1059 
 
 V. Rowntree, iii. 967 
 
 V. Shepperd, ii. 142 
 
 Jacobs V. Hart, ii. 205. iii. 1043
 
 TABLE OF CASES. 
 
 Ixix 
 
 Jacobs 11. Latour, ii. 1-4. U), (350 
 
 V. Nelson, ii. 284 
 
 r. Phillips, ii. 184 
 
 Jacobs's case, li. 703 
 Jacques i\ Goliglitly, ii. 9;< 
 
 V. Whiteoiiil), iii. 1032 
 
 i\ Withy, ii. 93 
 
 Jacquot V. Bourra, app. ii. iii. 1(524 
 Jagger's case, ii. 554 
 Jaggers i\ Binning*, ii. 32 
 James v. Beddington, ii. 354 
 
 V. Catherwood, iii. 1047 
 
 t: Child, iii. 793 
 
 c. Cotton, ii. 91 
 
 /•. Dean, iii. 1289 
 
 i\ Griftii), app. ii. iii. 1354 
 
 V. Hatfield, i. 168. li. 28 
 
 V. Holdiich, if. 2G0 
 
 V. Mitchell, iii. 1292 
 
 • V. Phelp , app. ii. iii. 1476 
 
 V. Salter, app. i. 627. ii. iii. 1470 
 
 V. Saunders, ii. 581 
 
 V. Shore, i. 448. iii. 1199 
 
 c. Swift, ii. 582 
 
 r. Thomas, ii. 269 
 
 Ex parte, ii. 190. app. ii. iii. 1350 
 
 James's case, i. .336 
 Jameson v. Campbell, ii. 184 
 
 r. Drlnkald, iii. 736 
 
 Janiieson v. Bowes, ii. 209 
 
 r. Earner, ii. 131. 136 
 
 r. Swintcn, ii. 225 
 
 Jane, case of the, iii. 889 
 
 Jansen v. Wilson, i. 317. ii. 194 
 
 Janson v. Brown, ii. 505. iii. 1137 
 
 Jaquet v. Lewis, ii. 270 
 
 Jardine v. Payne, ii. 97. 204. iii. 1058 
 
 Jarraain ii. Algar, ii. 478 
 
 Jiunian v. Woolotou, ii. 1.59. 161. 495. 538 
 
 Jarratt v. Steele, iii. 866 
 
 Jarrett v. Leonard, i. 532. ii. 150 
 
 Jarvis v. Chappie, iii. 995 
 
 V. Dean, ii. 525. iii. 734. 1258 
 
 V. Hayes, i. 149 
 
 V. Wilkins, app. ii. iii. 1362. 1433 
 
 Jay r. Warren, ii. 251 . iii. 1045 
 
 Jayne r. Price, ii. 399. 411. iii. 897 
 
 Jeac ick v. Falktner, iii. 762. 764. 785. 
 
 1273 
 Jebb v. M'Kierann, ii. 116. iii. 1042 
 
 v. Povey, iii. 1254 
 
 Jec V. Hockley, iii. 1090 
 
 V. Thurlow, ii. 396. 545 
 
 Jefieries v. Dunconibc, i. 465. ii. 628 
 
 V. Sheypard, ii. 746. iii. 1023 
 
 V. Small, iii. 803 
 
 Jefferson v. Jctrerson, iii. 1244 
 
 V. Morton, ii.409 
 
 Jf ftersoa's case, ii. 471 
 
 Jetfery v. B.istard, iii. 1024, r025 
 
 V. M'Taggart, i. 270 
 
 V. Walton, ii. 57. 71. iii. 757. 789 
 
 JetiVey v. Barrow, ii. 521 
 Jeffreys r. Walter, iii. 1235 
 Jeffries v. Clare, app. ii. iii. 1333 
 J efts V. Smith, ii. V.'U 
 
 V. Wood, iii. 996 
 
 Jekyl r. Moore (Sir John), ii. 638 
 
 Jelfr. Orvil, i. 4;)5 
 Jelfs V. Ballard, ii. 188 
 Jell V. Douglas, iii. 803 
 
 V. Pratt, iii. 819. 882. 892 
 
 Jellis V. Mountford, ii. 148 
 Jenk'scase, ii. 520 
 Jenkins r. Barker, ii. 3.33 
 
 V. Blizard, i. 234. ii. 239. iii. 812. 1036 
 
 V. Edwards, iii. 1067. 1072 
 
 v. Pliillips, app. i. 623. 631 
 
 v. Plombe, ii. 440 
 
 r. Portman, app. ii. iii. 1602 
 
 V. Power, iii. 892 
 
 V. Reynolds, ii. 482 
 
 V. Trelour, i. 498 
 
 V. Tucker, ii. 71. iii. 828 
 
 V. Turner, iii. 734 
 
 Jenkinson v. Pepys, iii. 761 
 
 V. Royston, iii. 1089 
 
 Jenner v. Clee,g, iii. 971 
 Jenner t\ Yulland, ii. 390, 891 
 Jennings v. Griffith, iii. 1301, 1302 
 
 t\ Major, app. ii. iii. 1563 
 
 V. Newman, ii. 444 
 
 V. Rundall, ii. 556 
 
 V. Thrograorton, iii. 1184, 1185 
 
 V. Turner, app. ii. iii. 1592 
 
 JEx parte, ii. 1.54 
 
 Jennings' case, app. ii. iii. 1478 
 
 Jenny v. Herle, ii. 215 
 
 Jeremy v. Strangeways, iii. 1081 
 
 Jervis v. Hay, i. 158 
 
 Jervoise v. Northumberland (Duke of), 
 
 ii. 333 
 Jesse V. Bacchus, ii. 432 
 Jesser v. GifFord, app. ii. iii. 1539 
 Jesson V. Collins, ii. 698 
 Jeudwine v. Slade, ii. 373. 376. iii. 1238 
 Jeune v. Ward, ii. 207, 208 
 Jewison v. Dyson, app. i. 608 
 Jewry I'. Busk, iii. 1298 
 Jewson V. Drinkaid, i. 175 
 Jobson V. Forster, ii. 440 
 John V. Currie, i. 496 
 
 V. Fothergill, i. 121 
 
 V. Jenkins, iii. 975 
 
 Jolm's case, ii. 367 
 
 Johnson, John, in the Goods of, app. ii. iii. 
 
 16i9 
 Johnson r. Alston, ii. 112 . 
 
 v. Baker, 1. 167. 374 
 
 V. Barrett, iii. 1100 
 
 V. Bellamy, ii. 458 
 
 V. Brazier, iii. 1237 
 
 V. Brook, i. 151 
 
 V. Browning, ii. 677, 678. 685 
 
 V. Bunn, iii. 1234 
 
 V. Collins, ii. 104. 207. 262. iii. 758 
 
 V. Dodgson, ii 105. 485. 490 
 
 v. Durunt, i.272.ii. 117, 118, 119 
 
 V. Etheridge, ii. 649 
 
 I'. Evans, ii. 638. 640 
 
 t;. Garnett, iii. Ul51 
 
 V. Gibbs, iii. 1052 
 
 r. Gillett, ii. 122 
 
 I'. GilsoT), 1. 40-2, 403, 414 
 
 V. Hereford Churchw'aidens, &c., app. 
 
 ii. iii. 1387 
 
 V. Hewsjn, iii. 1118 
 
 r. Hill, ii. 561.648 
 
 c 3
 
 Ixx 
 
 TABLE 01' CASES. 
 
 Johnson v. Iloldsworth, u])\). ii. iii. 1530 
 
 11. Hudson, ii. (r21. iii. 1218 
 
 V. Jones, iii. 974 
 
 V. Lawson, iii. 8:35 
 
 V. Leigh, ii. 597. iii. 1133 
 
 V. Lewellyn, i. 370. 406 
 
 r. Lord, iii. 731 
 
 V. Mac Adam, iii. 989 
 
 V, Marlborough (Duke of), iii. 25C. 
 
 1043 
 V. Mason, i. 371. ii. 41. 273. iii. 8GG. 
 
 977 
 
 V. May, iii. 1174 
 
 V. Mediicott, ii. 396 
 
 II. Peck, iii. 802 
 
 V. Piper, ii. 126 
 
 V. Prickett, i. 456. ii. 63 
 
 1'. Read, app. ii. iii. 1455 
 
 V. Sheddon, iii. 882 
 
 V. Smith, i. 328. ii. 583. iii. 107G. 1 078 
 
 V. Stainbridge, iii. 732 
 
 V. Thorouc^hgood, i. 449 
 
 V. Wan], i. 247. ii. 44. iii. 872 
 
 V. Wells, iii. 1287 
 
 V. Windle, app. ii. iii. 1581 
 
 V. Whitcott, ii. .56 
 
 V. Wolyer, iii. 970 
 
 JSx parte, ii. 226 
 
 V. Johnston, iii. 1287, 1288 
 
 V. Parkes, ii. 701 
 
 V. Usborne, app. ii. iii. 1324 
 
 V. Woolf, app. ii. iii. 1346 
 
 Johnston's case, i. 437 
 
 Johnstone v. Huddlestone, ii. 417. 474. iii. 
 
 972. 1182 
 
 V. Sutton, i. 522. ii. 674.681,682,683 
 
 iJa: parte, ii. 122 
 
 Jolley V. Taylor, i. 403 
 Jolliffe'8 will (Case of), i. 586 
 Jombart v. Woollett, app. ii. iii. 1351 
 Jones V. Arthur, iii. 1009. app. ii. iii. 1563 
 
 V. Atherton, iii. 1017 
 
 V. Barkley, iii. 1188, 1189 
 
 V. Berkeley, ii. 67. iii. 1199 
 
 V. Bird, ii. 582. iii. 733. 747. 1170 
 
 V. Bow, i. 288, 289 
 
 V. Bowden, iii. 1215. 1239 
 
 V. Boyce, ii. 296. iii. 741 
 
 V. Brewer, i. 321.371.374.379 
 
 V. Bright, iii. 1238, 1239 
 
 V. Brindley, i. 493. ii. 74 
 
 V. Brooke, i. 131. ii. 258, 259 
 
 • V. Brown, iii. 989 
 
 V. Burnet, iii. 1078 
 
 V. Clayton, i. 443. iii. 1017 
 
 V. CM, ii. 650 
 
 V. Cooper, ii. 478 
 
 V. Corry, app. ii. iii. 1342 
 
 V. Cowley, i. 459 
 
 V. Darch, ii.217 
 
 V. Dver, ii. 154 
 
 V. Dyke, iii. 1193 
 
 • V. Edney, iii. 1194 
 
 V. Edwards, i. 402. app. i. 632 
 
 V. Ellis, iii. 860. 1102 
 
 V. Flint, ii. 472. 48i>. app. ii. iii. 1318 
 
 V. Fort, ii. 125. 153. iii. 1160 
 
 V. Gooday, app. ii. iii. 1572 
 
 • V. Green, iii. 852 
 
 r. Griffiths, ii. 418 
 
 Jones V. Gvvynn, ii. 686 
 
 V.Hart, iii. 738. 1163 
 
 V. Herbert, iii. 900 
 
 r. Hill, iii. 1245 
 
 V. Hilton, i. 402 
 
 V. Howell, app. ii. iii. 1620 
 
 V. Jones, i. 311. ii. 440. 506 
 
 V. Koene, app. ii. iii. 1597 
 
 I'. Kenrick, i. 428 
 
 V. Lake, ii. 152. iii. 1262 
 
 V. Le David, iii. 1094 
 
 V. Lewis, iii. 1065. 1131. app. ii. iii. 
 
 1488 
 
 V. Llttledalc, iii. 1219 
 
 V. Littler, app. ii. iii. 1462 
 
 V. Macquillin, ii. 708 
 
 V. Mars, ii. 204. 214. 217 
 
 V. Marsh, ii. 418 
 
 V. Mason, i. 95, 96. 102. 134. 375. 
 
 380 
 
 V. Mitchell, iii. 1292 
 
 V. Morgan, ii. 211. 222. 237. iii. 704 
 
 V. Nanney, ii. 102. 105 
 
 V. Newsam, iii. 769 
 
 V. Nicholls, ii. 690 
 
 V. Palmer, app. ii. iii. 1449 
 
 V. Pearle, ii. 561. 648 
 
 V. Perry, i. 33. iii. 734, 735 
 
 V. Powell, iii. 742. 970 
 
 V. Price, ii. 110. app. ii. iii. 1380 
 
 V. Pritchard, i. 139. app. i. 599. ii. iii. 
 
 1451 
 
 I). Rddford, ii.2l6 . 
 
 V. Randall, i. 235. 298. 300. iii. 12.34 
 
 V. Reade, ii. 112. iii. 1309. app. ii. iii. 
 
 1396 
 f. Reynolds, iii. 1175. app. ii. iii. 
 
 1588 
 
 V. Richards, app. ii. iii. 1380 
 
 V. Robinson, ii. 701 
 
 V. Ryde,ii. 87.90 
 
 V. Ryder, ii. 665. 667. iii. 1058 
 
 i;. Salter,!. 424 
 
 V. Scott, ii. 672. app. ii. iii. 147.3 
 
 V. Sheare, ii. 427 
 
 V. Simpson, ii. 582. iii. 1042 
 
 V. Sparrow,!. 534 
 
 V. Statham, iii. 765 
 
 V. Stevens, i. 248. ii. 106. 627. 641 
 
 V.Stroud, i. 179 
 
 V. Tanner, ii. 454. app. ii. iii. 1417 
 
 V. Thomas, app. ii. iii. 1332. 1573 
 
 V. Thurlow, ii. 648 
 
 V. Tucker, iii. 771 
 
 V. Turner, ii. 206 
 
 u. Tyler, ii. 560 
 
 V. Vaughan, ii. 594. 598 
 
 V. Waller, i. 384. iii. 1091 
 
 V. White, i. 279. 281. 308 
 
 I'. Williams, app. ii. iii. 1431, 1520. 
 
 1609 
 
 i> Wilson, ii. 440 
 
 i;. WoUam, ii. 499 
 
 V. Wood, iii. 1009. 1012, 1013 
 
 V. Yates, ii. 471. iii. 802 
 
 JUx parte, ii. 150. app. ii. iii. 1539 
 
 Jones & Palmer's case, ii. 400 
 
 Jones's case, ii. 280 
 
 Jordaine v. Lashbrooke, ii. 10, 11.13.63. 
 
 257, 259, 260. iii. 1047
 
 TABLE OF CASES. 
 
 Ixxi 
 
 Jordan v. James, i. 474 
 
 V, Lewis, ii. 677. 
 
 V. Norton, app. ii. iii. 1596 
 
 V. Tvvells, ii. 370 
 
 Jory i;. Orchard, i. 309. 402. ii. 110. 598. 
 
 iii. 731 
 Joseph i\ Adkins, iii. 1169 
 
 I'. Cavendar, iii. 989 
 
 V. Ingram, ii. 496. iii. 1030 
 
 V. Knox, ii. 284 
 
 V. Orme, ii. 183. 185 
 
 Josephs V. Pebner, iii. 1036 
 Josselyn v. L'Acier, ii. 215 
 Joule V. Jackson, app. ii. iii. 1400 
 Jourdaine i'. Lefevre, ii. 191. 193. 648 
 Jowett V. Charnock, ii. 212. 708 
 Jowles V. Humphrey, app. ii. iii. 1555 
 Joy's (Lady) case, i. 532 
 Joyce V. Cape], app. ii. iii. 1491 
 Joyner v. Vyner, ii. 511 
 Judge V. Cox, iii. 734, 735 
 
 V. Morgan, i. 481. ii. 688 
 
 Judine v. Da Cossen, ii. 134 
 
 Julian t;. Shobrooke, ii. 209 
 
 Juliana (Case of the), iii. 1306 
 
 Jupiter (Case of the), iii. 1305. app. ii. iii. 
 
 1494 
 Jupp V. Grayson, i. 272 
 Jury V. Pigot, ii. 455 
 V. Woodhouse, ii. 447 
 
 Kahl V. Jansen, ii. 45 
 
 Kaimes v. Knightly, iii. 759 
 
 Kain v. Old, ii. 375. 484. 491. iii. 760. 768. 
 
 1238. 1240 
 Kannen v. M'Mullen, iii. 1310 
 Karver v. James, i. 329. iii. 1076 
 Kay V. Brookman, i. 378, 379, 380 
 
 V. Clarke, i. 301 
 
 V. Grover, ii. 597, 598 
 
 V. Groves, ii. 510 
 
 V. Marshall, iii. 940 
 
 V. Pienne (Duchesse de) ii. 547, 
 
 548. 705 
 Kaye v. Bolton, ii. 138 
 Keable v Payne, iii. 1059 
 Kean's case, ii. 694 
 Keane v. Boycott, ii. 555. iii. 991 
 Kearney v. King, i. 485. 509. ii. 213 
 Kearsey v. Carstairs, ii. 189 
 Kearslake v. Morgan, ii. 17. 264, 265. iii. 
 
 1205 
 
 V. White, iii. 773 
 
 Keate v. Temple, ii. 477, 478 
 Keates v. Whielden, iii. 1042, 1043 
 Keatmg v. Bulkly, iii. 1177. 1183 
 
 V. Marsh, iu. 809. 811 
 
 Keblej;. Hickringill, ii. 300, 301. 504 
 Keek's case, ii. 72. iii. 1297 
 Keech t;. Hall, ii. 427, 428 
 
 V. Kennegall, ii. 56 
 
 Keegan v. Smith, ii. 541 
 Keeling v. Hall, i. 409 
 Keen v. Batshore, ii. 98 
 
 V. Effingham (Earl of), iii. 961 
 
 Keene v. Dearden, ii. 409. iii. 916. 
 
 918 
 I^cgg t;. Horton, ii. 442 
 Kefghtley i'. Birch, ii. 393. iii. 1028 
 Kcll V. Nainby, iii. 804. 807 
 
 Kellington v. Trinity College, Cambridge 
 
 (Master, &c. of), i. 237. 240. 309 
 Kellow V. Rowden, ii. 520 
 Kelly r. Partingttiu, ii. 018. 635. 037 
 
 V. Powlett, iii. 1272 
 
 V. Small, ii. 32 
 
 Kelly's case, ii. 711 
 
 Kelsey's case, app. ii. iii. 1315 
 
 Kemble v. Farreu, ii. 31. iii. 852 
 
 V. Mills, app. ii. iii. 1333. 1365 
 
 Kemeys v. Proctor, ii. 492 
 Kemp V. Derrett, ii. 414, 415 
 
 V. Filewood, iii. 746 
 
 V. Gee, ii. 638 
 
 V. Goodall, ii. 104. iii. 757 
 
 V. Lowen, iii. 900 
 
 V. Mackerill, i. 428 
 
 V. Matthews, app. ii. iii. 1604 
 
 Kempe v. Crews, iii. 970 
 
 Kempland v. Macauley, ii. 33. iii. 1014, 
 
 1015. 1018, 1019 
 Kempson v. Saunders, ii. 92 
 
 V. Yorke, i. 416 
 
 Kempton v. Cross, i. 225 
 Kendall r. Hayward, i. 531 
 
 V. Kilshaw, i. 147. iii. 798 
 
 V. Roe, ii. 591 
 
 Keiidrick v. Lomax, ii. 251 
 Kenlyside v. Thornton, iii. 1244. 1247 
 Kenn's case, i. 288 
 Kennaway v. Treleaven, ii. 509 
 
 Kenuebel v. Scrafton, iii. 1288 
 
 Kennedy v. Gadd, iii. 1233, 1234 
 
 V. Green, app. ii. iii. 1490 
 
 V. "Withers, ii. 100. iii. 828 
 
 Kennerley v. Gravina, ii. 46 
 
 V. Nash, ii. 255, 256. 276. iii. 1043 
 
 Kennett i\ Greenwollers, ii. 192 
 
 V. Milbank, ii. 99. 666 
 
 Kennicottt'. Watson, iii. 1081, 1082 
 
 Kenny v. Hutchinson, app. ii. iii. 1505 
 
 Kenrick v. Taylor, ii. 390. iii. 802. 866 
 
 Kensington v. Chantler, iii. 1231 
 
 V. Inglis, i. 180, 181.390. 396. iii. 867. 
 
 876. 1049 
 
 V. Tryer,iii. 862 
 
 Kent V. Huskisson, ii. 488 
 
 V. Lowen, i. 64. 351. ii. 240. 201. iii. 
 
 1186 
 
 V. Pickering, ii. 451 
 
 V. Shuckhard, ii. 560 
 
 Kenyon v. Wakes, iii. 796. 818 
 
 Kenworthy v. Scholefleld, ii. 487. 492, 493 
 
 Ker V. Mountain, ii. 296 
 
 Kerby v. Denby, iii. 1131 
 
 Kerr v. Osborne, ii. 83 
 
 V. Sliedden, app. ii. iii. 1462 
 
 V. Will an, ii. 289 
 
 Kerridge v. Hesse, app. ii. iii. 1621 
 
 Kerrison v. Coatsworth, i. 116 
 
 V. Cole, iii. 1237 
 
 V. Cooke, ii. 251. 253 
 
 V. Doiiien, iii. 1152 
 
 Kershaw v. Cox, ii. 250. iii. 1051 
 
 Kessebower v. Sims, ii. 264 
 
 Kesterton v. Sal. .ay, iii. 907 
 
 Kettle V. Bromsallj'ii. 387 
 
 t'. Hammond, ii. 138 
 
 y. Hunt, ii. 299 
 
 Kewlv V. Rvaii, iii. 873 
 e4
 
 Ixxii 
 
 T A B L K OF CASE S. 
 
 Key V. Cooke, ii. 123,124 
 
 V. Flint, ii. 177, 178. iii. 825. 993 
 
 V. Shaw, ii. 130 
 
 Kevmer v. Sumisiers, iii. 743, 744. 912 
 Keywortht). Hill, iii. 115(5. 11G3. 11(>9 
 Kidd r. Rawlinsoii, ii. 490 
 
 V. Walker, ii. 579. iii. 828 
 
 Kidney t\ Coekburn, iii. 841 
 
 Kidwelly I'. Brand, ii. 422 
 
 Kierau v. Sa!ldar^5, :ii)p. ii. iii. 1599 
 
 Kicrnan u. Jolinson, i. 399 
 
 Kiggill !'. Player, ii. 153 
 
 Kilgour V. Finlaysori, ii. 219. iii. 811 
 
 Kill r. Hollister, if. 119 
 
 Killock V. Greg, iJ. 40 
 
 Kilner v. Bailey, iii. 994 
 
 JSx parte, ii. 131 
 
 Kilvington i: Stevenson, iii. 994 
 Kinaston c. Claj-kc, iii. 1081, 1082 
 Kinder v. Butterworth, ii. 177 
 
 V. Howarti), ii. 180 
 
 V. Williams, i. 91 
 
 Kindersley v. CLace, i. 292, 293, 294. 
 
 iii. 891 
 Kine v. Sewell, a pp. ii. iii. 1464 
 King V. Baker, iii. 97 G 
 
 I". Beaumont, ii. 228. iii. 731 
 
 i\ Bisliop's-Suttou (Inhabitants of), 
 
 ii.531 
 
 V. Boston, iii. 1211 
 
 r. Braddon, app. ii. iii. 1591 
 
 • V. Bullock, ii. 194 
 
 V. Burrell, app. ii. iii. 1521 
 
 t\ Carpenter, iii. 914 
 
 v. Cator, ii. 518 
 
 (Lord) V. Chambers, ii. 530 
 
 V. Dixon, !. 88 
 
 V. Foster, i. 249 t 
 
 r. Francis, ii. 306 
 
 V. Fraser,iii. 1174.1177 
 
 V. Home, iii. 1077 
 
 ?\ King, ii. 560 
 
 i\ Leith, ii. 140 
 
 V, M'Linnan, ii. 443 
 
 V. Martin, ii. 88, 89 
 
 r. Meredith, ii. 284. iii. 1151 
 
 r. Milsom, ii. 210. 218. iii. 900 
 
 r. Morris, i. 480 
 
 V. Phipard, iii. 1132 
 
 V. Pippet, i. 447. 483. ii. 271 
 
 V. Price, iii. 1242, 1243 
 
 V. Sansom, ii. 702 
 
 r. Sheppard, iii. 1135 
 
 V. Smith, iii. 812 
 
 V. Thorn, ii. 443 
 
 V. Turner, ii. 333, 334 
 
 y. Walker, ii. 672 
 
 V. Waring, ii. 305. 631. 634. 610 
 
 ■ V. Williamson, i. 476 
 
 V. Wills, ii. 56 
 
 JE:v jKirte, ii. 181. ajvp. ii. iii. 1352 
 
 Kingdon v. Nottle, ii 445 
 
 Kingham v. Rolins, app. ii. iii. 1517 
 
 Kiugsford v. Marshall, iii. 878 
 
 Ivingsmill v. Bull, i. 448 
 
 Kiugsnorth v. Bretton, ii. 506 
 
 King's-Nortou v. Camden, iii. 999 
 
 Kingston v. Booth, iii. 737, 738 
 
 V. Grey, i. 141. ii. 450 
 
 — — r. Kni'bbs, iii. 88G 
 
 Kingston v. Mackintosh, ii. 578 
 
 V. Phelps, ii. 119 
 
 i\ Preston, ii. 67 
 
 Kingston-upon-llull (Mayor of) v. Horner^ 
 
 i.'340. iii. 912. 916 
 Kingston's (Duchess of) case, i. 177. 2.03. 
 
 250, 257. 265. 267. 287,288. 296. 300. 
 
 ii. 472. 698. iii. 896. 1006 
 Kingaie! v. Knapman, ii. 511 
 Kingvvell v. Elliott, ii. 118. 
 Kinleside v. HarrisJi!, iii. 1279 
 Kinloch v. Craig, ii. 268. 
 
 V. Nevile, app. ii. iii. L529. 1612 
 
 Kinnerley v. Hossack, iii. 997 
 
 Kinnersley v. Orpe, i. 226. 235. 242. 257. 
 
 260. ii. 502 
 Kinsey r. Heyward, iii. 1070 
 Kirbey i-. Denby, app. ii. iii. 1572 
 Kirby v. Banister, iii. 1203 
 V. Marlborough (Duke of), ii. 510. iiL 
 
 824. 826 
 
 V. Sadgrove, ii. 317 
 
 -Ex parte, ii. 193 
 
 Kirk V. Dolby, app. i. 634 
 
 V. French, ii. 677. 687 
 
 V. Nowell, i. 508 
 
 Kirkhack v. Hudson, iii. 957 
 Kirkham v. Martcr, ii. 479 
 Kirkley v. Hodgson, ii. 55 
 Kirkman v. Hargresves, ii. 28G 
 
 V. Jervis,aj!p. ii. iii. 1589 
 
 V. Oxley, ii. 306 
 
 V. Shawcross, ii. 647, 648 
 
 Kirkpatrick v. England (Bank of), app. ii. 
 
 iii. 1399 
 Kirtland v. Pounsett, i. 465. 468, 469. 
 
 iii. 849. 1177. 1179. 1183. 1192 
 Kirton t\ Braithwaite, iii. 1070. app. ii. iii. 
 1563 
 
 V. Wood, ii. 97 
 
 Kirwan v. Coekburn, i. 234 
 
 V. Goodman, app. ii. iii. 1333. 1602 
 
 V. Kirwan, iii. 814 
 
 Kist V. Atkinson, ii. 88 
 Kitchen v. Bartsch, ii. 175. 182 
 
 V. Campbell, i. 253. 260. 262, 263. 
 
 ii. 84. iii. 960. 1166 
 
 I'. Mainwaring, i. 510 
 
 V. Shaw, app. ii. iii. 1453 
 
 Kitchener v. Power, ii. 124 
 Kitching i\ Croft, app. ii. iii. 1446 
 Kite V. Quentin, iii. 768 
 Klinitz V. Surrey, ii. 488 
 Knapp 1'. Haskall, i. 423 
 
 V. Salsbury, iii. 1122 
 
 Knapp"s case, ii. 651 
 Knapton v. Cross, i. 301 
 Knibbs v. Hall, ii. 86. iii. 997 
 Knight V. Adamson, iii. 923 
 
 V. Bennett, ii. 413. iii. 971 
 
 V. Birch, i. 121 
 
 V. Clements, i. 369. ii. 21 1 
 
 V. Crockford, i. 485. 492. iii. 1037. 
 
 1051. 1192 
 
 V. Dauler, i. 230 
 
 V. Fergusson, ii. .565. 
 
 V. Germain, ii. 685 
 
 1-. Gibbs, app. ii. iii. 1 466 
 
 r. Halsey, iii. 904. 1085. 1094
 
 T A 13 L R OP C A b b .S. 
 
 IXXlil 
 
 Knight V. Hnglics, iii. lOGl 
 
 V. Hunt, ii. (Ki 
 
 l: Martin, i. 39D. 407 
 
 I'. M'Dawall, app. i. 63'2. app. ii. iii. 
 
 1537 
 
 r. Stone, ii. 555 
 
 v. Tuniuant, ii. 181 
 
 v. Waterford (Marquis of), app. i. 
 
 615. 620. ii. iii. 1563 
 
 V. Woore, app. i. 598 
 
 Kiiightley v. Birch, iii. 1019 
 
 Knights r. Quarles, ii. -145 
 
 Knill i\ Williams, ii "255. iii. 1051 
 
 Knobell r. Fuller, ii. 642 
 
 Knott r. Farren, ii. G67 
 
 Knowles v. Horsfall, ii. 156. iii. 1224 
 
 V. Michel], ii. 99. iii. 1207 
 
 V. Richardson, iii. 742 
 
 Knowles's case, ii. 3 
 Knox V. Whalley, ii. 267. iii. 1212 
 Koopes V. Chapman, ii. 149. 194 
 Kooystra v. Lucas, iii. 1255 
 Koster r. Eason, iii. 995 
 
 i: Innes, iii. 873 
 
 V. Read, i. .505. iii. 878, 879| 
 
 Kraus i\ Arnold, iii. 1068 
 Kruger r. Wilcox, ii. 648 
 Kuckein r. Wilson, iii. 1225 
 Kynier v. Larkin, ii. 152 
 
 V. Sawercropp, iii. 1203 
 
 Kynaston t:. Jones, i. 509 
 
 V. Parry, ii. 404 
 
 I". Shrewsbury (Mayor, &c. of), iii. 
 
 1311. app. ii. iii.'l532 
 
 Lacaussade v. White, ii. 64. 96. iii. 1233 
 Lack i: Seward, iii. 736. 741 
 Lackington v, Corabe.«, app. ii. iii. 1 357 
 Laclouch V. Towle, iii. 1148. 1166 
 Laeon i\ Higgins, i. 110. 1-50. 294. ii. 2. 
 704 
 
 V. Hooper, i. 247. ii. 145. iii. 1073 
 
 Lacy V. M'Neile, ii. 479 
 
 i: Osbaldiston, app. ii. iii. 1G24 
 
 V. Woolcot, ii. 289. iii. 808 
 
 Ladd V. Lynn, app. ii. iii. 1440 
 
 V. Thomas, app. ii. iii. 1402 
 
 Lade v. Holford, ii. 424. iii. 91 6 
 
 (Sir John) v. Shepherd, iii. 1102 
 
 Lady Caiupbel!, iii. 1305 
 
 ■ Durham, iii. 1305 
 
 Lafitte V. Slater, ii. 230 
 
 Laidler v. Biirlinson, app. ii. iii. 1599 
 
 V. Elliott, iii. 1074 
 
 Laidley v. Sykes, iii. 1030 
 Laing v. Barclay, i. 89 
 
 V. Chatham, iii. 997 
 
 v. Fidgeon, i. 455. ii. 63. iii. 1239 
 
 ■ V. Meader, iii. 1069 
 
 V. Raiiie, i. 371. 410 
 
 V. Stone, ii. 140. 577 
 
 Laird t'. Dixon, ii. 118 
 
 i". Pim, app. ii. iii. 1593 
 
 L-ike v. Billers, i. 329. iii. 1030 
 
 V. Croydon (Hundred of), ii. 531 
 
 V. King, i. 508. ii. 638, 639 
 
 V. Lake, iii. 783 
 
 f. Skinner, i. 241 
 
 Lamb v. Buucc , ii.70. iii. 1298, 1299 
 r. Burnett, iii. 1136. 1141 
 
 Lamb v. Micklethwaite, app. ii. iii. 1504 
 r. Palk (Lady ElizaUetli), api). ii.iii. 
 
 1491 
 
 r. Vice, app. ii. iii. 1372. 1393 
 
 Lambe's case, ii. 39. 383, 384. 606. 620 
 
 Lambert v. Be>3sey, ii. 575. iii, 729 
 
 — — r. Hale, app. i. 623. app. ii. iii. 
 
 1447 
 
 V. Hodgson, iii. 1134. 1142 
 
 V. Norris, app. ii. iii. 1589 
 
 V. Oakes, ii. 233, 234 
 
 v. Rogers, ii. 566 
 
 V. Strocher, iii. 1123 
 
 Lambirth v. Roff, iii. 795 
 Lamburn v. Cruden, app. ii. iii. 1621 
 Lamey v. Bishop, i. 495 
 Lamont i: Crook, app. i. 591 
 
 V. S on thai 1, app. ii. iii. 1402 
 
 Lam pet's case, 1. 139 
 
 Lamplugli i: Braithwaite, ii. 69 
 
 Lampon r. Corke, iii. 954. 9.56. 967 
 
 Lancashire v. Killing-worth, iii. 1073 
 
 Lancaster i: Armifage, iii. 1105 
 
 V. Greaves, ii. 586. iii. 1 296. app. ii, 
 
 iii. 14.55 
 
 r. Harrison, ii. 254 
 
 v. Walsh, iii. 979. 1306 
 
 Lancaster Canal Company, Ex parte, ii. 
 
 147. 164 
 Lanchester v. Frewer, iii. 1172 
 
 V. Tricker, ii. 2. 46. iii. 1172 
 
 Lancum v. Lovell, i. 132. 353 
 Lane v. Applegate, ii. 16. 641 
 
 V. Bennett, ii. 672 
 
 v. Burghart, app. ii. iii. 1359 
 
 V. Chapman, app. ii. iii. 1432 
 
 V. Cobham, iii. 751. 953 
 
 V. Crockett, iii. 1028 
 
 V. Glcnny, ii. 108. 112 
 
 v. Hegberg, i. 291 
 
 V. Jewson, app. ii. iii. 1399 
 
 V. Santeloe, ii. 686 
 
 r. Stanhope (Lord), iii. 785. 1273. 
 
 l-'75 
 Lane's case, i. 508 
 La Neuville v. Nourse, iii. 1240 
 Langr. Gale, iii. 1073. 1190 
 
 V. Mackenzie, ii. 664 
 
 V. Smith, iii. 1150 
 
 v. Spicer, app. ii. iii. 1361 
 
 Langdale v. Trimmer, ii. 227. 235 
 Langden v. Walker, ii. 191, 192 
 Langdon v. Hulls, ii. 228. iii. 731 
 
 V. Wilson, iii. 1036. 1038 
 
 Langfield d. Banton v. Hodges, iii. 783 
 Langfort r. Tiler, iii. 1201. 1212. 1221, 
 
 1222 
 Langham v. Bewett, ii. 536 
 Langhora v. Allnutt, ii. 45. iii. 873 
 
 V. Cologan,iii. 867. 1049 
 
 Langley v. Chute, iii. 864 
 
 V. Oxford, app. ii. iii. 1317 
 
 Langman v. Holmes, ii. 117. iii. 1217 
 
 Langmead v. Beard, ii. 183 
 
 Langridge v. Levi, app. ii. iii. 1450. 1605 
 
 Langstroth r. Toulmin, iii. 1194 
 
 Langton v. Hughes, ii. 78 
 
 Lauo V. Neale, iii. 760 
 
 Lanphier v. Phipos, app. ii. iii. 1488 
 
 Lant r. Pcarce, iii. 1048
 
 Ixxiv 
 
 TABLE OF CASES. 
 
 Lanyon v. Blanchard, ii. G49 
 
 Lapierre ?•. M'Intosli, app. ii. iii. 1409 
 
 Lara ?>. Bird, ii. SfjO 
 
 Larbalastier i\ Clarke, i. 115. 117. 151. iii. 
 
 r2-29 
 Large v. Cheshire, ii. 68 
 La Roche ?\ Walieraan, iii. 1153 
 Latch V. Wedlake, app. ii. iii. 1507 
 Latham v. Barber, ii. 69. 488 
 
 V. Hyde, ii. 107. 
 
 V. Rutley, i. 458. ii. 282, 283. iii. 
 
 1038 
 Latimer v. Batson, ii. 162. 495, 496. iii. 
 
 1030 
 Latkow V. Earner, i. 240. 310 
 Latour v. Bland, iii. 786. 940, 94'l 
 Laugher v. Poyuter, iii. 739 
 Laughton v. Taylor, app. ii. iii. 1451 
 
 V. Wards, iii. 1257 
 
 Launock r. Brown, ii. 597 
 
 Lautour v. Teesdale, iii. 704 
 
 Lavabre v. Walter, iii. 874 
 
 Lavender, JEx parte, app. ii. iii. 1345, 
 
 1346 
 Lavender's case, ii. 610 
 Lawu. Hodson, ii. 1217 
 
 V. Hollingsworth, iii. 889 
 
 V. Wilkin, iii. 1203 
 
 V. Wilkins, app. ii. iii. 1443 
 
 Lawes v. Eastmure, app. ii. iii. 1640 
 
 V. Reed, app. i. 601 
 
 Lawler v. Kershaw, iii. 806 
 Lawley's (Lady) case, ii. 554 
 Lawrence v. Aberdein, iii. 877 
 
 V, Crowder, ii. 124 
 
 V. Dixon, i. 244 
 
 V. Hedger, ii. 602 
 
 V. Hodgson, ii. 117 
 
 V. Hooker, i. 370. ii. 565 
 
 V. Knowles, app. ii. iii. 1333 
 
 V. Lovell, 1. 297 
 
 V. Obee, iii. 742, 743. 748 
 
 V. Palmer, iii. 731 
 
 r. Reynolds, iii. 960 
 
 V. Thatcher, app. ii. iii. 1319 
 
 V. Worrall, ii. 663 
 
 V. Wynn, iii. 1172 
 
 Lawreuceson v. Butler, ii. 485 
 Lawson v. Langley,iii. 1257 
 
 V. Robinson, ii. 126 
 
 V. Sherwood, ii. 228. 
 
 V. Weston, ii. 220. iii. 1150 
 
 Lawton v. Lawton, iii. 1246 
 
 V. Miller, ii. 581. iii. 729 
 
 V. Newland,ii. 79 
 
 V. Salmon, iii. 1246 
 
 Laxton v. Peat, ii. 184. 251. 253 
 
 Lay V. Lawson, ii. 632, app. ii. iii. 
 
 1463 
 ■ (in the Goods of) deceased, app. ii.iii. 
 
 1617 
 Layburn v. Crisp, 1. 298. 300. app. ii. iii. 
 
 1391 
 Laycock v. Ambler, iii. 957 
 Layer's case, i. 72. 194. 211. ii. 11. 39. 
 
 518. iii. 1096, 1097 
 Layfield v. Layfield, ii. 443 
 Layng v. Payne, ii. 64 
 Lay thorp v. Bryant, ii. 485. iii. 1190 
 Layton v. Pearce, i. 458. ii. 59, 60 
 
 Lazarus i*. Waithmau, ii. 136, 137. iii. 1028. 
 
 1157 
 Lea t'. Barber, ii. 476 
 Leach v. Buchanan, ii. 204. 238 
 
 V. Hewit, ii. 236 
 
 V. Simpson, app. ii. iii. 1398 
 
 V. Thomas, ii. 348. iii. 1246, 1247. 
 
 ai)p. i. 600 
 
 V. Thompson, iii. 1182 
 
 Leadbitter v. Farrow, ii. 46 
 
 Leader v. Barry, i. 244. ii. 548. 705 
 
 V. Moxon, i. 329. iii. 747. 1076. 1169, 
 
 1170 
 Leaf I'. Gibbs, ii. 237 
 
 Ex parte, app. ii. iii. 1350 
 
 Leak, In re, ii. 1 81 
 
 Leake v. Pigott (Lord), ii. 85 
 
 V. Westmeath (Marquis of), app. i. 610 
 
 Leake's (Sir Francis) case, i. 450. 453. 
 
 ii. 395 
 Leame v. Bray, ii. 298. iii. 1106, 1107 
 Lean v. Schutz, ii. 547 
 Leaper v. Tatton, ii. 98. 188. 263. 663. 
 
 670 
 Leather (Assignees of) v. Anderton, iii. 
 
 1236 
 Leatherdale v. Sv.feepstone, iii. 1070 
 Le Breton v. Fletcher, iii. 1 268 
 Le Caux t'. Eden, i. 292. iii. 1117. 1120 
 Lechmere i\ Fletcher, i. 268. ii. 666, 667. 
 
 iii. 828. 830 
 
 V. Hawkins, iii. 997 
 
 V. Toplady, i. 262 
 
 Ledbetter v. Salt, ii. 24. 150 
 Ledger ?j. Ewer, ii. 243. 247 
 Lediard v. Anstey, iii. 1085 
 
 V. Bouchier, app. ii. iii. 1516 
 
 Ledwith v. Catchpole, ii. 602, 603, 604. 
 
 685 
 Lee V. Ayrton,ii. 113 
 
 q. t. V. Birrell, i. 91. ii. 322 
 
 V. Gansel, i. 96, 97. ii. 13. 280. 718 
 
 — V. Huson, ii. 635 
 
 V. Jones, ii. Ill 
 
 V. Lee, i. 21 
 
 V. Levi, ii. 251 
 
 V. Libb, iii. 1261. 1264 
 
 V. Lopez, iii. 1023. 1026 
 
 V. Meecock, i. 243. 298. ii. 699 
 
 V. Muggeridge, ii. 70. 454. app. ii. iii. 
 
 1600 
 
 . V. Munn, ii. 579. iii. 1194 
 
 V. Muroche, i. 227 
 
 V. Risdon, ii. 99. iii. 1205. 1207. 1248 
 
 V. Shore, iii. 1103. 1204 
 
 V. Wallwyn, iii, 917 
 
 V. Wilson, ii. 108 
 
 V. Zagury, ii. 254 
 
 Ex pnrte, ii. 146 
 
 Lee's case, app. i. 603 
 Leech v. Bailey, iii. 1083 
 Leeds v. Burrows, iii. 1040. 1297 
 
 V. Cook, i. 90, 399. 404. ii. 70S 
 
 V. Lancashire, ii. 215. iii. 1037 
 
 Leeds and Liverpool Canal Company t'. 
 
 Hustler, ii. 85 
 
 V. Wright, ii. 163. iii. 1226 
 
 Leeds Bank, Ex parte, ii. 165 
 Leeds Mill (Case of), i. 319 , 
 Leer v. Yates, iii. 1080
 
 T ABLE OF CASES. 
 
 Ixxv 
 
 Leery v. Goodson, ii. (50. 82 
 
 Lees V. Hoffstadt, app. i. 623. app. ii. iii. 
 
 1308 
 
 V. Marton, ii. 132. 134, 135 
 
 i: Nuttall, ii. 47 
 
 I'. Suiitli, i. 142 
 
 V. Sinnraersgill, iii. 1266 
 
 V. Wliitcoinli, ii, 50 
 
 Leeson i'. Holt, i. 234. ii. 289 
 
 r. Pigott, ii. 208. 222 
 
 V. Smith, ii. 79. 97 
 
 Leftly V. Mills, iii. 827 
 
 Legatt r. Tollervey, ii. 677 
 
 Legg V. Bennison, ii. 417 
 
 Leggat V. Reed, i. 524, ii. 540. iii. 1198. 
 
 1203 
 Leg'ge V. Boyd, app. i. 033 
 
 V. Evans and anotlier, app. ii. iii. 1555 
 
 V. Gibson, ii. 477 
 
 V. Thorpe, ii. 231, 232. 258 
 
 Lpgli V. Hewitt, ii. 58 
 
 V. Legh, iii, 955. 9G0 
 
 Legross v, Lovemore, i. 305. iii. 1091 
 Leicester v. Rose, ii. 04. 94. 247 
 
 V. Walter, ii. 306. 041 
 
 Leigh V. Banner, iii. 1040 
 
 V. Heald, iii. 1100 
 
 V. Hind, ii. 345 
 
 V. Kent, iii. 1041 
 
 V. Leigh, iii. 902 
 
 V. Paterson, iii. 1220. app. ii. iii. 1590 
 
 i\ Shepherd, iii. 970 
 
 V. Sherry, i. 81 
 
 and Wife iJ. Thornton, ii.662. iii. 1185 
 
 V. Webb, ii. 079 
 
 Leigliton v. Leighton, i. 309. iii. 958 
 
 r. Theed,iii. 1181 
 
 Lejeune v. Dennett, i. 498 
 
 Le Loir v. Bristow, iii. 993 
 
 Leinan v. Gordon, iii. 992 
 
 Leniayne v. Stanley, ii. 485. iii. 1261 
 
 Lemon v. Dean, i. 375. 379. 380 
 
 Le Mott's case, ii. 277 
 
 Lempiiere v. Humphrey, iii. 1099. 1123, 
 
 1124 
 
 V. Pasley, ii. 159, 160. iii. 1073. 1224 
 
 Le Neve v. Le Neve, iii. 732 
 Lennard's case, ii. 310 
 Lenox v. Blackwell, ii. 695 
 Lenthal v, Gardiner, iii. 1034 
 Leominster Canal v. Cowell, iii. 971 
 Leonard i'. Baker, ii. 496, 497 
 
 V, Simpson, ii. 453 
 
 Lepiot V. Brown, i. 472 
 
 Le Sage v. Johnson, ii. 77 
 
 Leslie v. De la Torre, ii. 104. iii. 757. 760 
 
 V, Hastings, ii. 204 
 
 V. Pounds, iii. 739. 745 
 
 V. Wilson, ii. 104 
 
 Lester v. Garland, ii. 531. iii. 1074. app. 
 
 ii. iii. 1566 
 
 V. Jenkins, iii. 1075, 1076 
 
 V. Lazarus, ii. 110 
 
 Lethbridge v. Mytton, ii. 345 
 
 V. Phillips, i. 145 
 
 V. Winter, ii. 525. iii. 909 
 
 LethuUier's case, iii. 779, 780 
 Leuckhart v. Cooper, app. ii. iii. 1468. 1583 
 Leveck v. Shafto, iii. 801. 804 
 Levi V. Baillie, i. 634 
 
 Levi V. Milne, ii. 630. 646 
 
 V. Rogers, iii. 1240 
 
 V. Waterhouse, ii. 293 
 
 ■ -E-c parte, ii. 136 
 
 Levy V. Barnard, ii. 650 
 
 V. Dolbell, ii. 563 
 
 V. Edwards, ii. 601 
 
 V. Essex, ii. 258 
 
 V. Haw, iii. 1193 
 
 V. Herbert (Lord), iii. 1219 
 
 V. Pope, ii. 321 
 
 V. Wilson, i. 474. ii. 204 
 
 Lewen and others case, app. i. 592 
 
 Lewick v. Lucas, i. 265 
 
 Lewis V. Alcock, iii. 1017. app. i. 628 
 
 V. Arnold, iii. 1105 
 
 V. Ashton, app. ii. iii. 1477 
 
 V. Branthwaite, iii. 1100. 1102 
 
 V. Bridgman, iii. 1091 
 
 V. Campbell, ii. 346 
 
 V. Clarges, i. 264, 278 
 
 i;. Clement, ii. 639 
 
 V. Cosgrave, ii. 105. 243. iii. 1213. 
 
 1243 
 
 V. Davison, app. ii. iii. 1333 
 
 V. Edwards, app. ii. iii. 1336 
 
 V. Fogg, i. 148 
 
 V. Gompertz, ii. 229 
 
 V. Hartley, i. 409 
 
 V. Helton, app. ii. iii. 1502 
 
 V. Howell, ii. 35 
 
 V. Jones, ii. 249 
 
 V. Lea, ii. 547, 548 
 
 V. Lewellyn, iii. 771, 772 
 
 V. Lewis, ii. 358 
 
 V. Mason, ii. 504 
 
 V. Owen, ii. 186 
 
 V. Parker (Lady), ii. 245 
 
 V. Peake, i. 110. 127. iii. 1228. 1243 
 
 V. Piercy, ii. 180 
 
 V. Ponsford, iii. 1130 
 
 V. Price, ii. 310. iii. 743. 912 
 
 V. Rogers, i. 351. iii. 1031 
 
 V. Rucher, iii. 880 
 
 t;. Sapio, ii. 514 
 
 ■ V. Taylor, ii. 500, 501 
 
 V. Walter, i. 447. ii. 628. 639. 644. 
 
 V. Wells, i. 427 
 
 i;. Willis, iii. 1180 
 
 ISx parte, app. ii. iii. 1345 
 
 Lewis's case, ii. 463 
 
 Lewthal v. Tomkins, iii. 1149 
 
 Lexington v. Clarke, ii. 477 
 
 Ley V. Ballard, i. 375. 379 
 
 Leykarift'v, Ashford, ii. 255 
 
 Leyton's case, ii. 303 
 
 Lichfield (Bailiffs of) v. Slater, app. ii. iii. 
 
 1389 
 Lickbarrow v. Mason, ii. 163, 164. 267. 
 
 iii. 1226 
 Liddard t>. Holmes, app. ii. iii. 1338 
 
 V. Kain, iii. 1239. 1242 
 
 Liddcrdale v. Duke of Montrose, ii. 176. 
 Liddlow V. Wilmot, ii. 538. 541, 542. 546 
 Lidster v. Borrow, app. ii. iii. 1489 
 Liebman v. Pooley, i. 394. 396. 501,502 
 Liford's case, iii. 1100 
 Liggins V. Inge, iii. 1255 
 Lightfoot V. Cameron, i. 91 
 ——II. Creed, ii. 75.
 
 Ixxvi 
 
 T ABLE OF CASE S. 
 
 Liglitfoot V. Tenant, iii. 1217, 1218 
 
 Lightly V. Clauston, ii. 84. iii. 1301 
 
 Like V. Howe, ii. 22 
 
 Lilley i'. Corrie, ii. 271 
 
 Lilley's case, ii. .556 
 
 Lillie v. Price, ii. G38 
 
 Lilly V. Ewer, iii. 780 
 
 V. Hays, app. ii. iii. 1329 
 
 Lilwal V. Smallniai), ii. 685 
 
 Limberg v. Mason, iii. 128.3 
 
 Linbuy v. Weigbtiuaii, ii. 70 
 
 Lincoln (Bisliop of) v. Ellis, i. 258. iii. 1089 
 
 Lincoln College, Case of, iii. 961. 1233. 
 
 Lincoln (Earl of) v. Rolls, iii. 1287 
 
 Lindenau v. Desborough, iii. 886 
 
 Linder v. Pryor, ii. 344 
 
 Lindo V. Belisario, ii. 459. 703, 704 
 
 V. Unswortli, ii. 22.5 
 
 Lindon v. Hooper, ii. 80. 344. 390 
 Lindsay v. Limbert, ii. 562 
 
 V. Wells, app. ii. iii. 1364 
 
 Line v. Stephenson, ii. 347 
 Lingard v. Messiter, ii. 156, 157 
 Lingham v. Biggs, ii. 156. 158, 159 
 LingwoDd v. Eaile, ii. 133 
 Linley v- Bonsor, ii. GG7 
 
 V. Clarksou, iii. 1039. 1054 
 
 Linsell v. Bonsor, app. ii. iii. 1474 
 Liuton r. Bartlett, i. 523. ii. 138, 139 
 Linton School v. Scarlett, iii. 776 
 Lipscombe v. Holmes, ii. 22. iii. 828. 1310 
 Lister v. Bi'own, ii. 394 
 
 V. Priestly, ii. 24. 331 
 
 Little v. Poole, iii. 1218 
 Littleboy v. Wright, ii. 659 
 Littledale v. Lonsdale (Lord),- iii. 738 
 Littlefield (Executrix) v. Shee, ii. 61 
 Littler v. Holland, ii. 344. iii. 790 
 Liverpool Waterworks Co. v. Atkinson, ii. 
 
 510 
 Livesay v. Hood, ii. 161 
 Livett V. Wilson, iii. 1256 
 Livock (in the goods of), iii. 1291 
 Lloyd 11. Archbowle, i..l48. 163. ii.59. 118. 
 
 iii. 804. 809, 810 
 
 v. Ashley, ii. 205. iii. 809 
 
 V. Crispie, ii. 475 
 
 V. Douglas, app. ii. iii. 1441 
 
 V. Freshfield, i. 189. 191 
 
 V. Harris, ii. 686. iii. 1011 
 
 v. Hsathcote, ii. 136, 137. iii. 1045 
 
 V. Hunt, ii. 365 
 
 V. Johnson, ii. 64. iii. 1184 
 
 V. Key, i. 322 
 
 V. Lloyd, app. ii. iii. 1387 
 
 r. Maddox, i. 306 
 
 V. Marshall, iii. 1218 
 
 V. Maund, ii. 108. 668. app. ii. iii. 1474 
 
 ■ V. Petiijean, app. ii. iii. 1483 
 
 r. Stretton, ii. 193 
 
 V. Tomkins, ii. 347 
 
 V. Walker, app. ii. iii. 1495 
 
 . V. Wignev, ii. 660 
 
 i: Willan, ii. SO 
 
 . V. Williams, i. 146 
 
 r. Woodall, ii. 302 
 
 • r. Wynne, iii. 758 
 
 ■ ■ Ex parte, ii. 155 
 
 Loane r. Casey, ii. 451 
 Loariug r. Stone, ii. 85 
 
 Lobbon, lEx parte, iii. lOGl 
 Lock V. Hayton, i. 134 
 
 11. Vulliainy, ii. IIG 
 
 Locke V. Cohnan, app. ii. iii. 1384 
 
 V. Norborne, i. 258 
 
 Lockett's case, ii. 463 
 Lockhart v. Graijani, i. IGG 
 Lockhart's case, ii. 37 
 Locklcy«. Pye, app. ii. iii. 1572 
 Lockyer v. Jones, iii. 1068. 1070 
 
 V. Olfley, iii. 879 
 
 Lodge V. Dicas, iii. 827 
 
 Loesclunan v. Makin, iii. 1146 
 
 Lofts V. Hudson, ii. 27 
 
 Logan V. Houlditcb, iii. 731. 1161 
 
 Lolly's case, ii. 706. iii. 896. app. Ii. iii. 
 
 1483 
 Lomax v. Holmden, ii. 197, 198 
 
 i\ Lomax, ii. 200 
 
 V. Ryder, ii. 436 
 
 London (Mayor of) v. Cole, iii. 1230 
 
 (Mayor of) v. Jollifte, ii. 29 
 
 (Mayor, &c. of) v. Long, ii. 29. 33. 
 
 340. iii.' 776. 798 
 (Mayor of) v. Lynn (Mayor of),i. 340. 
 
 ii. 568. iii. 945 
 
 (Sheriffs of) v. Tindall, iii. 1050 
 
 Merchant (The), app. ii. iii. 11322 
 
 Lonergan v. Roy. Exch. Ass. Co., i. 79 
 Long V. Baillie, ii. 203 
 
 V. Baker, ii. 103 
 
 V. Champion, i. 336 
 
 V. Chubb, ii. 627. 
 
 V.Collier, iii. 1213 
 
 V. Forrester, i. 419 
 
 V. Greville, iii. 831 
 
 V. Hitchcock, app. i. 603. 606. 623 
 
 V. Moore, ii. 255 
 
 V. Preston, iii. 121G 
 
 V. Young, iii. 802 
 
 Longchamp v. Fawcitt, ii. 434 
 
 V. Fish, i. 524. iii. 1261 
 
 V. Kenney, ii. 80. 82 
 
 Longdill V. Jones, iii. 1023 
 Longdon v. Bourne, iii. 1141 
 Longford v. Eyre, iii. 1263. 1266 
 Longlbol V. Tiler, ii. 539. 542 
 Longman v. Pole, iii. 803 
 
 v. Tripp, ii. 154. 158 
 
 Longridge v. Dorville, ii. 104 
 Lonsdale v. Church, ii. 269. 576 
 
 V. Heaton, iii. 1092 
 
 Lonsley v. Hay ward, iii. 863, 8G4 
 
 Looker v. Hulcombe, iii. 1132 
 
 Lookup v. Frederick (Sir T.), iii. 849 
 
 Loom's case, ii. 605 
 
 Lopez V. De Tastet, i. 448. 451 . 467. ii. G2. 
 
 iii. 1045 
 Lord V. Turk, iii. 1093 
 
 V. ^Vardle, app. ii. iii. 1405 
 
 Lorton (Lord) v. Gore, i. 362. 397 
 
 Lorton v. Kingston (Lord), ii. 518. app. i. 
 
 Gil 
 Lorymer v. Smith, iii. 1215 
 Lotan v. Cross, iii. 1103. 1107 
 Lothian v. Henderson, i. 292. ii. 86. 88. 
 
 iii. 891 
 Lott V. Melville, app. ii. iii. 1348. 1361 
 Lovat's (Lord) case, i. 93. 102. 135, 13C). 
 
 ii. 328.
 
 T A B L K OF CASES. 
 
 lxx\ 
 
 L)vatt c. Hamilton, app. ii. iii. l.VJo 
 Lovpflen v. LoveiUn, ii. .3j.1, 3.>1 
 Lovelace ?'. Curry, ii. 081 
 
 V. Reynolds, iii. 909 
 
 Lovelace's case, i. !372. ii. 179 
 Lovell i: Martin, iii. ll.')7 
 
 V. Simpson, iii. 1082 
 
 Lovelock V. Chivelv, iii. 797. 997 
 
 V. King, iii. 129(i. 1809 
 
 Loveridge i'. Botham, ii. Ill 
 Lovlck r. Crowder, iii. 1019 
 Low V. Copestake, ii. 219 
 
 V. East India Company, iii. 10G5 
 
 V. Skinner, ii. 140 
 
 Lovvden r. Goodrich, iii. 1110 
 Lowe V. Broxtowe, ii. 531, .532. 534 
 
 V. Barrows, ii. 244 
 
 V. Cotton, iii. 739 
 
 V. Gjvett, iii. 1125. 1129. app. ii. iu. 
 
 1609 
 
 r. Jolliffe, i. 108. 37 ';. ii. 10. iii. 12G5, 
 
 1206. 12G8 
 
 V. Manners, iii. 1275 
 
 V. Peers, iii. 853. 930 
 
 V. Tucker, iii. 1211 
 
 V. Waller, ii. 246 
 
 Lowen v. Kaye, ii. 523. iii. 1259. app. ii. iii. 
 
 1452 
 Lowes V. Mazzaredo, ii. 210. 240 
 Loweth V. Fothergill, ii. 063. 
 Lowfield v. Banckcroft, ii. 686 
 
 • V. Stoncham, iii. 703 
 
 Lowick's case, iii. 1096, 1097 
 Lowndes i\ Anderson, ii. 220. 260 
 
 V. Bray, iii. 1192 
 
 Lowry i'. Aikt-nliead, ii. 031 
 
 V. Bourdieu, ii. 87. 93, 94. 90 
 
 V. Douldeday, i. 79 
 
 Lowther v. Radnor (Lord), ii. 587, 588, 
 
 589 
 Loxley v. Jackson, iii. 1287 
 Loyd V. Finlayson, ii. 439 
 
 r. Lee, iii. 884 
 
 Loyos V. Rutherford, iii. 1214 
 Lubbock v. Potts, ii. 96 
 
 V. Tribe, ii. 75 
 
 Lucas V. Beach, app. ii. iii. 1511. 1557 
 
 V. Cjmerford, app. ii. iii. 1387 
 
 V. Be la Caur, i. 334. ii. 31. iii. 
 
 804 
 
 V. Dorrien, ii. 157. iii. 1224 
 
 V. Godwin, iii. 1308, 1309. app. ii. iii. 
 
 1420 
 
 V. Groning, iii. 779 
 
 V. Haynes, i. 149 
 
 r. Nockells, ii. 571. iii. 1131. 1133. 
 
 1149. app. ii. iii. 1574 
 
 V. Novosilienski, iii. 824 
 
 r. Worswick, ii. 87 
 
 Lucena v. Crawford, iii. 872 
 
 Lucey i\ Ingram, app. ii. iii. 1492 
 
 Luckett V. Plumber, i. 455 
 
 Lucton Governors, ice. v, Scarlett, iii. 
 
 1088 
 Lucy V. Forres^^er, ii. 244 
 — ^ V Walrond, ii. 450. iii. 828 
 Ludlow (Corp. of) v. Charlton, ii. 339. app. 
 ii. iii. 1385, 1386 
 
 V. Tyler, app. ii. iii. 1384 
 
 Lugg ?'. Lugg, iii. 784. 1288 
 
 Luke V. Ashwell, iii. 1038. 1047 
 Lumliy i: Allday, ii. 027. app. i. 030 
 Lumley c. Hodgson, iii. 1179. 1183 
 
 V. Musgrovo, ii. 251 
 
 V. Palmer, ii. 206. 232 
 
 Lunauze v. Palmer, ii. 228 
 
 Lundie v. Robertson, ii. 70. 238 
 
 Lunniss i: Row, app. i. 597 
 
 Lush V. 'VVilkir.soi), ii. 498 
 
 Lustre (The), iii. 1300 
 
 Lutterell v. Raynell, i. 222 
 
 Luttrell V. Lea, i. 223 
 
 Luxmore v. Robson, ii. 34S 
 
 Lyburnt'. Warrington, iii. 1041. 1046 
 
 Lyddall v. Weston, iii. 904 
 
 Lyde v. Barnard, ii. 373 
 
 V. Russell, iii. 1248 
 
 Lygon V. Strutt, i. 239. 249. 3o4 
 
 Lyme Regis (Major, &c, of) v. Henley, iii. 
 
 743 
 Lynall v. Longbotham, iii. 1235 
 Lynbury v. Weightman, ii. 188 
 Lynch V. Clark, i. 251. 334 
 
 i<. Dunsford, iii. 880 
 
 V. Hamilton, iii. 880 
 
 Ex parte, ii. 145. 148 
 
 Lyne, Ex parte, i. 92 
 Lynesr. Lett, iii. 1091 
 Lynn v. Beaver, iii. 784 
 
 V. Bruce, ii. 10 
 
 V. Cluiters, app. ii. iii. 1593 
 
 (Mayor of) v. Denton, i. 341. ii. 508 
 
 r. Moody, ii. 390 
 
 (Mayor and Burgesses of) case, 1. 
 
 373. ii. 338. iii. 945 
 
 Lyon V. De Paas, iii. 1148 
 
 V. Lamb, iii. 1157 
 
 V. Mills, ii. 288. 290 
 
 r. Sundius, ii. 210 
 
 V. Tomkies, app. ii. iii. 1400 
 
 r. Weldon,ii. 153, 154. 389 
 
 Lyon's case, ii. G99 
 
 Lyons v. De Pass, app. ii. iii. 1582 
 
 V. Golding, iii. 1145 
 
 V. Martin, ii. 45 
 
 (Mayor, &c.) v. East India Company, 
 
 app. ii. iii. 1424 
 Lysvight V. Walker, ii. 5U9 
 Lysnej' v. Selby, iii. 12:^8 
 Lysons v. Barrow, ii. 442 
 Lyttleton v. Cross, ii. 452. iii. 1075 
 Lytton V. Lytton, iii. 764 
 
 Maberly v. Robins, iii. 1191. 1194 
 
 V. Sheppard, ii. 490 
 
 M'Allen r. Churchill, ii. 61 
 M'Allister v. Haden, iii. 1234 
 Mucally's case, i. 303. 429. 452. iii. 1022 
 M' Andrew v. Bell, iii. 871 
 Macartliur v. Campbell, ii. 118 
 
 V. Lord Seaforth, ii. 209. iii. 1200 
 
 MArthy v. Colvin, ii. 89. app. ii. iii. 1330 
 M'Carthy v. De Caix, app. ii. iii. 1483. 
 
 1538 
 Macarthy v. Smith, iii. 793 
 Macarty r. Barrow, ii. 148. 185.225 
 M'Auliffe V. Bicknell, app. ii. iii. 1021 
 Macbeath v. C.ates, ii. 126 
 V. Haldimand, i. 525. ii 40. iii. 739. 
 
 1170. 1301
 
 Ixxviii 
 
 TABLE OF CASES. 
 
 M 'Brain v. Fortune, i. Ill, 112. 149. lOfi. 
 
 iii.900. l-i'2!) 
 M'Brider. M'Bride, i. in:i, 194. 
 Macburn v. Lcckio, iii. 877 
 M'Cane i: Wood, iii. 734 
 M'Clauglmn v. Clayton, ii. 001. 603.082 
 Macclesfield (Earl) v. Bradley, app. ii. iii. 
 
 1580 
 Macclesfielel's (Lord) case, i. 191 
 M'Clure v. Dunkin.ii. 209. 570 
 
 V. M'Keand, iii, 1231 
 
 M'Combie v. Davics, ii. 049. iii. 1157, 
 
 1158. 1100 
 M'Connell v. Hector, ii. 175 
 M'Craw v. Gentry, i. 374. 379. 380. 
 M'Culloch V. Dawes, ii. 007 
 M'Cully's case, app. i. 027 
 JIacdaniel r. PInghes, iii. 900 
 Macdonald i\ Bovington, ii. 249 
 
 V. Macdonald, ii. G.J9 
 
 V. Rook, ii. 682. npp. ii. iii. 1475 
 
 V. Topling, iii. 1304 
 
 Macdougal v. Paton, iii, 1001, 1062 
 M'Dougall V. Claridge, ii. 631, 632 
 Macdougle i\ Royal Exchange Assurance 
 
 Company, iii. 878 
 M'Dowall V. Lyster, ii. 254 
 Macdowgal ?\ Young, i. 229 
 Mace r. Cadell, ii. 159, 160, 101.538. iii. 
 
 1029 
 
 V. Cammell, ii. 495 
 
 M'Fadzen v. Olivant, ii. 062. iii. 988 
 
 Macfarlane v. Price, iii. 930 
 
 Macferson v. Thoytes, ii. 210 
 
 M'Gae, Ex parte, ii. 1 67 
 
 M'Gahey r. Alston, i. 389. 391. 503. iii. 
 
 1233 
 M'George v. Egan, ii. 539 
 M'Gregor v. Lowe, iii. 1216 
 
 V. Thwaites, ii. 644 
 
 M'Guire's case, i. 501. ii. 470 
 Machell v. Kinnear, ii. 218 
 
 V. Temple, iii. 1263 
 
 M'lntosh V. Haydon, ii. 225 
 Macintosh v. Haydon, ii. 224. iii. 1051 
 M'Intyre v. Layard, i. 326 
 M'lver V. Henderson, iii. 882 
 
 V. Humble, ii. 193. iii. 799. 807. 870 
 
 i\ Richardson, ii. 510 
 
 Mackally's case, ii. 697. 718 
 Mackay v. Wood, app. ii. iii. 1358. 1366 
 M'Keay's case, app. ii. iii. 1322 
 M'Kensie v. Fraser, iii. 1267 
 M'Kenzie v. Banks, iii. 1040 
 
 V. Cox, app. ii. iii. 1488 
 
 V. Hancock, iii. 1243 • 
 
 V. Handysyde, iii. 1268 
 
 Mackey v. Gooden, ii. 585 
 
 V. Newbolt, i. 382 
 
 JIackinley v. Sison, iii. 1290 
 M'Kinnell v. Robi/ison, ii. 103. 507 
 Mackintosh v. Trotter, app. ii. iii. 1580 
 
 ■ V. Weiller, app. ii. iii. 1396 
 
 Macklin v. Richardson, iii. 941 
 
 V. Waterhouse, ii. 289 
 
 Macklin and others case, app. ii. iii. 
 
 1485 
 Maclean v. Dunn, ji. 485. 492. iii. 1201 
 Maclellan v. Howard, iii. 1067. 1072 
 M'Leod V. Waklev, ii. 022, 623. 633. 635 
 
 M'Mahon v. Upton, iii. 802 
 
 Macmanus v. Crickett, ii. 44. iii. 737, 738, 
 
 nil 
 
 Alacmastors v. Shoolbred, iii. 881 
 IMiicniurdo v. Smith, ii. 691. iii. 941 
 M'Nfil V. Perchard, iii, 1009. 1011, 1012 
 M'Neilagc v. Holloway, ii. 148. 217 
 M'Pherson v. Daniels, ii. 019. 630. 637 
 
 644 
 Macpherson v. Thoytes, ii. 510. 514 
 M'Queen v. Farquliar, ii. 226. iii. 903 
 M'Taggart v. Watson, app. ii. iii. 1374. 
 
 1.562 
 Maoullum r. Turton, i. 194 
 Maddison v. Nuttall, 1. 364. iii. 1091 
 
 ?'. Shore, i. 78 
 
 Maddocks, i: Phillips, app. ii. iii. 1418 
 Madison's (Lady) case, iii. 895 
 
 V. Maddock, ii. 320 
 
 Maddon v. White, ii. 555. 558 
 
 Maddox v. Miller, ii. 557 
 
 Magee v. Atkinson, iii. 759. app. ii. iii. 
 
 1324 
 
 V. Nias, ii. 171 
 
 Magennis i'. M'Cullough, ii. 474. iii. 1182 
 Magliee v. O'Neil, app. ii. iii. 1472 
 Magnay v. Knight, app. ii. iii. 1329 
 Magor r. Chadwick, app. ii. iii. 1608 
 Magrath v. Hardy, app. ii. iii. 1392 
 Magreave v. White, i. 80. 
 Mahoney v. Ashlin, ii, 209 
 Mainwaring i\ Giles, iii. 861, 862 
 
 ?j. Leslie, ii. 542 
 
 V. Mytton, i. 131. ii. 258 
 
 V. Newman, ii. 241 
 
 I'. Sands, ii. 544 
 
 Mair r. Glennie, ii. 155. iii. 805 
 Maitland r. Goldney, ii. 644 
 Major ?'. Denham, ii. 85 
 
 V. Langley, app. ii. iii. 1439 
 
 i\ White, app. ii. iii. 1488 
 
 Malcolm v. Fullarton, iii. 832 
 
 V. Kay, i. 81 
 
 Maldon, (Mayor, &c.) v. Woolvet, app. ii. 
 
 iii. 1609 
 Male V. Roberts, ii. 459. 556 
 Malendine v. Hunsdon, iii. 1005 
 Malins r. Freeman, app. ii. iii. 1598 
 Malkin in re Adams, J^x parte, ii. 193 
 
 . V. VickerstafF, i. 533. 536. iii. 751 
 
 Mallabar ii. Mallabar, iii. 783 
 
 Mallalieu v. Laugher, iii. 1156. 1168 
 
 Mallett V. Trigg, iii. 943 
 
 Maloney v. Bartley, i. 191 
 
 Malony v. Gibbons, i. 274. 276 
 
 Maltby v. Christie, ii. 23, 24. 150. iii. 
 
 1307 
 Maltravers v. Fossett, iii. 970 
 Man V. Cary, i. 228 
 
 V. Shiflner, ii. 648, 649 
 
 r. Ward, ii. 11 
 
 Manby v. Curtis, i. 381, 382, 383. 385. 
 
 iii. 1082. 1092 
 
 V. Lodge, iii, 789, 794. 1082. 1087 
 
 V. Scott, ii. 704 
 
 Mancot v. Bates, i, 380 
 Manderton v, Robertson, ii. 669 
 Manifold v. Morris, ii 84. app. ii. iii. 1335 
 
 V. Pennington, i. 443. 449. ii. 316 
 
 Manloy v. Peel, ii. 264. iii. 1053
 
 TABLE OF CASES. 
 
 Ixxix 
 
 Mann v. Buker, i. 234 
 
 V. Barrett, iii. 989 
 
 V. Davers, i. 285. il. 585 
 
 V. Forrester, ii. 649 
 
 V. Lang, ii. 448. app. ii. iii. 1417 
 
 V. Lent, ii. 221 
 
 i>. Lovejoy, i. 536. ii. 413 
 
 V. Moors, ii. 227 
 
 t\ Musgrave, i. 406 
 
 V. Sliepherd, ii. 148 
 
 Manners v. Postan, i. 371. iii. 1186 
 Manning i\ Clements, ii. 641. 643 
 
 V. Flight, ii. 189 
 
 I'. Lechniere, i. 358 
 
 V. Livie, iii. 1054 
 
 V. Wasdalc, app. ii. iii. 1608 
 
 Manning's case, iii. 1148 
 Manns ?>. Henderson, ii, 649 
 Manor, JSx ])arte, ii. 136 
 Mansfield r. Brearey, ii. 559 
 
 (Earl) V. Blackburne, app. ii. iii. 
 
 1607 
 
 (Lord) V. Clarke, iii. 1081. 1084. 
 
 1086 
 
 Mant I'. Mainwaring, i. 110. 406. iii. 799 
 Manton v. Moore, ii. 144. 160. 497. iii. 
 
 1224 
 Mapes V. Sidney, ii. 56 
 Mara v. Quin, ii. 447 
 March v. Culpepper, ii. 55 
 
 (Earl of) V. Pigott, iii. 1233 
 
 V. Ward, ii. 2. 215 
 
 March's case, ii. 549 
 Marchant ??. Evans, iii. 1217 
 Margareson v. Saxon, app. ii. iii. 1447 
 Margaret (Case of the), iii. 1299. 1302 
 Margate Pier Company v. Hannam, app. 
 
 ii. iii. 1452 
 
 V, Harrison, ii. 585 
 
 Margeson v. Coble, ii. 229 
 Margetson v. Aitkin, iii. 967 
 
 V. Wright, iii. 1 238 
 
 Margettson v. Rush, app. ii. iii. 1580 
 
 Markby In re, app. ii. iii. 1326 
 
 Marke v. Noyes, ii. 421 
 
 Markes v. Laliee, ii. 648 
 
 Market Overt (Case of), iii. 1227 
 
 Markham v. Middleton, i. 263 
 
 Markman v. Gonaston, iii. 1051 
 
 Marks r. Benjamin, app. ii. iii. 1519. 
 
 1522 
 
 V. Lahee, app. i. 617 
 
 Ex parte, iii. 1062 
 
 Marrable, ^.x* parte, ii. 157 
 Marriage v. Lawrence, i. 248. 340 
 Marriot v. Stanley, app. ii. iii. 1495 
 Marriott v. Hampton, i. 272. ii. 92 
 
 V. Shaw, ii. 500. iii. 847 
 
 Marryatt v. Broderick, iii. 1235 
 Marrvatts v. White, iii. 824. 826 
 Marsden v. Reid, iii. 873. 888, 889. 1037 
 
 V. Stansfield, i. 159 
 
 Marsh v. Bulteel, ii. 118 
 
 V. Chambers, ii. 178 
 
 V. Colnett, i. 228. 248. 382 
 
 V. Home, ii. 291. 293 
 
 V. Hutchinson, ii. 537. 547 
 
 V. Maxwell, ii. 226. 234 
 
 V. Meager, ii. 126. 132. 134 • 
 
 V. Pedder, iii. 822 
 
 Marsh t'. Robinson, i. 249. iii. 868 
 
 V. Tyrrell, iii. 1282 
 
 Ex parte, ii. 159, 160 
 
 Marshal v. GritHii, iii. 1311 
 Marshall w. Barkworth, ii. 175 
 
 V. Cliff, ii. 30. 115 
 
 V. Lynn, ii.491. iii. 790 
 
 V. Parker, i. 292. iii. 873. 879. 
 
 880 
 
 V. Parsons, app. ii. iii. 1623 
 
 V. Pitman, iii. 953 
 
 V. Poole, ii. 577. 579 
 
 V. Rutton, ii. 536. 547, 548 
 
 v. Willder, ii. 440 
 
 Ex parte, ii. 178 
 
 Marshall's case, ii. 38. 397 
 
 Marshfield v. Marsh, ii. 439. 440. iii. 
 
 1165 
 Marson v. Petit, ii. 255 
 Marston v. Dean, app. ii. iii. 1329 
 
 V. Downes, i. 392. ii. 452 
 
 V. Roe, app. ii. iii. 1616 
 
 Marten v. Crokatt, iii. 880, 881 
 
 V. Smith, ii. 105. 
 
 ■ V. Thornton, i. 264 
 
 Martens v. Adcock, iii. 959 
 
 Martin v. Bell, i. 330. iii. 1011. 1035 
 
 I'. Blithman, ii. 63. 76. app. ii. iii. 
 
 1332 
 
 V. Court, ii. 184. iii. 1061 
 
 V. Gilham, app. ii. iii. 1607 
 
 V. Goble, i. 437. ii. 316. iii. 745 
 
 V. Gow, i. 407 
 
 V. Greenleaf, iii. 846 
 
 v. Henrickson, i. 149 
 
 V. Horrell, i. 133 
 
 V. Knowllys, iii. 1244 
 
 V. Mitchell, ii. 485 
 
 V. Nicholls, i. 270. 275 
 
 V. Pewtress, ii, 138 
 
 V. Porter, iii. 1164 
 
 V. Slade, iii. 1032 
 
 V. Smith, iii. 1189. 1234 
 
 V. Strong, app. ii. iii. 1464 
 
 V. Thornton, ii. 119 
 
 V, Winder, ii. 110 
 
 Ex parte, ii. 122. 160 
 
 Martin Lolly's case, i. 306. ii. 706. iii. 
 
 896 
 Martindale v. Smith, app. ii. iii. 1599 
 Martineau v. Woodland, i. 149 
 Martini v. Coles, ii. 45 
 Martins v. Gardiner, app. ii. iii. 1618 
 Martyn v. Podger, i. 329. iii. 1030 
 Marwood v. Turner, iii. 1289 
 Mary's case, iii. 1098 
 Maryon v. Carter, ii. 68 
 Marzetti v. Williams, ii. 114 
 Mascall v. Mascall, iii. 758. 762 
 Mash V. Denham, i. 497. app. i. 630 
 Mason v. Barff, ii. 208 
 
 V. Ctesar, iii. 1143 
 
 Chambers, app. ii. iii. 1390 
 
 u. Corder, iii. 1188 
 
 V. Ditchbourne, app. i. 626. ii. iii. 
 
 1427 
 V. Hill, iii. 1250, 1251 
 
 V. Hunt, ii. 206, 207. 209. 252, 
 
 253 
 
 — — x\ Keeling, iii. 735
 
 Ixxx 
 
 T A B L K O V C A S li S. 
 
 Mason v. Kiddlo, app. ii. iii. 1003 
 
 r. Lickbarrow, ii. 049 
 
 V. Morgan, ii. 217 
 
 V. Newlanil, app. ii. ill. 1401, 1402, 
 
 lo39, 1540 
 
 V. Pritelian', ii. 510 
 
 Mason's case, ii. 712. 721, 722, 723, 724 
 Massey ij- Goytler, iii. 747 
 
 Hanuey, app. ii. iii. 1558 
 
 r. Johnson, ii. 5;34. 586. 590. 592 
 
 V. Knowles, ii. 309. iii. 751 
 
 Massiter v. Cooper, ii. 29() 
 
 Master v. Miller, ii.255, 250. 402. iii. 1051. 
 
 1107 
 Mastcrman v. J;.dson, i. 495 
 
 Ex parte, ii. iii. 1352 
 
 Masters v. Barnwell, i. 534 
 
 V. Drayton, i. iOG. 103. ii. 192 
 
 V. Lewis, app. i. 630 
 
 w. Masters, iii. 756. 704. 772. 1271. 
 
 1274 
 
 V. Pollis, iii. 1127 
 
 Mather v. Ney, ii. 701 
 Mathew v. Sherwell, ii 168 
 Mathews v. Hai^h, ii. 583. iii. 1070 
 
 V. Sn:it]i, ir 139. 107. 536 
 
 Matson v. Booth, iii. 1051 
 
 V. Cooke, iii. 1099 
 
 V. Wharam, ii. 477 
 
 Matthews i\ Cary, app. ii. iii. 1824 
 
 V. Dickiason, i. 488 
 
 V. Hayflon, i. 118 
 
 V. Hollings, ii. 85. 90 
 
 V. Philli;;s, ii. 658 
 
 V. Spicer, ii. 62 
 
 V. Stowell, iii. 1182 
 
 V. Welwyn, iii. 824 
 
 I'. West London Waterworks, ii. 535. 
 
 iii. 738. 1170 
 
 Ex parte, iii. 1001 
 
 Matthie v. Potts, i. 464. ii. 298. iii. 877. 
 
 879 
 Mattock V. King-lake, ii. 344 
 Maughain v. Hubbard, i. 176, 177, 178 
 
 iii. 792. 1051. 1059 
 
 V. Walker, iii. 850." 
 
 Maunder v. Venn, iii. 989 
 
 Maunders v. Conyers, iii. 1202 
 
 Maundrell v. Kennett, i. 131. ii. 259 
 
 Maurisell v. Ainsv^ortli, ai>p. i. 59 1 
 
 Maviiig V. Todd, ii. 288 
 
 Mawbray v. Cunningham, ii. 478 
 
 Mawby v. Barber, ii. 642 
 
 Mavfgridge's case, ii. 724 
 
 Mawman r. Gillett, i. 103. 163. ii 59. iii. 
 
 804. 810 
 
 Mawre's case, ii. 712 
 Mawson v. Harsink, i. 211 
 Max V. Roberta, ii. 285. iii. 800 
 Maxwell v. Jameson, ii. 74 
 
 V. Martin, iii. 1129, 1130. 
 
 V. Sharp, iii. 778 
 
 May V. Brown, i. 447. ii. 628, 629. 640. 
 app. ii. iii. 1 465 
 
 V. Christie, iii. 892 
 
 V. Gwynne, ii. 569 
 
 — — V. Harvey, iii, 1162 
 V. King, ii. 98 
 
 May V. May, i. 228. 243. 3i5. ii. 200. 099 . 
 
 705. iii. 845 
 
 v. Smith, iii. 812. 1 030 
 
 Mayall v. Miltbrd, app. ii. iii. l.i>25 
 Maybank v. Brookes, iii. 70;?. 772 
 M^ydston v. Palmerston (Lord), i. 490 
 Mayer v. Isaac, app. ii. iii. 1435 
 
 I". Jadis, ii. 210 
 
 v. Meakiii, ii. 259 
 
 V. Nias, iii. 827 
 
 V. Smith, iii. 828 
 
 (Assignees of) r. Seftou, i. 508 
 
 Mayes v. Willett, iii. 742 
 
 Mayfield v. Wadsly, i. 634. ii. 476.480. iii. 
 
 824. 1207 
 Mayhew v. Boyce, ii. 290. iii. 730 
 
 V. Crickett, iii. 1000. 1002 
 
 V. Eames, ii. 288, 269. 293. iii. 729 
 
 V. Locke, ii. 682. 591. 693 
 
 V. Mayhew, ii. 701 
 
 V. Nelson, ii. 286 
 
 Maylin v. Eyloe, ii. 132. 134, 135 
 Maynard v. Rhodes, iii. 880 
 Mayne v. Fletcher, ii. 025 
 
 V. Palmer, iii. 729 
 
 V. Walter, iii. 891 
 
 Mayo V. Browne, i. 307 
 Mayor r. Johnson, ii. 203. 205 
 May son v. Cook, app. ii. iii. 1571 
 Mazzinghi v, Steplienson, i. 494 
 Mead v. Braham, ii. 189. 239 iii. 1001 
 
 V. Daubigny, ii. 635 
 
 V. Davison, app. ii. iii. 152.5 
 
 V. Norbury, iii. 923. 1086 
 
 V. Orrery (Lord), ii. 441 
 
 V. Robinson, i. 228. 248. ii. 12. iii. 851 
 
 V. Young, ii. 216. 219. 462 
 
 Mead's case, ii. 554 
 
 Meadows v. Tanner, iii. 1213 
 
 Mergers. Smith, iii. 829. 831. app. ii. iii. 
 
 1517 
 Meago V. Simmons, iii. 1185 
 Mears v. Greenaway, iii. 1117 
 
 V. Griffin, app. ii. iii. 1393 
 
 Mease v. Mease, iii. 755. 759. 702 
 
 Meath (Bish p of) v. Belfield (Lord),i. 32. 
 
 183. 246. iii. 793. 908. 942 
 V. Wincliester (Marquis of), i. 343. 
 
 384. 527. app. ii. iii. 1531 
 Mechellin v. Wallace, app. ii. iii. 1402 
 Med( owcroft v. Gregory, ii. 700, 701 
 Medina v. Stoughton, ii! 374. iii. 1238 
 Medlicott r. Joyner, i. 394 
 Meuway Canal case, ii. 272 
 Mcer. Read,i. 22 
 Meek v. Oxiace, iii. 1302 
 Mcekins c. Smith, i. 91 
 Meering v. Duke, iii. 1039 
 Meggiscn v. Harper, ii. 666 
 Meggott V. Mills, ii. 147, 148. 4[.6. iii. 825 
 Megit 1% Johnson, ii. 445 
 Meigh V. Clinton, app. ii. iii. 1438 
 Meirelles v. Banning, app. ii. iii. 1521 
 Mellish V. Alinutt, iii. 829, 83(t 
 
 V. Motteux, ii. 372. iii. 1215 
 
 V. Rawclon, ii. 223 
 
 V. Simeon, ii. 240 
 
 Melkr v. Baddeley, app. ii. iii. 1475 
 
 V. Pyne, iii. 907 
 
 Mellow V. Way, ii. 474
 
 TAIJLE OF CASES. 
 
 Ixxxi 
 
 Melville's (Lord) case, i. 235. 396 
 Mendez v. Carreroon, ii. 218. 239 
 Mendham v. Thoin])Son, i. 340 
 Mendizabel v. Machado, ii. 207 
 Menliain v. Edmonson, ii. 168 
 Mercer v. Wise, ii. 22,23. 174 
 Meredith v. Flaxman, iii. 1140 
 
 V. Gilpin, i. 159 
 
 V. Hodges, ii. 22 
 
 Meres v. Ansell, iii. 759. 761. 709. 790 
 Merest r. Harvey, iii. 1114. 1116 
 Merril v. Frame, ii. 347 
 Merrill's Lessee i\ Whitechurch, ii. 24 
 Merry v. Abney, iii. 729 
 
 V. Green, app. ii. iii. 1459 
 
 Merryweatlier i'. Nixon, ii. 76, 77. iii. 1002 
 Mersey and Irwell Navigation v. Douglas, 
 
 i. 408. iii. 742. 1251 
 Mertens v. Adcock, iii. 1201 
 
 V. Winnington, ii. 219 
 
 Mesnard v. Aldridge, iii. 1190. 1237 
 Messenger v. Armstrong, ii. 414. 426 
 
 V. Southey, ii. 229. app. ii. iii. 1305 
 
 Messing v. Kemble, iii. 1108 
 Messingham's case, ii. 614 
 Mestaers v. Abraham, ii. 45 
 Metcalf z'. Brain, iii. 1067 
 
 V. Clough, ii. 41 
 
 V. Shaw, ii. 540 
 
 Metcalfe i'. Fowler, app. ii. iii. 1594 
 Meux V. Howell, ii. 494. 498 
 
 V. Humphries, iii. 1218 
 
 Meyer v. Everth, iii. 700. 1219. 1238. 1240 
 
 V. Sefton, i. 175.320 
 
 V. Sharpe,.iii. 805 
 
 Meynell's case, app. ii. iii. 1321 
 
 Meynolt, £Jx parte, ii. 28 
 
 Meyrick v. Wakley, i. 352 
 
 Michael v. Allestree, ii. 41. 295. 298. iii. 
 
 734. 737 
 -^— V. Lapage, ii. 493 
 — — V. Stockwith, ii. 343 
 Michell V. Rabbetts, i. 239. 384 
 Michenson v. Begbie, iii. 1301 
 Michie, Ex parte, ii. iii. 1357 
 IMicklefield v. Hepgin, iii. 1234 
 Middlecome v. Marlow, ii. 498 
 Middleton v. Brewer, ii. 476. iii. 829. 1072 
 
 r. Chambers, app. ii iii. 1559 
 
 V. Fowler, ii. 284. iii. 737, 738 
 
 V. Frost, i. 132 
 
 V. Javerin, ii. 704 
 
 V. Lambert, iii. 1095 
 
 V. Melton, i. 358. iii. 1064 
 
 V. Onslow, ii. 247 
 
 V. Sandford, i. 374. 380. 483. ii. 204 
 
 Middleton's case, iii. 896 
 Milbourn v. Ewart, iii. 788 
 Milburn v. Codd, iii. 816 
 Milburn's case, ii. 607 
 Mildmay's case, iii. 758. 789. 979 
 Mildred v. Robinson, ii. 651 
 Mildrone's case, i. 94 
 Mileham t'. Eycke, app. ii. iii. 1336 
 Miles V. Andrews, ii. 26 
 
 V. Astle, ii. 293 
 
 V. Dawson, i. 88 
 
 i\ Gorton, iii. 1155 
 
 V. Rawlyns, ii. 149 
 
 Miles V. Rose, iii. 1253 
 
 V. Sheward, i. 457. 11. 60 
 
 V. Solebay, ii. 73 
 
 V. Williams, 11. 176. 217 
 
 Millar v. Heinrick, i. 294. 11. 459 
 Millar's case, 1. 174 
 Mlllen v. Whlttenbury, 11. 186 
 Miller v. Aris, ii. 89 
 
 V. Bowden, 11. 388 
 
 — — V. Brown, ill. 1287 
 
 r. Caldwell, 11. 6G7 
 
 V. Deraetz, ii. 161 
 
 V. Falconer, i. 116. 119. 150 
 
 v. Foster, i. 240, 241. iii. 1090 
 
 r. Jean, ill. 1112 
 
 V. Johnson, 11. 20. 34. ill. 794. 796. 
 
 997 
 
 v. Miller, i. 381 
 
 ■ V. Race, ii. 220 
 
 1'. Shaw, ill, 1204, 1205 
 
 t\ Towers, ii. 109 
 
 V. Travers, ill. 770, 771. 1270 
 
 V. Warre, i. 531 
 
 V. Williams, iii. 829 
 
 Miller's case, i. 241. ii. 613. Hi. 850 
 
 Milllken v. Brandon, ii. 120 
 
 Millman v. Pratt, 11. 028 
 
 Mills V. Ball, 11. 103, 104. ill. 1220 
 
 V. Barber, i. 418, 419. 11. 245. app. ii. 
 
 ill. 1307 
 
 V. Bennett, ii. 135, 136 
 
 V. Campbell, app. ii. iii. 1 524 
 
 — — V. CoUett, ii. 682. 588 
 
 V. Elton, ii. 135 
 
 V. Fowkes, ii. 671 
 
 V. Graham, ii. 387 
 
 V. Oddy, i. 392. 419. ii. 244. 248. app. 
 
 i. 593 
 
 V. SafFord, iii. 1068 
 
 i\ Spencer, ii. 642. 644 
 
 V. Steward, 1.460 
 
 Miln V. Prest, ii. 206, 207. 209 
 Milne v. Gratrix, ii. 118 
 
 in re, app. ii. iii. 1342 
 
 Milnerv. Crowdall, ii. 110 
 
 V. Maclean, ii. 459 
 
 V. Milnes, ii. 535. 537 
 
 £:x 2Jarte, ii. 175 
 
 Milnes v. Branch, ii. 349 
 
 V. Duncan, ii. 86 
 
 Milsom V. Day, i. 78 
 
 Milton (Lord) v. Edworth, iii. 757. 701. 
 
 789. 793 
 
 V. Elmore, ii. 679 
 
 , f^ GrGGD 11 506 
 
 Milward v. Ca'ffin, ii. 589. 594. iii. 909 
 V. Forbes, i. 415. ii. 27. 170. 195. Hi. 
 
 954 
 
 ■ V. Temple, i. 380. 410. ii. 1 15 
 
 V. Thatcher, iii. 749 
 
 Milward (in the Goods of), iii. 1290 
 Milwich V. Creyton, iii. 1001 
 Milwood V. Walter, iii. 795 
 Minciiin v. Clement, i. 537 
 
 . V. Hart, ii. 505 
 
 Mines i\ Sculthorpe, ii. 71 
 Minett, Ex parte, ii. 482 
 Minshullv. Lloyd, i. 391. ill. 1012. 1145. 
 
 app. ii. ill. 1580 
 f
 
 Ixxxii 
 
 TABLE OF CASES. 
 
 Minter v. Mower, app. ii. iii. 1530 
 Minion's case, ii. 51, 53 
 Mires v. SoleI)ay, iii. 1101 
 Mitcliell V. Baring, ii. 224 
 
 V. Cockbunie, ii. 03. 78. 90 
 
 V. Darthez, app. ii. iii. 1022 
 
 V. Eile, app. ii. iii. 1372 
 
 V. Edie, iii. 881 
 
 t'. Foster, app. ii. iii. 1504, 1565 
 
 V. Hunt, i. 125 
 
 V. Jenlcins, ii. 084. 090 
 
 I'. Joluison, i. 380 
 
 V. King, iii. 1009 
 
 V. Lapa-je, iii. 1190, 1197 
 
 V. Oklfielil, ii. 048 
 
 V. Ramsay, i. 509 
 
 V. Walker, iii. 1081. 1084. 1080 
 
 V. Wriglit, iii. 794 
 
 Mitchinson v. Ilewson, ii. 538 
 Mitfordr. Mitford, ii. 175 
 Mitten ?". Green, ii. 590 
 Mizen r. Pick, ii. 542 
 Moffatt V. Parsons, iii. 1070 
 
 £Jx parte, Si])Yi. ii. iii. 1590 
 
 Mogg V. Baker, ii. 175. app. ii. iii. 1447 
 Moggridge, v. Jones, ii. 243. iii. 1188 
 Moillet V. Powell, i. 495 
 Moir V. Royal Exchange Ass. Company, 
 
 iii. 874 
 Mois V. Bruerton, iii. 1070 
 Moises v. Thornton, i. 224,225. 342. ii, 30 
 Moller ?'. Lambert, i. 472 
 
 V. Living, ii. 242. iii. 778 
 
 Mollet V. Brayne, ii. 474, 475. iii. 1182 
 Mollitor V. Trevilan, ii. 318 
 Molloy w. Delves, ii. 213 
 Molton V. Cheeseley, ii. 500. 503 
 
 V. Harris, i. 395. 412 
 
 V. Rogers, ii. 500 
 
 Monckton v. Attorney-general, iii. 835. 
 
 841, 842, 843 
 Mondell v. Steele, app. 1. 612 
 Moneaux v. Goreham, iii. 1145 
 Money v. Leaclx, i. 529. ii. 580. 594. 596 
 Money (W.), iii. 1302 
 Monk V. Baxter, ii. 473 
 
 V. Whittenbury, iii. 1150 
 
 Monke v. Butler, ii. 421. 428. iii. 935 
 
 V. Cowper, iii. 970 
 
 Monkhouse v. Hay, ii. 150 
 Monks V. Dykes, app. ii. iii. 1573 
 Monmouth Canal Company i\ Harford, 
 
 iii. 921. 1099 
 
 V. Kendall, iii. 1051 
 
 Morjprivatt v. Smith, iii. 1132. 1134 
 Montague v. Benedict, ii. 543 
 
 (Earl of) V. Preston (Lord), i. 330. 
 
 ii. 604 
 
 V. Sandwich (Lord), iii. 1107 
 
 Montague's (Lord) case, iii. 1283 
 Montgomery v. Clarke, i. 298, 299 
 
 V. Richardson, ii. 20 
 
 Montriou v. Jefferys, ii. 111. iii. 1308. app. 
 
 ii. iii. 1596 
 Monys v. Leake, iii. 1237 
 Moodalay v. Morton, i. 323 
 Moodie v. Rcid, iii. 902 
 Moody V. King, i. 110. 113. ii. 259 
 
 V. Thurston, i. 272. 305 
 
 Moon V. Booth, i. 92 
 
 Moon V. Raphael, i. 394. iii. 1013. 1108 
 
 V. Witney Guardians, app. ii. iii. 
 
 1623 
 Moons V. Bernales, iii. 833. app. ii. iii. 
 
 1393 
 Moor V. Dent, ii. 108 
 
 V. Hill, ii. 100 
 
 V. Moor, iii. 300. 041 
 
 ?'. Paine, ii. 215 
 
 V. Watts, iii. 1168 
 
 V. Withy, ii. 207 
 
 Moore v. Adam, i. 79 
 
 V. Andrews, li. 452 
 
 V. Bartlirop, ii. 144. 176 
 
 V. Bowmaker, iii. 1026. 1064 
 
 V. Clementson, iii. 821. 995 
 
 V. Eddowes, app. ii. iii. 1445 
 
 V. Hart, ii. 4''4 
 
 V. Hastings (Mayor of), i. 413, 41 4. 
 
 ii. 300 
 
 V. James, ii. 599 
 
 V. Morgue, iii. 727 
 
 v. Ostler, ii. 042 
 
 V. Pliillips, app. ii. iii. 1350 
 
 V. Plymouth (Lord), ii. 505 
 
 ■~^— — ■?' Pvckc n 70 
 
 V. RawsoD, iii. 748. 909. 1295 
 
 i\ Robinson, iii. 1103 
 
 V. Strong, ii. 665 
 
 V. Taylor, i. 533. iii. 1133 
 
 V. Vaughan, ii. 100 
 
 V. Voughton, ii. 576 
 
 V. Walker, iii. 940 
 
 V. Warren, ii. 266 
 
 V. Wilson, i. 474. ii. 284, 285. iii. 
 
 1152 
 
 V. Wright, ii. 178. iii. 996 
 
 Ex parte, app. ii. iii. 1345 
 
 Moore's case, ii. 311. iii. 946 
 
 Moores r. Hopper, ii. 297 
 
 Moorish ;;. Foote, i. 93. 116, 117. 119. 
 iii. 893 
 
 Moravia v. Levy, ii. 99 
 
 V. Sloper, i. 508. app. ii. iii. 1575 
 
 Morck V. Abel, ii. 96 
 
 Mordy v. Jones, iii. 877 
 
 More V. Manning, ii. 218. 361 
 
 Moreland v. Bennett, ii. 932 
 
 V. Leigh, iii. 1024 
 
 Morell V. Frith, ii. 668 
 
 V. Harvey, app. ii. iii. 1437 
 
 Moreton v. Hardern, ii. 301. iii. 738. 1107, 
 1108 
 
 Morewood v. Wood, i. 32, 33. 43. 182. 
 ii. 313. 359. 517. iii. 907, 908, 909 
 
 Morgan v. Ambrose, ii. 85. iii. 973. 1177. 
 1180,1181 
 
 V. Birnie, iii. 1306 
 
 V. Bissell, app. ii. iii- 1593 
 
 V. Bridges, i. 187. iii. 1029, 1030 
 
 V. Brown, ii. 587 
 
 V. Brundrett, ii. 141, 142. 665 
 
 V. Carter, ii. 68 
 
 V. Corder, iii. 1198 
 
 V. Cresswell, ii. 244 
 
 V. Curtis, iii. 861 
 
 d. Dowding v. Bissell, iii. 1178 
 
 V. Edwards, i. 468, 469, 470. 484 
 
 V. Hallen, app. ii. iii. 1325 
 
 V. Horseman, ii. 138. 141
 
 TABLE OF CASES. 
 
 Iw'xiii 
 
 Morgan v. Hughes, i. 284. ii. 585. 593. 599. 
 
 iii. 1110 
 
 V. Jonos, ii. 97, 98 
 
 V. Morgan, i. 378. iii, 899 
 
 V. Nevill, iii. 1089 
 
 V. Painter, ii. 537 
 
 V. Palmer, ii. 85. 
 
 V. Pebur, app. ii. iii. IGOI 
 
 V. Pryor, ii. 1:20. 192 
 
 V. Richardson, ii. 243. iii. 1209 
 
 V. Ruddock, app. ii. iii. 1325 
 
 V. Seaward, app. ii. iii. 1531 
 
 V. Slaughter, ii. 345. app. ii. iii. 1387 
 
 V. Tedcastle, ii. 363 
 
 V. Thorne, app. i. 609 
 
 JEx parte, app. ii. iii. 1347 
 
 Morgan'3 case, i. 222 
 Morgell r. Paul, iii. 1179 
 Morish ?•. Foote, app. i. 595 
 Morland v. Bennett, iii. 823 
 Morley r. Boothby, ii. 509 
 
 V. Culverwell, app. ii. iii. 1369 
 
 V. Frear, ii. 348 
 
 V. Gainsford, iii. 1106. 1111 
 
 V. Hall, iii. 1046 
 
 V. Hay, ii. 650 
 
 V. Ing"lis, iii. 993 
 
 V. Law, i. 470. ii. 708 
 
 Morley's (Lord) case, ii. 383. 38 5. 723 
 Morrell r. Frith, app. ii. iii. 1473, 1474 
 11. Martin, app. i. 598. app. ii. iii. 
 
 1437, 1438 
 Morrice v. Cox, app. ii. iii. 1558 
 Morris v. Burdett, iii. 1300 
 
 i\ Chapman, ii. 63 
 
 v. Cleasby, iii. 822. 995. 1198 
 
 r. Davis, i.244. ii.l97. app. ii. iii. 1360 
 
 V. Dimes, ii. 505 
 
 V. Dixon, ii. 667 
 
 V. Edginton, ii. 318. iii. 1255, 1256 
 
 r. Harwood, iii. 1078 
 
 V. Hauser, app. i. 621 
 
 • V. Jones, app. ii. iii. 1504 
 
 V. Kearsley, app. ii. iii. 1523 
 
 V. Kelly, iii. 940,941 
 
 i: Langdale, ii. 637 
 
 V. Lee, ii. 242. 253 
 
 V. Lotan, ii. 1 
 
 V. Martin, ii. 544, 545 
 
 V. Mellin, iii. 1236 
 
 V. Miller, ii. 25. 352. iii. 894 
 
 V. Nugent, app. ii. iii. 1577 
 
 V. Parkinson, iii. 1015 
 
 V. Pugh, i. 328. iii. 1074. 1076. 1101 
 
 V. Robinson, iii. 1108, 1109. 1225 
 
 V. Stacy, ii. 483 
 
 Morrison r. Bell, i. 400 
 
 V. Gray, iii. 1140. 1152 
 
 f. Harmer, app. ii. iii. 1460 
 
 V. Kelly, ii. 077 
 
 V. Lennard, i. 92 
 
 V. Muspratt, iii. 886 
 
 V. Parsons, iii. 1301 
 
 -E.i" parte, app. ii. iii. 1003 
 
 Morrison's case, iii. 704 
 Morrow v. Saunders, ii. 567 
 Mors V. Benerton, i. 329 
 Morse v. James, app. ii. iii. 1575 
 
 t;. Slue, ii. 288 
 
 Morse v. Stall, i. 474 
 
 Mortara v. Hall, app. ii. iii. 1443 
 Mortimer v. Fleming, iii. 809, 870 
 
 V. M'Callan, app. i. 007. app. ii. iii. 
 
 1501. 1598 
 
 v. Preedy, app. ii. iii. 1580 
 
 Mortiniore i-. Wright, app. ii. iii. 1443 
 Mortin v. Shoppee, ii. 52. iii. 1112 
 Mortlock V. Buller, ii. 480 
 Morton v. Burn, app. ii. iii. 1329 
 
 V. Hordern, iii. 737 
 
 V. Lamb, ii. 07. iii. 1188 
 
 JEx parte, ii. 148. 175 
 
 Moscati V. Lawson, app. i. 625. app. ii. iii. 
 
 1466, 1407 
 Moseley v. Davies, iii. 1092 
 
 V. Hanford, iii. 759 
 
 Moses V. Macfarlane, i. 271. ii. 83. 92 
 
 V. Newman, ii. 145 
 
 V. Norris, iii. 1015, 1016 
 
 V. Thornton, ii. 027 
 
 Mosley (Bart.) v. Walker, iii. 744 
 
 Mosley's case, ii. 307 
 
 ISIoss V. Baker, app. ii. iii. 1351 
 
 V. Charnock, iii. 870 
 
 V. Gallimore, ii. 392. 428. 709. iii. 
 
 729. 966. 1183 
 
 V. Mills, iii. 870 
 
 V. Smith, ii. 147. app. ii. iii. 1503 
 
 ]Most>ni V. Fabrigas, i. 322. 508. ii. 459. 
 
 iii. 1106. 1112 
 Moth V. Frome, ii. 176 
 
 Mottsi'. Hawkins, iii. 1127 
 
 Moule V. Brown, ii. 223 
 V. Stawell, ii. 116 
 
 Mcult V. Jennings, ii. 592 
 V. Massey, ii. 151 
 
 Mounsey i'. Blamire, iii. 774. 1270 
 V. Stephenson, iii. 1046 
 
 Mounson v. Bourn, i. 508 
 
 Mount ?'. Larkins, iii. 889 
 
 Mountford v. Gibson, ii. 443. 445 
 V. Willis, ii. 577 
 
 Mountstephen t». Brooke, i. 457. ii. 213. 
 662. 669, 670 
 
 Mowbray v. Fleming, ii. 109 
 
 Moyser v. Whitaker, iii. 1042 
 
 Mozey's case, ii. 37 
 
 Mucklow V. Mangles, iii. 1147. 1222 
 
 r. May, ii. 136 
 
 V. St. George, ii. 70 
 
 Mucklow's case, ii. 606 
 
 Mudie V. Bell, iii. 1100 
 
 JMuddle V. Stride, app. ii. iii. 1488 
 
 Muilman v. D'Eguins, ii. 223. 227 
 
 Mulgrave v. Ogden, iii. 1157 
 
 Mulgrave (Case of the), iii. 1299 
 
 Muller V. Hartshorn, i. 321. iii. 830 
 
 V. Moss, ii. 155. 159. 162 
 
 Mullet V. Hulton, ii. 620. 042 
 
 Mullettw. Green, app. ii. iii. 1353 
 
 V. Hook, ii. 2 
 
 V. Hunt, i. 80. app. i. 591 
 
 V. Hutchison, iii. 10.36, 1037, 1038 
 
 V. Thompson, ii. 249 
 
 Mulvany v. Dillon, i. 317 
 
 Munday and another v. Slaughter, app. ii. 
 iii. 1419 
 
 Munderson v. Reeve, ii. 670 
 
 Munk V. Clarke, ii. 23. 150 
 
 Munn V. Baker, ii. 289, 290 
 f2
 
 Ixxxiv 
 
 TABLE or CASES, 
 
 Munn V. Godbold, i. 393, 31)4 
 
 Munro v. De Clieniaiit, ii. 22. 54G 
 
 Munroe i>. Twisleton, ii. 552 
 
 Mimt V. Stokes, ii. 441 
 
 Muntz V. Goring, ii. 348 
 
 Mure V. Kay, ii. 459,400. 556.603.G81 
 
 Muresoii i'. Dawson, ii. 349 
 
 Murgatrovd i'. Murgatroyd, ii. 307. iii.990 
 
 Murley r." M'Dermott, iii. 789. 1127, 1 128. 
 
 app. ii. iii. 1 574 
 Murpliy V. Cunniiigliam, ii. 110 
 
 > V. Doiilan, i. 530, 537 
 
 Murphy's case, i. 101 
 
 Murray v. Curiie, app. ii. iii. 1623 
 
 V. East India Company, ii. 339- 653. 
 
 661 
 
 V. Elliston, iii. 941 
 
 V. Heath, iii. 940 
 
 V. King, iii. 1065 
 
 V. Lawford, i. 322 
 
 V. Reeves, ii. 66. 107 
 
 V. Somerville, ii. 2. iii. 815 
 
 V. Stair (Earl of), i. 373, 374. ii. 209 
 
 V. Tliornhill, ii. 670 
 
 t). Wise, i. 315 
 
 Murray, In re goods of, ii. 555 
 Murton, Ex jJarte, app. ii. iii. 1350 
 Musgrave r. Cave, ii. 314 
 Musgrove r. Newell, app. ii. iii. 1475 
 Muskett V. Drummond, ii. 124 
 
 V. Hill, app. ii. iii. 1489 
 
 V. Rogers, ii. 510 
 
 Muspratt v. Gregory, app. ii. iii. 1400 
 Mussen v. Price, ii. 71. 265. iii. 1204, 
 
 1205 
 Myddelton v. Sandford, ii. 210 
 Myers v. Kent, i. 485 
 Myleton V. Butler, ii. 142 
 Mynn v. Robinson, iii. 1283 
 
 V. Joliffe, iii. 821 
 
 Myrtle v. Beaver, iii. 1170 
 Myttont). Gilbert, iii. 1173 
 — ^ V. Harris, i. 241. iii. 1091 
 
 Nagle I". Edwards, iii. 1086 
 Naish V. Tatloek, iii. 831. 1176 
 
 In re, iii. 1185 
 
 Nannock v. Htirton, iii. 771 
 Nantes v. Thompson, iii, 867 
 Napier v. Napier, iii. 771, 772 
 Nares v. Rowles, ii. 51 1 
 
 V. Saxby,ii. 192 
 
 Nash V. Buncombe, iii. 1058 
 
 V. Palmer, ii. 347. 471 
 
 V. Turner, ii. 22. 87. 343. 422 
 
 Nathan v. Buckland, i. 137. 532 
 
 V. Cohen, ii. 603 
 
 Nation v. Tozer, iii. 1177. app. ii. iii. 1415. 
 
 1589 
 Navestock v. Standon Massey, ii. 362 
 Naylor i'. Mangles, ii. 648 
 
 V. Taylor, i. 292. iii. 880. 882. 892 
 
 Neal V. Erving, ii. 43. iii. 866 
 
 V. Isaacs, ii. 563, 564 
 
 V. Swind, iii. 1176 
 
 Neale v. Fay, i. 251 
 
 V. Jay, i. 251 
 
 d. Leroux v. Parkin, iii. 1214 
 
 V. Neville, iii. 1231 
 
 !■. Parkin, ii. 19 
 
 Neale v. Sweeny, iii. 1175 
 
 V. 'I'urton, ii. 206. 241 
 
 V. Vinov, iii. 1183. 1191. 1199 
 
 r. Wilding, i. 297 
 
 V. Wyllie, i. 1 16. 127. ii. 345. 364. 
 
 Neate r'. Ball, ii. 144. 161 
 
 Neave v. Moss, iii. 1181 
 
 r. Pratt, iii. 1304 
 
 Neck r. Humphrey, app. ii. iii. 1553 
 
 Nccly V. Locke, ii. 67 
 
 Neirinckx, Ex "parte, app. ii. iii. 1345 
 
 Nelson v. Aldridge, ii. 58 
 
 V. Cherrell, ii. 122. iii. 1103 
 
 V. London Assurance Company, ii. 
 
 154 
 
 V. Salvador, iii. 874 
 
 V. Whittal, i. 374. 380, 381. ii. 204 
 
 X. Wilson, ii. 107 
 
 (Case of the), iii. 1-302 
 
 Nelstrop v. Scarisbrick, apj). ii. iii. IS.'SO 
 
 Nelthorpe v. Dorrington, iii. 1083. 1165 
 
 Nepean v, Budden, i. 75 
 
 V. Doe d. Knight, ii. 400 
 
 Neptune (Case of the), iii. 1305 
 
 Neiot V. Wallace, ii. 94 
 
 Nesham & others v. Armstrong, ii. 531 
 
 Nettleton's case, ii.615 
 
 Neville r. Cooper, iii. 1134 
 
 New I'. Ghidgy, iii. 1229 
 
 V. Sloman, iii. 1222 
 
 Newall D. Jones, ii. 575. app. ii. iii. 1345 
 
 Ex "parte, ii. 127 
 
 Newbury v. Armstrong, ii. 483. 509 
 
 Newby v. Jackson, ii. 421 
 
 V. Read, iii. 879 
 
 • V. Wiltshire, ii. 70 
 
 Newcastle (Duke of) v. Broxtowe Hun- 
 dred, i. 182. ii. 534 
 
 V. Clarke, iii. 1100. 1127 
 
 New College (Case of), i. 285. 306 
 
 Newell V. Simpkin, ii. 569 
 
 Newen v Gill, app. ii. iii. 1365 
 
 Newhall v. Holt, app. ii. iii. 1318. 1542 
 
 Newham i'. Raithby, i. 244 
 
 V. Taite, app. ii. iii. 1450 
 
 Newland v. Bell, ii. 127,123 
 
 Newman v. Bendyshe, app. ii. iii. 1452 
 
 V. Fletcher, iii. 1172 
 
 "0. Hardwick, ii. 587. 591 
 
 V. Leach, ii. 439 
 
 V. Morgan, iii. 742. 1094 
 
 V. Newman, ii. 270. iii. 899 
 
 V. Smith, ii. 535, 536 
 
 1'. Stretch, ii. 132. 134 
 
 ' Ex parte, ii. 186 
 
 in the Goods of, iii, 1290 
 
 Newmarch v. Clay, iii. 813, 814. 826, 827 
 
 Newport v. Hollings, ii. 150 
 
 (Mayor, &c. of) v. Saunders, ii. 69 
 
 Newsam i". Carr, ii. 306. 641. 680. 685 
 
 Newsom v. Coles, iii. 807. 813, 814 
 
 V. Dugdale, iii. 1180 
 
 V. Graham, ii. 88 
 
 V. Thornton, ii. 45. 163. 649. iii. 871 
 
 Newton r. Allin, app. ii. iii. 1390 
 
 V. Attorney-general, iii. 845 
 
 V. Beresford, iii. 1092 
 
 V. Chantler, i. 523, 524. ii. 138. 140. 
 
 142
 
 T A B L !•: OF CASE S. 
 
 Ixxxv 
 
 Newton and auotlier v. Clarke, app. ii. iii. 
 
 1G17 
 
 V. Constable, app. ii. iii. li">7-2 
 
 V. Harland, ii. J32. app. i. 590. ii. iii. 
 
 1422. 1574 
 Nias V. Nicholson, ii. 5G4 
 P, Northern and Eastern Railway Coni- 
 
 panj', app. ii. iii. 144SJ 
 Nicliol V. Tlionipsou, ii. 100. 570. 578 
 Nicholaas Witzen (The), app. ii. iii. 1022 
 Nicholas v. Ilayter, app. ii. iii. 1477 
 NichoU I'. Darley, iii. lOlG 
 Nicholls r. Bamfylde, i. 487 
 
 t'. Downcs, ii. 19. 5G2. 5G5 
 
 V. Norris, ii. 251. 253. iii. 10G5, lOGO 
 
 V. Parker, i.32. 43. 1 81. ii.G97. iii. 83G 
 
 V. Williams, iii. 818 
 
 Nichols V. Dowding, 1. 1G9. ii. 31 
 
 r. Hart, ii. Ui4 
 
 r. Walker, ii. 589. 599. 
 
 Nicholson v. Coghell, ii. G83. 689, G90 
 
 V. Croft, ii. 299. iii. 867 
 
 V. Gouthit, ii. 286 
 
 V. Knowles, ii. 95 
 
 V. Mouncey, iii. 739 
 
 r. Revell, app. ii. iii. 1370 
 
 V. Sedgwick, ii. 2G3 
 
 r. Smith, iii. 1037 
 
 - i'.WiIlan,ii.290 
 
 Nickesson v. Trotter, app. ii. iii. 1512 
 Niekson v. Jepson, iii. 1205 
 Nicoll V. Gleanie, iii. 1164 
 Nicolls V. Bastard, iii. 1145, 1146 
 Nightingale v. Devismes, ii. 74. 80 
 Nisbet V. Smith, ii.251. iii. 1065 
 Nisbitt, Ex parte, ii. 648 
 Nix r. Cutting, i. 115. 118. 122. 161. iii. 
 
 1169. 1229 
 Nixon V. Jenkins, ii. 153. iii. 1160, 1161, 
 
 1162 
 
 V. Nanney, app. ii. iii. 1452 
 
 Noble V. Adams, iii. 1148. 1225. 1227 
 V. Durell, iii. 1214 
 
 V. Kenuaway, i. 53. 621. ii. 362, 363. 
 
 iii. 779 
 
 V. Kersey, ii. 152 
 
 Nockells V. Crossby, ii. 92. iii. 807 
 Nodin V. Murray, i. 404 
 Noel V. Boyd, app. ii. iii. 1368 
 
 V. Rochfort, app. ii. iii. 1373 
 
 V. Wells, i. 288. 305 
 
 Nokes V. James, ii. 347 
 
 Norcutt V. Dodd, app. ii. iii. 1431 
 
 V. Mottram, app. i. 633 
 
 Norden v. W^illiamson, iii. 797 
 
 Norden's case, ii. 612 
 
 Norfolk (Duke of) v. Germaine, ii. 353 
 
 (Duke of) V. Worthy, iii. 1194. 1213 
 
 1215 
 Norfolk's (Duke of) case, ii. 383 
 Norman i'. Baldry, app. ii. iii. 1418 
 
 r. Bell, iii. 1152. 1156 
 
 V. Booth, ii. 126 
 
 V. Cole, ii. 94 
 
 V. Morrell, iii. 756 
 
 V. Norman, iii. 1271 
 
 V. Wescombc, app. ii. iii. 1579 
 
 Norris ?•. Aylett, ii.250 
 
 V. Gawtny (Ilund. of), ii. 534 
 
 Norris v. La Neve, iii. 729 
 
 ?'. Napper, i. 151 
 
 V. Poate, ii. 85 
 
 V. Smitli, iii. 1173 
 
 V. Sulomonson, app. ii. iii. 13G4 
 
 V. Solomon, iii. 1042 
 
 Norrish v Richards, app. ii. iii. 1476 
 
 Ex parte, ii. 498. 
 
 North f. Miles, ii. 31. iii. 1013 
 Nortii's case, ii. 52 
 
 Nortliam i'. Latouche, i. 304. ii. 562. 564 
 Northampton (Mayor of) v. Ward, iii. 1 102 
 Nortliampton's (Lord) case, ii.637. 644 
 Northumberhmd's (Earl of) case, i.444 
 Northwick (Lord) v. Stanway, ii. 337 
 Norton i". Ellams, ii. 661 
 
 V. Fazan, ii.544 
 
 V. Melbourne (Lord), app. i. 611 
 
 V. Miller, ii. 603 
 
 V. Pickering, ii. 231. 234 
 
 Norton's case, ii. 689 
 
 Norwich (Sheriff of) v. Bradshaw, iii. 1032 
 
 Norwich Navigation Co. c. Theobald, ii. 2S9. 
 
 iii. 732. 815. 817 
 Norwood I'. Stephenson, ii. 538. 546 
 Norwood's case, iii. 894 
 Nosey, Ex parte, ii. 148 
 Notley V. Buck, iii. 1023 
 
 Nott v. Curtis, ii. 393 
 Nottidge r. Pritchard, app. ii. iii. 151G 
 Nottingham (Mayor and Burgesses of ) f. 
 Lambert, iii. 906 
 
 Novell! V. Rossi, i. 275 
 
 Nowell V. Davis, i. 151, 152. 167 
 
 ir. Roake, ii. 435 
 
 V. Sands, iii. 1099 
 
 Noy V. Reynolds, ii. 80 
 
 Noyder r. Peacock, i. 315 
 
 Noye V. Reed, iii. 1127. 1144 
 
 Noyes v. Price, ii.80 
 
 Nullam V. Arden, iii. 971 
 
 Nunni'. Wilsmorc, ii. 494, 495 
 
 Nurse i\ Craig, ii.542. 546 
 
 Nutbrown's case, ii. 179 
 
 Nute's case, ii. 36 
 
 Nutt r. Butler, iii. 1207 
 
 Ex parte, ii. 128 
 
 Nympsfield v. Woodchester, iii. 1005 
 
 Oakapple v. Copons, ii. 415 
 Oakden v. Clifden, iii. 785. 1273 
 Oakeley v. Pasheller, iii. 1065 
 Oakley v. Adamson, app. ii. iii. 1610 
 
 V. Davis, iii. 1133. 1141 
 
 Oakes v. Wood, iii. 1135. 1137. app. ii. iii. 
 
 1574 
 Gates d. Wigfall v. Brydon, a. 429. ui. 
 
 764 
 Obbard v. Bentham, ii. 242 
 Obicini V. Bligh, i. 267. 306 . 
 O'Brien v. Currie, ii. 122 
 
 V. Saxon, iii. 1 131 
 
 O'Coigley's case, i. 197 
 O'Connor v. Spaight, ii. 48 
 O'Connor's case, i. 197 
 Ockenden, Ex parte, ii. G49 
 Oddy V. Bovill, i. 292, 293. iii. 891 
 Odeil r. Wake, ii. 350 
 
 f 3
 
 Ixxxvi 
 
 TABLE OF CASES. 
 
 Odwin V. Forbes, In re, ii. 18G 
 
 Odye V. Cookney, iii. 1050 
 
 Offly V. Clay, app. ii. iii. 1439 
 
 Ogden i\ Aspinall, ii. 510 
 
 Ogilvie V. Foljanibc, ii. 485 
 
 Ogle V. Atkinson, ii. 47. iii. IIGO. IIGG, 
 
 11G7. 1227 
 
 V. Barnes, iii. 737. 1 107, 1108 
 
 V. Norclitfe, i. 508 
 
 V. Paleski, i. 93. 137. 316 
 
 Okell V. Smith, iii. 1208. 1210. 1239. 
 
 1308 
 Oldersliaw v. Holt, app. ii. iii. 1326 
 
 V. Thompson, iii. 992 
 
 Oldfield r. Lowe, iii. 1297, 1298 
 Oldham v. Peake, ii. 628 
 Oldn'ian v. Slater, iii. 783 
 Oldroyd's case, i. 212. ii. 386 
 Olive V. Eames, ii. 286 
 
 V. Gwyn, i. 224, 225. 412 
 
 V. Smith, ii. 179 
 
 Oliver v. Bartlett, i. 28. 32. ii. 159 
 
 V. Woodruffe, app. ii. iii. 1603 
 
 Olivier v. Bligh, i. 276 
 
 Omeron v. Dowick, iii. 1236 
 
 Omichund v. Barker, i. 21. ii. 242. 302, 
 
 303 
 Oneby's case, ii. 323. 724 
 O'Niel V. Marson, iii. 1022 
 Onslow V. Eames, iii. 1242 
 Onyons v. Tj'rer, iii. 1285 
 Oom V. Bruce, ii. 97 
 Oppenheim i\ Russell, ii. 163, 164. 647, 
 
 648. iii. 1226 
 Oppernian v. Smith, ii. 394 
 Orby V. Hales, ii. 699 
 Ord V. Fenwick, ii. 443 
 
 V. Portal, ii. 218 
 
 V. Ruspini, ii. 671 
 
 £!x j)nrte, app. ii. iii. 1 352 
 
 Orford v. Cole, li. 706. iii. 1037, 1038 
 
 (Mayor of) v. Richardson, iii. 1253 
 
 Orme v. Crockford, ii. 508 
 
 V. Young, iii. 1050 
 
 Ormerod v. Tate, ii . 648 
 
 Ormond (Duke of) v. Bierley, iii. 1026 
 
 Orpwood V. Barkes, ii. 619 
 
 Orr V. Churchill, ii. 576 
 
 V. Maginnis, ii. 231, 232 
 
 V, Morrice, i. 406 
 
 Osborn v. Gough, ii. 582 
 
 1'. Guy's Hospital (Govs, of), iii. 
 
 1298 
 
 V. Wise, iii. 1255 
 
 Ex parte, ii. 193 
 
 Osborne v. Harper, ii. 76. iii. 1061 
 
 V. Rider, iii. 1073 
 
 V. Taylor, i. 370 
 
 V. Thomas, app. ii. iii. 1605 
 
 r. Thompson, iii. 1237 
 
 Osgatliorpe v. Dinworth, i.295 
 
 Oswald V. Leigh, ii. 270 
 
 Oswell V. Vigne, iii. 890 
 
 Oughnan v. Parish, i. 323 
 
 Oughterlony v. Easterhy, ii. 178. iii.. 996 
 
 Oughton V. Seppings, ii. 84. iii. 1099 
 
 V. Trotter, ii. 17 
 
 Oiindle (Case of Lord of Manor of), ii. 
 
 336 
 Ouston V. Hebden, iii. 800 
 
 Outhwaite v. Luntley, ii. 255 
 
 Outram v. Morewood, i. 32. 258. 263. 268. 
 
 354. 358. 364, 365. iii. 958, 959 
 Owen V. Barrow, ii. 41.43. iii. 820. 1184 
 
 X). Bode, app. ii. iii. 1427 
 
 V. Bowen, ii. 92 
 
 V. Burnett, ii. 295 
 
 V. Gooch, iii. 1192. 1198 
 
 V. Knight, iii. 1166. app. ii. iii. 1469 
 
 V. Legh, ii. 390 
 
 V. Thomas, app. ii. iii. 1556 
 
 V. Woolley, ii. 663. 668 
 
 Owen's case, ii. 694 
 
 Owen & Prickett's case, ii. 506 
 
 Owens V. Porter, iii. 1218 
 
 Owerson v. Morse, ii. 71. 163, 164. 266. iii. 
 
 827. 1226 
 Owston V. Ogle, iii. 815 
 Oxendale v. Wetherell, ii. 91. iii. 1200. 
 
 1205 
 Oxenden v. Clapp, ii. 451 
 V. Palmer, i. 159. app. i. 596. 598. 
 
 app. ii. iii. 1412 
 
 V. Skinner, iii, 1087 
 
 Oxenham ?'. Lemon, ii. 108 
 Oxford V. Cole, ii. 706 
 Oxford's case, iii. 1278, 1279 
 Oxlade v. Perchard, ii. 191 
 Oxley V. Flower, iii. 1113 
 
 V. Gardiner, iii. 921 
 
 V. Young, ii. 511 
 
 Ozard v. Darnford, ii. 540 
 
 Pace V. Marsh, ii. 482, 483. 508 
 Pack V. Tarpley, app. ii. iii. 1540 
 Packer v. Gibbins, app. ii. iii. 1587 
 
 V. Gillies, iii. 1148 
 
 Packham's case, ii. 451 
 Paddock r. Fradley,i. 113. iii. 773 
 Paddon v. Bartlett, iii. 1045 
 Padgett V. Priest, ii. 446, 447 
 Padmore i'. Lawrence, app. ii. iii. 1465 
 Paget'. Bauer, ii. 151. 174. iii. 1024 
 
 V. Earner, iii. 1024 
 
 V. Fry, iii. 872 
 
 V. Godden, ii. 180. 350 
 
 V. Mann, i. 380 
 
 V. Newman, ii. 575. 579 
 
 V. Page, iii. 1292 
 
 V. Pavev, app. ii. iii. 1 605 
 
 V. Self by, ii. 401 
 
 V. Thomas, app. ii. iii. 1372 
 
 V. Townsend, iii. 938 
 
 V. Way, app. ii. iii. 1351 
 
 r.Wilson, iii. 1093 
 
 V. Wiple, ii. 691. iii. 1111 
 
 Ex parte, ii. 590 
 
 Paget V. Foley, app. ii. iii. 1471 
 
 V. Perchard, ii. 495 
 
 Pain V. Beeston, i. 214 
 
 V. Rochester, ii. 685 
 
 V. Whitaker, ii. 387. iii. 1 154 
 
 Paine ?7. Bustin, ii. 376 
 
 V. Patrick, iii. 740 
 
 V. Pritchard, ii. 576 
 
 Paine's case, ii. 384 
 
 Painter v. Attorney-general, iii. 1252 
 
 v. Liverpool Gas Light Company, ii. 
 
 600 
 Palethorpe v. Furnish, il. 30. 33. 43. 663
 
 TABLE OF CASE S. 
 
 Ixxxvii 
 
 Paley v. Barker, iii. 8"2S 
 
 r. Field, iii. 1066 
 
 Palgrave v. Wiudhaiii, iii. 1026 
 
 Pallantj'. Roll,ii 504 
 
 Pallas i\ Rolk', i. 4;39 
 
 PalliscT i: Ord, iii. 1071 
 
 Palmer v. Aylesbury (Lord), i. 31 1. 325 
 
 V. Blackburne,iii. 807. 882 
 
 V. Ekins, iii. 973 
 
 r. Fenning, iii. 889 
 
 V. Fletclier, iii. 743. 1295 
 
 i\ Gooch, ii. 75 
 
 V. Grand Junction Railway Company, 
 
 ii. 283 
 
 V. Hooker, i. 277 
 
 ?j, Jarman, iii. 1157 
 
 V. Marshall, iii. 874. 889 
 
 V. Moore, ii. 126 
 
 V. Moxon, iii. 870 
 
 • V. Sells, ii. 32 
 
 V. Temple, app. ii. iii. 1339. 1595 
 
 • V. Waller, ii. 453 
 
 JEx parte, ii. 134 
 
 Palmerston's (Lord) case, i. 184. 313. 327 
 
 Palyart i: Leckie, iii. 885 
 
 Paunell i\ Fenn, ii. 455 
 
 Panton u. Jones, iii. 1179 
 
 Paramore v. Johnson, ii. 16 
 
 Paramour v. Yardley, ii. 409 
 
 Parfait's case, ii. 53 
 
 Parliam v. Templar, iii. 862 
 
 Pariente v. Plumtree, iii. 1015, 1016 
 
 Parish, q. t. v. Burwood, iii. 846 
 
 Park V. Edge, i. 495, ii. 224. 234 
 
 V. Hammond, iii. 728 
 
 Parke v. Alexander, iii. 823 
 
 V. Eliasou, ii. 166 
 
 V. Mears, i. 274 
 
 Parker v. Alcock, ii. 507 
 
 V. Barker, ii. 129. 181 
 
 V. Baylis, ii. 454 
 
 V. Biscoe, iii. 1288 
 
 V. Carter, ii. 649 
 
 V. Crole, ii. 184 
 
 t'. Dubois, iii. 1038 
 
 V. Fenn, iii. 1014 
 
 V. Godin, iii. 1163 
 
 V. Gordon, ii. 222 
 
 V. Gossage, app. ii. iii. 1445 
 
 V. Harcourt, ii. 107 
 
 V. Hoskins,i.377,378 
 
 r. Hutchinson, ii. 576 
 
 V. Kett, iii. 809 
 
 V. Leigh, ii. 252 
 
 V. M'William, i. 189 
 
 V. Manning, ii. 174. iii. 973 
 
 V. Mitchell, app. ii. iii. 1529. 1613 
 
 V. Norton, ii. 184, 185, 186 
 
 V. Palmer, i. 458, 459, 460. 522. ii. 
 
 60 
 
 V. Patrick, ii. 649. iii. 1148. 1225 
 
 V. Potts, iii. 889 
 
 V. Ramsbottom, iii. 1185. 1187 
 
 V. Rawlings, iii. 1220 
 
 V. Smith, iii. 747 
 
 r. Staniland, ii. 480. iiL 1039. 1102. 
 
 1207 
 
 V. Whitby, i. 104 
 
 Parker i'. Wise, ii. 510. 512 
 Parkes & Brown's case, ii. 460. 462 
 
 Parkhurst v. Lowteu, i. 191. 194. ii. 321 
 Parkin v. Carruthers, iii. 813 
 
 V. Moore, i. 188. ii. 233 
 
 V. Radcliffe, i. 449 
 
 Parkins v. Hawkshaw, i. 374. 380. 409. 
 
 ii. 115.210. 270 
 
 r. Moravia, iii. 1038 
 
 Parkinson v. Collier, iii. 781 
 
 V. Lee, ii. 372. iii. 1237. 1240 
 
 Parkyn's case, iii. 1235 
 
 Parraeter v. Todhunter, iii. 881 
 
 Parminter i\ Symons, ii. 239 
 
 Parmiter r. Coupland, ii. 645, 646. app. 
 
 ii. iii. 1467 
 Parnaby o. Lancaster Canal Co. app. ii. iii. 
 
 1493 
 Parr v. Cotchett, iii. 824 
 
 V. Eliason, ii. 246 
 
 Parr's case, ii. 465 
 
 Parrett Nav. Co. v. Stower, app. ii. iii- 
 
 1403 
 Parrott r. Fisliwick, ii. 683 
 Parry i-. AberJein, iii. 880, 881 
 
 V. Collis, i. 446 
 
 V. Deene, iii. 1048 
 
 V. Duncan, iii. 976 
 
 V. Fairhurst, i. 496, 497 
 
 V. Hiudle, ii. 412 
 
 V. House, iii. 973 
 
 V. May, i. 400 
 
 V. Roberts, app. ii. iii. 1335 
 
 Parslow V. Dearlove, ii. 184 
 
 V. Weedon, ii. 521 
 
 Parsons v. Bellamy, iii. 1082 
 
 V. Bluudey, ii. 85 
 
 V. Chapman, app. ii. iii. 1521 
 
 V. Crosby, iii. 804. 1230 
 
 v. Hancock, ii. 447 
 
 t'. King, ii. 584. iii. 1076 
 
 V. Parsons, iii. 770 
 
 V. Thomson, ii. 64 
 
 Parson's case, iii. 1182 
 
 Parteriche v. Powlet, iii. 790 
 
 Partington v. Butcher, i. 334. 416. ii. 
 
 664 
 
 • V. Woodcock, iii. 1181 
 
 Parton v. Williams, ii. 583. 596. 598. 
 
 600 
 Partridge v. Bere, ii. 181. 428. iii. 978 
 
 V. Coates, i. 400. iii. 846 
 
 V. Court, ii. 98. 104 
 
 V. Scott, iii. 746 
 
 V. Stracye, i. 510. iii. 769 
 
 V. Walbank, app. i. 634 
 
 Pasley'tJ. Freeman, ii. 363 
 Pasmore v. Birnie, ii. 111. iii. 1309 
 
 V. Bousfield, i. 503. ii. 2. iii. 814 
 
 V. North, i. 487. ii. 212 
 
 Pasquin's case, ii. 640 
 
 Passenger r. Brookes, ii. 101. 105 
 
 Paster i'. Winchester (Bishop of), ii. 571 
 
 Patchett V. Bancroft, i. 291 
 
 Paterson v. Black, ii. 365 
 
 V. Gandasequi, ii. 42. iii. 1198. 1203. 
 
 1206 
 
 V. Hardacre, ii. 210. 220, 221 
 
 V. Ritchie, iii. 880, 881 
 
 r. Tash, ii.45. 649 
 
 v. Zachariah, iii. 814 
 
 Sx parte, ii. 128, 129 
 
 f 4
 
 XXXVlll 
 
 TABLE OF CASES. 
 
 Patience v. Townley, ii. 222 
 Patnian v. Vauglian, ii. 126. 128 
 ■Paton V. Duncan, ii. 08 
 
 • V. Sli('])|)ar(l, apj). ii. iii. 15G1. 1008 
 
 V. VVintiT, ii. 208. 255 
 
 Patrick v. Colerick, app. ii. iii. 1575 
 
 V. Greeiiway, ii 317. iii. 1254 
 
 Patrick's (Dr.) case, i. 285. 300 
 Patten v. Brown, ii. 128 
 
 • V. Tiioinpson, ii. 268 
 
 Pattcshall v. Tranter, iii. 1211 
 Patteson's case, app. i. 026 
 Pattison v. Jones, ii. 631. 634. 038. 040, 
 641 
 
 • V. Robinson, iii. 1162 
 
 Paty's case, ii. 694 
 Paul V. Dowling, ii. 128 
 
 V. Goodluck, app. ii. iii. 1554 
 
 V. Jones, ii. 184 
 
 V. Meeke, iii. 1057 
 
 — V. Nurse, ii. 340 
 
 Pauli, Ex jjarte, ii. 161 
 Paull V. Brown, i. 106. 151, 152 
 Pawle V. Gunn, app. ii. iii. 1334 
 Pawleyii. Brown, ii. 261 
 Pawson V. Barnevelt, iii. 874 
 
 V. Watson, iii. 874. 888 
 
 Paxton V. Popliam, ii. 268. iii. 765 
 
 Ex parte, ii. 146 
 
 Payler v. Homersham, iii. 966 
 Payne v. Bacoinb, ii. 72 
 
 V. Cave, iii. 11D6. 1219 
 
 V. Cliapmau, ii. 93 
 
 V. Drew, iii. 1033. 1149 
 
 V. Hayes, i. 462 
 
 V, Ives, ii. 56 
 
 V. Jenkins, ii. 98 
 
 V. Rogers, ii. 28. iii. 740. 745. 1254 
 
 V. Shedden, iii. 921 
 
 V. Whale, ii. 92. iii. 1211, 1227. 1244 
 
 Paynter v. Walker, iii. 994 
 Paynton v. Kirby, iii. 1083 
 Peaceable d. Hornblower v. Read, ii. 402 
 
 V. Read, ii. 429 
 
 V. Watson, i. 360. ii. 411 
 
 Peacock v. Bell, i. 508 
 
 V. Harris, ii. 24. 100. app. ii. iii. 1447 
 
 V. Monk, iii. 758 
 
 I'. Murrell,iii. 1042, 1043 
 
 • V. Peacock, iii. 815 
 
 V. Purvis, ii. 390. iii. 970 
 
 V. Rhodes, ii. 220 
 
 Peake v. x'imbler, ii. 659 
 
 V. Cavington, app. ii. iii. 1452 
 
 Pearce v. Cheslyn, iii. 1048 
 
 V. Hooper, i. 406 
 
 V. Lodge, i. 120. iii. 1118 
 
 V. Morrice, i. 479. ii. 344 
 
 V. Ormsby, ii. 636 
 
 V. Pemberthy, ii. 214 
 
 V. Whale, ii. 24. 107. 112. iii. 935 
 
 Pearce's case,ii. 694 
 
 Pearcy w. Fleming, i. 110. 142 
 
 Pearson v. Coles, iii. 1123 
 
 V. Fletcher, i. 90. ii. 185 
 
 V. Gowran, iii. 848 
 
 V. Graham, app. ii. iii. 1355 
 
 — — t: Henry, ii. 448. 454. iii. 758 
 
 Pearson i\ Hes, i. 80 
 
 V. Skelton, ii. 76. 101, 102. iii. 816. 
 
 app. ii. iii. 1383 
 
 V. Wheeler, ii. 376 
 
 V. Yewens, app. ii. iii. 1552 
 
 Pearson's case, ii. 397. app. ii. iii. 1487 
 Peart v. Westgarth, iii. 751 
 Pease v. llur.st, ii. 660. iii. 825 
 
 V. Naylor, i. 523. ii. 452 
 
 V. Wells, app. ii. iii. 1603 
 
 Ex parte, i'l. 106 
 
 Peat v. Taylor, ii. 534 
 
 Peat's case, apj). ii. iii. 1441. 1527 
 
 Peate v. Dickon, iii. 1053 
 
 V. Ongley, iii. 1202, 1203, 1264 
 
 Pebenning y. Roebuck, ii. 182 
 Pechell V. Jeukinson, app. ii. iii. IGlG 
 Peck V. Regina, app. ii. iii. 1382 
 Peck's case, ii. 010 
 Peckerley v. Appleby, ii. 488 
 Peckhamu. Lashnioor, ii. 170 
 Peddell v. Rutter, app. ii. iii. 1571 
 Redder v. M'Master, i. 270 
 
 • V. Watt, iii. 827 
 
 Pederson v. Stoffles, i. 104 
 
 Pedler v. Paige, i. 375 
 
 Pedley v. Wellesley, i. 130. ii. 550 
 
 Pedley's case, i. 174 
 
 Peel V. Tatlock, ii. 511. iii. 1005 
 
 Peele v. Hodgson, iii. 1198 
 
 Peenam v. Palmer, iii. 1200 
 
 Peer v. Humphrey, iii. 1149 
 
 Pegg V. Stead, app. ii. iii. 1338. 1596 
 
 Peirse v. Bowles, iii. 1072 
 
 V. Sharr, iii. 971 
 
 Pelliam (Lord) i\ Pickersgill, iii. 906 
 
 Pellecat v. Angel, iii. 1218 
 
 Pellew V. Wonford (Inhabitants of), ii. 531. 
 
 534. app. ii. iii. 1506 
 Pelly V. Roy. Exch. Ass. iii. 886 
 Pember v. Mathers, iii. 761 
 Pendlebury v. Walker, app. ii. iii. 1427 
 Pendock v Mackender, i. 95. 100. iii. 1264 
 Pendrell v. Pendrell, ii. 196. 198, 199, 200. 
 
 305 
 Penfold V. Wcstcott, ii. 628, 629 
 Penley v. Watts, app. ii. iii. 1330. 1390 
 Penn v. Bennett, ii. 188 
 
 V. Scholey, iii. 1018. 1031 
 
 r. Ward, iii. 1141 
 
 Pennant v. Simpson, ii. 46 
 Pennant's case, ii. 425. iii. 729 
 Pennell v. Meyer, i. 334 
 
 V. Woodburn, app. ii- iii. 1605 
 
 Penney v. Slade, app. ii. iii. 1450 
 Penniford v. Hamilton, iii. 1036 
 Penny v. Foy, i. 419. ii. 269. iii. 994 
 
 V Innes, ii. 215 
 
 V. Penny, ii. 441 
 
 V. Porter, ii. 59 
 
 Penprase v. Crease, app. ii. iii. 1502 
 Penruddock's case, iii. 741. 745, 740 
 Pen son v. Lee, i. 430 
 Penton v. Robart, iii. 1122. 1107. 1240. 
 
 1248 
 Pepper v. Burland, ii. 73. iii. 1290 
 
 V. Winyeve, iii. 70 4 
 
 Peppin V. Soloman, i, 404. ii. 214. 298. 026. 
 
 iii. 875. 877
 
 TABLE OF CASES. 
 
 Ix.xxix 
 
 Perchard v. Tindal, ii. 34. iii. 1050. 10G;J 
 
 V. Whitmore, iii. 872. 803 
 
 Percival v. Blake, iii. 1208 
 
 i;. Connell, app. i. 03-4 
 
 V. Framplin, ii. 244 
 
 Perfect V. Musgreave, ii. 249. iii. lOGo 
 Perliam v. Rcynal, ii. CG9 
 Perigal t'. Nicholson, i. 45 93. 137. 365 
 Porliins v. Cutlers (Master, Sec. of Company 
 of), iii. 947 
 
 V. Potts, iii. 1040 
 
 V. Procter, ii. 181. 599 
 
 I'. Smitli, iii 11 GO. 1168 
 
 Perot V. Wallace, ii. 64 
 
 Perreau i\ Bevan, iii. 1025. 1254 
 
 Perring v. Brook, app. ii. iii. 1588 
 
 V. Harris, app. ii. iii. 1392 
 
 V. Hone, ii. 254. iii. 800 
 
 v. Tucker, i. 424. ii. 150 
 
 Perrott i'. Bryant, app. ii. iii. 1667 
 
 V. Perrott, i. 369 
 
 Perry v. Boucbier, iii. 1052, 1053. 1055 
 
 v. Bowers, ii. 194 
 
 V. Bowes, ii. 151 
 
 V. Edwards, ii. 347 
 
 r. Gibson, i. 187 
 
 V. Jackson, ii. 672 
 
 V. Jenkins, app. ii. iii. 1472 
 
 V. Porter, i. 458 
 
 V. Skinner, app. ii. iii 1531 
 
 Perrymanu. Steggall, i. 140. 167. iii. 1062 
 Perth (The), app. ii. iii. 1493 
 Peshall V. Layton, iii. 847 
 Petchz). Conlan,ii. 116 
 
 V. Fountain, ii. 116 
 
 Peter v. Compton, ii. 482 
 
 V. Kendall, iii. 1252 
 
 Peterborough Bridge case, ii. 529 
 
 (Lord) V. Mordaunt,i. 387 
 
 Peters v. Anderson, iii. 824 
 
 V. Blencowe, ii. 651 
 
 V. Brown, ii. 662. 670 
 
 I). Fleming, app. ii. iii. 1442 
 
 V. Opie, ii. 67 
 
 Peto V. Hague, ii. 30. 43 
 
 Petre (Lord) v. Heneage, iii. 1156, 1157 
 
 Petrie v. Hannay,ii. 77, 78. 444 
 
 tj. White, ii. 271 
 
 Petrie's case, ii. 323 
 
 Pettit V. Addington, iii. 1116 
 
 V. Smith, iii. 764 
 
 Pettman v. Bridger, iii. 861. 863. 866 
 Petty V. Anderson, ii. 539 
 Pewtress v. Annan, app. ii. iii. 1356. 1566 
 Peyton v. London (Corporation of), iii. 746. 
 
 978 
 v. St. Thomas's Hospital (Governors 
 
 of), ii. 42. 115. 340. iii. 745 
 Peyton's case, ii. 16 
 Pfiel V. Vanbatenburg, ii. 240 
 Phelps V. Lyle, app. ii. iii. 1505. 1508 
 Photheon v. Whitmore, ii. 257 
 Philips V. Barber, iii. 877 
 Philipson v. Chase, i. 404.. ii. 1 10. 228. iii. 
 
 731 
 Phillimore t'. Barry, ii. 492, 493. iii. 1221, 
 
 1222 
 Phillip I'. Walcot, ii. 706 
 
 Phillips V. Allan, i. 268. ii. 460 
 
 V. Astling, ii. 224. 26(i. 51 1 
 
 V. Bacon, i. 82. ii. 364 
 
 iJ. Barlow, ii. 120 
 
 r. Borryman, ii. 392 
 
 r. Biron,ii. 437. app. ii. iii. 1575 
 
 r. BistoUi, ii. 490 
 
 V. Bury, i. 285. 306 
 
 v.Carew,i.323 
 
 v. Colo, app. ii. iii. 1368 
 
 1\ Crawley, ii. 288 
 
 r. Crutchiey, ii. 707 
 
 V. Davies, iii. 1095 
 
 V. Dicas, ii. 187 
 
 V. Earner, i. 187. 490. ii. 33. iii. 1031 
 
 V. Fielding, iii. 1188, 1189 
 
 V. Fowler, ii. 11. 12. 271 
 
 V. Franklin, ii. 240 
 
 V. Gould, ii. 227. 229 
 
 V. Hatfield, app. ii. iii. 1393 
 
 V. Heailam, iii. 877. 890 
 
 V. Hooper, ii. 85 •. 
 
 I?. Hopwood, ii. 125. 130. 174. iii. 
 
 1059 
 
 ?j. Howgate, ii. 1115. 1132, 113;!, 
 
 1134 
 
 V. Hunter, i. 271,272. ii. 168. 703 
 
 V. Huth, app. ii.iii. 1419. 1582 
 
 V. Innes, app. ii. iii. 1567 
 
 V. Jones, iii. 1301 
 
 V. Mendez da Costa, i. 444. iii. 846, 
 
 847 
 
 r. Mannings, app. ii. iii. 1473 
 
 V. Pearce, ii. 309. iii. 973, 974. 1181 
 
 i\ Roach, ii. 107 
 
 V. Robinson, ii. 387 
 
 v. Scallard, i. 158 
 
 V. Shaw, i. 481. 487, 488. 491. ii. 678, 
 
 679 
 
 V. Willetts, app. i. 627 
 
 tu Wimburn, i. 504. ii. 38 
 
 JSx parte, app. ii. iii. 1349 
 
 Phillipsou V. Mangles, i. 485. iii. 1010 
 
 Philliskirk r. Pluckwell, ii. 534 
 
 Philpot V. Holmes, iii. 1118 
 
 V. Home, ii. 1 76 
 
 V. Kelley, iii. 1157 
 
 V. Wellatt, ii. 479 
 
 Philpott V. Bryant, ii. 223, 224 
 
 ■ V. Dobbiuson, iii. 971, 972 
 
 V. Jones, iii. 827 
 
 V. Selby, iii. 1032 
 
 Phipoe's case, ii. 609 
 
 Phipps V. Ennismore (Lord), ii. 494 
 
 V. Parker, i. 375. 379. 386 
 
 -V. Pitcher, i. 156. 168. iii. 1265 
 
 r. Sculthorpe, iii. 973. 1180, 1181, 
 
 1182 
 
 V. Southern, app. ii. iii. 1502 
 
 (in the Goods of), app. ii. iii. 1617 
 
 Ex parte, app. ii. iii. 1346 
 
 Phipson V. Kneller, ii. 230 
 
 Phynn v. Royal Exch. Ass. Co., iii. 880 
 
 Physicians (College of) v. West, i. 232 
 
 Phytian v. White, iii. 1124 
 
 Pickard v. Bankes, ii. 81 
 
 V. Sears, iii. 1154. 1165 
 
 Pickering v. Appleby, ii. 487
 
 xc 
 
 TABLE OV CASES. 
 
 Pickering v. Banks, iii. 1187 
 
 V. IJiisk, iii. l-i4() 
 
 V. Dowsoii, ii. 374, ;375. iii. 7(50. 708. 
 
 1215. 1-2:38. V2-H) 
 
 V. Noves, i. 89. 370. iii. 1129 
 
 V. Riuld, ii. 20. iii. 1138. 1143 
 
 Pickersgill v. Palii;er, ii. 584 
 
 Picket's case, ii. 280 
 
 Pickford r. Grand Junction Canal Com- 
 pany, app. ii. iii. 1377 
 
 r. Gutoh, ii. 308 
 
 Pickles V. Hollings, i. 120 
 
 Pickiu V. Graham, ii. 230. 238 
 
 Pickstock V. Lyster, ii. 494, 495. 498 
 
 Pictou's case, i. 233. 250. ii. 359 
 
 Pidcock v. Bisliop, ii. 04. 511. iii. 1000 
 
 Pierce v. Brewster, ii. 605 
 
 V. Evans, app. ii. iii. 1338 
 
 V. Fothergill, ii. 570 
 
 V. Street, ii. 087 
 
 Piercy's case, i 251 
 
 Piersou v. Duulop, ii. 200, 207. 209. 2A[) 
 
 V. Hutcliiuson, ii. 203 
 
 Piesly V. Von Escli, i. 110. 138 
 
 Piggott V. Birtle, ii. 390. 392 
 
 V. Kemp, iii. 1131 
 
 V. Wilkes, iii. 1233 
 
 Pigott V. Dunn, iii. 829 
 
 V. Tliompson, ii. 50. iii. 1173 
 
 Pigott's case, ii. 380 
 
 Pike v. Badmeriug, i. 375. iii. 1208 
 
 i\ Carter, ii. 589 
 
 V. Strut, ii. 252 
 
 Pilclier V. King, app. ii. iii. 15C3. 1555 
 
 Pilkington v. Green, ii. 247 
 
 V. Hastings, iii. 970. 1072 
 
 Pilkington's case, iii. 975 
 
 Pillans V. Van Mierop, ii. 206, 207. 301 
 
 Pilmore v. Hood, app. ii. iii. 1598 
 
 Pim V. Curell, app. i. 010, Oil 
 
 Pimm V. Greville, iii. 1070 
 
 Pinchon v. Chileott, ii. 98 
 
 Pincke v. Curteis, iii. 1189 
 
 Pindar v. Wadswortli, ii. 300. 317. 304. 
 390 
 
 Pinder v. Wilks, iii. 812 
 
 Pine V. Dor, iii. 1154 
 
 Pinero r. Judson, iii. 1175, 1170 
 
 Pinhorn v. Tuckington, ii. 578 
 
 Pinkerton v. Adam, ii. 259 
 
 V. Marshall, ii. 171 
 
 Pinkney v. Hall, ii. 205. 241 
 
 Pinnel's case, ii. 16 
 
 Pinner r. Arnold, app. ii. iii 1557 
 
 I'. Grevill, iii. 975 
 
 Pinney v. Slade, app. ii. iii. 1497 
 
 Pinnock v. Harrison, ii. 050 
 
 Pipon V. Cope, iii. 879 
 
 Pippet V. Heme, ii. 077 
 
 Pirie v. Anderson, i. 249. iii. 870 
 
 V. Menueth, ii. 179 
 
 V. Steele, app. ii. iii. 1524 
 
 Pisani v. Lawsou, app. ii. iii. 1324 
 
 Pistor V. Dunbar, ii. 445 
 
 Pitcairn v. Ogboumc, iii. 707 
 
 Pitcher v. Bailey, ii. 75. 79. iii. 1034 
 
 V. Rinter, i. 303 
 
 V. Tovey, ii. 350 
 
 Pitchtbrd v. Davis, iii. 807. app. ii. iii. 
 1508 
 
 Pitman v. Haynes, iii. 1042 
 
 V. Maddox, i. 300. iii. 1207 
 
 Pittr. Adams, i. 518. ii. 391. iii. 1207 
 
 r. D.movan, ii. 431. 041 
 
 V. Green, i. 489. ii. 379 
 
 r'. Knight, i. 223 
 
 V. Sluw, iii. 1103, 1104 
 
 V. Sinitli, ii. 390 
 
 c. Yalden, ii. 113 
 
 (Case of the;, i. 133 
 
 Pittam (,-. Foster, ii. 002,003 
 
 Pitton V. Walter, i. 249. 298, 299. 313 
 
 Pitts V. Gaincc, iii. 1108 
 
 Place V. Delrgal, app. ii. iii. 1434 
 
 V. Fagg,iii. 1247 
 
 V. Jackson, ii. 317 
 
 Plaistow r. Van Uxem, ii. 09 
 Planche v. Braham, i. 109 
 
 V. Fletcher, iii. 875 
 
 Planck V. Anderson, iii. 1010. app. ii. iii. 
 
 1552 
 Plant V. James, iii. 1256 
 Plate Glass Company v. Meredith, iii. 747. 
 
 1109 
 Platel V. Dowze, iii. 1009 
 Piatt V. Lokke, iii. 848 
 Platts V. Lean, ii. 83 
 Plaxton V. Dare, i. 181. 358 
 Playford v. Hoare, app. ii. iii. 1593 
 Pleasant i\ Benson, ii. 418 
 Plevin V. Prince, app. ii. iii. 1555 
 Pleydell v. Dorchester (Lord), i. 534 
 Plimley v. W^estley, app. ii. iii. 1371 
 Plomer v. Long, iii. 824. 826 
 Pluck V. Digges, iii. 972 
 Pluckwell V. Wilson, iii- 730 
 Plumb V. Fluitt, iii. 728 
 Plumer v. Marchant, ii. 451 
 Plummer v. Woodburne, i. 267. 274 
 Plummer's case, ii. 8 
 Plunkett V. Cobbett, i. 185. ii. 621. 635 
 
 V. Penson, ii. 520 
 
 Plymouth (Countess of) v. Throgmortou, 
 
 iii. 303 
 Pocock V. Billing, ii. 200, 201 
 V. Lincoln (Bishop of), iii. 785. 1273. 
 
 1275 
 
 V. Moore, iii. 1113 
 
 V. Russell, ii. 107 
 
 V. Russen, ii. 107 
 
 Podger's case, ii. 402 
 
 Poland r.Glyn, ii. 140, 141. 169 
 
 Pole V. Ford, ii. 251 
 
 r. Harrobin, ii. 397 
 
 V. March, ii. 150 
 
 V. Rogers, app. ii. iii. 1523 
 
 V. Somers (Lord), iii. 784 
 
 Polglass c. Oliver, iii. 1068. 1070 
 Polhill V. Polhill, i. 303. iii. 833 
 
 1-. Walter, ii. 208. 371 
 
 Poll V. Rogers, app. i. 611 
 Pollard V Bell, i. 293. iii. 891 
 
 V. Herries, ii. 240 
 
 V. Scott, i. 239. ii. 530 
 
 Pollexfen v. Ashford, ii. 504 
 Polter V. Sparrow, ii. 1 12 
 Pomeroy r\ Baddeley, i. 189 
 Pomfret v. Ricroft, i. 131. iii. 1257 
 Ponsford r. O'Connor, app. i. Oil
 
 TABLE OF CASES. 
 
 XCl 
 
 Ponsonby v. Adams, Hi. 853 
 
 Pontet V. Basingstoke Canal Company, 
 
 app. ii. iii. 1387. 1448 
 Pontifex v. Jolly, iii. 985. app. ii. iii. 
 
 13G3 
 Pool V. Bousfielu, ii. G4 
 
 V. Court, i. 442. 465. 4G7.iu. 1177 
 
 Poole?; Bell,ii. 1'24 
 
 V. Bentley, iii. 1175. 1178 
 
 i\ Dicas, i. 303 
 
 V. Hill, app. ii. iii. 1592 
 
 v. Hobhs, app. ii. iii. 1604 
 
 r.Shergoki,iii. 1191. 1199 
 
 V. Smith, ii. 203. 265 
 
 V. Warren, app. i. 617 
 
 Poole's case, iii. 1256, 1247 
 Pooley V. Godwin, i. 393. 408. app. ii. iii. 
 1559 
 
 ■ V. Millard, ii. 147 
 
 Pope t'. Andrews, app. ii. iii. 1323. 1433 
 
 V. Backhouse, iii. 752 
 
 V. Bi^gs, iii. 1181 
 
 V. Da vies, iii. 848. 1230 
 
 V. Farthing, iii. 1088 
 
 V. Foster, ii. 63. 679 
 
 V. Garland, app. ii. iii. 1598 
 
 r. Jarvis, app. ii. iii. 1329 
 
 V. Monk, ii. 150 
 
 V. St. Leger, iii. 1234 
 
 V. Wray, ii. 85 
 
 Poplet V. James, i. 146 
 Poplett V. Stockdale, ii. 103. iii. 1217 
 Port V. Turton, ii. 128 
 Porter v. Cooper, i. 227. 299. app. ii. iii. 
 1337 
 
 V. Palsgi^ve, ii. 577 
 
 V. Shephard, ii. 67 
 
 V. Taylor, iii. 819 
 
 V. Varley, ii. 152 
 
 V. Walker, app. ii. iii. 1349 
 
 V. Weston, app. ii. iii. 1477 
 
 Porter's (The) case, ii. 613 
 Portliouse v. Parker, ii. 203, 204. 229 
 Portland (Duke of; v. Bingham, iii. 943 
 Portland's (Duke of) case, iii. 942 
 Portman v. Mill, iii. 1213 
 
 V. Oakden, i. 157 
 
 Portmore (Earl of) v. Bunn, i. 484. ii. 
 343 
 
 (Lord) V. Goring, ii. 566 
 
 (Lord) r. Morris, iii. 758, 759 
 
 Portmore's (Lord) case, ii. 272 
 Postlethwaite i'. Gibson, ii. 600 
 
 V. Parkes, iii. 989 
 
 Pothonier v. Dawson, iii. 1163 
 Pott V. Turner, ii. 127 
 Pottek V. Brown, ii. 185 
 Potter V. Brown, i. 270. ii. 186 
 
 V. Deboos, ii. 707 
 
 V. Nicholson, app. ii. iii. 1604 
 
 V. Rayworth, ii. 236 
 
 V. Starkie, iii. 1028. 1168 
 
 Potter's Assignees v. Starkie, ii. 167. iii. 
 
 1157 
 Potts V. Bell, iii. 875 
 
 V. Durant, i. 239. 241,242. 384 
 
 t'. Sparrow, ii. 105 
 
 •— r. Ward, ii. 117.611 
 Poacher, Ex parte, ii. 184 
 
 Pougett V. Tomkyns, ii. 700 
 
 Poulteney v. Ilohncs, iii. 971 
 
 Poulter i;.Killingbeck,ii,480,4Sl. iii. 1207. 
 
 1297 
 Poulter's case, ii. 50 
 Ponlton V. Lattimore, iii. 1211 
 Pounsey i\ Humphreys, ii. 648 
 Pously V. Blackman, ii. 404 
 Powel V. Little, iii. 821 
 
 V. Nelson, iii. 821, 822 
 
 Powell i;. Anscll, app. ii. iii. 1C62 
 V. Blackett, i. 374 
 
 V. Cleaver, iii. 1268 
 
 V. Divett, iii. 1197 
 
 i\ Edmonds, iii. 757. 760, 761. 
 
 1037 
 
 V. Farmer, i. 441. iii. 847 
 
 V. Ford, ii. 514 
 
 V. Gordon, i. 104. iii. 991 
 
 V. Ciraham, ii. 444. 453 
 
 V. Gudgeon, iii. 877 
 
 V. Hodgetts, iii. 1105. 1114 
 
 V. Hord, i. 116. 149. iii. 1033, 
 
 1034 
 
 V. Home, iii. 1112 
 
 V. Horton, iii. 780 
 
 V. Ireland, iii. 908 
 
 • V. Layton, ii. 77. 285 
 
 V. Milbank, i. 421. ii. 83. 428. iii. 915. 
 
 1080. 1087. 1177 
 
 V. Milburn, iii. 935 
 
 • v. Monnier, ii. 206, 207 
 
 • V. Rees, app. ii. iii. 1596 
 
 V. Rich, iii. 1231 
 
 ('. Roach, ii. 203. 234. 265 
 
 V. Salisbury, iii. 740 
 
 Powell's case, iii. 950 
 Power V. Barham, iii. 1238 
 
 I'. Butclier, ii. 17. iii. 1303 
 
 V. Smitli, i. 524 
 
 V. Walker, ii. 443. iii. 940 
 
 V Wells, ii. 72. 92. iii. 1243 
 
 Power, In re, ii. 181 
 Powley V. Newton, ii. 444 
 
 V. Walker, ii. 58. 362 
 
 Pownal V. Ferrand, ii. 77. 219 
 Poynder v. Bluck, app. ii. iii. 1474 
 Poynton v. Forster, i. 298. 493. ii. 687 
 Prangley, In re, app. ii. iii. 1565 
 Pratt V. Brown, app. ii. iii. 1568 
 
 V. Dixon, i. 277 
 
 V. Groome, iii. 1133. 1141 
 
 V. Swaine, ii. 661 
 
 Pratt's case, ii. 606 
 
 Precious v. Abel, iii. 12t)3 
 
 Preece v. Correy, iii. 971 
 
 Prendergast v. Compton, app. ii. iii. 
 
 1578 
 
 V. Davy, iii. 1064 
 
 Prescott V. Flinn, ii. 215 
 
 V. Long, ii. 244 
 
 Ex parte, app. ii. iii. 1344. 1346 
 
 Presgrave v. Shrewsbury (Churchwardens 
 
 of), iii. 862 
 Prestidge v. Woodman, ii. 580 
 Preston v. Butcher, 455. ii. 62 
 
 V. Christmas, ii. 56 
 
 V. Eastwood, iii. 1042 
 
 r. Hall, ii. 449
 
 xcu 
 
 TABLK OF CASES. 
 
 Preston v. Jackson, ii. 247. iii. 1187 
 
 V. Merceau, iii. 757, 758. 7G0 
 
 V. Whiteheart, ai)p. ii. iii. 1 504 
 
 Preston, E:c parte, ii. 137 
 
 Preston's ( Lord) case, i. 91 . ii. 518. iii. lOOG 
 
 Prostwicli V. Marslmll, ii. 217 
 
 Price V. Bell, iii. 891 
 
 . V. Cliewton (Hundred of), i. 534. 
 
 iii. 1078 
 
 V. Currcll, app. ii. iii. 1G09 
 
 ?\DandeIl,ii 232 
 
 . V. Dewhurst, app. i. GIO 
 
 V. Edmunds, ii. 251. iii. 759 
 
 V. Ilarwood, ii. 22. iii. 1029 
 
 V. Helvar, iii. 1011. 1028. 1157 
 
 V. Holiis,i. 233. ii. 116. 119. iii. 960 
 
 r. Lea, ii. 488 
 
 V. Littlewood, i. 245. iii, 865. 908 
 
 V. Marsh, ii. 42 
 
 V. Messenger, ii. 598 
 
 V. Mitchell, ii. 213 
 
 V. Neale,ii. 86 
 
 V. Nixon, iii. 1205 
 
 ?;. Oldfidd,i.307 
 
 V. Page, iii. 754. 785 
 
 V. Peck, iii. 1029. 1139 
 
 v. Popkin, app. ii. iii. 1343 
 
 i\ Price, app. ii. iii. 1342 
 
 V. Seeley, app. i. 607 
 
 V. Severn, iii. 1114 
 
 V. Simpson, iii. 1079 
 
 • V. Smith, iii. 1202. 1268 
 
 V. Tavare, ii. 5G7 
 
 V. Torringtou (Lord), i. 361. iii. 1207 
 
 V. Williams, iii. 1189. app. ii. iii. 1330 
 
 Price's case, ii. 533 
 Prickett v. Down, ii. 182 
 Priddle's case, i. 95 
 Priddyi'. Henbrey,ii. 314 
 Prideaux v. Collier, ii. 230 
 Priestly i\ Hughes, ii. 701 
 Prince v. Allington, iii. 729 
 
 V. Arnold, iii. 1039 
 
 • i\ Blackbume, i. 376. 379, 380 
 
 V. Lewis, iii. 744 
 
 V. Nicholson, iii. 1051. 1075 
 
 V. Samo, i. 209 
 
 Prince's case, ii. 442 
 Pring V. Clarkson, ii. 251 
 
 V. Henley, i. 448. iii. 909. 975 
 
 Pringle v. Crooks, app. ii. iii. 1415 
 
 I'. Hodgson, ii. 175 
 
 V. Mollett, app. ii. iii. 1622 
 
 V. Wernhani, iii. 747 
 
 Prior V. Horniblow, app. ii. iii. 1471 
 — — V. Moore, ii. Ill 
 Pritchard v. Draper, ii. 31 
 
 V. Foulkes, app. ii. iii. 1381 
 
 V. Stephens, i. 394. iii. 969 
 
 V. Symonds, i. 398. 400 
 
 Pritchett v. Waldron and another, ii. 533 
 
 Ex parte, n. 108 
 
 Pritt V. Fairclough, i. 361. 396. 408 
 Probart v. Kiiought, ii. 558 
 
 . V. Phillips,^iii. 818 
 
 Probert's case, ii. 51 
 Probinia v. Roberts, iii. 1023 
 Proctor V. Brain, ii. 47 
 
 t'. Harris, iii. 734 
 
 V. Luiuson, i. 312. app. ii. iii. 1318 
 
 Proctor V. Mainwaring, iii. 752. ai)p. ii. iii. 
 
 1498 
 
 „. Nicholson, ii. 648, 649 
 
 V. Sargent, app. ii. iii. 1332 
 
 Prole V. Wiggins, app. ii. iii. 1372 
 Propert v. Parker, app. ii. iii. 1592 
 Prosser v. Hooker, iii. 1240, 1241 
 
 V. Watts, iii. 732. 1191 
 
 Prothero v. May, iii. 941 
 
 r. Thomas, ii. 109 
 
 Proud V. Hollis, iii. 1128. 1258 
 
 Proudfoot, Ex parte, ii. 176 
 
 Proudlove v. Twemlow, ii. .392 
 
 Fronting D. Hammond, ii. 100 
 
 Provis V. Reed, i. 221. iii. 12G8, 1269 
 
 Proyer's case, iii. 1074 
 
 Prudham v. Phillips, i. 296. 307. ii. 472 
 
 Prudhomme?7. Fraser, i. 495. app. i.631 
 
 Prussing v. Ing, iii. 1042 
 
 Puckering's case, ii. 608 
 
 Puekford v. Maxwell, ii. 71. 226. 265. iii. 
 
 1057 
 Puddef lot's case, app. i. 627 
 Puddy, Ex parte, ii. 148 
 Pudsey's case, ii. 8. 104 
 Puget de Bras v. Forbes, ii. 242 
 Pugh V. Curgenvan, ii. 272 
 
 i:. Griffith, iii. 11.39 
 
 V. Jenkins, app. ii. iii. IGOl 
 
 V. Leeds (Duke of), i. 486. iii. 1080 
 
 V. Roberts, app. ii. iii. 1579 
 
 V. Robinson, i. 509. iii. 1074. 1079 
 
 Pullein V. Benson, i. 509 
 Pullen ?'. Birkbeck, ii. 410 
 
 V. Seymour, i. 496 
 
 V. White, i. 423 
 
 Puller V. Roe, iii. 994 
 
 Pulley V. Hilton, i. 239. iii. 1082 
 
 Pulling V. Meredith, ii. 194 
 
 V.Tucker, ii. 131. 139, 140, 141, 
 
 142 
 Pulteney v. Keymer, ii. 649 
 
 V. Shelton, iii. 852 
 
 Purcell V. Macnamara, i. 443. 454. 486, 
 
 487. ii. G79. 682. 684 
 Purnell v. Young, iii. 1128 
 Purton V. Honnor, ii. 691 
 Purvis V. Roger, iii. 1190 
 Putnam v. Bates, ii. 670 
 Putten??. Purbeck, ii. 410 
 Pye's case, i. 437. 466 
 Pyke V. Crouch, i. 156. 31 3. 364 
 
 V. Williams, ii. 481 
 
 Pylie V. Stephen, app. ii. iii. 1502 
 Pyra V. Blackburn, iii. 757 
 Pyne v. Dor, i. 411. iii. 1147 
 
 V. Erie, ii. G48 
 
 Pytt V. Griffith, i. 376 
 
 Quantock, Ex jifirte, ii. 189 
 
 Quarman o. Burnett, app. ii.iii. 1492 
 
 Quarternian v. Cox, app. i. 597 
 
 Queen v. Goodwin, iii. 1296 
 
 Queen Mab (The), iii. 1299 
 
 Queen's (The) case, i. 94. 198, 199. 208. 
 
 212, 213, 214, 215. 320. 500, 501 
 Queen's College Oxford v. Hallett, iii. 978 
 Queiroz v. Trueman, iii. 1225 
 Quelch's case, i. 234. iii. 123G
 
 TABLE OF CASES. 
 
 xcm 
 
 Quick V. Staines, ii. 233. 4.')4. 538 iii 
 
 1029 
 Quifrgin V. Duff;app. ii. iii. 1377 
 Qiiin v. King, ii. 2G!), 270. iii. 1045 
 
 11. Shea, i. 270 
 
 Qiiiucey, Bx parte, iii. 124G 
 Quiroz I'. Freeman, iii. 1149 
 
 Rabbett r. Giirney, ii. 191 
 
 Rabone i\ Williams, ii. 649. iii. 995. 1203 
 
 Rackiiam ?•. Jcsup, iii. 1153 
 
 Rackstraw v. Imber, ii. 99. iii. 8IG 
 
 Radburn v. Morris, i. 131. 140 
 
 Radburn's case, ii. 314. 384, 385, 38G 
 
 Radenhurst v. Bates, iii. 815 
 
 Radford v. M'lutosli, ii. 24. 299. 309. iii. 
 
 1081 
 Radmore ?'. Gould, ii. 124 
 Radnor (Lord) t\ Reeve, i. 291. 305 
 Rafael v. Vcrelst, iii. 1109 
 Rag-git i\ Axmore, ii. 251. 253 
 Raikes v. Pereau, ii. 131. 133 
 
 V. Todd, ii. 509 
 
 Railton v. Hodgson, iii. 1198 
 Rainbow v. Bishop, app. ii. iii. 1317 
 Raine r. Alderson, iii. 742. 1 108. app. ii. iii. 
 
 1539 
 Rainy v. Vernon, app. ii. iii, 1623 
 Raisin v. Mitchell, app. ii. iii. 1600 
 Raleigh v. Atkinson, app. ii. ill. 1324 
 Raleigh's (Sir W.) case, ii. 40. 383 
 Ram V. Laml y, ii. 683 
 Ramadge r. Ryan, i. 174 
 Ramsey v. Nornabell, app. ii. iii. 1551 
 Rambert v. Cohen, i. 177. Iii. 792 956 
 
 1051. 1057. 1059 
 Ramkissensent v. Barker, i. 21, 22 
 Ramsbottom v. Buckburst, i. 330. ii. 410 
 
 -i'. Cator, ii. 217 
 
 • V. Davis, iii. 1053 
 
 V. Lewis, ii. 131. 133. iii. 1159 
 
 V. Mortley, iii. 790. 1036, 1037. 1178 
 
 V. Tunbridge, i. 505. iii. 790. 1036 
 
 Ranisden v. Ambrose, ii. 544 
 
 • V. Jackson, ii. 453 
 
 Ramstrom r. Bell, iii. 1049 
 
 Rancliffe v. Parkyns,iii. 1262. 1268, 1269 
 
 Randal v. Randal, iii. 767 
 
 Randall v. Everest, iii. 853 
 
 V. Gurney, i. 91, 92 
 
 ■ r. Ikey, app, ii. iii. 1501 
 
 V. Lynch, i. 371. iii. 828 
 
 Randall's case, ii. 303 
 
 Randelson i: Murray, app. ii. iii. 1492 
 
 Randle v. Blackburn, i. 334. 343. 415. ij. 34 
 
 V. Lory, app, ii. iii. 1388 
 
 Randleson, Ex j)arte, ii. 146 
 Randoll v. Bell, ii. 93 
 Randolph v. Gordon, i. 384 
 Rands v. Thomas, i. 97. ii. 10 
 Ranger's case, ii, 694 
 Rankin r. Horner, ii. 23. 151 
 Rann v. Green, app. ii. iii. 1329 
 
 V. Hughes, ii. 454. 472. 475. iii. 882 
 
 Ranson v. Dundas, app. ii. iii. 1412, 1413 
 Raper v. Birkbeck, i. 275. ii. 208. 21 1 
 Raphael v. Goodman, iii. 1029 
 
 r. Moore, ii. 125 
 
 Rapp 1: Allnutt, iii. 1049. 105 
 Rastall V. Stratton, i. 488,489 
 
 Kalcliffe v. Blcasby, i. 370. ii. 56G 
 
 i\ Burton, ii. .597. iii. 11.39 
 
 (Lady) v. Shubly, i. 478. ii. 619 
 
 RatclifFe's case, ii. 41 1 
 Rathbane r. Drakeford, iii. 812 
 Ravee v. Farmer, i. 263. ii. 119 
 Raven v. Dunning, ii. 192. iii. 799 
 Ravenga v. Mackintosh, i. 523. ii. 690 691 
 Ravenscroft v. Eyles, iii. 1016 ' 
 
 V. Wise, iii. 828 
 
 Raw?\ Cntten, ii.90 
 
 Rawlins v. Deshorough, i. 415. 419. ann 
 ii. iii. 1523. 1525 ' 
 
 r. Turner, ii, 474 
 
 V. Vandyke, ii. 540. 542. 545 
 
 (in the Goods of), app. ii. iii. 1617 
 
 Rawlinson v. Pearson, ii. 127 
 
 V. Shaw, ii. 443 
 
 Rawson v. Eicke, app. ii. iji. 1588 
 
 V. Haigh, ii. 132. 134 
 
 V. JoJiuson,ii. 67 iiL 1199. 1219 
 
 V. Walker, iii, 759 
 
 Ray r. Davies, ii. 123 
 -" — '"• Sherwood, app. ii, iii. 1483 
 Raymond v. Fitch, app, ii, iii, 1415 
 Rayner i-, Godmond, iii, 877, 878 
 
 1', Hall, iii. 884 
 
 ■ V. Linthorne, iii, 1198 
 
 Rea V. Sheward, app, ii. iii. 1575 
 
 V. Wood, ii. 533 
 
 Read v. Bonham, iii, 881 
 
 • V. Brooknian, iii, 914. 942 
 
 • V. Dunsmore, app, i, 629, app, ii, iii, 
 
 1624 
 
 • V. Dupper, ii, 648 
 
 V. Gamble, app. ii. iii, 1363 
 
 i\ Goldring,iii, 1068, 1070 
 
 c. Hutchinson, iii. 1204, 1205, 1216 
 
 V. Jackson, i, 297, iii, 936 
 
 -i\ James, i. 187 
 
 V. Nash, ii, 476, 479 
 
 ■ V, Passer, i. 244. ii. 700. 705 
 
 V. Rann, ii, 361 
 
 V, Sowerby,ii. 188, 189 
 
 Read's case, ii. 447 
 
 Reader v. Knatchbull, ii. 167, 173 
 
 Reading i'. Rawstorne, ii. 429 
 
 -r, Royston, ii. 519 
 
 Reardon i\ Swabcy, iii. 1036, 1046 
 Reason v. Ewbank, i. 146 
 
 V. Lisle, ii. 500 
 
 Reason and Tranter's case, iii. 792 
 Reay v. Packwood, app, ii, iii, 1372 
 
 V. Richardson, app. ii. iii. 1500 
 
 y. White, ii, 17 
 
 Reddall v. Liddiard,ii. 701 
 Reddel v. Dobree, app. ii. iii. 1619 
 Reddie i\ Schoolt, iii. 991 
 Redesdale (Lord) v. Walby, iii. 1088 
 Redford v. Birley, iii, 797. "l 132. 1173, 1173 
 Redpath v. Roberts, iii, 1182, 1183 
 Redshaw v. Hester, ii. 521 
 Reece v. Griffiths, iii. 1142 
 
 • V. Rigby, ii, 1 12. iii, 727 
 
 V. Taylor, iii. 1136 
 
 Reed v. Bonham, iii, 1225 
 
 V. Brookman, ii, 376, iii, 911 
 
 V. Cowmeadow, ii, 597. app. ii. iii 
 
 1476
 
 XCIV 
 
 TABLE OF CASES. 
 
 Reed V. Deere, iii. 1030. 1052. 1057 
 
 If. Fiirr, ii. 4'25 
 
 V. Furnival, ii. 258 
 
 V. Harrison, iii. 1108 
 
 (Rex in aid of) r. Jackson, i. 226 
 
 r. Jackson, i. 183, 184. 307. ii. 526 
 
 iii. 708. 008. 958 
 r. James, i.90. ii. 84. 146. 169. 191. 
 
 193, 194 
 
 i\ Moore, ii. 545 
 
 V. Norman, app. ii. iii. 1440 
 
 r. Passer, i. 244 
 
 V. Taylor, ii. 079. 082 
 
 — — V. Thoyts, iii. 1027. app. ii. iii. 1554, 
 
 1555 
 Reederi'. Knatclibiill, iii. 1221 
 Rees f. Berrington,ii. 511- iii. 1005 
 
 V. Headford (Marquis of), ii. 220 
 
 d. Howell V. Bowen, i, 326. 336. ii. 
 
 686 
 
 V. King, ii. 423 
 
 — V. Lines, iii. 1303. 1306 
 
 V. Loyd, ii. 21 
 
 V. Mansell,!. 382 
 
 v. Morgan, iii. 975 
 
 V. Perrott, app.ii. iii. 1407 
 
 d. Powell w. King, ii. 424 
 
 V. Smith, i. 424 
 
 V. Walters, i. 109. ii. 433. iii. 1144 
 
 V. Warwick, ii. 206, 207 
 
 Reeve z). Bird, iii. 1182 
 
 V. Davis, iii. 1302 
 
 V. Underbill,!. 427, 428 
 
 Reeve's case, ii. 409 
 
 Reeves v. Brymer, iii. 923. 925 
 
 V. Capper, iii. 1147 
 
 V. Hearne, app. ii. iii. 1472 
 
 V. Lambert, ii. 564 
 
 1\ Newenham, iii. 762 
 
 V. Slater, ii. 23. iii. 1030 
 
 r. Ward, ii. 451 
 
 Regan (in the Goods of), iii, 1290 
 Regent's Canal Company, app. ii. iii. 
 
 1.572 
 Regicides (Case of the), iii. 1096 
 Regina v. Boardman, ii. 468 
 
 V. Dodson, iii. 1144 
 
 r. Drake, ii. 020 
 
 f. Hannon, ii. 398 
 
 V. Hawkes, ii. 465 
 
 r. Mead, ii. .569. 571 
 
 r. Muscot, i. 135, 136. 151. 155. iii. 
 
 859, 860 
 
 V. Newton, ii. 465 
 
 V. Perkins, ii. 366 
 
 V. Pike, ii. 405 
 
 V. Pikesley, ii. 383 
 
 — — V. Pringle, ii, 465 
 
 V. Pulbrook, ii. 465 
 
 r. Read, ii. 196 
 
 V. Rogers, ii. 465 
 
 r. Sudbury, i. 466 
 
 v. Tooley, ii. 596 
 
 r. White, ii. 465 
 
 1\ Woodward and others, ii. 398 
 
 Regnart v. Porter, iii. 971, 972 
 Reid V. Bath (Recorder of), ii. 530 
 
 V. Batte, ii. 58. iii. 1296 
 
 V. Blades, i. 523. ii. 495 
 
 V. Clarke, ii. 533 
 
 Reid r. Darby, iii. 1225 
 
 V. Dickons, iii. 8.30, 831 
 
 V. Furnival, ii. 241 
 
 V. Hollingsliead, iii. 804. 809 
 
 r. Macquisoii, i. 229 
 
 V. Parsons, ii. 423. 426 
 
 Rcilly ('. Jones, iii. 853 
 
 V. Wilson, iii. 809 
 
 Reilly's case, i. 100. iii. 800 
 
 Remington v. Stevens, iii. 990 
 
 Remnant i\ Bremridge, iii. 1184 
 
 Remon v. Hay ward, app. ii. iii. 1157. 
 1500 
 
 Ronalds ?;. Smith, i. 493 
 
 Rendall v. Hayward, app. ii. iii. 1580 
 
 Rendell i\ Carpenter, ii. 600 
 
 Renier r. Fagossa, i. 507 
 
 Rennell v. Wither, iii. 1120 
 
 Rennie v. Robinson, iii. 973. 1180 
 
 Rennie's case, ii. 397 
 
 Renteria v. Ruding, iii. 1300 
 
 Rescous V. Williams, i. 130 
 
 Retallick v. Hawkes, app. ii. iii. 1502 
 
 Retemeyer v. Obermuller, app. ii. iii. 
 1530 
 
 Revell V. Jodrell,ii. 117. 696 
 
 Revett V. Brahara, ii. 518 
 
 V. Brown, i. 5^6. iii. 1099 
 
 Rew V. Pettit, ii. 666 
 
 Rex V. , ii. 703. app. ii. iii. 1328 
 
 V. Aberdaron, app. ii. iii. 1546 
 
 V. Abergwilly, ii. .369 
 
 V. Abingdon (Lord), ii. 630. 638 
 
 V. Abraham, ii. 403 
 
 V. Adams, ii. 614 
 
 V. Adderley, iii. 1073 
 
 V. Addis, app. ii. iii. 1315 
 
 r. Ady, app. ii. iii. 1420 
 
 V. Aickles, i. 248. 403. ii. 467 
 
 V- Akehurst, i. 141. ii. 470 
 
 V. Akenhead,ii. 092 
 
 ?•. Alderson, app. ii. iii. 1500 
 
 V. Alford, i. 470. ii. 088. iii. 855. 859 
 
 V. Algood, i. 340. ii. 509 
 
 • 11. Alison, app. ii. iii. 1485 
 
 V. Allday, app. ii. iii. 1450 
 
 V. Allen, app. ii. iii. 1480. 1533 
 
 i: Allison, ii. 098. iii. 895 
 
 V. All Saints, Derby, iii. 1001. 1233 
 
 V. All Saints, Southampton (Inhabit- 
 ants of), iii. 1007 
 
 V. All Saints, Worcester (Inhabitants 
 
 of), ii. 551 
 
 V. Almon, ii. 42. 020, 021. 645 
 
 V. Alnwick (Inhabitants of), iii. 731. 
 
 1007 
 
 V. Alsop, ii. 501 
 
 V. Alternon, app. ii. iii. 1549 
 
 V. Amersham, app. ii. iii. 1544 
 
 V. Amery, ii. 657. iii. 947 
 
 V. Amphlett, ii. 625 
 
 V. Andrews, ii. 529. app. ii. iii. 1431 
 
 V. Anglesea (Earl of), ii. 320 
 
 V. Anon., app. ii. iii. 1478 
 
 V. Antrobus, i. 183. 250 
 
 ?'. Appeals (Commissioners of), i. 222 
 
 f. Appleby, ii. 40 
 
 )). Ardington, iii. 1001 
 
 V. Ardleigh, iii. 1003 
 
 t'. Arlecdon, app. ii. iii. 1548
 
 TABLE or CASES. 
 
 XCV 
 
 Rex r. ArnoliI, ii. 308. 303. njip. ii iii. 
 
 1398. 144!) 
 
 V. Arundel (Countess of), i. 32(5 
 
 V. Aryre, ii. 554 
 
 V. Ash, app. ii. iii. 1487 
 
 V. Asliby-de-la-Zoucli(Iiiliabitantsof), 
 
 iii. 1002 
 
 V. Asliton, app. ii. iii. 1395 
 
 V. Aspinall, iii. 952 
 
 V. Asterley, app. ii. iii. 1420 
 
 V. Astley, iii. '.;99 
 
 V. AtwelJjii. 7 
 
 V. Atwood, ii. 13. iii. 947 
 
 V. Audley, (Lord) ii. 554 
 
 V. Austin, ii. (i94 
 
 V. Austrey, i. 373. iii. 901, 902 
 
 V. Avery, app. ii. iii. 1381 
 
 V. Axbridge, ii. 404 
 
 ?• Aylett, i. 454. iii. 859 app. ii. iii. 
 
 1399 
 r. Babb, i. 341. ii. 571. iii. 945. 
 
 950 
 
 t'.Badby, iii. 1056 
 
 V. Badcock, i. 102. ii. 6 
 
 V. Bagshaw, iii, 732 
 
 c. Baihlon, app. ii. iii. 1544 
 
 r. Baillie,ii. 039 
 
 r. Baker, i. 509. ii. 366 
 
 V. Baldwin, i. 307. iii. 958. app. ii. iii. 
 
 1480 
 
 V. Ball, ii. 468. 506. app. i. 600 
 
 V. Ballard, ii. 403 
 
 r. Baliuc, ii. 527 
 
 ■ V. Banbury, app. ii. iii. 1544 
 
 V. Banks, ii. 614. app. ii. iii. 1533 
 
 I'. Banson, ii. 10 
 
 V. Barber, i. 191 
 
 V. Bardell, app. ii. iii. 1344 
 
 ?'. Barmston, ii. 018. app. ii. iii. 
 
 1544 
 
 V. Barnard, app. ii. iii. 1420 
 
 • V. Barnes, i. 301. ii. 190. 446. app. i. 
 
 592 
 
 V. Barnett, i. 2-32. iii. 848 
 
 V. Barnsley (Inhabitants of ), iii. 835 
 
 i: Barr, iii. 744 
 
 . V. Barraston, ii. 190 
 
 V. Barratt, app. ii. iii. 1317. 1443 
 
 V, Barrett, app. ii. iii. 1 579 
 
 V. Bartlett, iii. 750 
 
 V. Barton, app. ii. iii. 1437 
 
 V. Bass, ii. 610 
 
 7\ Bath (Recorder of), ii. 530. app. 
 
 i. 599 
 
 V. Bath-Easton,iii.999 
 
 r. Batliwick c Inhabitants of), i. 342. 
 
 ii. 552. 703 
 
 r. Batt,ii.533 
 
 i\ Baynes, ii. 507 
 
 V. Baytup, ii. 407 
 
 r. Bazely, ii. 61 1 
 
 t'. Beard, ii. 201 . app. i. 626 
 
 r. Beare, ii. 620. 623. 626 
 
 tJ. Beckett, ii. 461 
 
 V. Bedall, ii. 196. 198. 200 
 
 V. Bedder, iii. 798 
 
 v. Bedford, iii. 1003 
 
 r. Bedford (Justices of), iii. 858 
 
 V. Bedfordshire Justices, app. ii. iii. 
 
 1490 
 
 Rex V. Beech, i. 478. ii. (Viij 
 
 V. Beeston, ii, (572. iii. 902 
 
 r. Boll, ii. 38. 311. iii. 787 
 
 *', Bellamy, i. 227. 298. 486. 489 
 
 V. Bellingliani,iii. 1277 
 
 r. Bellriiigcr, iii. 777. 1233 
 
 V. Benn, ii. 600 
 
 V. Bennett and Brougliton, apj). ii. iii. 
 
 1551 
 
 V. Benney, ii. 23 
 
 V. Benson, i. 337. 477. iii. 850 
 
 V. Beiitley, iii. 1007. app. ii. iii. 1319 
 
 r. Berking, ii. 570 
 
 ?•. Berks (Justices of), app. ii. iii. 
 
 1438 
 
 V. Berkswell, app. ii. iii. 1545 
 
 i: Berry, ii. 019 
 
 i\ Berwick (Justices of), iii. 952 
 
 V. Berwick, St. John, iii. 999 
 
 V. Best, i. 295. a])p. ii. iii. 1332 
 
 t'. Beverley (Mayor of), app. ii. iii. 
 
 1448 
 
 V. Bew, i. 458 
 
 V. Bickley, i. 308 
 
 i\ Biers, iii. 1060 
 
 V. Bigg, ii. 41, 42. 307, 308. 339. 
 
 401,402 
 
 V. Bignold, i. 423 
 
 ?;. Billingliurst (Inhabitants of), ii. 
 
 700 
 
 V. Billinghay, app. ii. iii. 1543 
 
 v. Bilniore, i. 144 
 
 V. Biisdale-Kirkham, iii. 1005 
 
 V. Bilton, ii. 439. iii. 1007 
 
 V. Bincgar, iii. 1005, 1006 
 
 V. Bingiey, ii. 5 
 
 V. Binglose, ii. 276 
 
 V. Bipsham, i. 212 
 
 V. Bird, app. ii. iii. 1370 
 
 v. Birkett, ii. 008. app. ii. iii. 1315 
 
 V. Birmingham, ii. 702. iii. 998 
 
 V. Birmingham and Gloucester Rail- 
 way Company, app. ii. iii. 1375. 1385 
 V. Birmingham and Stafifordshire Gas 
 
 Company, app. ii. iii. 1534 
 
 V. Birt, iii. 1173 
 
 r. Bishop- Auckland, i. 159. ii. 530 
 
 V. Bishopton, app. ii. iii. 1546 
 
 V. Biss, ii. 710 
 
 V. Black Callerton, app. ii. iii 1550 
 
 V. Blackman, i. 157 
 
 r. Blackson, app. ii. iii. 1314 
 
 i\ Blacksmiths' Companv, i. -509 
 
 V. Blaney, i. 157. ii. 500l 507 
 
 V. Bleasdale, ii. 499. 500 
 
 V. Blick, i. 283 
 
 V. Bobbing, app. ii. iii. 1545 
 
 t'. Boldero, iii. 828 
 
 — — V. Bolton, app. ii. iii. 1497 
 
 V. Bond, iii. 847 
 
 V. Bonner, app. ii. iii. 1395 
 
 v. Bonsall, ii. 690 
 
 V. Boston, i. 103. 106. 280, 281. ii. 
 
 469. app. ii. iii. 1489 
 
 V. Boucher, app. i. 626 
 
 V. Boultbee, ii. 587 
 
 V. Bounty ( Mutineers of), iii. 798 
 
 V. Bourne, app. ii. iii. 1413 
 
 ?5. Bourton-on-Dunsniore (Inhabit- 
 ants of), iii. 1041
 
 XCVl 
 
 TABLE OF CASES. 
 
 Rex ?,'. liow (Inhabitants of), iii. 1002 
 V. Bowes and others, ii. 326. 552. iii. 
 
 1232 
 V. Bowler, i. 281. 309. iii. 1277. app. 
 
 i. 025 
 
 ?'. Bowness, iii. 1004 
 
 r. Box, app. ii. iii. 1459 
 
 ('. Bradenham, iii. 1007 
 
 V. Bradford, iii. 1041 
 
 (1. Bradsliaw, ajip. ii. iii. 1403 
 
 c. Brady, iii- 857 
 
 V. Braiiilpy, ii. 200. 554. iii. 835 
 
 r. Brampton, ii. 704, 705 
 
 r. Brangan, ii. 077 
 
 r. Bray, i. 100. 152. ii. 469. iii. 801. 
 
 948 
 
 V. Brasier, i. 23. ii. 613. iii. 950 
 
 V. Breeme, ii. 50 
 
 V. Brent, i. 152 
 
 V. Brewer, app. ii. iii. 1381 
 
 V. Bridger, app. ii. iii. 1340 
 
 V. Bridgewater, iii. 895. app. ii. iii. 
 
 1548 
 
 V. Bridgman (Dr.), ii. 571. iii. 945 
 
 V. Bridgnorth (Mayor of), app. ii. iii. 
 
 1514 
 
 V. Brighton, app. ii. iii. 1546 
 
 V. Brinklett, i. 472 
 
 r. Brisac, ii. 341. iii. 1232 
 
 V. Bristow, iii. 1175 
 
 r. Brixhani, app. ii. iii. 1547 
 
 V. Brommich, ii. 24 
 
 V. Bromsgrove, i. 389 
 
 V. Bromyard, iii. 952 
 
 V. Brooke, i. 187. iii. 952 
 
 i\ Brooks, app. ii. iii. 1459 
 
 V. Broughton, i. 527 
 
 V. Brown, ii. 402. 551 . 553. 590. iii. 916 
 
 i>. Browne, i. 299. iii. 855 
 
 V. Brownell, i. 83 
 
 V. Brownlow, app. i. 611. ii. iii. 1327. 
 
 1533 
 
 V. Brunswicke, ii. 608 
 
 V. Buecleugh (Duchess of), ii. 275. 
 
 528 
 
 V. Buckby, iii. 914 
 
 V. Buckeridge, ii. 529 
 
 V. Buckingham (Justices of), ii. 569 
 
 r. Buckingham (Marquis of), ii. 274 
 
 • V. Bucks (Inhabitants of), ii. 274 
 
 V. Buckworth, i. 320 
 
 V. Budd, iii. 937 
 
 V. Bulcock, iii. 954 
 
 V. Bull, ii. 611. app. i. 607. ii. iii- 
 
 1486 
 
 V. Bullock, ii. 174. 190 
 
 V. Bunning, ii. 31 1 
 
 V. Bunting, ii. 469 
 
 V. Burback, iii. 1000 
 
 V. Burbon (Inhabitants of), i. 282. 
 
 ii. 528, 529 
 V. Burdett, i. 441. 456. 531, 532. 
 
 ii. 620. 622, 623. 642. 644. 646. iii. 1232 
 
 V. Burley, ii. 13. 37 
 
 V. Burrell, app. ii. iii. 1497 
 
 V. Burridgc, app. ii. iii. 1 564 
 
 V. Burrows, app. i. 626 
 
 ■ V. Burslenr, iii. 1002. app. ii. iii. 1544 
 
 V. Burton-upon-Trent (Inhabitants 
 
 of), ii. 700 
 
 Ilex V. Bury St. Ednninds, ii. 308 
 V. Bury and Stratton Roads (Trus- 
 tees of), ii. 85 
 
 r. Basil, ii. 608 
 
 V. Butki-, ii. 702 
 
 i: Butterton, iii. 1004 
 
 V. Buttcrwick, ii. 466 
 
 V. Buttery & Macnamara, i. 2G0. 
 
 290. 305. ii. 468 
 
 V. Cadogan (Earl of), i. 340 
 
 V. Callahan, app. ii. iii. 1460 
 
 v. Callauan, iii. 850 
 
 — • — i\ Cambridge Gas Company, app. ii. 
 
 iii. 1535 
 V. Cambridge (V. C. of), i. 508. iii. 
 
 947 
 r. Cambridgeshire Justices, app. ii. iii. 
 
 1361. 1436. 1497 
 
 V. Campbell, ii. 607 
 
 V. Caulield (Great), ii. 521 
 
 V. Canniff, app. ii. iii. 1486 
 
 V. Carlile (iMary), ii. 640 
 
 V. Carlisle, i. 423. ii. 621. iii. 1052 
 
 V. Carmarthen (Recorder of), app. ii. 
 
 iii. 1490 
 
 V. Carmarthenshire (Justices of), ii. 22 
 
 V. Carnarvonshire (Justices of), app. 
 
 ii. iii. 1549 
 V. Carpenter, ii. 276. 340. iii. 946. 
 
 1087 
 V. Carr, i. 334. ii. 304. 692. iii. 860. 
 
 app. ii. iii. 1486 
 
 V. Carroll, ii. 281 
 
 V. Carter, ii. 624 
 
 V. Casaur, iii. 1279 
 
 V. Case, ii. 310. 692 
 
 V. Casper, app. ii. iii. 1314 
 
 V, Cassano, i. 485 
 
 V. Cassey & Cotter, ii. 277 
 
 I'. Castell Careinion, i. 97 
 
 V. Castlemaine (Lord), i. 98. 100, 101 
 
 V. Castlemorton, iii. 1055, 1056, 1057, 
 
 1058 
 
 V. Castleton, i. 388, 389, 390. 394 
 
 r. Cator, ii. 461.518 
 
 V. Catterall, i. 295 
 
 V. Caverswall, app. ii. iii. 1545 
 
 V. Caxon, app. i. 593 
 
 V. Cellicr, i. 82. 100 
 
 V. Chadderton, ii. 369. iii. 1008 
 
 V. Champueys, app. ii. iii. 1448 
 
 V. Chandler, li. 332. 586 
 
 V. Chapman, app. i. 600 
 
 V. Chappel, ii. 438 
 
 r. Cliapple, app. ii. iii. 1314 
 
 V. Charnock & Keys, ii. 330 
 
 V. Chatham, iii. 1008 
 
 V. Cheadle (Inhabitants of), iii. 791 
 
 r. Cheeseman, app. ii. iii. 1486 
 
 V. Cherry, li. 605 
 
 v. Cheshire, app. ii. iii. 1490 
 
 i\ Cheshire (Justices of), ii. 592. app. 
 
 ii. iii. 1490 
 
 V. Chester (Archdeacon of), iii. 1233 
 
 V. Chester (Bishop of), i. 285. ii. 83. 
 
 095. iii. 1055 
 
 V. Chester (Mayor of), iii. 770 
 
 . V. Chester (Sheriff of), ii. 565, 566. 
 
 570 
 t: Chesterfield, iii. 1001
 
 T A B L E O I' CASK S. 
 
 XCVII 
 
 Rex 1'. Chillnsford, ii. .I.'j.'). Hi. 08!) 
 
 i\ Cliilvers Cotoii, ii. 585. iii. 1000, 
 
 1007 
 i\ Chipping Norton, ii. 473. iii. 1056, 
 
 1056. 1058. 
 
 ?\ Ciiurch Kuowle, app. ii. iii. 1547 
 
 V. Cirencester, iii. 1007 
 
 V. Clapham, i. 245 
 
 r. Clark, ii. 711 
 
 V. Clarke, 1. '221, 222. 473. ii. 23, 24. 
 
 305.009. iii. 951,952 
 
 V. Clav, ii. 574 
 
 V. Clayton, ii. 201. 28G. 387 
 
 V. Clavton-le-Moors, ii. 439. iii. 1007 
 
 V. Cleixr, ii. 570. iii. 752 
 
 V. Clegg-, i. 306 
 
 . V. Clewes, ii. 34. 712 
 
 V. Clifford, ii, 563 
 
 V. Cllfton-upon-Dunsmore, iii. 1041 
 
 V. Clint, app. ii. iii. 1547 
 
 1\ Cliviger, ii. 254. 650, 551, 552. 
 
 654. 998 
 
 V. Closwortli, app. ii. iii. 1544 
 
 V. Cobbold, i. 157 
 
 V. Codrington, ii. 455 
 
 V. Cohen, i. 174. ii. 4. iii. 855 
 
 V. Cole, i. 105. 151 
 
 V. Coleorton. iii. 1008 
 
 V. College, i.' 23 
 
 r. Collicott, ill, 1232 
 
 I'. Collins, app. ii. iii. 1467, 1408 
 
 V. Collinson, ii. 693 
 
 V, Colly, i. 189 
 
 V. Comnierell, ii. 677 
 
 V. Conner, app. ii. iii. 1486 
 
 V. Conolly, app. ii. iii. 1379 
 
 V. Coode, i. 524 
 
 V. Coogan, ii. 460 
 
 V. Cooke, i. 84. ii. 709. app. ii. iii. 
 
 1425 
 
 V. Coombs, i. 421. iii. 935 
 
 V. Cooper, ii. 590 
 
 V. Cope, ii. 200. 324, 325. app. i. 615 
 
 V. Coppard, i. 493 
 
 t'. Corbett, iii. 1007 
 
 V. Corfe Mullen, iii. 1003 
 
 r. Cornwall (Justices) app. ii. iii. 
 
 1548 
 
 V. Corsham, i. 295. iii. 1006 
 
 z\ Corslet, ii. 605 
 
 V. Cotesworth, ii. 52 
 
 V. Cotterell, app. ii. iii. 1481 
 
 V. Cotton, i, 43. 306. 319. ii. 526. 529. 
 
 iii. 840. 1145 
 
 V. Course, ii. 50 
 
 V. Courvoisier, app. i. 625 
 
 • V. Cowpen, app. ii. iii. 1543 
 
 V. Cox, ii. 574 
 
 V. Cranage, i. 466 
 
 V. Craven, i. 490 
 
 V. Crawley, app. ii. iii. 1461 
 
 V. Crediton, iii. 1002 
 
 V. Creevey,ii. 630. 638, 639. 644 
 
 V. Crightoii,ii. 616 
 
 V. Crockett, ii. 366 
 
 V. Crofts, ii. 302. app. ii. iii. 1383 
 
 V. Croker, ii. 590 
 
 V. Cromer, i. 443 
 
 V- Croniford, iii. 1001 
 
 V. Crosby, i. 95. 97. 100, 101 
 
 Ilex V. Cross, ii. 11. iii. 742 
 
 V. Crossley, i. 96. 248. ii. 100. 627. 
 
 iii. 857. app. ii. iii. 1420 
 ?•. Cruse and wife, app. ii. iii. 1379. 
 
 1478.1480 
 
 V. Crutchley, ii. 695. ajjp. ii. iii. 1483 
 
 '.'. CuUen, app. ii. iii. 1527 
 
 V. Culpopjier ( Sir T.), i. 393. ii. 56 
 
 V. Cumberland (Inhabitants of), ii. 
 
 273 
 i\ Cumberland (Justices of), app. 
 
 ii. iii. 1566 
 i\ Cumberworth, ii. 523. 526. app. 
 
 ii. iii. 1437 
 
 V. Curran, ii. 693 
 
 r. Curwood, app. ii. iii. 1490 
 
 V. Cutler, iii. 940 
 
 V. Dade, ii. 402 
 
 V. Dalby, app. i. 508. app. ii. iii. 1523 
 
 V. Dale, app. ii. iii. 1420 
 
 V. Daly, app. ii. iii. 1333 
 
 V. Daniel, ii. 612 
 
 V. Darley, ii. 54 
 
 V. Darnford, i. 405 
 
 V. Davie, app. ii. iii. 1497 
 
 V. Davies, app. ii. iii 1424. 1431 
 
 V. Davis, i. 95. 158. 407. ii. 6. 278. 
 
 332. 466. 500. 580. iii. 1058. app. ii. iii. 
 
 1322 
 V. Davis and another, ai)p. ii. iii. 
 
 1432 
 
 v. Dawber, ii. 14. 16 
 
 r. Dawson, i. 477. ii. 53. 402 
 
 V. Day, iii. 740. app. ii. iii. 1327 
 
 V. Dean i. 141 
 
 V. Debenbam, i. 240 
 
 V. De Berengcr and others, i. 170. 
 
 194. 233, 234. 500. ii. 341 
 
 V. De Caux, iii. 1020 
 
 V. Dedall, iii. 930 
 
 i\ Dedham, iii. 999 
 
 V. Deeley, iii. 895 
 
 V. Deering, ii. 324 
 
 V. De la Motte, i. 404 
 
 i\ Denbighshire Justices, iii. 1074 
 
 V. Denis (Inhabitants of), i. 389 
 
 V. Dennison, ii. 024 
 
 V. Derby (Justices), app. ii. iii. 1547, 
 
 1548 
 
 V. Despard, ii. 16. 690 
 
 V. Devon (Inhabitants of), ii. 273 
 
 V. Devon (Justices of), iii. 732 
 
 v, Dewhurst, ii. 39. 014 
 
 r. Dey & Ux, ii. 459 
 
 V. Diddlesbury (Inhabitants of); iii. 
 
 1007 
 
 V. Ditcheat, iii. 1005 
 
 V. Dixon, ii. 45 
 
 V. Dobbs, ii. 281. 672. 694 
 
 V. Dddd (Dr.), i. 141. 150. ii. 12. 
 
 621,022. iii. 806 
 
 V. Dodsworth, app. ii. iii. 1450 
 
 v. Doherty, ii. 554 
 
 V. Donovan, ii. 50 
 
 V. Dorau, i. 500. ii. 51 
 
 I'. Dore, ii. 38 
 
 V. Dorriugton, ii. 311 
 
 v. Douglas, ii. 456. app. ii. iii. 14--<7 
 
 V. Dowlin, iii. 858 
 
 g
 
 XCVlll 
 
 TABLE OF CASES. 
 
 Rex V. Dowling, i. 405 
 
 V. DowiR'S, aj)]). ii. iii. loCO 
 
 V. Dowiisliire (Marquis of;, aiij). ii. iii. 
 
 1612 
 
 V. Doyloy, app. ii. iii. IGOO 
 
 V. Drake,!. 488 
 
 V. Drciiiercliior, app. ii. iii. 1543 
 
 V. Drew, ajtp. ii. iii. 1321 
 
 V. Driiniiiioiul, ii. 3(i() 
 
 V. Diidiiiaii, i. 483. iii. 850 
 
 V. Dudley, apj). ii. iii. 1532 
 
 V. Diiins, i. 248 
 
 V. Dullingliain (Lady of Manor of), 
 
 ii. 334 
 
 V. Duncomlie, i. 207. app. i. 003 
 
 V. Dunn, ii. 37. 
 
 V. Dunstan, iii. 850 
 
 V. Dunton (Inhabitants of), iii. 1008 
 
 V. Durham and Crowder, ii. 13. 15 
 
 V. Durslev, iii. 053 
 
 V. Dyer, i'i. 7.580 
 
 II. Dyke, app. ii. iii. 1315 
 
 V. Dyhine, i. 154 
 
 V. Dyson, ii. 003. 724. app. ii. iii. 
 
 1394 
 
 V. Eardisland,i. 282 
 
 V. Earl Farh'igh, i. 387. 301 
 
 V. East India Company ( Directors of), 
 
 ii.437 
 
 V. East Knoyle, iii. 1050 
 
 V. Eastville, apjt. ii. iii. 1548 
 
 V. Eatington, iii. 1003 
 
 V. Eaton, app. ii. iii. 1828 
 
 V. East Wincli, app. ii. iii. 1543 
 
 V. Ecclesall Bierlow, app. ii. iii. 
 
 1550 
 
 V. Ecclcsfield, ii. 527 
 
 V.Eden, iii. 855. app. i. 598. ii. iii. 
 
 1523 
 
 V. Edge Lane, app. ii. iii. 1487 
 
 V. Edgwortli, iii, 1056 
 
 V. Edmonton, ii. 525. 701. iii. 1125, 
 
 1126 
 
 V. Edmonstone, iii. 1008 
 
 V. Ednnnds, apj). ii. iii. 1320 
 
 . ti. Edwards, i. 192. 190. ii. 37. 330. 
 
 iii. 895. app. i. 004 
 
 V. Edwiiistowe, iii. 1008 
 
 V. Egginton, ii. 170. 612 
 
 V. Eldershaxv, iii. 950 
 
 V. Elderton, i. 508 
 
 V. Eldridgp, ii. 40 
 
 V. P:ikins, i. 330. iii. 1033 
 
 V. Ellicombe, i. 400, 401 
 
 V. Elliiis, ii. 308 
 
 V. Elliott, ii. 400 
 
 V. Ellis, i. 143. 153. ii. 13. 38. 008. 
 
 app. ii. iii. 1459. 1485 
 
 V. Else, ii. 0. iii. 939 
 
 ??. Elsworth, ii. 401 
 
 I'. Emden, iii. 858 
 
 V. Emmons, app. 1. 592 
 
 V. Enderby, iii. 1038 
 
 V. Eriswell, i. 32. S75. ii. 359. 384, 
 
 385. 387. 428. 438. iii. 835. 908 
 
 -V. Erith,i. 24 iii. 835. 841 
 
 V. Erringtcn, app. ii. iii. 1398 
 
 V. Essex (Justices of), i. 524. ii. 523 
 
 V. Evans, i. 477. ii. 044, 645. app. 
 
 ii. iii. 1484 
 
 Rex V. Evans and Whcelton, Sheriff's of 
 Middlesex, app. ii. iii. 1455 
 
 v. Evered, ii. 500 
 
 r. Everett, i. 513. 525 
 
 V. Evesham (Mayor, &c.), app. ii. iii. 
 
 1386 
 
 t>. Exeter County Treasurer, i. 80 
 
 V. Eye (Mayor of), aj)]). ii. iii. 1438 
 
 V. Fagent, app. ii. iii. 1394 
 
 V. Fagg, ii. .38. iii. 787 
 
 11. Falkner, ii. 40 
 
 r. Faraday and Wood, app. ii. iii- 
 
 1520 
 
 V. Farlar, app. ii. iii. 1315 
 
 V. Farleigh (Earl), i. 387. .390, .301 
 
 V. Farleigh Wallop, iii. 999 
 
 V. Farr, app. ii. iii. 1426 
 
 1). Farre, ii. 277 
 
 V. Farringdon, i. 382 
 
 V. Fearshire, ii. 38 
 
 V. Ferguson & Edge, ii. 331 
 
 . V. Ferrand, iii. 750 
 
 V. Ferry Frystone,ii. 309. 387. 438 
 
 V. Feversham, ii. 26 
 
 V Fidler, ii. 095 
 
 V. Fielding, ii. 698, 699 
 
 V. Filer, ii. 500 
 
 V. Fillongley, iii. 1005 
 
 i;. Fisher, ii. 38. 6.39 
 
 V. Fitzgerald, i. 247 
 
 V. Fitzpatrick, i. 22 
 
 t'. Fladbury, iii. 1004 app. ii. iii. 
 
 1546 
 
 V. Fleet, ii. 640. iii. 1001 
 
 V. Fleet (Warden of), i. 101 . 200. 280. 
 
 iii. 1033, 1034 
 
 V. Fleming & Windham, ii. 383 
 
 V. Fletcher, i. 143 
 
 ■ II. Flinton, ii. 545 
 
 V. Foot, ii. 616. iii. 901 
 
 II. Forbes, ii. 384. app. ii. iii. 1426 
 
 U.Ford, i. 95, 96. 122. ii. 601. 717. 
 
 iii. 1034 
 
 V. Forsyth, i. 234 
 
 1'. Foster, i. 63. 471. 473. app. ii. iii. 
 
 1322.1379 
 
 V. Fowlc, iii. 1058 
 
 V. Fowler and others, ii. 330 
 
 V. Fox, i. 180. ii. 092 
 
 V. Franceys, ii. 624 
 
 V. Francis, ii. 404. app. ii. iii. 1398 
 
 V. Franklin, i. 464 
 
 V. Frederick, i. 143. ii. 550 
 
 V. Freeth, i. 463. iii. 1225 
 
 V. Friend, i. 82 
 
 ?'. Frost, app. ii. iii. 1382. 1560, 1570 
 
 V, Fry, app. ii. iii. 1432 
 
 II. Fuller, ii. 312. app. ii. iii. 1398. 
 
 1580 
 
 II. Fulwood, ii. 552 
 
 V. Furneaux, ii. 616 
 
 V. Furness, iii. 1007 
 
 V. Fursey, i. 503 
 
 V. Fylingdales, ii. 527 
 
 V. Gaby, iii. 804 
 
 V. Gadbiirn, app. ii. iii. 1383 
 
 V. Gage, ii. 507. iii. 847 
 
 II. Gainer, app. ii. iii. 1432 
 
 V. Gainshury, ii. 533 
 
 ti. Gardiner, iii. 859. npp. ii. iii. 1479
 
 T A n ). F, OF CASES. 
 
 XCIX 
 
 Rex V. Gardner, i. 2ni. ii. 24. 331 
 
 V. Gascoinp, app. i. 025 
 
 V. Gash, ii. 49!) 
 
 t'. Gaskin (Dr.), i. 277. HOfi. ii. 5LK) 
 
 V. -Gatlicrcolc, a]>p. ii iii. 14(37 
 
 V. Gay, app. ii. iiL I'idH 
 
 V. Gazurtl, iii. 801 
 
 V. Geach, app. ii. iii. 1425. 1452 
 
 V. Gengc, i. 5^2 
 
 V. Gibbons, ii. '277 
 
 V. Gilison, i. 200. 290 
 
 V. Gilbert, ii. 507 
 
 V. Gilham, i. 94. 441. 451. 450. ii. 
 
 607. iii. 1180 
 
 t'. Gilkes, ii. 499 
 
 V. Gillbrass, app. i. 592 
 
 V. Gillson, ii. 52. iii. 1068 
 
 V. Girdwood, ii. 022 
 
 V, Glsburn, i. 100. 130 
 
 r. Glamorgan (Inhab. of), ii. 272 
 
 V. Glossop, i. 409 
 
 V. Gloucestershire (Justices of), iii. 
 
 934 
 
 V. Glover, ii. 523 
 
 V. Goddard, iii. 840 
 
 V. Godfrey, app. ii. iii. 1459 
 
 V. Gogerly, ii. 5 
 
 V. Goldsmith, i. 405. ii. 093 
 
 • V. Gooch, app. ii. iii. 1400 
 
 t). Good body, app. ii. iii. 1457 
 
 V. Goodburn, app. ii. iii. 1512 
 
 V. Goode, app. ii. iii. 1014 
 
 V. Goodenougb, app. ii. iii. 1505 
 
 V, Goodhall, ii. 455 
 
 V. Gooding, iii. 1140 
 
 V. Gordon, i. 164. 191. 235. ii. 331. 
 
 358 
 
 V. Gould, app. ii. iii. 1321. 1377 
 
 V. Gower, ii. 50 
 
 V. Graham, ii. 3 
 
 V. Grandon, ii. 592 
 
 V. Grand Junction Railway Company, 
 
 app. ii. iii. 1485 
 
 V. Grant, i. 90. ii. 38 
 
 V. Gray, i. 103. ii. 270. iii. 948 
 
 V. Great Bentley, iii. 1004 
 
 V. Great Farringdon, ii. 509 
 
 V. Great Salkeld, iii. 998 
 
 V. Great Wishford, app. ii. iii. 1543 
 
 V. Green, app. ii. iii. 1480 
 
 V. Greenacre, app. ii. iii. 1314. 1399. 
 
 1485 
 
 V. Greene, app. ii. iii. 1385 
 
 V. Gregg, iii. 890 
 
 V. Grcepe, i, 101 
 
 V. Greet, iii. 940. 1233 
 
 V. Gregory, iii. 749 
 
 V. Grey (Lord) and others, ii. 330 
 
 V. Grice, app. ii. iii. 1 431 
 
 V. Griebe, iii. 859 
 
 V. Griffin, ii. 38 
 
 V. Griffiths, app. i. 004. ii. iii. 1478 
 
 i;. Griggs, ii. 550 
 
 V. Grimes, i. 259. 290. ii. 305, iii. 
 
 948. 950 
 
 V. Grimwood, i. 247 
 
 V. Grove, app. ii. iii. 1400 
 
 V. Gruncell, app. ii. iii. 1458. 1530 
 
 V. Grundon, i. 285. 305 
 
 t'. Guest, app. ii. iii. 1534 
 
 Rr\- V. Gnteh, ii. 4.'>. 554. 021. 045 
 
 7\ Guttridgp, opp. ii. iii. 1328. 1534 
 
 V. Gwyn, i. 341 
 
 r. Iladden, iii. 940 
 
 f. Hailey, iii. 857 
 
 V. Ilagan, app. ii. iii. 14P7 
 
 t'. llainos, i. 303. 33!) 
 
 V. Hales, iii. 1000, 1001 
 
 I'. Ilall, ii. 38. 58.9. 000. 022. iii. Sr,(i. 
 
 801. 1007. app. i. 014. ii. iii. 14(11 
 
 V. Ilallott, apj). i. 005. ii. iii. 1.033 
 
 V. llaniilt':)!! and oIIk is, iijip. ii. iii. 
 
 l.jOl 
 »'. Ilammcrsiiiith (Inhab. of), i. 32. 
 
 151. 155. ii. 522. 529 
 
 V. Hammun, ii. 012 
 
 t'. Hammond Page i. 299. iii. 855. 
 
 1049 
 
 V. Hammond & Webb, ii. r.29 
 
 I', llampreston, iii. 9!J9. 100.) 
 
 II. Hamstall Ridgevvare, iii. 1002 
 
 V. Hanks, iii. 854 
 
 r. Hanley, app. ii. iii. 1527 
 
 V. Harberton, i. 399 
 
 V. Harborne, ii. 304. app. ii. iii. 1391 
 
 1). Harborough (Lord^, app. ii. iii. 
 
 1009 
 
 V. Harding, ii. 948 
 
 V. Hardwicke, i. 100. ii. 30. iii. 798 
 
 V. Hardy, i. 185 
 
 V. Hardy & Tooko, ii. 326 
 
 V. Harland, ii. 459 
 
 V. Harley, ii. 094 
 
 V. Harpiir, ii. 591 
 
 V. Harringworth, i. 371. 374 
 
 V. Harris, ii. 304. 310. 021. iii. 800. 
 
 app. i. 002. ii. iii. 1421. 1478 
 V. Harrison, i. 419. iii. 729. app. ii. 
 
 iii. 1379 
 
 V. Hart & White, ii. 025. 044 
 
 V. Hartley, iii. 805. 948 
 
 V. Harvey, ii. 030. app. ii. iii. 1458 
 
 V. Haslingfield, ii. 117. iii. 931. 935. 
 
 937 
 
 V. Hastings, app. ii. iii. 1315 
 
 V. Hatfield (Inhabitants of), ii. 628. 
 
 iii. 1125 
 
 V. Haughton, iii. 1000 
 
 I'. Hawker, ii. 589 
 
 V. Ilawkeswood, ii. 400. iii. 1058 
 
 V. Hawkc'sworth, iii. 1058 
 
 r. Hawkin.s i. 421. li. 277. iii. 934. 
 
 app. ii. iii. 1001 
 
 V. Haworth, i. 401. ii. 39. 401 
 
 V. Hawtin, app. ii. iii. 1401 
 
 r. Playdon, app. ii. iii. 1458 
 
 V. Hayes, app. i. 020. ii. iii. 1413 
 
 V. Hayman, i. 159. ii. 527. 530. app. 
 
 ii. iii. 1412 
 
 V. Haynes, i. 251. .302 
 
 V. Hayward, ii. 091. ajip. ii. iii. 1395 
 
 V. Hazell, ii. 680 
 
 V. Head corn, ii. 22 
 
 V. Healey, i. 401 
 
 V. Hearne, ii. 40 
 
 i;. Heath, ii. 009. app ii. iii. 1.301. 
 
 1457 
 
 V. Heaton Norris, iii. !);)8 
 
 V. Hebden, i. 258. 295, 390. ii. 305 iii. 
 
 948, 949 
 S 2
 
 TABLE OF CASES. 
 
 Rex V. Ileilger, app. ii. iii. IGOO 
 
 V. IIe(lu:fis, ii. 311 
 
 V. lleliliig, iii. 1007 
 
 V. Helps, ii. 590 
 
 i;. Helsliam, iii. 724 
 
 V. Ilelvcdoii, iipp. ii. iii. 15.j0 
 
 V. Hempstead & Hudson, ii. G14 
 
 V. Ileudori, ii. 274. iii. 901 
 
 V. nenley-iipon-TJiames, opp. ii. iii. 
 
 1545 
 
 V. Henry, app. ii. iii. 1564 
 
 V. Hensay, ii. 341. 518 
 
 V. Hepwortli, ii. 523 
 
 V. Herefordshire (Justices of), app. 
 
 ii. iii. 1547 
 
 V. Herstinonceaux, app. ii. iii. 1407 
 
 V. Hewins, app. i. G32. ii. iii. 1522 
 
 — — V. Hickman, ii. 38 
 
 V. Hicks, app. ii. iii. 1487 
 
 V. Higgins, i. 527. ii 34. 715 
 
 V. Highley, li. 724 
 
 V. Hill, app. ii. iii. 1420. 
 
 V. Hill and others, i. 4l'S. ii. 467. 507 
 
 V. Hiorns, app. ii. iii. 1380 
 
 V. Hobson, ii. 617 
 
 V. Hock worthy, iii. 1048 
 
 V. Hodgkiss, app. i. 603 
 
 V. Hodgson, i. 192. li. 616. iii. 952 
 
 r. Hodnett, ii. 701 
 
 n. Hogg, i. 311 
 
 V. Holbeach, app. ii. iii. 1549 
 
 V. Holden, app. i. C04 
 
 V. Holdsworth, app. ii. iii. 1316 
 
 i;, Holland, ii. 568. 571. app. ii. iii. 
 
 1485 
 
 V. Hollingshed, ii. 38 
 
 V. Hollis, ii. 592 
 
 V. HoUister, iii. 945 
 
 V. Holme, iii. 1007 
 
 I). Holmes, ii. 50 
 
 V. Holroyd, app. ii. iii. 1496 
 
 V. Hrlt, i. 238, 234. ii. 628. 645, 646. 
 
 app. ii. iii. 1479 
 
 V. H(dy Trinity (Inhab. of), iii. 1004 
 
 I'. Holy Trinity, Minories, iii. 1002 
 
 V. Hone, ii. 645 
 
 • V. Hopes, ii. 438. app. ii. iii. 1322 
 
 V. Hopkins, app. ii. iii. 1484 
 
 t). Hopper, i. 410, 411. ii. 151 
 
 V. Home, i. 423. 447. ii. 645 
 
 V. Home Tooke, i. 227. ii. 329 
 
 V. Horner, ii. 622 
 
 V. Hornsey (Inliab. of), ii. .529 
 
 V. Horseley, ii. 407. 441. iii. 1147 
 
 V. Horton, iii. 750 
 
 V. Horwell, app. ii. iii. 1424 
 
 V. Hostmen in Newcastle (Frater- 
 nity of), iii. 945 
 
 V, Houghton, ii. 468 
 
 V. Howard, i. 503 
 
 V. Howe, i. 212. 215. ii. 331. app. ii. 
 
 iii. 1322 
 
 V. Howell, app. u. iii. 1313, 1314. 
 
 1382. 1438. 1480. 1458. 1569 
 
 ' V. Howes, app. ii. iii. 1320 
 
 V. Hoyte, ii. 358 
 
 V. Hube, i. 501 
 
 V. Hucks, i. 526. ii. 367. 679. iii. 855. 
 
 859 
 
 Rex V. Hudson, ii. 525 
 
 V. Iluggins, i. 122. iii. 734 
 
 V. Hughes, i. 218 ii. 9.278. app. ii.iii. 
 
 1440. 14.'->4. 1478.1532 
 
 V. Iluleott, ii. 580. iii. 901. 1007 
 
 V. Hulme, app. i. 598. app. ii.iii. 1523 
 
 V. Hungerf )rd Market Company, iii. 
 
 728 
 
 V. Hunt, i. 404. 4-38. ii, 644. iii. 1173, 
 
 1174. app. ii. iii. 1461 
 
 V. Hunter, ii. 405. 571 
 
 V. Hurrell, i. 461 
 
 V. Hurstmonceaux, ii. 482. app. ii. iii. 
 
 1587 
 
 V. Hutchinson, ii. 368 
 
 V. Hyams, app. ii. iii. 1376 
 
 V. Ideford, iii. 1002 
 
 V. Ightham, app. ii. iii. 1544 
 
 V. lies, i. 299. 325. 493. iii. 855 
 
 V. lucledon, ii. 077, 678 
 
 V. Inge, ii. 499 
 
 V. Ipswich (Justices of), i. 509 
 
 V. Isaac, ii. 51 
 
 V. Ivens, app. ii. iii. 1444 
 
 V. Ivie M-Knight, app. ii. iii. 1520 
 
 t'. Jackson, li. 201. 607. 013. iii. 1226. 
 
 app. ii. iii. 1458 
 
 V. Jacobs, ii. 38 
 
 V. Jagger, ii. 552 
 
 i: James, ii. 590. 686. iii. 854. 857. 
 
 895. app. ii. iii. 1450 
 
 V. Jarvis, app. ii. iii. 1314 
 
 i>. Jefferies, i.233 
 
 i;. Jefferys, iii. 1080 
 
 V. Jellyman, app. ii. iii. 1315 
 
 V. Jenkins, ii. 38. app. ii. iii. 1457 
 
 V. Jenks, ii. 282 
 
 V. Jennings, iii. 950 
 
 V. Jenson, app. ii. iii. 1460 
 
 V. Jervis, ii. 278 
 
 V. John, app. ii. iii. 1460 
 
 V. Johnson, i. 157. ii. 12. 276. 616. 
 
 621,622. iii. 851. 1079 
 
 V- Johnson & Coulburne, ii. 507 
 
 V. Johnston, i. 390. li. 44. 623 
 
 V. Jolliffe, iii. 907 
 
 V. Jones, i. 322. 371. 438. 488. ii. 14, 
 
 15, 16. 38 280. 308. 398. 466. iii. 858. 
 app. i. 592. ii. iii. 1322. 1379. 1458. 
 1461. 1478. 1484 
 
 V. Jones & Longman, ii. 278 
 
 i\ Jones & Palmer, ii. 467 
 
 V. Jordan, app. i. 607. 627. ii. iii. 
 
 1533 
 
 V. Kain, app. ii. iii. 1564 
 
 V. Kay (Dr.), ii. 305. iii. 929 
 
 V. Kea (Inhabitants of), ii. 200. 554. 
 
 iii. 845 
 
 V. Keat, iii. 861 
 
 V. Kelk, app. ii. iii. 1659 
 
 r. Kelly, ii. 
 
 V. Kenilworth, iii. 1006 
 
 V. Kent (Inhab. of), ii. 272,273 
 
 V. Kent (Justices of), ii. 623. app. ii. 
 
 iii. 1437 
 
 V. Kenyon, ii. 623 
 
 V. Kerne, ii. 24 
 
 V. Kerr, app. ii. iii. 1321 
 
 V. Kettlewortli, ii. 077, 678 
 
 r. Kcw (Inliabitants of), iii. 1040
 
 TABLE or CASES. 
 
 CI 
 
 Rex V. Kcynsham, iii. 1041. 1054 
 
 V. Kidwelly, iii. 1000 
 
 V. Killcrliy, i. 100 
 
 V. Kiiubolton, app. ii. iii. 1.'548 
 
 V. King, i. 229. ii. 7. SOO. iii. 847 
 
 V. Kingsuioor, ii. 521 
 
 V. Kingston, ii. 30 
 
 v. Kitiiiston (Ducliess of ), i. 99. 181. 
 
 290. ii. 320. 322 
 
 V. Kingswinford, app. ii. iii. 1508 
 
 V. Kirby Stephen, i. 394 
 
 V. Kirdford, i. lOG. 159, 160, 101. ii. 
 
 629 
 
 V. Kirkham, app. ii. iii. 1487 
 
 V. Kirkham & Ellis, ii. 279 
 
 V. Kirkwood and others, ii. 403 
 
 V. Kitchen, ii. 091 
 
 V. Knaptoft, i. 205. 295. iii. 1000 
 
 V. Knell, ii. 023 
 
 V. Knight, ii. 548. 033 
 
 V. Knill, i. 428 
 
 V. Kroelil and others, ii. 331 
 
 I'. KjTiaston, ii. 339. iii. 948 
 
 V. Latlne, i. 143 
 
 V. Laindon, iir. 754. 700. 791 
 
 V. Lamb, ii. 38 
 
 V. Lambert & Perry, ii. 045 
 
 V. Lamb ton, ii. 218 
 
 V. Lampeter (Inhabitants of), iii. 1007 
 
 V. Lancashire (Inhabitants of), ii. 272, 
 
 273, 274 
 V. Lancashire (Just, of), ii. 072. app. 
 
 ii. iii. 1497 
 
 V. Lancaster, ii. 529. 692 
 
 V. Llandilo District, Carmarthenshire, 
 
 (Commissioners of), ii. 528. iii. 930 
 
 V. Landulph, iii. 1127 
 
 V. Lapier, ii. 605 
 
 V. Larvvood, iii. 947 
 
 V. Lavender, ii. 610 
 
 V. Law, app. ii. iii. 1580 
 
 1'. Lawrence, ii. 276 
 
 V. Laycoek, iii. 856 
 
 — — V. Layer, i. 404 
 
 V. Lazarus, ii. 311 
 
 V. Leach, ii. 615 
 
 V. Leake (Inhab. of), ii. 525, 526 
 
 V. Leddington, app. ii. iii. 1501 
 
 V. Ledgard, ii, 339 
 
 V. Lee, ii. 12. 324. 039 
 
 r. Leech, iii. 855 
 
 V. Leeds, app. ii. iii. 15G0 
 
 ■ V. Leeds and Liverjiool Navigation 
 
 Company, app. ii. iii. 1535 
 V. Leeds and Selby Railway Company, 
 
 app. ii. iii. 1392 
 
 V. Leefe, i. 482. iii. 850. 858 
 
 V. Leicester, i. 399 
 
 V. Leicestershire (Justices of), ii. 570 
 
 V. Leigh, iii. 751 
 
 V. Leigh Hunt, ii. 025 
 
 r. Leigh and others, app. ii. iii. 1609 
 
 i\ Leighton, iii. 1041 
 
 V. Le Mott,ii. 277 
 
 V. Leominster, i. 282 
 
 V. Leverington, iii. 1005 
 
 r. Lewis, 1. 193. ii. 196. 309. 463. 
 
 app. ii. iii. 1322. 1479 
 
 V. Lincoln, iii. 855 
 
 r. Lincoln (Mayor,&c.) app. ii. iii. 1375 
 
 Rex V. Lindsey, ii. 610 
 
 V. Lindsey in Lincoln (Inhabitants of 
 
 Parts of), ii. 273 
 
 V. Lingatc, ii. 36 
 
 V. Lisle, i. 259. 295, 296. ii. 365. iii.948 
 
 V. Listen, ii. 507 
 
 V. Little Lumley, i. 158, 159 
 
 V. Littleton, app. i. 026 
 
 V. Liverpool Exchange (Company of 
 
 Proprietors of), iii. 952 
 V. Liveri>ool (Mayor of), i. 245. 1534. 
 
 iii. 732 
 
 V. Llangunnor, iii. 791 
 
 V. Llanrydd, iii. 1007 
 
 V. Lloyd, ii. 367. 524, 525. app. ii. iii. 
 
 1320. 1497. 1534 
 
 V. Locker and others, ii. 330. 550 
 
 V. Lockett, ii. 463. app. ii. iii. 1431 
 
 V. Locost & Villers, ii. 281 
 
 V. Lofield, ii. 039 
 
 V. Loggen, ii. 442 
 
 V. London (City of), ii. 29 
 
 V. London (Mayor, &c. of), ii. 340. 
 
 iii. 1101 
 
 V. Londonthorpe, iii. 1247 
 
 ■ V. Long, ii. 710. app. ii. iii. 1 320. 1432 
 
 V. Long Buckby, i. 383. iii. lOOS. 1056 
 
 V. Longnor (Inhabit, of), i. 373 
 
 ' V. Longstreetb, ii. 007 
 
 V. Long Whatton, iii, 1001 
 
 V. Lookup, i. 482. iii. 848. 1011 
 
 V. Lopez ( Sir M.), iii. 1232 
 
 V. Louth, iii. 1053 
 
 V. Love, i. 83 
 
 V. Lovell, app. ii. iii. 1461 
 
 i\ Lovet, ii. 500 
 
 V. Lovett, app. ii. iii. 1462. 1407 
 
 V. Lowdea, app. ii. iii. 1454 
 
 V. Lubbenham, ii, 200 
 
 V. Lucas, i. 340. ii. 509. iii. 945 
 
 V. Luckup, i. 1.34. 157, ii. 12. iii. 851 
 
 V. UiSe, ii. 190. 198. 200. iii. 933 
 
 V. Luffiugton, ii. 098 
 
 V. Lydeard St. Lawrence, app. ii. iii. 
 
 1550 
 
 V. Lyme Regis, i. 508 
 
 V. Lyon, ii. 522. 525. iii. 1257 
 
 V. Lyons, app. ii. iii. 1315 
 
 V. Lyon & Miller, ii. 278. iii. 1258 
 
 u.Lyth, iii. 1000 
 
 V. Mabe, app. ii. iii. 1558 
 
 V. Mabel, app. ii. iii. 1577 
 
 V. Macally, ii. 10 
 
 I'. M'Artlier, iii, 857 
 
 V. Macartney, i. 152, 153 
 
 V. M'Carty, ii. 38 
 
 V. Macclesfield, iii. 999 
 
 1\ Macdermot, ii. 093 
 
 V. M'Gowan, app. ii. iii. 1532 
 
 V. M'Kensie, iii. 1059 
 
 V. Mackerel, ii. 695 
 
 V. M'CuIloy, app. ii. iii. 1457 
 
 V. M'Loughlin, app. ii. iii. 1478 
 
 V. M'Makim,ii. 7 
 
 t\ Macnamce, ii. 013 
 
 V. M'Rue, app. ii. iii. 1533 
 
 V. Maddox and others, a|>p. i. C06 
 
 V. Maddy, app. ii. iii. 1532 
 
 V. RJadge, app. ii. iii. 1457 
 
 1-. Magill, ii. 40 
 
 s:3
 
 TABLE OF CASES. 
 
 ilex c. IMaidstonc, iii. 752. 1008. app. ii. iii. 
 
 1<'343 
 
 V. Major, ii. .'T>3 
 
 V. ISIalden, iii. 048 
 
 V. Maliiigs, app. i. 62G 
 
 V. Mulliuson, ii. 689 
 
 V. MaiiD, i. 534 
 
 r. Mansfield, app. ii. iii. 13G0 
 
 V. Marian Hodge, ii. 38 
 
 1\ Marsack,i. 479 
 
 V. Marsh, ii. 401, 462. 503. iii. 1212. 
 
 app. ii. iii. 1452 
 
 r. Marshall, ii.G92 
 
 V. Martin, i. 245. ii. 52G. G05. app. ii. 
 
 iii. 1340. 1425. 1534 
 
 v. Martlesliam, iii. 998 
 
 V. Mashiter, app. ii. iii. 1444 
 
 V. Matthews, ii. 500. iii. 847 
 
 ■ V. Mattingley, iii. 765 
 
 V. Mawbey, ii. 303 
 
 V. May, i. 478. ii. 626 
 
 V. Maynard, ii. 279. 281 
 
 V. Mazagora, ii. 573 
 
 I". Mazeau, app. ii. iii. 1425 
 
 v. Mead, i. 330. ii. 368. 554. 608 
 
 V. Meakin, app. ii. iii. 1403 
 
 V. Meek, app. ii. iii. 1522 
 
 ■ f. Meeres, ii. Gil 
 
 V. Megson, app. ii. iii. 1395. 1533 
 
 V. Mein, app. ii. iii. 1532 
 
 V. Melling, iii. 860 
 
 V. Mellor, ii. 623, 524 
 
 V. Melville (Lord), i. 396 
 
 V. Merceron, i. 192. ii. 28. 37. 39 
 
 r. Merchant Taylors' Company, ii. 569 
 
 V. Meredith, app. ii. iii. 1534 
 
 V. MerthyrTydvil, iii. 1004 
 
 V. Michael, app. ii. iii. 1485 
 
 V. Middlesex, Archdeacon, &c., app. 
 
 ii. iii. 1379 
 
 V. Middlesex (Inhabitants of), ii. 275 
 
 V. Middlesex Justices, app ii. iii. 1437. 
 
 1498. 1551 
 
 V. Middlcton, ii. 29G 
 
 V. Middletou-in-Teesdale, app. ii. iii. 
 
 1649 
 
 . V. j\iiddlozoy, i. 371. 405, 406 
 
 V. Midwinter, ii. 7 
 
 V. Mildcnhall Savings' Bank, app. ii. 
 
 iii. 1585 
 
 V. Mildrone, i. 22 
 
 V. Mile End Old Town, app. ii. iii. 
 
 1561 
 
 V. Millard, ii. 468 
 
 V. Miller, i. 101. iii. 777 
 
 V. Mills, app. ii. iii. 1320 
 
 V. Milton, iii. 1118. 1143 
 
 V. Milverton, app. ii. iii. 1436 
 
 V. Minims, i. 298 
 
 tj.Minton,i. 437. 463 
 
 V. Mistcrtoii, app. ii. iii. 1660 
 
 V. Mitchell, app. i. 610. ii. 190. 307 
 
 J,. Mitton, ii. 587. 692 
 
 V. Mogg, ii. 673 
 
 u. Moise,i. 132. 153 
 
 V. Monkliouse, iii. 969 
 
 «. Monmouthshire Cau.d Company, 
 
 app. ii- iii. 1535 
 
 V. Montague, iii. 004. 1253 
 
 V. Moors, i. 404 
 
 Rex ?,\ Morfit & Conway, ii. GOG 
 
 V. Morgan, ii. 51(» 
 
 r. Morphew, i. 312 
 
 ?•, Morris, i. 337. ii. 6. 9. 468. 549. iii 
 
 761. 866, 857. 1266. app. ii. iii. 1457 
 
 r. Morrison, app. ii. iii. 1486 
 
 V. Morse, app. ii. iii. 1322. 1398 
 
 V Mortlock, ii. 23 
 
 V. Morton, i. 388, 389. ii. 466. iii. 895, 
 
 1058 
 
 V. Moseley, app. ii. iii. 1383 
 
 V. Motheringham, i. 394 
 
 V. Mothersell, i. 245. 340, 341, 342 
 
 V. Munday,ii. 612 
 
 V. Munton, iii. 858 
 
 r. Murlis,i.l87 
 
 V. Murphy, ii. 4GG. 470, 600. G03. 138xi 
 
 ?'. Murray, ii. 611 
 
 V, Murrow, app. ii. iii. 1478 
 
 V. Murry & Harris, ii. 278 
 
 V. Mursley, iii. 1000 
 
 V. Mutineers of the Bounty, iii. 798 
 
 ?;. Mytton, ii. 53 
 
 r. Narberth, app. ii. iii. 1534 
 
 V. Nash & Weller, ii, 606 
 
 V. Neal, app. ii. iii. 1316 
 
 V. Neale, app. ii. iii. 1686 
 
 1\ Neckless and others, app. ii. iii. 
 
 1431 
 
 V. Neil, iii. 747 
 
 V. Netherseal (^Inhabitants of), i. 266. 
 
 ii. 441. iii. 1004 
 V. Netherthong, i. 342. 382, 383. 385. 
 
 ii. 627, 628. iii. 798 
 
 V. Neville, ii. 19. 24. iii. 851 
 
 r. Newark-npon-Tnnt, iii. 902. 1002 
 
 V. Newbury, iii. 953 
 
 V. Newcastle-npou-Tyne (Justices of), 
 
 iii. 732 
 
 V. Newcomb, iii. 953 
 
 ?'. Newdigate, i. 450 
 
 V. Nevvill, app. ii. iii. 1327 
 
 V. Newington, iii. 1003 
 
 V. Newland (Abraham), ii, 470. iii. 
 
 1229 
 
 V. Newman and others, ii. 600 
 
 V. Newton Toney, iii. 999 
 
 V. Nibbs, ii. 608' 
 
 V. Nicliolls, iii. 733. app. ii. iii. 1478. 
 
 1480 
 
 V. Nicholas, ajip. i. Gil 
 
 V. Nicholson, ii. 608. iii. 963 
 
 V. Norfolk (Duke of), ii. 673 
 
 V. Norris, app. ii. iii. 1480 
 
 V. North, ii. 60 
 
 V. Northampton (Inhabitants of), ii. 
 
 273, 274 
 
 V. North Bedburn, i. 389. iii. 1004 
 
 r. Northfeatherton, i. 294. iii. 1006 
 
 V. Northfield,ii. 699 
 
 V. North Pellerton, i. 246 
 
 V. Nortli Wingfield, iii. 1000 
 
 V. Norton, apj). ii. iii. 1664 
 
 V. Nottingham Old Waterworks Com- 
 pany, ap]). ii. iii. 1677 
 
 V. Nunehani Courtenay, ii. 387. 438 
 
 V. Nunez, i. 103. 106. 162, 153 
 
 r. Nutt,i. 527. ii.621 
 
 i'. Oates, 1. 191. 235 
 
 1'. Odiluim, iii. 909
 
 TABLE OF CASES. 
 
 Rex V. Okc'ford Fitzpaine, ii. 400 
 
 ?'. OLlhiirv, i. 21)5. app. ii. iii. 1547 
 
 r. Oh'.royil, 1.217 
 
 r. Olney", iii. 7i)l 
 
 i: Orcli ird, app. i. G30 
 
 V. Oiffill, iii. 8'J5. app. ii.iii. 1483.1527 
 
 V. Orrell, app. i. G25 
 
 V. Osborn, iii. 7 70 
 
 V. Osgathorpe, i. 295. iii. 1007 
 
 V. Oswestry, ii. 275 
 
 1>. Otley, iii. 1247. app. ii. iii. 1007 
 
 1: Oandle, Lord of Manor of, iii. 901 
 
 V. Outwell, ai)p. ii. iii. 1549 
 
 i\ Owen, ii. 558. app. ii.iii. 1321. 1504, 
 
 1505. 15/9 
 
 V. Oxford, app. ii. iii. 1570 
 
 r. Oxi'ordsliire (Inhabitants of), ii. 
 
 272. 275 
 
 V. Pa.lstow, iii. 1057. 1178 
 
 V. Page, app. ii. iii. 1379, 1380 
 
 V. Paget (Lord), i. 527 
 
 V. Paiiliani (Commissioners of Sewers 
 
 of), iii. 749 
 V. Paine, i. 315. ii. 385. 044, 045. app. i. 
 
 592 
 
 ■ V. Pakcficld, app. ii. iii. 1546 
 
 V. Palmer, ii. 408 
 
 r. Paradicc, ii. 010 
 
 V. Paratt, ii. 36 
 
 V. Parfitt, app. ii. iii. 1376 
 
 1'. Paris, i. 152 
 
 V. Parisl), app. ii. iii. 1426 
 
 V. Parker, ii. 4-56. 608. app. ii. iii. 
 
 1320. 1420 
 
 V. Parkes k Brown, ii. 461 
 
 V. Parkvn, ii. 23 
 
 r. Parr," ii. 469 
 
 V. Parry, app. ii. iii. 1442. 1451 
 
 V. Parsons, ii. 325 
 
 V. Partridge, app. ii. iii. 1320. 1459 
 
 I'. Pascoe, iii. 750 
 
 • V. Passey, app. ii. iiL 1431 
 
 1'. Payne, i. 487. ii. 38. 40. 506. 591. 
 
 679. 092 
 1?. Pearce, i. 398. 400. 402. 472, ii. 
 
 021. 635. iii. 1048. app. ii. iii. 1441 
 
 V. Pearce (Noah), ii. 012 
 
 V. Pearson, ii. 397 
 
 ?;. Peat, ii. 005 
 
 V. Pedley, ii. 51. iii. 745 
 
 • V. Peu.berton, iii. 851 
 
 1\ Pcm'leton (Inhabitants of), iii. 999. 
 
 1058, 1059 
 
 V. Peniicgoes (Inliabitants of), ii. 520 
 
 V. Pcnryn (Corporation of), app. ii. iii. 
 
 1532 
 
 V. Penson, iii. 895 
 
 1'. Pepys, iii. 800 
 
 ■ V. Perkins, iii 1173. app. ii. iii. 1305 
 
 1\ Perrott, ii. 450 
 
 i\ Perry, ii. 552 
 
 i\ Phetlieon, app. ii. iii. 1459 
 
 ('. Philips, app. ii. iii. 1533 
 
 r. Pliillips, i. 512. 524. 537. ii. 572, 
 
 573. 044. 094. iii. 947 
 
 V. Phillips (Rowland), ii. 723. iii. 947 
 
 i\ Phillips k. Archer, ii. 340 
 
 V. Phillips & Strong, i. 007 
 
 c. Pickering (Inhabitants of), iii. 1004 
 
 i\ Picton, i. 294. 415. ii. 589. 073 
 
 Rex V. Piddlehinton, i. 388 
 
 a. Piercy, i. 157 
 
 V. Pike, ii. 300 
 
 r. Pikcslcy, app. ii. iii. 1328 
 
 V. Pilling (Inhabitants of), ii. 530 
 
 V. Pippctt, ii. 482. iii. 1011 
 
 r. Pitts, aj)]). ii. iii. 1519 
 
 ?«. Plestow, ii. 456 
 
 V. Pliimer, ii. 022 
 
 V. Polhnan and others, ii. 325. 330 
 
 — — - V. Pool, a]ip. ii. iiL 1328 
 
 V. Poole, i. 521 
 
 v. Poole (Rec .rder of), app. ii. iii. 1385 
 
 t\ Pooley, iii. 1058 
 
 V. Pophain, iii. 783 
 
 V. Porter, app. ii. iii. 1383 
 
 V. Pounteney, app. ii. iii. 1320 
 
 V. Powell, i. 21.478. iii. 950. ajip. ii.iii. 
 
 1538 
 
 V. Pratt, ii. 607 
 
 V. Preston ( Inhabitants of), i. 527 
 
 V. Preston (Lord), i. 23. iii. 1055 
 
 r*. Price, ii. 358. iii. 857. app. ii. iti. 
 
 1327. 1379. 1432. 1480 
 
 V. Priddle, i. 95 
 
 V. Priest, iii. 848, 849 
 
 1: Pritchard, app. ii. iii. 1394 
 
 v. Probert, ii. 49 
 
 V. Prosser, i. 106. 158,159. 161. ii. 281 
 
 V. Prowse, app. ii. iii. 1457 
 
 V. Puckering, ii. 607 
 
 V. Pucklechurch, iii. 999. 1470 
 
 r. Pulham, app. ii. iii. 1314 
 
 V. Punshon, ii. 190. iii. 854 
 
 V. Piircell, V. C. of Oxford, ii. 570 
 
 V. Purnell, ii. 571 
 
 r. Pywell and others, ii. 325 
 
 V. Quaintoii, iii. 1041. 1054 
 
 V. Rampton, ii. 715 
 
 V. Ramsbottom, i. 302 
 
 i\ Ramsden, i. 180 
 
 V. Randal], ii. 54 
 
 V. Raphael, ii. 190 
 
 V. Ravenstone, ii. 201. 387. 438 
 
 V. Ravenstondale, app. ii. iii. 1542 
 
 1'. Rawdeu (Inhabitants of), i. 389. 
 
 iii. 1004 
 
 V. Rawdon, iii. 754 
 
 V. Rawlins, ii. 605. app. ii. iii. 1376 
 
 V. Read, app. ii. iii. 1361 
 
 V. Reading, i. 192. ii. 200. 400. iii. 845. 
 
 app. ii. iii. 1322 
 
 1'. Reason, ii. 3.33 
 
 2\ Reason & Tranter, i. 504. ii. 366 
 
 V. Reculist, ii. 408. iii. 1058 
 
 V. Reed, i. 502. ii. 39 
 
 1'. Reeks, iii. 1062 
 
 V. Rees, app. ii. iii. 1322 
 
 V. Reeve, ii. 49 
 
 — V. Reeves, app. ii. iii. 1485 
 
 V. Reilly, i. 101 
 
 t\ Remnant, ii. 590 
 
 1\ Rettenden, app. ii. iii. 1542 
 
 V. Reynell, i. 534 
 
 r. Rhodes, i. 156. 247. 266. 287. ii. 
 
 409. iii. 800 
 
 V. Ribchester, iii. 1101 
 
 ?,'. Rider, ap)). i. 020 
 
 »;. Ridgwell, iii. 1037 
 
 i\Ridsdale,i. 3c2 
 
 U4
 
 CIV 
 
 TABLE OF CASES. 
 
 Rex V. Rigge, ii. GOG 
 
 V. Ring, i. 83, 83 
 
 V. Ringstcad, iii. 1003 
 
 V. Ripon,iii. 1001 
 
 V. Rivers, app. ii. iii. 1398 
 
 w. Road, iii. ODD 
 
 V. Roberts, app. ii. iii. 1497 
 
 — — V. Roberts and others, ii. 325. 468 
 V. Robinson, i. 299. ii. G08. G93. app. 
 
 il.iii. 1379. 15G4 
 
 V. Rochester (Bishop of), iii. 9-33 
 
 V. Rock, ii. 10 
 
 V. Rockwood, ii. 12 
 
 V. Roderick, app. ii. iii. 1340 
 
 V. Rodluim, i. 82 
 
 V. Rodwav, app. ii. iii. 1459 
 
 V. Rogersj i. 421. 501. ii. 523. 590. 71G. 
 
 app. ii. iii. 1379 
 
 V. Rooke, ii. 200. 554. iii. 845 
 
 V. Rookwood, i. 101 
 
 V. Rooney, app. i. 593. app. ii. iii. 
 
 1460 
 
 V. Roops, app. ii. iii. 1392 
 
 I'. Roper, iii. 85G 
 
 V. Rosier, ii. 37 
 
 — — V. Rosliston, iii. 999 
 
 V. Rosser, app. ii. iii. 1496 
 
 1?. Rothwcll, ii. 312 
 
 r%'sRovv, ii. 37 
 
 r. Rowland, iii. 947 
 
 ?'. Royce, ii. 5 
 
 1-. Rudd, i. 104. 154. ii. 12, 13. 551 
 
 V. Rudgeley, iii. lOOG 
 
 V. Rudick and others, app. ii. iii. 
 
 1457 
 
 V. Ruscop, app. ii. iii. 1568 
 
 V. Russell, i. 156. iii. 749. 950. app. ii. 
 
 iii. 1496 
 
 i\ Russell, Lord J. app. i. 590 
 
 r. Ruston,i. 92. 94 
 
 - — — f . Ryan, app. ii. iii. 1480 
 
 V. Ryton, i. 381. 3^3. 386 
 
 V. Sainsburv, ii. 673 
 
 V. St. Albau's (Mayor, &c. of), iii. 776 
 
 v. St. Andrew the Great, Cambridge, 
 
 i. 534 
 
 V. St. Andrew, H()lbovn,iii. 1007 
 
 V. St. Andrew's, Pershore, iii. 999 
 
 1'. St. Benedict (Inhabitants of), ii. 
 
 273. 525, 526 
 V. St. Clement's, Ipswich (Justices of), 
 
 app. ii. iii. 1454 
 
 V. St. Devercux, ii. 700 
 
 ?\St. Dunstan (Inhabitants of), app. 
 
 ii. iii. 1699 
 
 V. St. Faith, Newton, ii. 700 
 
 — — V.St. George's. Hanover-square, ii. 528. 
 
 603. C05. app. ii.'iii. 1327, 1328. 1479 
 V. St. Giles, Cambridge ( Inhabitants 
 
 of), ii. 527 
 r. St. Giles-in-the-Fields, app. ii. iii. 
 
 1540 
 
 V. St. Helen's, in Abingdon, i. 387 
 
 . V. St. Helen, Stonegate, iii. 1002 
 
 V. St. James, Bury St. Edmund's (In- 
 habitants of), ii. 71. app. iii. 1543 
 V. St. John's, Biidwardine, app. ii. iii. 
 
 1546 
 r. St. Join Delpikc (Inhabitants of), 
 
 li. 702 
 
 Rex V. St. John, Devizes, iii. 998, 999 
 V. St. John the Evangelist, app. ii. iii. 
 
 1542 
 V. St. Lawrence, Ludlow, app. ii. iii. 
 
 1543 
 
 V. St. Luke, Middlesex, iii. 1002 
 
 V. St. Margaret, Leicester, iii. 1001 
 
 r. St. Martin, Leicester, i. 176, 177. 
 
 iii. 999 
 
 V. St. Martin's, iii. 1038 
 
 V. St. Mary Kalendar, iii. 1005 
 
 V. St. Mary, Lambeth, i. 295. iii. 1005, 
 
 1006. app. ii. iii. 1379 
 V. St. Mary, Leicester, app. ii. iii- 
 
 1542 
 
 V. St. Mary Magdalen, i. 108 
 
 V.St. Mary's, Nottingham, i. 191. ii. 
 
 201 
 
 r. St. Matthew, Bethnal-green, iii. 
 
 1040 
 
 V. St. MattheAv's, Ipswich, iii. 999 
 
 V. St. Nicholas, Harwich, iii. 1005 
 
 V. St. Nicholas, Nottingham, iii. 
 
 1001 
 r. St. Paucras, i. 264. 281. 297. iii. 
 
 958 
 V. St. Pancras (Churchwardens of), 
 
 iii. 1233 
 
 V. St, Pancras Trustees, app. i. 624 
 
 V. St. Pancras Vestrymen, &c. app. ii. 
 
 iii. 1601 
 V. St. Paul's, Bedford, iii. 1039. 1056. 
 
 1178 
 
 V. St. Paul, Exeter, iii. 1002 
 
 V. St. Peter's-on-the-Hill, iii. 1001 
 
 V. St. Petrox, iii. 1040 
 
 V. St. Sepulchre, i. 389 
 
 r. St. Sepulchre's, Cambridge, iii. 
 
 1004 
 V. Salisbury (Marquis of), app. ii. iii. 
 
 1535 
 1;. Salop (Justices of), app. ii. iii. 
 
 1565 
 
 V. Saltern, iii. 1002 
 
 ■ V. Salter, ii. 326 
 
 V. Salway, iii. 946 
 
 V. Sanders, app. ii. iii. 1452. 1460 
 
 V. Sandhurst, app. ii. iii. 1544 
 
 V. Sandford Governors, app. ii. iii. 
 
 1444 
 
 V. Sarratt, i. 295 
 
 V. Saunders, app. ii. iii. 1441. 1534 
 
 V. Savage, i. 311 
 
 V. Scammonden, iii. 765, 766. 791 
 
 V. Scarfe, app. ii. iii. 1395 
 
 V. Scarth, iii. 1131 
 
 V. Scarisbrick (Inhal)itants of), aj)p, 
 
 ii.iii. 1437, 1609 
 
 V. Scofield, ii. 50 
 
 V. Scott, ii. 436. iii. 777. 804 
 
 V. Seaoroft (Inhabitants of), iii. 1001 
 
 V. Searle, i. 175 
 
 ■ V. Seaton & Beer, iii. 999 
 
 V. Serjeant, ii. 550 
 
 V. Sewell, i. 152 
 
 r. Sexton, ii. 39 
 
 V. SJiaffesbury, i. 192 
 
 V. Shakespcai', i. 478 
 
 V. Sharsholt, app. ii. iii. 15i;^
 
 TABLE OF CASES. 
 
 CV 
 
 Rex c. Shaw, i. 233. 450. ii. 308. app. ii. 
 
 iii. 1321 
 
 V. Shearcs, ii. Gil 
 
 V. Shebbear, iii. 1002 
 
 V. Sheering, app. i. 592 
 
 V. Shollaril, ii. 386. app, i. 604. ii. iii. 
 
 1362 
 
 V. Shelley, i. 340. ii. 307. 569 
 
 V. Sheplierd, ii. 407. app. ii. iii. 1320 
 
 V. Sheppard, ii. 522. 573. app. ii. iii. 
 
 1458 
 
 V, Sherman, i. 143 
 
 i\ Slierwill, app. ii. iii. 1522 
 
 V. Shiles, app. ii. iii. 1436 
 
 V. Shillibeer, app. ii. iii. 1344 
 
 r. Shinfield, iii. 791 
 
 V. Shipley, i. 157 
 
 V. Shipton, iii. 1002 
 
 V. Shoreditch, i. 160 
 
 V. Silchester, i. 295. iii. 1005, 1006 
 
 V. Simpson, i. 509. ii. 589. 605. 715. 
 
 app. ii. iii. 1320 
 
 V. Siviter, app. ii. iii. 1437 
 
 • V. Skeffington, iii. 1040, 1041, 1054 
 
 V. Skibthwaite, i. 369 
 
 V. Skinner, ii. 527, 528. 638 
 
 V. Skiplam, ii. 362 
 
 V. Smart, iii. 948 
 
 V. Smith, i. 141. 227, 228. 283. 298. 
 
 303. 314. 419.527. ii. 39. 384. 438. 405. 
 
 507. 529. 570. 614, 6J5. 677, 678. iii. 
 
 948. app. ii. iii. 1381. 1457. 1486. 1532 
 
 V. Snape, app. ii. iii. 1546 
 
 V. Snell, app. ii. iii. 1487 
 
 ■ V. Sneyd, app. ii. iii. 1566 
 
 • V. Snowley, ii. 616 
 
 V. Soares, ii. 6 
 
 r. Somerby, app. ii. iii. 1544 
 
 V. Somerset (Inhabitants of), ii. 273 
 
 V. Somersetsliire (Justices of), app. ii. 
 
 iii. 1497 
 
 V. Soper, ii. 499. 585 
 
 V. Sourton, ii. 200 
 
 V. Soutliamptou (Inhabitants of), 
 
 ii. 528 
 
 V. Southerton,ii. 398 
 
 V. South Lynn, i. 106. 158. 161 
 
 V. Soutli Owram, iii. 1006 
 
 • V. Spackman, app. ii. iii. 1490 
 
 V. Spalding, ii. 49, 50 
 
 V. Spearing, iii. 948 
 
 V. Spencer, i. 337. ii. 339. app. ii. iii. 
 
 1321 
 
 V. Spilling, app. ii. iii. 1486 
 
 V. Spilsbury, app. ii. iii. 1395. 1403 
 
 V. Spragge, i. 404 
 
 i\ Squire, ii. 615. 711 
 
 V. Squires, ii. 548 
 
 V, Stacey, i. 75 
 
 V. Stafford (Justices of), app. ii. iii. 
 
 1454 
 
 V. Stafford (Marquis of), iii. 942, 944 
 
 V. StafFordsliire (Justices of), ii. 498. 
 
 app. ii. iii. 1489 
 
 V. Stallard, app. ii. iii. 1327 
 
 V. Stallion, app. ii. iii. 1327 
 
 ■ v. Stamper, ajjp. ii. iii. 1451 
 
 V. Stanley, app. ii. iii. 1532 
 
 V. Stannard, app. i. 626 
 
 V. Starkey, app. ii. iii. 1482 
 
 Rex V. Stepliens, iii, 823 
 
 V. Steptoo, ii. 34 
 
 V. Sterling, i. 266. ii. 466. 470 
 
 V, Stevens, ii. 214. iii. 1478 
 
 V. Stevenson, ii. 555 
 
 ti. Stewart, ii. 6 
 
 V. Stock, ii. 612. iii. 1258 
 
 V. Stockland, iii. 998 
 
 V. Stockton, iii. 936 
 
 V. Stogumber, app. ii. iii. 1441 
 
 V. Stogursey, iii. 1003 
 
 V. Stoke Damarel, app. ii. iii. 1546 
 
 ■ V. Stoke Golding, i. 392.398. iii- 1002 
 
 V. Stoke Ursey, iii, 1007 
 
 V. Stokley,ii,'717 
 
 V. Stone, i. 157. 418. ii. 325. 407. 44 . 
 
 507 
 
 V. Stonebcckup, i. 232 
 
 • V. Stoughton, ii. .f>27. 528 
 
 V. Stourbridge, i. 389 
 
 V. Stoveld, iii. 859 
 
 r. Stratford-upon-Avon (Mayor of), 
 
 li. 275. iii. 770 
 
 V. Strattou, i. 527 
 
 V. Strong & Phillips, ii. 606 
 
 V. Suffolk (Justices of), ii. 523. iii. 953 
 
 V. Summers, i. 465 
 
 V. Surrey (Inhabitants of), ii. 273,274, 
 
 275 
 V. Surrey (Justices of), iii. 731. 945. 
 
 1008 
 
 V. Surrey (Sheriff of), iii. 1029 
 
 I'. Sussex (Justices of), iii. 953. app. 
 
 ii. iii. 1547. 1549 
 V. Sutton, i. 183. 233, 234. 309. 438. 
 
 447. 510. ii. 558. 602. iii. 1236. 1305. 
 
 app. ii. iii. 1459, 1460. 1543 
 
 I'. Sutton (Lady), ii. 275 
 
 V. Swalcliffe, iii. 1007 
 
 V. Swallow, ii. 14, 15. 500 
 
 V. Swatkins, ii. 37 
 
 V. Swyer, iii. 1074 
 
 V. Symonds, ii. 23 
 
 V. Tadcaster, iii. 1005 
 
 V. Tanner et al., ii. 330. iii. 937 
 
 V. Tassett, i. 471 
 
 V. Tarrant, ii. 330. iii. 1319 
 
 V. Tattersall, ii. 311 
 
 V. Taunton, St. James, iii. 998 
 
 ?;. Taylor, i. 21. 93. 306. 479. 486. 
 
 ii. 49. 332. 460. 500. 585. 604. 626. iii. 
 
 857. app. ii. iii. 1320. 1398. 1432. 1486, 
 
 1847 
 
 V. Teal, i. 97. 190. ii. 10, 11 
 
 V. Teasdale i. 157, ii. 12. iii. 851 
 
 V. Tedford, iii. 1005 
 
 V. Telicote, ii. 39 
 
 V. Terrington (Inhabitants of), i. 106. 
 
 ii. 529 
 
 V. Testick, i. 141 
 
 V. Tetburj', app. ii. iii. 1550 
 
 V. Thomas, ii. 533. app. ii. iii. 1320, 
 
 1321. 1426. 1459. 1479 
 
 ■ V. Thornhill, app. ii. iii. 1319 
 
 V. Thornton, ii. 37 
 
 I'. Threkingham, app. ii. iii. 1543 
 
 V. Throgmorton, i. 23 
 
 i\ Thurcross, app. ii. iii. 1384 
 
 V. Thunnastou, ai)p. ii. iii. 1540 
 
 V. Thurstiekl, app. i, 625
 
 CVl 
 
 TABLE OF CASES. 
 
 Rex V. Tibslifir, ii. 701. 703 
 
 V. Tilley, i. 157 
 
 V. Tiiiimins, app. li. iii. 148G 
 
 V. Tinilall, app. ii. iii. 149G 
 
 V. Tipper, iii. 1007 
 
 V. Ti])pett, iii. 910. 1259 
 
 V. Tipton, iii. 1000 
 
 r. Tizzard, iii. 749 
 
 V. Toddiiigton, iii. 1191 
 
 V. Toke, app. ii. iii. 1454 
 
 V. Tolfruf, ii. G09 
 
 V. Tonilinson, iii. 1055. app. ii. iii. 
 
 1480 
 
 V. Tomlyn, iii. 947 
 
 V. Toiler j ii. 11. 38. 40 
 
 V. Tooke, i. 298. ii. 329 
 
 V. Tophani, ii. 241. 624. iii. 953 
 
 V. Tower, i. 340 
 
 V. Townscnd, i. 282. ii. 529 
 
 V. Traffbrd, iii. 1252. 1253 
 
 V. Treble, i. 532. ii. 461, 4G2 
 
 V. Trowbridge (Inhabitants of), iii. 751 . 
 
 998 
 
 V. Trueman, app. i. 627. ii. iii. 1413 
 
 V. Trustees of the Duke of Bridge- 
 water, app. ii. iii. 1568 
 
 V. Tucker, i. 94 
 
 V. Tally, app. ii. iii. 1420 
 
 V. Turner, i. 86. 283. 418. 420. ii.503. 
 
 app. ii. iii. 1487 
 V. Twyniu;?, i.421, 422. ii.365. iii. 895. 
 
 931. 934. 936 
 
 V. Tyler, app. ii. iii. 1314. 1564 
 
 V. Tyrley (Inhabitants of), iii. 1001 
 
 V. Upchurch, app. ii. iii. 1320 
 
 V. Upper Boddington, i. 89 
 
 V. Upper Whitley, app. ii. iii. 1549 
 
 V, Upton Gray, iii. 936 
 
 V. Usher, i. 141 
 
 V. Usworth & Biddick, app. ii. iii. 
 
 1545 
 
 V. Utterby, i. 232 
 
 V. Uttoxeter, iii. 750 
 
 V. Van Butchell, ii. 366. 716 
 
 V. Vaudercomb & Abbott, ii. 282 
 
 V. Vane, i. 463 
 
 . V. Varlo, iii. 775,776 
 
 V. Verelst, i. 503. ii. 307. 331. iii. 854. 
 
 935 
 V. Vincent, i. 266. 290. app. ii. iii. 
 
 1382. 1585, 1586 
 
 ■ V. Virrier, app. i. 633 
 
 V. Voke, ii. 573. 692. 
 
 V. Vyse, i. 302 
 
 V. WaiuHeet All Saints, iii. 1002. app. 
 
 ii. iii. 1 545 
 V. Wakefield and another, i. 135, 136. 
 
 ii. 552. 554. ui. 1U08 
 
 V. Wakeling, ii. 455 
 
 V. Walford, app. ii. iii. 1399 
 
 V. Walkeley, app. ii. iii. 1321, 1322 
 
 V. Walker, i. 104. 164. 457. ii. 471. 
 
 617. app. ii. iu. 1533 
 
 V. Waller, iii. 856 
 
 V. Wallis, ii. 10 
 
 V. Walsall, iii. 751 
 
 V. Walsh, ii. 586. 605. 611. iii. 1279 
 
 V. Walter, app. ii. iii. 1398 
 
 V. Walters, ii. GOG 
 
 V. Walton-le-Dale, hi. 1041 
 
 Rex v. Wandsworth, i, 534. ii. 524. 529 
 
 V. Wantage, iii. 1041 
 
 V. Ward, i.299. iii. 749. app. ii. iii. 1496 
 
 V. Warley, ii. 438. iii. 1007 
 
 V. Warminster, ii. 439 
 
 V. Warrickshall, ii. 37 
 
 V. Warwick (Lord), i. 98. 101 
 
 V. Warwickshire (Justices), app. ii. iii. 
 
 1547 
 
 V. Washbrooke, i. 306 
 
 V. Waters, app. ii. iii. 1484, 1485 
 
 V. Watkinson, ii. 323. app. ii. iii. 1383 
 
 V. Watson, i. 71, 72. 93. 97. 170. 190. 
 
 195. 197. 21 1. 398. 400. ii. 313. 402. 404. 
 
 622, 623. iii. 751. 901. 1097, 1098. 1569 
 V. Watt, i. 153. iii. 748. app. ii. iii. 
 
 1498 
 V. Watts, i. 438. ii. 465. 527. 629. iii. 
 
 742. 749 
 V. Wavertree (Inhabitants of) app. ii. 
 
 iii. 1437 
 1'. Webb, i. 189. ii. 39. 463. 606. 711. 
 
 app. ii. iii. 1315 
 
 V. Wegener, ii. 618 
 
 — — V. Welch, ii. 310 
 
 V. Wells, i. 141. ii. 16. 470, iii. 1149 
 
 V. Wendson, app. ii. iii. 1361 
 
 V. Went, iii. 751 
 
 V. West, ii. 201 
 
 V. Westbeer, i. 456. ii. 11. 608 
 
 V. Westbury, i. 439 
 
 V. Westmorland (Justices of), iii. 952 
 
 V. Westwood, iii. 947, 948 
 
 V. Whalley, app. ii. iii. 1576 
 
 V. Whateley, iii. 1144 
 
 V. Wheater, app. ii. iii. 1321 
 
 V. Wheatland, iii. 860 
 
 V, Wheaton Aston, i. 160 
 
 V. Wheeler, ii. 38. iii. 939. app. ii. iii. 
 
 1461 
 
 V. Wheeley, app. ii. iii. 1321 
 
 V. Wheelock, i. 265. 295. iii. lOOG, 
 
 1007 
 — _~ 11. Whitaker, ii. 442 
 
 V. Whitechufch, i. 382. iii. 1002 
 
 V. White, i. 21. 467. ii. 8. 40. 617. iii. 
 
 854. 953. app. ii. iu. 1424. 1457. 1461 
 
 V. Whitehead, ii. 330. app. ii. iii. 137G 
 
 V. Whiting, i. 103. 106. 163. ii. 469. 
 
 app. i. G2G 
 V. Whitley, Lower, i. 1 60. ii. 29. iii. 
 
 798 
 
 V. Whitnash, ii. 93 
 
 V. Whittingham, ii. 616 
 
 V. Whittlebury, iii. 1001. 1303 
 
 V. Whixley, iii. 998 
 
 V. Wick St. Laurence, i. 265. 295. 
 
 iii. 1007 
 V. Wickham, ii. 546. iii. 791. app. ii. iii. 
 
 1501 
 
 V. Wigley, app. i. 594 
 
 V. Wilde, i. 479 
 
 V. Wilkes, app. ii. iii. 1315 
 
 I'. Wilkins, ii. 610 
 
 r. AVilkinson, ii. 605. app. ii. iii. 1320 
 
 V. Wilks, ii. 463 
 
 V. Willace,ii. 312 
 
 V. Williams, i. 109. 154. 438. ii. 594. 
 
 622,623.644. app. ii. iii. 1315. M79. 1534 
 r. Williamson, iii. 716
 
 TABLE OF CASES, 
 
 CVII 
 
 Rex r. Willis, ii. (508. (iOi) 
 
 V. Willoiighby,iii. 10(« 
 
 r. Wilson, ii. 38, 30. (iOii. app. ii. iii. 
 
 1421. 14o3. 14,58 
 
 V. Wilts (Inhabitants of), ii. 272 
 
 V. Wiiu'aiiton, iii. 999 
 
 V. Windsor, i. 480 
 
 r. Wiiidus, i. 489 
 
 V. AA'iiikwortli, ii. G94 
 
 r. Winter, ii. 523 
 
 V. Wintorsctt, iii. 13fi5 
 
 u. Winvvick (Inliabitauts of), ii. 717. 
 
 iii. 1002 
 
 V. Witlieenwick, app. ii. iii. 1348 
 
 V. Withcrhy, i. 390 
 
 V. Withers, i. 234. ii. 320. 322. G92 
 
 V. Witney, app. ii. iii. 1544 
 
 1'. Wolmni, i. IGO. 191. ii. 29. 400. ui. 
 
 799 
 
 1'. Wokina-, app. ii. iii. 1568 
 
 V. W^ood, ii. 692. app. i. 612 
 
 V. W^oodi)ridge, iii. 1003 
 
 V. Woodchcster, i. 295 
 
 V. Woodcock, ii. 366, 367. 554 
 
 r. Woodfall, i. 519. ii. 621 
 
 ■ 1>. Woodland, ii. 433. iii. 1005 
 
 V. Woodley, i. 89 
 
 ■ V. Woodward, i. 467. ii. 548 
 
 V. Wooler, i. 535 
 
 V. Woohner, app. ii. iii. 1 462 
 
 V. Woolpit, app. ii. iii. 1546 
 
 V. Worcester (Justices), app. ii. iii. 
 
 1565 
 V. W^orccstersLire (Justices of), ii. 522, 
 
 523. app. ii. iii. 1497 
 V. Woifield, iii. 999 
 
 • V. Worsenham, ii, 569 
 
 V. Wrangle, app. ii. iii. 1329. 1501 
 
 V. Wright, ii. 639. iii. 1126. app. ii. Iii, 
 
 1460,1485.1487 
 
 V. Wroxton, ii. 701, 702 
 
 v. Wyatt, iii. 849 
 
 V. Wye, app. ii. iii. 1547 
 
 v.WVlip,ii.311.468 
 
 1". Wymer, ii. 608 
 
 V. Yarwell, iii. 1008 
 
 V. Yeaveley, app. ii. iii. 1542 
 
 V. Yewin, i. 197 
 
 ' V. Yonge, ii. 442 
 
 V. York, ii. 590. iii. 1007 
 
 — — V. Yorkshire (Justices of East Riding 
 
 of),i, .524 
 V. Yorkshire (Justices of North Riding), 
 
 app. ii. iii. 1361. 1489 
 W.York (Mayor of), i. 295. 456, iii. 
 
 950 
 V. York (West Riding of), i. 84. ii. 272, 
 
 273, 274. 527. iii. 1074. app. ii. iii. 1536. 
 
 1550 
 
 ' v. Young, ii. 456. app. ii. iii. 1314 
 
 V. ,ii.703 
 
 Reyner v. Hall, iii. 884 
 Reynohl v. Beerling, iii. 993 
 Reynolds v. Caswell, ii. 109, 110 
 
 ■ V. Chettlc, ii. 221 . 224 
 
 r, Clarke, iii. 1107 
 
 V. Doyle, app. ii. iii. 1365. 1471 
 
 • • V. Edwards, iii. 1117 
 ~ — i\ Jones, ii. 651 
 
 V. Kennedy, i. 522. ii. 681 
 
 Reynolds )'. Matthews, aji]). ii. iii. 1477 
 
 I'. Moidctoii, ai)p. ii. iii. 1523 
 
 r. Wodd,ii.92 
 
 Rhind 11. Williamson, i. 396. iii. 872. 876 
 Ulioades v. Selsey (Lord), app. ii. iii. 
 
 1362 
 Rhode V. Thwaites, iii. 1221 
 Rhodes v. Ainsworth, i. 106. 109. 159. 
 
 161 
 
 V. De Beauvoir, app. i. 599 
 
 r. Gent, ii. 210. 261 
 
 ('. Smethurst, ii. 472. app. ii. iii. 1472, 
 
 1473 
 
 Ex parte, iii. 1073 
 
 Ribbansv.Crickett, iii, 827. 831. 1217 
 Ricer. Hay lett, iii. 1306 
 
 V. Lee, ii. 465 
 
 V. Serjeant, iii. 1019 
 
 V. Shute, ii. 59 
 
 Richi'.Coe, iii. 1301 
 
 1". Howland, ii. 288 
 
 V. Jackson, iii. 759, 760, 761 
 
 V. Johnson, ii. 401 
 
 V. Topping, i. 131. ii. 11. 258 
 
 Richards i'. Barton, iii. 1188. 1192, 1193. 
 
 app. ii. iii. 1592 
 
 r. Bassett,i.339 
 
 V. Bennett, iii. 906 
 
 V. Brown, ii. 453, 454 
 
 V. Frankuin, ii. 203. 388. app. i. 614 
 
 V. Fry, app. ii. iii. 1529 • 
 
 V. Heather, i. 457. ii. 59. 73. 81, 100. 
 
 213. iii. 803, 814, 1179 
 
 u.Holditch, iii. 1180 
 
 V. reake,iii, 1124. 1130 
 
 V. Porter, ii. 491 
 
 1'. Richards, ii. 217. 536. iii. 832 
 
 Richardson v. Allan, i. 216. ii. 258 
 
 V. Anderson, i. 244. 294. ii, 44. iii. 
 
 882 
 
 V. Atkinson, iii. 1156 
 
 V. Bradshaw, ii. 1 28 
 
 V. Brown, iii, 1238 
 
 V. Campbell, ii. 156. iii. 870 
 
 V. Dunn, app. ii. iii. 1316 
 
 V. Edmonds, iii. 764 
 
 V. Fell, app, i. 625 
 
 v, Fisher, i. 534 
 
 V. Frankum, app. ii. iii. 1399 
 
 r.Gifford,ii.473. iii. 1244 
 
 V. Goss,ii. 164.649, iii. 1226 
 
 U.Hall, iii. 1177 
 
 V. Jackson, app. ii, iii. 1563 
 
 V. Langridge, app. ii, iii. 1407 
 
 V. Mellish, i, 247 
 
 V. Rickman, ii. 265 
 
 V. Robertson, app. ii. iii. 1516 
 
 V. Smith, ii. 373. iii. 1033 
 
 V. Williams, i. 280, 281 
 
 Ex parte, ii. 155. 160. 186 
 
 Riches ?•. Evans, app. ii. iii. 1430 
 
 Richford v. Ridge, ii. 223 
 
 Richmond v. Heapy, ii. 125. 174. iii. 8U2 
 
 V. Nicholson, app. ii. iii. 1416 
 
 V. Smith, ii. 560 
 
 Rickards v. Murdock, iii. 886 
 
 Rickett V. Tullidge, iii. 1184 
 
 Ricketts v. Gurney, i. 92 
 
 V. Salwey, i. 443. 448, 449. ii, 315, 317. 
 
 395
 
 CVIll 
 
 TABLE OF CASES. 
 
 llicUott's case, ii. G93 
 Hickman's caso, ii. 50. 52 
 Ridddl V. l'akoiniin,iii. 1139 
 
 ?j. Sutton, ii. 448 
 
 Rider V. Malboiic, iii. 841 
 Riflgcley's case, ii. 310, 311 
 Ridgway i". Uroadliurst, iii. 807 
 
 V. Darwin, iii. 1277 
 
 I'. DawHon, ii. 34 
 
 V. Ewbaiik, ajip. i. 024 
 
 V. Ilungorford Market Company, app. 
 
 ii. iii. 1620 
 
 t'. Philip, iii. 808 
 
 Ridley I'. Gyde, ii. 132. 134 
 
 U.Taylor, i. 131. ii. 205. 260. iii. 
 
 810 
 
 V. Tindall, app. ii. iii. 1315 
 
 Ridout r. Alder, ii. 154 
 
 V. Bristow, iii. 759 
 
 V. Johnson, i. 163 
 
 Ridsdale v. Newnham, iii. 874 
 
 V. Sheddon, iii. 8G7 
 
 Rigby V. Jeffrys, ii. 97. app. ii. iii. 1337 
 Rigby V. Waltlievv, i. 109 
 Rigg V. Curgenven, ii. 25. 252 
 Right V. Bawden, ii. 427 
 
 V. Beard, ii. 420, 421. iii. 1191 
 
 d. Cater v. Price, ii. 485. iii. 1261. 
 
 1290 
 
 r. Cuthcll, ii. 417. iii. 954 
 
 V Darby, ii. 413, 414, 415. iii. 1180 
 
 cL Green v. Procter, ii. 404 
 
 d. Jeffreys v. Bucknell, ii. 428. 437 
 
 Riley v. Burne, ii. 184 
 
 V. Home, ii. 290 
 
 Ringer v. Cann, app. ii. iii. 1446 
 
 Ringrose v. Todd, iii. 1085 
 
 Rippin, Chas. N. (in the Goods of), app. ii. 
 
 iii. 1618 
 Rippiuer v. Wright, ii. 56. iii. 1055, 1056, 
 
 1057 
 Ripley V. Thompson, i. 111. 113. 166 
 
 V. Waterworth, iii. 863 
 
 Risney v. Selby, ii. 374 
 
 Ritchie v. Atkinson, app. ii. iii. 1387 
 
 V. Bousficld, i. 533. iii. 739 
 
 Rivers v. Griffiths, i. 439. iii. 1071 
 Riviere ?.". Bower, iii. 743. 1293 
 Rix V. Boston, app. ii. iii. 1452 
 Roach V. Garvan, i. 292. 294. 296 
 
 V. Oastler, ii. 210 
 
 11. Thompson, ii. 240 
 
 V. Vaughan, iii. 866 
 
 V. Wadham, ii. 351 
 
 Roberts v. Allat, i. 192 
 
 V. Ball, app. ii. iii. 1313 
 
 V. Barker, iii. 782 
 
 —^ — V. Bradshaw, i. 396. ii. 228. iii. 731 
 — — I'. Brown, ii. 639 
 
 V. Cambden, ii. 628, 629. iii. 869 
 
 V. Car, iii. 1099 
 
 V. Croft, i. 537 
 
 V. Davey, ii. 115. 425 
 
 V. Doxon, i. 75. 502, 503 
 
 V. Eddington, i. 234. ii. 302 
 
 V. Fortune, i. 272 
 
 t). Goff, iii. 1162 
 
 V. Gresloy, ii. 43. 115 
 
 V, Harris, app. ii. iii. 1360 
 
 V. Havelock, iii. 1298. 1303-1306 
 
 R(jherts v. Hayward, iii. 937 
 
 V. Herbert, i. 439, 440 
 
 V. Kar, ii. 525. iii. 1256, 1257 
 
 V. Macord, iii. 1294 
 
 V. Malston, ii. 305. 356 
 
 V. Morgan, ii. 188. 193 
 
 V. Ogilby, ii. 47. iii. 892 
 
 V. Peake, ii. 60 
 
 V, Price, i. 481 
 
 V. Read, ii. 659. 673 
 
 V. Rowlands, a])]), ii. iii. 1501 
 
 V. Simpson, i. 89 
 
 V. Snell, app ii. iii. 1538 
 
 •;;. Teasdale, ii. 175 
 
 V. Williams, ii. 582 
 
 V. Wyatt, iii. 1145, 1146 
 
 Robertson ??. Clarke, iii. 880 
 
 V. Ewer, iii. 879 
 
 V. French, iii. 779. 868. 1153 
 
 V. Kensington, ii. 21 1 
 
 V. Liddell, ii. 130, 131, 132, 138, 134, 
 
 135, 136 
 
 V. Money, iii. 779 
 
 r. Score, ii. 184. 187 
 
 V. Sheward, app. ii. iii. 1363. 1506 
 
 V. Wylde, app. ii. iii. 1465 
 
 Robeson v. Ganderton, app. ii. iii. 1331 
 Robins v. Bridge, ii. 114 
 
 V. Cresswell, ii. 340 
 
 V. Cruchley, i. 290 
 
 V. Gibson, ii. 232 
 
 V. May, iii. 1043. app. ii. iii. 1362 
 
 Robins's case, i. 266 
 
 Robinson v. Alexander, app. ii. iii. 1475 
 
 V. Anderton, i. 115 
 
 V. Appleton, iii. 1085 
 
 — V. Beansby, iii. 1272 
 
 V. Bland, ii, 240. 576 
 
 V. Carrington, ii. 135. 189 
 
 V. Cook, i. 459. 533. iii. 1069 
 
 1,, Dryborough, iii. 1035. 1054 
 
 V. Dunmore, ii. 287 
 
 V. Ferreday, iii. 1069. app. i. 596 
 
 V. Garthwaite, iii. 848 
 
 V. Hardman, iii. 1304 
 
 V. Henshaw, ii. 2 
 
 V. Hoffman, iii. 976 
 
 V. Hudson, i. 164, 105. iii. 960 
 
 V. Learoyd, app. ii. iii. 1590 
 
 V. Lyall, ii. 75. 79. 444 
 
 1'. Macdonnell, ii. 156, 157. 495. iii. 
 
 759, 1044. 1047. 1056 
 
 V. Markes, app. i. 612 
 
 ■ V. Morris, iii. 876 
 
 t;. Musgrove, app. ii. iii. 1396. 1597 
 
 V. Nahon, ii. 22. 546 
 
 V. Pulsford, ii. 477 
 
 V. Raley, ii. 318. iii. 1131 
 
 V. Read, iii. 820. 822 
 
 V. Roland, ii. 108 
 
 V. Smyth, i. 87 
 
 V. Taylor, iii. 1021 
 
 V. Tobin, iii. 867 
 
 V. Touray, iii. 867. 1052 
 
 V, Vaughton and Southwick, app. ii. 
 
 iii. 1577 
 
 V. Williamson, iii. 1090, 1091, 1092 
 
 V. Yarrow, ii. 203, 204. 216 
 
 »'. Yewens, app. ii. iii. 1552
 
 TABLE OF CASES. 
 
 CIX 
 
 Robinson, Ex parte, i". 205 
 Robinson's case, i. 204. ii. 010. 617 
 Robson V. Alexander, ii. 27. iil. 11G4 
 
 V. Andradc, ii. 29. 33 
 
 V. Curtis, ii. 99 
 
 V. Drumniond, ii. 50 
 
 V. Eaton, ii. 87. iii. 821. 
 
 V. Godfrey, ii. 73. iii. 1290, 1297 
 
 17. Hall, iii. 1037. 1052 
 
 V. Kemp, ii. 132. 149. 321. app. ii. iii. 
 
 1380 
 
 V. Rolls, ii. 135. iii. 1153 
 
 V. Spearman, ii. 582. 587. 591 
 
 Ex parte, ii. 194 
 
 Roby V. Howard, ii. 1. iii. 814 
 
 Roche V. Campbell, ii. 213 
 
 Roche's case, i. 294 
 
 Rocher v. Busher, i. 131. ii. 75. 79. ill. 
 
 1229 
 Rochester (Dean and Chapter of) v. Pierce, 
 
 i. 445. iii. 1175 
 Rock V. Lay ton, i. 103. ii. 453, 454 
 Rodericke V. Ilovil, iii. 1049. 10-55 
 Rodriguez v. Tadmire, ii. 300. G41. 
 
 685 
 Roe V. Aylmer, ii. 569 
 
 d. Beebee v. Parker, ii. 335 
 
 d. Bennett v. Jeffery, ii. 336 
 
 d. Berkely (Lord) v. York (Arch- 
 bishop of), ii. .382 
 
 V. Charnock, ii. 302. 416 
 
 V. Chcnhals, iii. 1045. 1048 
 
 d. Cosh V. Loveless, ii. 431 
 
 V. Davis, ii. 413. 422, 423 
 
 V. Day, i. 425. app. i. 605. app. ii. iii. 
 
 1386 
 
 d. Dingley v. Sales, ii. 346 
 
 V. Doe, ii. 41.3.415 
 
 V. Galliers, ii. 170 
 
 d. Goatly v. Paine, ii. 421 
 
 V. Hagley, ii. 418 
 
 d. Haldane v. Harvey, i. 408. 564 
 
 V. Harrison, ii. 345, 346. 425. 
 
 V. Hellier, ii. 332. 337 
 
 V. Hicks, ii. 334, 335 
 
 V. Ireland, ii. 337. iii. 914. 910. 1090. 
 
 app. i. 008 
 
 V. Jeffrey, ii. 259 
 
 » d. Langdon v. Rowlston, ii. 672 
 
 V. Lonsdale, ii. 432 
 
 V, Minshull, ii. 426 
 
 V. Parker, i. 339. ii. 335 
 
 d. Pellatt V. Ferrai-s, i. 335 
 
 - ■ ■■ V. Popham, iii. 782 
 
 V. Rawlings, i. 44. 355. 407. ii. 517. 
 
 iii, 841 
 
 V. Read, ii. 404 
 
 — — d. Rochester (Dean and Chapter of) 
 
 V. Pierce, ii. 417 
 — — d. Thorn v. Lord, iii. 844 
 
 d. Truscott V. Elliott, ii. 402 
 
 — — V, Wiggs, ii. 418 
 
 V. Wilkins, i. 407 
 
 V. Wilkinson, ii. 362. 416 
 
 V. Wroot, ii. 334 
 
 V. York (Archbishop of), ii. 474. iii. 
 
 1182 
 Roebuck v. Hammerton, iii. 1233 
 Roffey V. Greemvell, app. ii. iii. 1367 
 
 IlofTey V. Smith, ii. 102. 105 
 Rofley, Ex parte, ii. 149 
 Rogers v. Allen, i. 08. 340. 441. 448. ii. 
 336. iii. 1130. 1254 
 
 V. Birkmire, ii. 393. iii. 970 
 
 V. Boehm and others, ii. 578 
 
 V. Broderip, iii. 7.30 
 
 V. I5rooks, iii. 805 
 
 V. Carter, ii. 500 
 
 V. Clifton, ii. 031. 634. 640. 643 
 
 V. Custance, app.i. 621 
 
 V. Humphreys, ii. 427. iii. 1181. app. 
 
 ii. iii. 1527 
 
 V. Hunter, iii. 1080 
 
 V. Ilscomb, ii. 680 
 
 V. Imbleton, iii. 1107, 1108 
 
 V. James, ii. 148. iil. 1035. 10.55 
 
 V. Jones, ii. 585. 591. iii. 1014 
 
 V. Maylor, iii. 884, 885 
 
 V. Naylor, iii. 882 
 
 I'. Pitcher, ii. 410. iii. 973. 1181 
 
 V, Popkin, iii. 1111 
 
 V. Price, ii. 70 
 
 ' ■ V. Stanton, ii. 117 
 
 V. Stephens, ii. 230. 237 
 
 V. Whittingham, iii. 797 
 
 V. Wood, i. 183. 
 
 Rogerson v. Ladbrooke, iii. 992 
 
 V. Reid, ii. 650 
 
 Rohde V. Procter, ii. 231 
 
 V. Thwaites, iii. 1221 
 
 Rohl r. Parr, iii. 877 
 Rokeby v. Langston, iii. 857 
 Rolfe V. Abbott, iii. 1203 
 
 V. Caslon, ii. 184. 239. iii. 1001 
 
 V. Dart, i. 229. 898 
 
 V. Elthorne (Inhabitants of), ii. 
 
 531 
 
 • V. Hampden, i. 173 
 
 V. Norden, iii. 1071 
 
 ■ V. Peterson, iii. 852, 853 
 
 Rolleston v. Hibbert, iii. 757. 700. 
 
 1056 
 
 V. Smith, iii. 870 
 
 Rolls r. Rock, iii. 1101 
 
 Rolt V. Watson, ii. 265 
 
 Romilly v. James, iii. 1191 
 
 Rondean v. Wyatt, ii. 476. 487 
 
 Rooke V. Richards, iii. 1080 
 
 Rooke's case, iii. 910 
 
 Rookwood's case, i. 154. 195. 211. ii?. 
 
 1097 
 Rooth V. Janney, iii. 808. 810 
 Roots V. Dormer (Lord), iii. 1199 
 Roper V. Alder, ii. 70 
 
 V. Coombes, iii. 1193 
 
 V. Harper, iii. 1106. app. ii. iii. 
 
 1575 
 
 V. Holland, ii. 100 
 
 Rordamz v. Leach, ii. 218. iii. 801 
 
 Roscoe, Ex parte, i. 78 
 
 Roscommon (Earl of). Case, app. ii. iii. 
 
 1519 
 Roscow V. Hardy, ii. 236 
 Rose V. Blakemore, i. 197. ii. 702 
 
 V. Bowler, ii. 444. 534 
 
 V. Bryant, i. 356. ii. 270. iii. 824 
 
 V. Calland, iii. 1086 
 
 V. Edwards, app. ii. iii. 1598 
 
 — — V. Green, ii. 145
 
 ex 
 
 TABLE or CASES, 
 
 Rose V. Hart, ii. 178. 048. iii. 91)4 
 
 V. Haycock, ii. I:i9 
 
 V. Maine, ii. 140 
 
 V. Miles, iii. 740. ii])i). ii. iii. 1013 
 
 V. Rowcroft, ii. 148, 149 
 
 • r. Savory, ii. 34 
 
 V. Sims, li. 178 
 
 Rosewell i\ Bennett, iii. 783 
 
 V. Prior, iii. 745. 1295 
 
 Roslicr i\ Kicran, ii. 225 
 
 Roskcll V. Waterhouse, ii. 280. 289, 290 
 
 Ross V. Aglioiiby, iii. 1093 
 
 V. Boards, ii. 118 
 
 V. Clifton, app. ii. iii. 1488. 1539, 
 
 1540 
 
 V. Ewer, iii. 1290 
 
 V. Hunter, i. 419. iii. 880 
 
 f. Johnson, ii. 280. iii. 1157. 1100. 
 
 1167 
 
 V. Noel, ii. 544 
 
 •V. Parker, i. 484 
 
 V. Rowe, i. 134 
 
 V. Smith, iii. 1093 
 
 IK Willoughby, ii. 545 
 
 Ross's case, iii. 1118 
 Rosserr. Lucas, iii. 1015 
 Rosvvell V. Vaughau, iii. 1237 
 Rotheram v. Fanshawe, iii. 1085, 1086 
 Rotherham v. Green, i. 448. iii. 909. 975 
 Rothero v. Elton, i. 117. 119. iii. 893 
 Rothery v. Curry, ii. 479 
 
 V. Howard, i. 163 
 
 V. Munnings, ii. 671 
 
 V. Wood, iii. 1028 
 
 Rothschild tJ. Corney, iii. 1150 
 
 V. Hennings, ii, 92 
 
 Rothwell V. Humphreys, iii. 809 
 Roulston V. Clarke, i. 481 
 Round V. Hope, ii. 137 
 Rouse V. Bardiu, ii. 522. iii. 1258 
 
 V. Meyers, i. 249 
 
 I'. Redwood, ii. 239 
 
 Routh V. Thompson, iii. 872 
 
 Routledge v. Abbott, iii, 1128. app. ii. iii. 
 
 1573 
 
 V. Grant, iii. 1219 
 
 V. Ramsay, app. ii. iii. 1474 
 
 t\ Thornton, iii. 1041 
 
 Roux V. Salvador, iii. 878. 881 
 Rowcroft V. Lomas, ii. 662. 664. 668 
 Rowe V. Brenton, i. 235. 237. 309. 326, 327. 
 
 502.520. ii. 697. iii. 1152 
 
 i>. Grenfell, iii. 1126 
 
 V. Hasland, ii. 365. iii. 845 
 
 V. Lant, ii. 150 
 
 r. Osborn, iii. 1196 
 
 V. Power, ii. 402. 458 
 
 V. Pickford, ii. 163. iii. 1226 
 
 V. Young, ii. 209, 210. 214. 255 
 
 Ex parte, a.p^. ii. iii. 1348. 1350 
 
 Rowland v. Ashby, iii. 786. 
 Rowlandson, Ex parte, iii. 805 
 Rowley v. Eylon, iii. 1289 
 
 V. Home, ii. 289 
 
 Rowley's case, i. 327 
 
 Rowntree v. Jacob, iii. 786. 819. 954. 967 
 
 Roworth V. Wilkes, iii. 441 
 
 Rowson I'. Earl, ii. 109. 112 
 
 Roxburgh (Duke of) v. Robinson, ii. 782 
 
 Roy V. Beaufort (Duke of), iii. 851 
 
 Roys j>. Williujns, iii. 771 
 Royston v. llankey, app. i, 614 
 Rubery v. Stevens, ii. 450 
 Ruck V. Ilatlield, ii. 104. iii. 122G 
 Rucker v. Alhiutt, iii. 873 
 
 V. Cammeyer, ii. 492. iii. 1196 
 
 V. Hannay, ii. fi63 
 
 V. Hillier, 230, 231 
 
 V. Palsgrave, iii. 830. 882 
 
 lludd V. Wright, app. i. 015 
 
 Rudd's case, i. 105 
 
 Ruding r. Newell, ii. 313. 359 
 
 Ruffini, Ex parte, iii, 803 
 
 RufFord /•. Bishop, iii. 1245 
 
 Rugby Charity v. Merryweuther, ii. 524, 
 
 525 
 Rugg V. Minett, iii. 1223 
 Ruishbrook v. Presanil, iii. 1128 
 Rumballu. Bull, ii. 214 
 Rumsey v. Rawson, ii. 473. iii. 1252 
 
 V. TafFnell, iii. 1031 
 
 Ruppell V. Roberts, iii. 809 
 Rusby V. Scarlett, ii. 43. iii. 1292 
 Rush V. Baker, ii, 107. iii. 1104 
 
 V. Peacock, app. i. 620. ii. iii. 141G 
 
 V. Smith, i. 187 
 
 Rushforth v. Hadfield, li. 361. 647, 648 
 
 Rushworth v. Craven, ii, 501, 502 
 
 V. Pembroke (Countess of), i, 259. 
 
 312 
 Russell V. Bangley, iii, 819. 892 
 
 V. Boehm, iii. 871 
 
 V. Corne, ii. 535. iii. 1116 
 
 V. Devon (Men of), iii. 740, 746. 1258. 
 
 app, ii, iii. 1444 
 
 V. Dickson, i. 331. 608 
 
 V. Dunsley, iii. 792 
 
 V. Hammond, ii. 498- 
 
 V. Hankey, iii. 727 
 
 V. HarJman, ii. 188 
 
 V. Langstaffe, ii. 231 
 
 V. Macquister, ii. 635 
 
 V. Mitchell, i. 440 
 
 V. Moseley, ii, 483 
 
 V. Palmer, ii. 113 
 
 V. Rider, i. 207 
 
 V. Russell, ii. 481 
 
 Russell's case, ii. 469 
 Russell's (Lord) case, ii. 327, 328 
 Russen v. Lucas, iii, 1013. 1113 
 Rust V. Baker, app. ii. iii. 1394 
 
 V. Cooper, ii, 138 
 
 Rust's case, ii, 276 
 
 Rutherford v. Evans, ii. 020, 027, 028 
 
 Rutland's (Countess of), case, ii. 3. 755. 
 
 700. 1108 
 Rutter V. Chapman, app. i. 010. ii.. 1384 
 Ryall V. Larkin, ii. 177 
 
 V. Rolle, ii. 154. 158. iii. 1247 
 
 Ryder v. Curtis, ii. 483 
 
 V. Ellis, app. ii. iii. 1306 
 
 V. Mallone, i. 495 
 
 V. Townsend, iii. 1008, 1009 
 
 V. Wylett, app. ii, iii. 1370 
 
 Ryland v. Smith, app. ii. iii. 1351 
 Rymer v. Cooke, iii. 790 
 Ryswicke, Ex jiarte, iii, 1001 
 
 Sabine v. De Burgh, ii, 581, 582 
 Saeheverel v. Sacheverel, ii. 25
 
 TABLE OF CASE 
 
 CXI 
 
 Sachevcroir*! caso, ii. '200. G2G 
 Sackett r. Owen, ii, 118. 
 Sadler v. Evans, ii. 85. 88, 89 
 
 V. Leifjli, ii. 14G. 108. 170 
 
 V. Robins, i. 2G7 
 
 Sadlcrs' Company v. Jones, ii. 340 
 Saffery v. Jones, iii. 1021, 1022 
 Sainsbury v- Mattbews, ii. 480 
 St. Alban's (Duke of) v. Sliore, ii. G8. iii. 
 
 1189. 1192 
 St. Cross (Master, &c. of) t\ Waldcn (Lord 
 
 Howard de), ii. 363. iii. 1214 
 St. Devereux r. Mucb Dewchurcb, ii. G98 
 St. George and St. Margaret, ii. 197 
 Sainthill i'. Bound, i, 188 
 St. James's, Poole v. Holy Trinity, Ware- 
 ham, iii. 1000 
 St. John V. St. John, ii. 545 
 St. John's College v. Murcott, iii. 102G 
 St. Katlierine's Hospital (Case of), i. 251 
 St. Marrjaret i\ Westminster (Dean and 
 
 Chapter of), ii. 569, 570 
 St. Martin (Overseers of), v. Warren, ii. 
 
 184 
 St. Pancras Auditors, Hx parte, app. ii. iii. 
 
 1530 
 St. Peter, Worcester v. Old Swinford, ii. 
 
 200. 845 
 St, Saviour, Southwark (Wardens of) v. 
 
 Bostock, ii. 510 
 
 (Churchwardens of), iii. 1182 
 
 Salisbury v. Marshall, iii. 1175, 1176 
 Salisbury's (Bishop of) Case, ii. 365 
 
 (Countess of), Case, iii. 1244 
 
 Salmon i; Bensley, iii. 746 
 
 V. Smith, i. 458 
 
 V. Watson, ii. 98, 99 
 
 Salop (County of) v. Stafford (County of), 
 
 i. 157 
 Saloucci t'. Woodmass, i. 292, 293. iii. 
 
 891 
 Salte V. Field, iii. 1212 
 
 V. Thomas, i. 248. ii. 146 
 
 Salter v. Grosvenor, ii. 338 
 
 V. Sladc, ii. 559 
 
 Saltoun V. Hounton, ii. 342 
 Salvador i\ Hopkins, iii. 779 
 Sampson v. Burton, ii. 178. iii. 994 
 
 V. Chambers, ii. 533 
 
 V. Swettenham, i. 88 
 
 V. Toothill, i, 279 
 
 Samuel v. Darch, i. 475 
 
 V. Duke, iii. 1031. 1149 
 
 V. Evans, i. 231 
 
 V. Payne, ii. 601. 685. iii. 717 
 
 V. Royal Exchange Assurance Com., 
 
 iii. 876 
 
 V. Wright, iii. 738 
 
 San Barnardina (Case of the), i. 133 
 Sanchar's (Lord), Case, ii. 9 
 Sandback v. Thomas, ii. 686. 690 
 Sanders v. Kentish, iii. 1220 
 
 V. Meredith, ii. 270 
 
 V. Newman, ii. iii. 1248. 1250 
 
 Sanderson v. Baker, iii. 1012. 1029 
 
 u. Bowes, ii. 210 
 
 V. Brooksbank, iii. 808 
 
 V. Judge, i. 485. ii. 209, 210. 224. 
 
 227 
 
 V. Laforest, ii. 149 
 
 Sanderson v. Simons, iii. lOV.) 
 
 V, Westley, app. ii. iii. 1G03 
 
 Sandiman v. Breacli, ii. 296 
 Sandford v. Kensington, ii. 323 
 Sandon v. Bourne, ii. 108, 109 
 Sands v. Ledger, i. 441. 458. ii. 379 
 
 )'. Trevilian, ii. 107 
 
 Sandwell j\ Sandwell, i. 177. ii. 617 
 Sandys r. Hodgson, app. ii. iii. 1.584 
 Sandys v. Hornby, ii. 110 
 Sangster v. Mazaredo and otiiers, ii. 205. 
 
 237. iii. 807 
 Sapsford v. Fletcher, iii. 992. app. ii. iii, 
 
 1514 
 Sarch v. Blackburn, iii. 735 
 Sard V. Rhodes, ii. 248 
 Sarell v. Wine, ii. 443. 670 
 Sargeant v. Cowan, iii. 1031 
 
 Ex parte, ii. 165, 166 
 
 Sargent v. Morris, iii. 1146. 1152 
 Sarqui v. Hobson, iii. 887 
 Sarratt v. Austin, ii, 148. 184 
 Satterthwaite v. Dnerst, ii. 989 
 
 V. Powell, iii. 929. app. ii. iii. 1530 
 
 Saunders v. Bridges, iii. 1018, 1019 
 
 V. Brooks, i. 508 
 
 V. Darling, iii. 1024 
 
 V. Graham, iii. 1069 
 
 V. Mills, ii. 632. 642 
 
 V. Musgrave, iii. 1026 
 
 V. Pitman, i. 87 
 
 V. Saunders, ii. 584. iii. 1074 
 
 V. Taylor, iii. 1060 
 
 V. Wakefield, ii. 482 
 
 V. Williams, ii. 316 
 
 Saunders's case, ii. 410 
 Saunderson v. Hanson, iii. 117G 
 
 V. Jackson, ii. 490. 492 
 
 V. M'Cullum, iii. 1049 
 
 V. Nichol, ii. 450 
 
 r. Piper, app. ii. iii. 1498 
 
 Savage v. Aldren, ii. 661 
 
 V. Ashwin, ii. 1 16 
 
 V. Binny, i. 322 
 
 V. Smith, i. 444. iii, 1031 
 
 Savage's case, ii. 308 
 
 Savignac v. Roome, iii. 737. 1111 
 
 Savill V. Barchard, ii. 361, 362. 648, 649 
 
 V. Roberts, ii. 685, G8G. 689. 691 
 
 Saville v. Campion, app. ii. iii. 1468 
 
 V. Farnham (Lord), i, 535 
 
 V. Robertson, ii, 313. iii. 807 
 
 V. Sweeney, ii. 535 
 
 Savory v. Chapman, app. ii. iii. 1341. 1552 
 
 If. Spooner, iii. 1231 
 
 Sawbridge v. Benton, iii. 1085 
 
 Sawle V. Paynter, iii. 1033 
 
 Sawtell V. Loudon, iii. 867. 886. 1052 
 
 Sawyer v. Mercer, ii. 449 
 
 Saxe Coburg, Prince of (The), app. ii. iii, 
 
 1583 
 Saxby v. Kirkus, i, 231 
 V. Wynne, ii, 47. iii. 1160, 1167, 
 
 1168 
 Say and Sele's (Lord) Case, ii. 323 
 Sayer v. Cliaytor, ii. 2 
 
 V. Dicey, iii. 940, 941 
 
 V. Garuett, ii, 191 
 
 V. Kitchen, i. 403. ii, 207 
 
 Sayer's case, iii. 793
 
 CXll 
 
 TABLE OF CAS E S, 
 
 Sayre v. Roohford (Earl of), iii. 1232. 123'> 
 
 Scaife i'. Morgan, ii. 0;jO 
 
 Scales I'. Jacob, ii. 007 
 
 V. Key, ap)). ii. iii. 1:301 
 
 Scales V. Pickering, iii. 1255 
 
 Scammel v. AVilkinson, iii. 1276 
 
 Scandover v. Warne, i. 472. 484. 489. 
 iii. 1029 
 
 Scarfe v. Hallifax, app. ii. iii. 1554, 1555 
 
 Scarman v. Castel, ii. 70 
 
 Scarth v. Gardener, ii. 506 
 
 Ex parte, app. ii. iii. 1353 
 
 Scavage v. Tathani, ii. 591. iii. 1140 
 
 Sclieibel v. Fairbain, ii. 091. iii. 1111 
 
 Sclilenker u. Moxey, 1. 89. ii. 347 
 
 Schmaling v. Tonilinson, iii. 1300 
 
 Schneider v. Heath, iii. 1215 
 
 V. Norris, ii. 492 
 
 Schofield V. Corbett, app. ii. iii. 1540 
 
 Scholefield v. Robb, iii. 1242 
 
 Sclioles V. Hargrave, ii. 315 
 
 Scholey v. Daniel, ii. 80 
 
 V. Goodman, ii. 547. 551 
 
 u. Walsby, ii. 215. 239. 2G1. iii. 1049 
 
 Scliooling V. Lee, ii. 1.35 
 
 Schrinishire v. Alderton, iii. 822 
 
 Schuldam v. Bunniss, i. 342 
 
 Schultz V. Astley, app. ii. iii. 1371 
 
 Schuman v. Locke, ii. 45 
 V. Weatherliead, iii. 1052 
 
 Scinotti V. Bumstead and others, ii. 570 
 
 Scoones v. Morrell, app. ii. iii. 1608 
 Scotland (Bank of) v. Watson, iii. 1240, 
 1241 
 
 V. Wilson, iii. 871. 1044 
 
 Scott V. Airey, iii. 1086 
 
 V. Allgood, iii. 1089 
 
 V. Allsop, iii. 1045 
 
 V. Ambrose, ii. 184, 185 
 
 V. Brest, iii. 848. 1230, 1231 
 
 V. Clare, ii. 562 
 
 V. Franklin, ii. 123 
 
 V. Gilmore, ii. 64. 246, 247 
 
 V. Hanson, iii. 1213 
 
 I'. Henley, iii 1014 
 
 V. Irving, iii. 883 
 
 V. Jones, i. 403. ii. 665. iii. 1058. 11.55. 
 
 1473 
 
 V. Lara, ii. 373. 375 
 
 ■ V. Lawson, iii, 1082 
 
 V. Lewis, i. 337. 417. 428 
 
 V. Lifford, ii. 138. 227, 228. 259- ii 
 
 966 
 
 V. Manby, li . 544 
 
 V. Marshall, iii. 1013 
 
 V. Millar, ii. 80 
 
 V. Newington, ii. 650 
 
 V. Parker, ii. 82. app. ii. iii. 1.334 
 
 V. Petit, ii. 103. iii. 1226 
 
 V. Scott, ii. 56. iii. 739 
 
 V. Shearman, i. 290 
 
 V. Sheplerd, ii. 298. iii. 1107. 1119 
 
 V. Starey, ii. 269, 270 
 
 V. Stephens, ii. 56 
 
 V. Surman, ii. 161. 164. 176. iii. 709 
 
 V. Waithman, i. 408. iii. 1024, 1025 
 
 V. Watkinson, i. 534 
 
 Scowell V. Boxall, iii. 1040 
 
 Scrace v. Whittington, ii. 107. iii. 1301 
 
 Scratton v. Brown, app. ii. iii. 1609 
 
 Scrimsliirc v. Scrinishirc, iii. 704 
 
 Scriiby v. Fordliani, iii. 1286 
 
 Scrutnn V. Taylor and another, app. ii. iii. 
 
 1579 
 Scudamore v. Wliite, ii, 671 
 Scudder's case, ii. 694 
 Scurfield r. Gowland, ii. 90. 93 
 Scurry v. Freeman, iii. 844. 1231, 1232 
 Seaborne v. Maddy, app. ii. iii. 1362. 1443 
 Seaford case, iii. 1032 
 Seago V. Deanp, iii. 785 
 Seagood v. Meale, ii. 483 
 Seagrovc v. Seagrove, ii, 545 
 Sealo V. Evans and anotlier, app. i. 603. 
 
 626 
 Sealey v. Harris, ii. 393 
 Seaman v. Fonnereau, iii. 886 
 Scare v. Prentice, iii, 727 
 Searle v. Barrington (Lord), i. 343. 356. ii. 
 
 270. iii. 824. 932 
 
 V. Keeves, ii. 488 
 
 V. Williams, i. 98, 99 
 
 Sears v. Lyons, iii. 1110 
 
 Sears's case, ii. 600. 613. 
 
 Seaton v. Benedict, ii. 639. iii. 828, 829 
 
 V. Booth, app. ii. iii. 1330 
 
 V. Slade, ii. 485 
 
 Seaward v. Howey, ii. 116 
 
 V. Willock, iii. 1073. 1192 
 
 Sebag V, Abitbol, ii. 250 
 
 Secar v. Atkinson, ii. 444 
 
 Seccombe v. Babb, ii. 118. apn. ii, iii. 
 
 1343 
 
 V. Wood, app. ii. iii. 1493 
 
 Seddon v. Tutop, i. 263, 264. ii. 119. iii. 
 
 1311 
 Sedgwick v. Jager, ii. 224 
 Sedley v. Sutherland, iii. 1105, 1106 
 Seers v. Hind, ii. 346 
 Selby V. Bardons, iii. 1131 
 
 V. Eden, ii. 209 
 
 V. Harris, iii. 988 
 
 V. Hills, i. 92 
 
 V. Robinson, ii. 358 
 
 V. Selby, ii. 485 
 
 Self's case, ii. 710,711 
 Sellen v. Norman, iii. 1298. 1310 
 Sellers v. Till, ii. 308. 628, 629 
 Sellick V. Smith, ii. 660. iii. 730 
 Sells V. Hoare, i. 94. ii. 392 
 Selman v. Courtney, iii. 1122 
 Selsea v. Powell, iii, 1093, 1094 
 Selway v. Fogg, app. ii. iii. 1020 
 
 V. Holloway, ii. 286. 1206 
 
 Selwood V. Mildmay, iii. 1269. 1274 
 
 V. Mount, app. ii. iii. 1453. 1455 
 
 Semaine's case, ii. 597 
 SempL's case, ii. 277. 612 
 Senat y. Porter, iii. 893 
 Senliouse v. Christian, iii. 1256 
 Senior v. Armitage, iii. 782 
 Sentance v. Poole, ii. 103 
 Sergeant v. Milward, iii. 1032 
 Sergeson v. Sealy, i. 238. 291 
 Serjeant v. Chafy, app. i. 632 
 Serjeant, Ex parte, iii. 1062 
 Serlew. Norton, app. ii. iii. 13G4 
 
 V, Serle, i, 114 
 
 V. Waterworth, ii. 440 
 
 Scrvante v. James, ii. 343
 
 TABLE OF CASES. 
 
 CXllI 
 
 Seton i\ Slade, iii. 1180 
 Settle Mill (Case of), i. 319 
 Severin v. Kcppell, iii. 1160, 1161 
 Severn v. Olive, i. 79 
 Seward v. Willoek, iii. 1189 
 Sewell V. Rally, app. ii, iii. 1336 
 
 V. Stubbs, i. 167 
 
 Sewer i'. Leggatt, i. 418 
 
 V. Sbackles, ii. lOo 
 
 Sewercrop v. Day, ii. 444 
 
 Sevniour v. Lord Courtenev, app. ii. iii. 
 
 1609 
 Seymour's (Sir E.) case, i. 394 
 Sbackell v. Rosier, iii. 10.38. app. ii. iii. 1332 
 Shadgett v. Clipson, iii. 1029 
 Shadwell v. Hutchinson, iii. 744. 978. 1295, 
 
 1296, app. ii. iii. 1539 
 Shaftsbury ( Earl of) v. Russell, ii. 160. 579 
 Shaife v. Howard, ii. 124 
 Sliakespear v. Peppin, ii. 315. 317 
 Shallcross v. Dysart, ii. 186 
 
 V. Jowle, iii. 742. 1094 
 
 Shambrook v. Fettiplace, iii. 863 
 Shank v. Payne, i. 156 
 Shanley v. Colwell, app. ii. iii. 1604 
 Shannon v. Broadstreet, iii. 917 
 
 (Case of the), iii. 736 
 
 V. Owen, iii. 1155 
 
 Shannan v. Barnes, i. 117 
 Sharp I'. Alcock, app. ii. iii. 1592 
 
 r. Aspinall, ii. 586 
 
 V. Gray, iii. 728. 736 
 
 V. Key, app. ii. iii. 1405 
 
 V. Lee, app. i. 614 
 
 V. Scoging, i. 211 
 
 Sharpe r. Bailey, ii. 221. 226. 230 
 
 v. Gye, ii. 563 
 
 V. Lamb, app. i. 620 
 
 V. Newsiiolme, app. ii. iii. 1352 
 
 V. Tliomas, ii. 138 
 
 Sharpe's case, ii. 606 
 Sharwin's case, ii. 54 
 Shaw V. Arden, ii. Ill 
 
 V. Batley, ii. 173 
 
 V. Broom, ii. 245. 260, 261 
 
 V. Croft, ii. 225 
 
 V. Felton, iii. 880 
 
 r. Hervey, ii. 146, 147. 460 
 
 V. Heslop, ii. 2. iii. 1171 
 
 V. Lord, ii. 411 
 
 V. Markham, ii. 228. iii. 731 
 
 V. Pickering, ii. Ill 
 
 V. Picton, iii. 956 
 
 V. Pritchard, iii. 1237 
 
 V. Robberds, app. ii. iii. 1526 
 
 V. Roberts, i. 526 
 
 V. Shaw, ii. 567 
 
 V. Stoughton, ii. 442 
 
 V. Williams, ii. 175 
 
 V. Woodcock, ii. 85 
 
 (in the Goods of), iii. 1291 
 
 Sheape v. Culpepper, iii. 975 
 Sheard's case, app. ii. iii. 1478 
 Sheare's case, ii. 611 
 Shearm v. Barnard, ii. 250 
 Shears v. Wood, i. 476 
 Shearwoodt?. Hay, app. ii. iii. 1325 
 Shede r. Berrier, iii. 1269 
 Sheen v. Rickie, iii. 1167 
 
 Sheernian *'. Thompson, n]))). ii. iii. 1447 
 
 Sheers v. Philp, i. 498 
 
 Sheers's (Sir G.) case, iii. 1263 
 
 Shellield v. Coventry (Earl ofj, ajtp. ii. iii. 
 1373 
 
 Sheffield, Ashton-under-Lyne and Man- 
 chester Railway Company v. Woodcock, 
 app. ii. iii. 1511 
 
 Shelburne v. Inchiquin, iii. 767 
 
 Sheldon r. Cox, iii. 1204 
 
 V. Rothschild, ii. 178 
 
 V. Whitaker, i. 486. 491. iii. 1010 
 
 Shelley i\ Wright, ii. 21 
 
 Shelley's case, ii. 448 
 
 Shelling v. Farmer, ii. 570. iii. 7.59 
 
 Sheltoni'. Braithwaite, app. ii. iii. 1364 
 
 V. Cross, i. 508 
 
 V. Livius, iii. 761. 1196 
 
 Shepherd v. Bliss, ii. 628 
 
 V. Butler, iii. 1144 
 
 V. Charter, iii. 1311 
 
 V. Chester (Bishop of), i. 536. iii. 
 
 942 
 
 V. Chewter, iii. 882, 884 
 
 V. Currie, iii. 900. 1202 
 
 V. Gosnold, iii. 777 
 
 V. Hall, iii. 1044 
 
 i\ Johnson, iii. 1200 
 
 V. Kain, iii. 1240 
 
 V. Keatley, iii. 1189 
 
 • V. Mackoul, ii. 543 
 
 V. Shepherd, iii. 784 
 
 V. Shorthouse, 1. 302 
 
 V. Wheeble, iii. 1012. 1038. app. ii. iii. 
 
 1558 
 
 Shepherd's case, ii. 467. 694 
 
 Shepherdess (Case of the), i. 292 
 
 Shepley ??. Davis, iii. 1223 
 
 V. Todhunter, app. ii. iii. 1462. 1464 
 
 Shcppard i\ Woodford, app. ii. iii. 1422 
 
 Sheppard's case, ii. 463 
 
 Shepton v. Thornton, iii. 1302 
 
 Sherard's case, ii. 428 
 
 Shergold i: Boone, iii. 767 
 
 V- HoUoway, ii. 599 
 
 Sheriff v. Cadell, i. 249. iii. 1153 
 
 V. James, ii. 390 
 
 V. Potts, iii. 885 
 
 Sherman v. Bennett, iii. 1305 
 
 Sherrington v. Fleetwood, iii, 1094 
 
 V. Jermyn, ii. 2.55 
 
 Slierrington's case, app. ii. iii. 1321 
 
 Sherwin v. Clarges, i. 310. 314 
 
 V. Smith, ii. 47 
 
 Sherwood v. Robins, iii. 1213 
 
 u. Taylor, ii. 688 
 
 Shetleworth v. Neville, ii. 449 
 
 Shew t\ Thompson, ii. 137 
 
 Shiells V. Blackburn, iii. 726, 727 
 
 Shillibeer v. Glynn, app. ii. iii. 1329 
 
 Shillito v.CIaridge, i. 323. iii. 1242 
 
 v.Theed, ii. 245 
 
 Shipham v. Sanders, ii. 59 
 
 Shipley v. Hammond, ii. 578 
 
 Shipman v. Henbest, iii. 848 
 
 r. Thompson, iii. 994 
 
 Shippey v. Derrison, ii. 485 
 
 Shipton V. Casson, iii. 822. 994. 1200. 
 1205 
 
 V. Tliornton, app. i. 594. ii. m. 1556 
 
 h
 
 CXIV 
 
 TABLE OF CASES. 
 
 Sliipwic'k ?'. Rlitnclinril, iii. 1157 
 
 Slurps t). Glasscock, iii. \'2G',i 
 
 Shirley r. Jacobs, iii. 818. apjt. ii. iii. lolG 
 
 V. Newman, ii. 41.j 
 
 V. Saiikcy, ii 94. iii. 1233. 1235 
 
 JS.v parte, ii 334 
 
 SliirrcfFi'. Wilkes, ii.205. iii. 810 
 Slioibrid^e v. Jewiii, iii. 1079 
 Shore v. Beiitall, iii. 877 
 
 V. Wel)b, ii. 90. 93 
 
 Short r>. EdwarJs, iii. 794, 795 
 
 V. lliil)bar(l, iii. 971 
 
 V. Lee, i. 355.358. 3G4. 503. iii. 1087. 
 
 1091, 1092 
 
 V. Macartliy, ii. 660. 662. 670 
 
 V. Si)ackman, iii. 1219 
 
 V. Vansittart, ii. 49 
 
 Shortrerte v. Cheek, ii. 483 
 Shott v. Strcatfiekl, iii. 805 
 Showman ?•. Allien, ap]). ii. iii. 1342 
 Shrewslniry's (Countess of) case, iii. 1244 
 Shrivell v. Payne, iii. 1043. app. ii. iii. 
 
 1559 
 Shultzu. Astly,ii.203 
 Shuman v. AVetherhoad, iii. 1046 
 Shute V. Horusey, i. 444. ii.59 
 
 V. Robins, ii. 223. 226 
 
 Shuttleworth v. Bravo, i. 152. ii. 194 
 
 V. Pilkington, i. 481 
 
 V. Stevens, i. 130 ii. 213. 222. 259 
 
 Ex parte, ii. 148. 158 
 
 Sibley v. Fisher, app. ii. iii. 1363 
 Sibly V. CuiTiing, iii. 851 
 Siboni V. Kirkman, iii. 927 
 Sidawayt'. Hay, i.270. iii. 992 
 Siddall V. RawclifFe,iii. 961 
 Sideways v. Dyson, i. 205. 403 
 Sidford v. Cihambers, ii. 216. 219. 234 
 Siebert v. Spooner, ii. 139 
 Siffkin V. Walker and another, ii. 205 
 
 V. Wing, iii. 954 
 
 Sigel V. Jebb, i. 494. iii. 1235 
 Siggurs V. Brown, ii. 228 
 Sigourney v. Lloyd, ii. 215 
 Silk V. Middlesex (Sheriff), app. i. 625 
 v.Osborn, ii. 182. iii. 1153 
 
 Sill t'. Thomas, ii. 112 
 
 V. Worsvvick, ii. 168. 460. app. ii. iii. 
 
 1523 
 
 Sills V. Brown, app. i. 600. ii. iii. 1309. 
 1493 
 
 V. Laing, ii. 77 
 
 Silver v. Barnes, ii. 498 
 
 V. Heseltine, i. 460. ii. 62 
 
 Silvester v. M'ebster, ii. 108 
 
 Ex parte, ii. 501 
 
 Simnionds v. Kniglit, ii. 124. 150 
 
 Simmons v. Johnson, iii. 996 
 
 V. Norton, iii. 1247 
 
 V. Swift, iii. 1206. 1223 
 
 V. Wilmot, iii. 1069 
 
 Simon v. Lloyd, app. ii. iii. 1371 
 
 V. Motivos, ii. 477. 487, 488. 492, 493 
 
 V. Shepherd, iii. 1165 
 
 Simonds v. Hodgson, iii. 868 
 
 Simons v. Smith, i. 110. 139. 164 
 
 Simpkin v. French, i. 492 
 
 Simpson v. Bloss, iii. 1234, 1235 
 
 V. Clarke, app. ii. iii. 1367 
 
 Simpson v. Clayton, i. 535. ii.845 
 
 V. Cook, iii. 1067 
 
 V. Cooper, aiij). ii. iii. 1565 
 
 V. Dean, iii. 1)31 
 
 i\ Easterby, ii. 342 
 
 V. llartop, ii. 389,390 
 
 I'. Henderson, ii. 68. iii. 759 
 
 r. Hill, iii. 1113 
 
 V. Ilowdcn (Lord), app. ii. iii. 1332 
 
 V. Hiirdiss, app. ii. iii. 1467 
 
 V. Lcwthvvaile, iii. 1258 
 
 V. Manley, ii. 510 
 
 V. Nichoils, app. ii. iii. 1567 
 
 V. Pickering, i. 146. 260 
 
 V. Rackham, iii. 817 
 
 V. Renton, iii. 1032 
 
 v. Roiith, ii. 391. iii. 751. 1072 
 
 V. Sikes, ii. 153 
 
 V. Smith, i. 187.207 
 
 t'. Symes, ii. 137 
 
 Sims V. Britain, ii. 82 
 
 %■). Kitclien, i. 401 
 
 V. Thomas, app. ii. iii. 1431. 1447 
 
 Simson v. Coolce, iii. 825 
 
 V. Ingham, iii. 824, 825 
 
 Sinclair v. Baggaley, app. ii. iii. 1357 
 
 V. Bowles, iii. 1303 
 
 V. Eldred, ii. 686. 689, 690 
 
 V. Fraser, i. 271 
 
 V. Hervey, ii. 538 
 
 V. Stevenson, i. 180. 400. ii. 194 
 
 Singleton v. Ballot, iii. 792 
 
 V. Barrett, iii. 1057 
 
 V. Butler, ii. 143 
 
 Siordet w. Hall, ill. 728 
 Sippora v. Bassett, iii. 1116 
 Sissiughurst House case, ii. 716 
 Sisson V. Tomlinson, ii. 235, 236 
 
 Sissons V. Dixon, ii. 294 
 
 Six Carpenters' case, iii. 1108 
 
 Skaife v. Jackson, iii. 955 
 
 Skeate v. Beale, app. ii. iii. 1403 
 
 Skeath v. Yorke, iii. 1288 
 
 Skclton V. Hawling, li. 453 
 
 Skerry v. Preston, ii. 393 
 
 Skidmore v. Winston, ii. 442 
 
 Skiffken v. Lee, iii. 891 
 
 Skiu V. Brooke, ii. 509 
 
 Skinner v. Rebow, ii. 601 
 
 V. Rucker, iii. 752 
 
 V. Stocks, ii. 59. iii. 801. 804. 1196 
 
 V. Upshaw, iii. 1163 
 
 Ex parte, app. ii. iii. 1625 
 
 Skinners' Company v. Jones, app. ii. iii. 
 1373 
 
 Skipwith V. Green, i. 344. iii. 788 
 
 V. Shirley, i. 363. 394 
 
 Skrine v. Elmore, iii. 1039, 1040. lO.SO. 
 1237 
 
 Skyring v. Greenwood, ii. 87. iii. 956 
 
 Slaclc V. Brauder, iii. 1015 
 
 V. Buclianan, ii. 27 
 
 V. Lowell, ii. 577 
 
 V. Sharp, app. ii. iii. 1.358 
 
 Slackford v. Austen, ii. 689. iii. 820. 1021, 
 1022 
 
 Slade V. Drake, iii. 1093 
 
 V. Walter, li. 570 
 
 Slane Peerage, app. ii. iii. 1518, 1519
 
 TABLE OF CASES. 
 
 CXV 
 
 Slaney v. Wade, iii. 834, 835. 841, 842 
 Slarko r. Ili.uligate Arclnvay Company, 
 
 ii. 200. iii. 792 
 Slater I'. Haines, app ii. iii. 1555 
 
 V. Lawson, ii. 440. 670 
 
 V. Swann, ii. 300 
 
 V. Wist, li. 220 
 
 i\ Willis, app. ii. iii. 1512 
 
 Slatterie v. Pooley, iii. 785. apj). ii. iii. 
 
 1318 
 Slaughter v. Choyne, ii. 188 
 Slave Grace (Case of the), ii. 400 
 Sleat r. Fagg, ii. 291 
 Sleath V. Wilson, app. ii. iii. 1491 
 Slcgg V. Pliillips, ii. 258 
 Slip])er V. Stidstone, ii. 59. iii. 9D4 
 Slonian v. Hearne, ii. 320. iii. 1014 
 
 V. Walter, iii. 851 
 
 V. West, iii. 1259 
 
 Sloper V. Allen, i. 144. 448. ii. 319. iii. 
 
 975 
 Slowman t\ Button, ii 626 
 Slubey v. Hay ward, ii. 103. 649. iii. 1223. 
 
 1226 
 Sly V. Edgley, iii. 739 
 
 • V. Stevenson, ii. 595 
 
 Small r. Grey, ii. 687 
 
 V. Mai-wood, ii. 147 
 
 Smallcomb r. Buckingham, iii, 1018 
 Snialleombe v. Bruges, ii. 134. 149 
 Sniallpiece v. Dawes, apji. ii. iii. 1440 
 Smalt V. Whitmill, i. 78 
 Smart v. Hutton, iii. 1029 
 
 V. Prujcan, iii. 761 
 
 v. Rayner, i. 420 
 
 Smartle v Penhallow, ii. 865. 431 
 
 1-. Williams, i. 362. 411, ii. 458 
 
 Sraead v. Badley, ii.636 
 Smedley v. Hill, ii. 449. 453 
 
 v. Philpot, app, ii. iii. 1418 
 
 Smith V. , ii. 534 
 
 V. Abbott, ii. 209 
 
 V. Agett, app. ii. iii. 1558 
 
 V. Algar, ii. 56 
 
 V. Allison, ii. 355 
 
 V. Barrow, ii. 69. 441. iii. 803. 810. 
 
 994 
 
 V. Battersby, iii. 831 
 
 V. Beadnall, i. 192. 198. ii. 27 
 
 V. Becket, ii.235, 236 
 
 V. Bickmore, ii. 95. iii. 1235 
 
 V. Bird, ii. 35 
 
 t\ Birmingham Gas Company, ii. 339. 
 
 iii. 976 
 
 V. Blackham, i. 157 
 
 V Blandy, ii. 34 
 
 V. Bolton, ii. 533 
 
 V. Bouch, i. 509 
 
 V. Boucher, app. ii. iii. 1675 
 
 V. Bower, ii. 684. 658 
 
 I'. Brandram, app. i. 629. ii. iii. 1435 
 
 V. Bromley, ii. 88. 93, 94. iii. 955 
 
 V. Broomhed, ii. 675 
 
 V. Brown, iii. 1073 
 
 V. Buchanai), i. 270. ii. 186. 460 
 
 V. Burridge, iii. 809. 1159 
 
 V. Cator, iii. 1039, 1040 
 
 r. Chambers, ii. 433 
 
 V. Chance, iii. 1205, 1206 
 
 V. Chester, ii, 86, 87, 203, 204. 216 
 
 Smith V. Clark, app. ii. iii. 1407 
 
 V. Clarke, ii. 203. 216. iii. 1212. 
 
 1213 
 
 r. Codron, iii. 1262 
 
 V. Compton, ii. 76 
 
 V. Cramer, ii. 134 
 
 V. CufF, ii. 86 
 
 V. Currie, ii. 137 
 
 V. Davies, app. i. 623 
 
 V. Davis, ii.448 
 
 r. Day, ii. 450. app. ii. jii. 1402 
 
 V. Dearmer, iii. 1288 
 
 V. De Wruittz, ii. 245. 260 
 
 V. Dickinson, ii. 18. iii. 851 
 
 V. Doe d. Jersey, i. 514. 517. iii. 785, 
 
 901. 1274 
 
 V. Eggington, iii. 1108, 1109 
 
 i\ Eldridge, app. ii. iii. 1504 
 
 V. Eustace, ii. 182 
 
 V. Evans, iii. 1201 
 
 — — V. Ferrand, iii. 822 
 
 V. Feverell, ii. 317 
 
 V. Field, iii. 1212. 1210 
 
 V. Forty, ii. 685 
 
 V. Frampton, iii. 853 
 
 V. Fuge, i. 249. iii, 807 
 
 V. Gibson, i, 262, iii, 959 
 
 r, Goddard, ii. 83. 123. iii. 802 
 
 V. Good^vin, iii. 975 
 
 V. Goss, ii. 103. iii. 1220 
 
 V. Harris, i. 103. ii. 373 
 
 V. Hayward, app. ii. iii. 1021 
 
 V. Hill, ii. 072 
 
 V. Hixon, i. 438 
 
 V. Hodson,ii. 177. iii. 1236 
 
 V. Home, ii. 292 
 
 V. Innes, i. 471 
 
 V. Jago, ii. 110 
 
 V. Jameson, ii. 179. iii. 954 
 
 V. Johnson, i. 203. ii. 119 
 
 V. Kelby,iii. 1049 
 
 V. Kemp, app. ii. iii. 1609 
 
 V. Kendal, ii. 210. 215. 262 
 
 V. Kingsford, app. ii. iii. 1021 
 
 V. Knowelden, app. i. 031. ii. iii. 
 
 1402 
 
 V. Knox, ii. 243. 250 
 
 V. Lawrence, iii. 738 
 
 V. Low, iii. 730 
 
 i\ Lumbe, ii. 34 
 
 V. Lyon, ii. 29. iii. 938 
 
 V. M'Clure, ii. 211. 213, 214. 218 
 
 • V. ]\Iacdonald, ii. 685 
 
 V. Maliugs, ii. 48 
 
 V. Man, ii. 432 
 
 V. Maplebank, iii. 971, 972 
 
 I'. Mason, iii. 725 
 
 V. Matthews, ii. 632. 634 
 
 V. Maxwell, ii. 703, 704 
 
 V. Mercer,ii. 86. 90 
 
 (Dr.) V. Miller, ii. 25 
 
 V. Milles, i. 400. ii. 107. 441. 444. 
 
 iii. 1103.1106. 1133. 1135. 1157 
 
 i;. Moneypenny, app. ii. iii. 1 36 4 
 
 ^^Moon, li. 137.172 
 
 V. Morgan, app. i. 601. ii. iii. 13Id 
 
 V. Muller, iii. 1075 
 
 V. Mullett, ii. 228 
 
 r. Napier, ii. 77 
 
 V. NichoUs, ii. 460 
 
 h 2
 
 CXVl 
 
 r A B L !•: or cases. 
 
 Smith r. Nichnlson, ii. 124 
 
 V. Nightingale, iii. 1037 
 
 V. Nissen, li. 'idO 
 
 0. Oriel, iii. 1I";'J 
 
 r. Paire, i. h'.M 
 
 V. Parkhurst, 11.400.403. iil. 807 
 
 i\ Parsons, ii. 101. app. ii. iii. 1005 
 
 V. Payne, ii. 140, 141, 142, 143 
 
 V. Pelate, iii. 735 
 
 V. Pickering, ii. KiO, 217, 218 
 
 V. Plonier, iii. 1155 
 
 V. Prager, i. lOG. 110. ii. 4()0. iii. 1 187 
 
 V. Raleigh, ii. 4H. iii. 1175. 1184 
 
 V. Richardson, ii. U43 
 
 V. Robertson, iii. 882 
 
 V. Rolt, a])p. ii. iii. 1420. 1505 
 
 V. Rumniens, i. 280, 281.11. 331. iii. 
 
 1113 
 
 V. Russell, iii. 1027 
 
 V. Sainsbury, ii. 513 
 
 V. Sandilands, ii. 122. 129 
 
 I'. Sehroeder, ii. 124 
 
 V. Scott, ii. 127. iii. 877 
 
 V. Shaw, ii. 507. 000 
 
 • V. Sheppard, ii. 250 
 
 V. Simnies, ii. 33 
 
 ^^ Smith, iii. 831. app. ii. iii. 1319. 
 
 1581 
 
 V. Sparrow, ii. 93. 493. iii. 1080 
 
 V. Spooner, ii. 422. 631. 641. 643 
 
 f. Stokes, iii. 11-59 
 
 V, Surman, ii. 486. iii. 1039. 1195 
 
 V. Taylor, i. 450. ii. 108. 308. 627 
 
 r, Thatcher, ii. 210 
 
 V. Topping, ii. 154. 159 
 
 V. Turner, ii. 481 
 
 r. Veale, i.315 
 
 t). Walker, ii. 679 
 
 V. Walton, ii. 416, iii. 972 
 
 V. Watson, iii. 80.5 
 
 V. Wattleworth, ii. 108 
 
 V. White, app. ii. iii. 1378 
 
 V. Whittingham, i. 355 
 
 V. Wigley, ii. 824 
 
 V. Wilson, iii. 756. 783 
 
 V. Wiltshire, ii. 583, 584. 600, iii.1074 
 
 V. Winter, iii. 812. 1065. app. ii. iii. 
 
 1449 
 
 V. Wood, ii. 640 
 
 V. Woodhouse, iii. 1188 
 
 V. Woodward, i. 369. ii. 124. 343. 376, 
 
 377 
 V. Young, i. 343. 401. ii. 34. iii. 1158. 
 
 1101. 1163 
 
 Ex parte, ii. 251. iii. 1065 
 
 Smith's case, ii. 276.278. 613 
 Smith's (Captain) case, ii. 470 
 Smithers, E.v jmrte, ii. 155 
 Smithey v. Edmonson, ii.269 
 Smithson's (Sir Hugli) case, i. 308 
 Smyth V. JefFeries, ii. 501 
 
 V. Latham, i. 530 
 
 V. Sanibrook, iii. 1095 
 
 Snaith v. Mingay, ii. 254. iii. 1043. 1047 
 
 Snee r. Prestcott, ii. 164. iii. 1151. 1226 
 
 Sneezum v. Marshall, app. ii. iii. 1557 
 
 Snelgrove v. Hunt, ii. 174 
 
 SnelUi. Phillips, ii. 058 
 
 Snelling t^ Briggs, ii. 242 
 
 V. Chennells, app. ii. iii. 1501 
 
 Snook V. Davidson, ii. 049 
 
 V. Soiitliwood, ai)p. ii. iii- 1384 
 
 Snow v. Allen, ii. (!01 
 
 V. Peacock, iii. 725. 1150 
 
 r. Pliilliiis, i.331 
 
 Snowball ('. Goodrick, ii. 31. iii. 1012 
 
 V. Vicaris, ii. 242. iii. 700 
 
 Snowden v. Davis, ii. 86. 89. 306 
 
 ?'. Shce, ii. 108 
 
 V. Smith, il. 306. 641 
 
 Soames v. Spencer, iii. 119G 
 
 r. Watts, ii. 145 
 
 Soane t\ Ireland, ii. 695 
 
 V. Knight, ii. 633. 640 
 
 Soares t>. Thornton, iii. 880 
 Solarte v. Palmer, ii. 229 
 Solita I'. Yarrow, li. 516 
 Solly V. Forbes, iii. 1066 
 
 V. Neish, iii. 1138 
 
 V. Whitmore, iii. 873 
 
 Solomon v. Turner, ii. 87. 243 
 Solomons v. Campbell, i. 178 
 
 V. Dawes, iii. 1161, 1162 
 
 V. England (Bank of), ii. 220. 200 
 
 and others v. Medex, ii. 297 
 
 Soloraonson v. Turner, ii. 22 
 
 Somerset (Duke of) v. France, i. 120. ii. 
 
 813. 319. 359 
 
 (Duke of) V. Mere, ii. 531 
 
 Somes V. Sugrue, iii. 881 
 Somraersett's case, ii. 460 
 Sondes v. Fletcher, ii. 269 
 Soper V. Dibble, i. 508 
 Soulby V. Pickford, ii. 57 
 Soulsby 11. Hodgson, ii. 116 
 
 V. Lee, iii. 1231 
 
 V. Nevin, iii. 1180 
 
 Souter V. Drake, iii. 1189 
 
 South V. Finch, iii. 1040. app. ii. iii. 1557 
 
 i\ Tanner, i. 457. ii. 378 
 
 Southampton Dock Company v. Rich;irds, 
 
 app. i. 609. ii. iii. 1399. 1510, 1511 
 
 (Mayor of) v. Greaves, ii. 508. iii. 945 
 
 South Carolina Bank v. Case, iii. 809 
 Eastern Railway Company v. HelJ- 
 
 blewhite, app. ii. iii. 1510 
 
 r. Tengue, iii. 808 
 
 Sonthall, Ex -parte, app. ii. iii. 1349, 1350 
 Southernwood v. Ramsden, iii, 990 
 Southerton v. Whitlock, ii. 70 
 Southey v, Nash, app. i. 603 
 Southouse V. Allen, iii. 1071. 1074 
 South Sea Company v. Jolliffe, ii. 323 
 
 V. Olitfe, iii. 767 
 
 V. W^ymondsell, ii. 659 
 
 Southwood V. Taylor, ii. 178. iii. 994 
 
 Soutten V. Soutten, iii. 1061 
 
 Soward v. Leggatt, ii. 348. app. 1. 624 
 
 Sowden v. Emslev, iii. 1148 
 
 Sowell V. Champion, i. 531. iii. 1111. 1117 
 
 Sowerby v. Brooks, ii. 170 
 
 Sowter V. Hitchcock, app. ii. iii. 1502 
 
 Spadwell v. , iii. 838 
 
 Spain V. Arnott, iii. 1304 
 
 Spalding v. Mure, ii. 59. 81 
 
 Spargo V. Brown, i. 61 
 
 Sparing v. Drax, i. 334 
 
 Sparke v. Middleton (Sir Hugh), ii. 323 
 
 Sparkes v. Barrett, app. i. 626 
 
 f. Marshall, app. ii. iii. 1526
 
 T ABLE O !• C A S E S. 
 
 CXVU 
 
 Sparkling r. Ileddon, ii. O'i? 
 Sparrow i\ Ciirvuthcrs, ii. 537 
 
 I'. Cliismaii, lii. 802 
 
 V. Farrant, ii. 517 
 
 V. Yale, ii. 505 
 
 Sparry's case, i. 262 
 
 Spawfortli V. Alexander, iii. 1050 
 
 S|)ear r. Travers, iii. 1224 
 
 Spears v. Hartley, ii. G48. 050. aiip. ii. iii. 
 
 1583 
 Speck V. Phillips, app. ii. iii. 131)2 
 Speering v. Degrave, iii. 1203. 1302 
 Speight r. Oliveira, iii. 989 
 Speke's case, iii. 1287 
 Spence v. Stuart, i. 91, 92 
 Spenceley r. De Willott, iii. 1188 
 
 • i\ RobiiiS'.;ii, iii. 752 
 
 Spencely v. Schullenberg, ii. 323 
 Spencer v. Ameston, app. ii. iii. 1 4G4 
 
 V. Billing, i. 503. ii. 135. iii. 807 
 
 V. Dawson, iii. 1237 
 
 V. Gouldintj, i. 118, 119. 148 
 
 V. Jacob, ii. 681. 688 
 
 V. Mann, iii. 847 
 
 V. Marriott, ii. 347 
 
 V. Newton, app. i. 593. ii. iii. 1340 
 
 V. Parry, ii. 75. 98 
 
 ('. Smith, ii. 64 
 
 V. Spencer, ii. 560 
 
 V. Swannell, iii. 851. app. ii. iii. 1522 
 
 Ex iHirte, ii. 154 
 
 Spencer's case, ii. 342 
 Spicer v. Burgess, iii. 1053 
 
 • V. Cooper, app ii. iii. 1500 
 
 Spiers r. Parker, i. 418. iii. 936 
 Spiller r. Johnson, app. ii. iii. 1506 
 
 V. Westlake, ii. 242 
 
 Spilsbury v. Micklethwaite, i. 439. iii. 
 
 1132 
 Spinke v. Tenant, i. 508 
 Spinks V. Spinks, ii. 49 
 Spires v. Morris, i. 3-59 
 Spittle V. Lavender, ii. 576. iii. 1 198 
 Splidt V. Heath, iii. 1220 
 Sponsonby's case, ii. 464 
 Spooner v. Brewster, ii. 272. iii. 863. 1104 
 
 V. Gardiner, i. 424, 425. ii. 230, 231 
 
 Spratt I'. Hobhouse, ii. 80, 81. 172 
 
 i\ JeiFerey, iii. 1190 
 
 Spreadbury i'. Chapman, app. ii. iii. 1440 
 
 Sprig-gins v. Wliite, app. ii. iii. 1491 
 
 Spring V. Eve, i. 233. 508 
 
 Sproatw. Matthews, ii. 208, 209 
 
 Sprottr. Powell, ii. 2. iii. 1171 
 
 Sprowle V. Legge, ii. 213 
 
 Spry V. Emperor, app. ii. iii. 1335. 1377 
 
 V. Flood, app. ii. iii. 1523. 1601 
 
 Spurgo V. Brown, i. 344. 355 
 Spurrier r. Elderton, iii. 1194 
 
 V. Vale, ii. 502 
 
 Spybey v. Hide, i. 439. iii. 1071, 1072 
 Squier v. Hunt, i. 457. iii. 1219 
 Squire v. Todd, iii. 1192, 1193 
 Squire's case, iii. 711 
 Squires v. Whisken, iii. 1234 
 Stacey v. Decy, iii. 801 
 Stackpole v. Simon, ii. 888 
 Stadgrooni, Ex parte, ii. 160 
 Stadt V. Lill, ii. 482, 483 
 
 Stafford (Mayor and Burgesses of) c. Bol- 
 ton, i. 471. ii. 212. 338. 708 
 
 Staff"ord v. Clarke, i. 263. ii. 125. iii. 829. 
 1040 
 
 V. Farrer, i. 486. ii. 62 
 
 Canal Comp. v. Ilalhn, iii. 746. 1253 
 
 (Lady) r. Luellin, iii. 914 
 
 Staiford's (Ld.) case, i. 190. ii. 386. iii. 1096 
 
 Stag i\ Punter, ii. 449 
 
 Staight V. Gee & Garver, ii. 601. 603 
 
 Stainer v. Droitwich (Burgesses ofj, i. 250 
 
 V. Wainwriglit, app. ii. iii. 1332 
 
 Stainford v. Staggs, ii. 88. 89 
 
 Stainton v. Jones, i. 503 
 
 Staley's case, iii. 1096 
 
 Stallwood V. Tredgar, ii. 699 
 
 Stamford Corporation r. Pawlett, iii. 906 
 
 Stamford's case, ii. 061 
 
 Stammers v. Dixon, i. 525. ii. 337. iii. 777, 
 778. 1125 
 
 Stamp V. Ayliffe, i. 237 
 
 Stanard v. Ullithorne, app. ii. iii. 1502 
 
 Stanbury v. Bolt, ii. 589, 590. 593 
 
 Stancliffe v. Hardwick, iii. 1165, 1166 
 
 Standen i'. Edwards, ii. 200 
 
 V. Standen, ii. 200. 698. 705. iii. 764. 
 
 770. 934 
 
 Stanford v. Cooper, iii. 1074 
 
 Stanford's case, ii. 653 
 
 Stanhope r. Baldwin, ii. 701 
 
 Staniforth v. Fellows, iii. 993 
 
 V. Lyall, iii. 852 
 
 Stanley v. Fielden, i. 416. ii. 586. iii. 1109 
 
 V. Jobson, i. 126 
 
 V. Jones, li. 66 
 
 V. Whartcm, ii. 394 
 
 V. White, ii. 405. iii. 1126 
 
 Stanley's (Sir C) case, iii. 716 
 
 Stanly v. Towgood, li. 348. 351 
 
 Stannard v. Forbes, ii. 347 
 
 Stansfield v. Johnson, ii. 479. 486 
 
 V. Levy, ii. 1 
 
 Stante v. Prickett, iii. 1104 
 
 Stanton v. Knight, iii. 1187 
 
 Ex parie, app. ii. iii. 1358 
 
 Stanway v. Perry, ii. 583. 584. iii. 1076, 
 1077 
 
 Stanynonght v. Cameron, ii. 435 
 
 Staplefield r. Yewd, ii. 85. 89 
 
 Staples V. Iloldsworth, app. ii. iii. 1504 
 
 I'. Okines, ii. 258 
 
 Stapleton v. Nowell, app. ii. iii. 1517 
 
 V. Stapleton, ii. 200 
 
 Starey r. Barnes, ii. 148. 185 
 
 Starke i\ Highgate Archway Co., ii. 339 
 
 Startup I'. Cortuzzi, iii. 1220 
 
 Statutes : 
 
 1 Rich. 1, c. 12, iii. 1019 
 
 12 Rich. 2, c. 2, ii. 64 
 
 13 Rich. 2, c. 19, app. ii. iii. 1609 
 27 Hen. 3, ii. 462 
 
 51 Hen. 3, st. 4, ii. 390 
 
 52 Hen. 3, c. 4, ii. 390, 391 
 Stat. Marl. c. 3, i. 454 
 Stat. AYest. 1, c. 14, ii. 5 
 
 4 Edw. 1, i. 238. 240. 309 
 
 6 Edw. l,c. 5, iii. 1244 
 11 Edw. l,ii. 408 
 13 Edw. 1, i. 157. ii. 408 
 h3
 
 CXVIU 
 
 TABLE OF CASES, 
 
 Statutes — conthmcd. 
 
 Stilt. \Vc8t. '2, 0.5, iii. 944. lUiy 
 
 Stat. VVost. '2, c. 34, ii. 009 
 
 18 Edw. l,i. 21 
 
 '21 Edw. l,8tat. '2, ii. G74 
 
 '27 Edw. 1, ii. 458 
 
 :U Edw. ], iii. 909 
 
 8 l<:(lw. '2, ii. 272 
 2 ImUv. 3, ii. 549 
 2 Edw. 3, 20, i. '223 
 
 24 Edw. 3, 34, i. 96 
 
 '25 Edw. 3, stilt. 4, e. 4, iii. 1253 
 
 27 Edw. 3, c. 2, ii. 408 
 34 Edw. 3, c. 13, i. 307 
 30 Edw. 3, c. 13, i. 307 
 42 Edw. 3, iii. 1245 
 
 2 llc'ii. 4, c. 4, iii. 1093 
 
 2 lien. 4, c. 15, ii. 599 
 
 3 Hen. 4, 10, iii. 909 
 
 4 Hen. 4, c. 12, iii. 943 
 
 6 Hen. 4, c. 12, ii. 408 
 
 7 Hen. 4, 15, ii. 534 
 10 Hen. 4, 7 a. ii. 597 
 
 7 Hen. 5, i. 405 
 
 9 Hen. 5,0. l,i. 465 
 15 Hich. '2, c. '2, ii. 302 
 15 Ricli. 2, c. 0, iii. 943 
 
 3 Hen. 0, 53, li. 534 
 
 7 Hen. 6, f. 43, ii. 600 
 
 8 Hen. 0, c. 9, i. 109. ii. 302. iii. 1118. 
 app. ii. iii. 1452 
 
 9 Hen. 0, c. 11, i. 286. ii. 698 
 18 Hen.6, c. 12, i. 405 
 
 23 Hen. 0, c. 0, iii. 1032 
 
 23 Hen. 0, c. 10, app. ii. iii. 1555 
 
 28 Hen. 0, c. 9, i. '231 
 83 Hen. 0, 55, i. 90 
 
 2 Edw. 4, 9 & 10, ii. 597 
 8 Edw. 4, 14 a, ii. 597 
 
 8 Edw. 4, 18, i. 223 
 
 9 Edw. 4, 51, ii. 535 
 
 13 Edw. 4, 9, 10, ii. 009. 012 
 
 2 Hen, 7, 11, ii. iii. 1244 
 4 Hen. 7, i. 98 
 
 4 Hen. 7, c. 13, i. 97 
 
 4 Hen. 7, c. 20, iii. 850 
 4 Hen. 7, c. 24, ii. 399. 402, 403. 
 458. 055. 911 
 12 Hen. 7, c. 5, ii. 60 
 
 14 Hen. 7, 9 b, ii. 597 
 
 20 Hen. 7, 18, iii. 1245 
 1 Hen. 8, ii. 457 
 
 1 Hen. 8, c. 8, i. '238. 307 
 
 3 Hen. 8,c. 11, iii. 849. 1310 
 
 4 Hen. 8, c. 8, ii. 038 
 7 Hen. 8,0.3, iii. 849 
 
 14Hen. 8,10, i 1.599 
 
 21 Hen. 8,0. 7, ii. 010 
 
 21 Hen. 8,0. 11, i. 153,154 
 
 21 Hen. 8,0. 13, iii. 943 
 
 22 Hen. 8, o. 5, ii. 273 
 '23 Hen. 8, c. 6, ii. 408 
 
 23 Hen. 8,0. 15,ii. 440 
 24IIen. 8, 0. 13,ii.429 
 27 Hen. 8, iii. 963 
 
 27 Hen. 8, o. 16, i, 410 
 '27 IIen.8,0. 28,iii. 1093 
 
 28 Hen. 8, ii. 457 
 
 28 UcM. 8,0. l,i. 98 
 
 28 Hen. 8, o. 3, app. ii. iii. 1619 
 
 Statutes — continual. 
 2H Hen. 8, c. 11, iii. 9()4 
 31 Hen. 8, iii. 1089 
 
 31 IIen.8,0. 13, iii. 1093 
 
 32 Hen. 8, ii. 343 
 
 32 Hen 8,c. 1, iii. 1200. 1276 
 
 32 Hen. 8, 0.2, iii. 898.911 
 
 32 Hen. 8, 0. 3, i. 98 
 
 32 IIen.8, 0. 5, iii. 1200 
 
 32 Hen. 8, 0. 24, iii. 1093 
 
 32 IIen.8,0. '28, li. 547 
 
 32 Hun. 8, 0, 33, ii. 403 
 
 32 Hen. 8, o. 34, ii. 349. app. ii. iii. 1389. 
 
 1405 
 32 1Ien.8, 0.37, iii. 971 
 
 32 IIen.8,0. 40, iii. 843 
 
 33 Hen. 8, o. 27, ii. 072 
 
 34 & 35 Hen. 8, c. 5, iii. 1200. 1270 
 1 Edw. 0,0. 12,1.99. 441.507. ii. 278. 
 
 iii. 1095 
 
 1 Edw. 0,0. 14, iii. 1093 
 
 2 &3 Edw. 0, iii. 1088 
 2 & 3 Edw. 0, 0. 8, i. 307 
 2 & 3 Edw. 0, 0, 13, iii. 1080, 1081. 
 
 1093 
 3&4Edw. 6, 0. 4, iii. 957 
 5 & 6 Edw. 6, 0. 10, ii. 341 
 5 & 6 Edw. 6, 0. 1 1, i. 507, ii. 386. iii. 
 
 1095 
 5&6 Edw. 6, 0.12, i. 507 
 5 & Edw. 0, 0. 15, ii. 04 
 1 & 2 Phil. & Mary, o. 10, i. 42.507. 
 
 iii. 1095 
 1 & 2 Phil. & Mary, c. 1 2, ii. 390 
 
 1 & 2 Phil. & Mary, o. 113, ii. 383 
 
 2 & 3 Pliil. & Mary,o. 7, iii. 1'227 
 2 & 3 Phil. & Mary, o, 10, i. 27. 42. 
 
 82. ii. 283 
 2 & 3 Phil. & Mary, o. 13, i. 27. 42 
 
 4 & 5 Phil. & Mary, o. 4, ii. 674 
 
 5 Eliz. c. 4, 1. 23'2. ii. 588. iii. 847 
 5Eliz.c.9, i. 78.80 
 5 Eliz. c. 14,i. 96 
 
 13 Eliz. i. 329. iii. 1084, 1085. 1087 
 13 Eliz. 0. 5, ii. 494, 495, 490. 520. iii. 
 
 1017. app. ii. iii. 1430, 1431 
 13 Eliz. c. 6, iii. 957 
 13 Eliz. c. 12, iii. 944 
 13 Eliz. 0. 20, ii. 429. iii. 1099. app. ii. 
 
 iii. 1002 
 18 Eliz. c. 3,ii. 581 
 18 Eliz. c. 5, ii. 94 
 ISEliz.o. 7, i. 98 
 27 Eliz. ii. 24 
 
 27 Eliz. 0. 4, ii. 498. iii. 1118. 1152 
 27 Eliz, c. 6, ii. 408 
 27 Eliz. c. 9, s. 8, i. 225. 408 
 27 Eliz. 0. ll,ii. 531 
 '27 Eliz. 0. 13, ii. 534 
 
 27 Eliz. 0. 18. iii. 1073 
 
 28 Eliz. c. 4, iii. 1031 
 
 29 Eliz. 0. 4, iii. 1023. app. ii. iii. 1550 
 31 Eliz. iii. 1084, 1085, 1086. 1227 
 31 Eliz. 2, ii. 458 
 31 Eliz. 0. 5, iii. 847. 849 
 31 Eliz. 0. 0, iii. 1084. app. ii. iii. 1532 
 83 Eliz. i. '203 
 39 Eliz. c. 15, ii. 278 
 43 Eliz. c. '2, iii. 760. 1001. 1121. app. 
 
 ii. iii. 1534
 
 TABLE OF CASE S. 
 
 CXIX 
 
 Statutf.s — continued. 
 43 Eliz. c. ;?, ill. 1121 
 43 Eliz. c. G, iipi). ii. iii. 1407. 1573. 
 157!) 
 1 Jac. l,c. 1, i. 23 
 
 1 Jac. 1, c. 11, i. 290. ii. 354. iii. 845. 
 895, 89(i. 929 
 
 1 Jac. 1,0. 15, i. 77. 79. 83. ii. 131. 
 171 
 
 - 1 Jac. l,c. 21, iii. 1148. 1227 
 
 2 Jac. 1, c. 22, iii. 1111 
 
 3 Jac. i. c. 7, ii. 110 
 
 7 Jac. 1, c. 5, iii. 1140. app. ii. iii. 
 
 1450 
 7 Jac. l,c. 12, i. 302 
 21 Jac. 1, i. 70. 105 
 21 Jac. l,c. 3, iii. 939 
 21 Jac. 1, c. 4, iii. 848. 851, app. ii. iii. 
 
 1520. 1522 
 21 Jac. 1, c. 10, ii. 000. iii. 913 
 21 Jac. 1, c. 12, ii. 584, 585. 000, 001. 
 
 003. iii. 1100. 1121 
 21 Jac. 1, c. 15, i, 77. 79. 109. 131. 130. 
 
 138. 171 
 21 Jac. 1, c. 10, ii. 399. 402, 403. 405. 
 051. 057. 059. 072. iii. 911. 994. 
 app. ii. iii. 1474 
 21 Jac. 1, c. 19. ii. 154. 150. 554. iii. 
 
 1240 
 2] Jac. l,c. 27, iii. 930 
 
 21 Jac. l,c. 92, iii. 1073 
 3 Car. 1, c. 1, ii. 290 
 
 10 Car. l,c. 7, iii. 1234 
 29 Car. 1, c. 27, ii. 587 
 12 Car. 2, c. 18, iii. 1104 
 
 12 Car. 2,0. 24, ii. 411 
 
 13 Car. 2, stat. 2, c. 1, ii. 838 
 13 & 14 Car. 2, iii. 751 
 
 13 & 14 Car. 2, c. 4, iii. 935 
 
 13 & 14 Car. 2. o. 12, ii. 831. 387. 438 
 
 14 Car. 2, iii. 1234 
 
 15 Car. 2, c. 2, i. 522. ii. 591. 001 
 
 10 Car. 2, c. 7, ii. 245. app. ii. iii. 
 
 1432 
 10 & 17 Car. 2, c. 8, iii. 1230. app. ii. 
 
 iii. 1389 
 17 Car. 2, c. 7, ii. 975. 1020 
 17 Car. 2, o. 8, ii. 444 
 19 Car. 2, c. 0, iii. 845. 929. 937 
 
 22 Car. 2, c. 8, ii. 60 
 22 & 23 Car. 2, i. 108 
 
 22 & 23 Car. 2, c. 9, app. ii. iii. 1579 
 
 22 & 23 Car. 2, c. 12, ii. 303 
 
 22 & 23 Car. 2, c. 25, ii. 5i)0, 601 
 
 29 Car. 2, c. 3, ii. 408. 472. iii. 1149. 
 
 1188. 1200. 1285. app. ii. iii. 1323 
 29 Car. 2, c. 7, ii. 93. 245. 290. iii. 
 
 847 
 1 W. & M. Stat. 2, 0. 2, ii. 038 
 
 1 W. & M. c. 18, ii. 001 
 
 2 W. & M. sess. 1, c. 5, ii. 390, 391, 
 392. app. ii. iii. 1400, 1401 
 
 3 W. & M. 0. 9, i. 241 
 
 3 & 4 W. & M. c. 5, ii. 520 
 3 & 4 W. & M. c. 9, i. 99. ii. 801 
 3 & 4 W. & M. c. 11, i. 158. iii. 1003. 
 app. ii. iii. 1542 
 
 3 & 4 AV. & M. c. 14. ii. 519, 520, 
 .521 
 
 4 W. & M. c. 8, i. 84. ii. 21 
 
 Statutes — continued. 
 
 4 iS; 5 Will. 3, c. 3, i. 510 
 
 4 & 5 W, & M. 0. 20, ii. 449 
 
 4 & 5 Will. 3, c. 23, ii. 503. iii. 1117 
 
 5& 6 W. & M. c. ll,i. l.'io 
 
 06 7 Will. 3,0. 17, i.84. ii. 12 
 
 7 Will. 3, c. 3, i. 23. 80. 422. 507. 
 iii. 1095, 1090 
 
 7 & 8 Will. 3, c. 0, iii. 1080 
 7 & 8 W. 3, c. 7, i. 242 
 
 7 & 8 Will. 3, 0. 34, i. 23 
 8&9Will. 3, c. 11, ii. 4. 208. iii. 
 
 851. 855. 1080. 1105. 1117 
 
 8 & 9 Will. 3, c. 20, ii. 310, 311, 312 
 8 & 9 Will. 3, c. 27, iii. 1015. 1020, 
 
 1021,1022 
 8 & 9 Will. 3, c. 30, i. 372. iii. 900 
 
 8 &9 Will. 3, 0. 48, iii. 1021 
 
 9 & 10 Will. 3, app. ii. iii. 1343 
 9 & 10 Will. 3, c. 11, iii. 1003 
 9& 10 Will. 3, c. 15, iii. 1074 
 
 9 & 10 Will. 3, 0. 17, ii. 231, 232 
 9 & 10 Will. 3, 0. 25, iii. 1056 
 
 9 & 10 Will. 3, 0. 44, iii. 875 
 10 Will. 3, 0. 28, ii, 12 
 
 10& 11 Will. 3,0, 10, ii. 412 
 10& 11 Will. 3, c. 23, i. 84 
 12 & 13 Will. 3, iii. 1097 
 
 1 Anne, st. 1, c. 7, iii. 1100 
 
 1 Anne, c. 9, s. 3, i. 24. 80 
 
 1 Anne, c. 18, ii. 275 
 
 3 & 4 Anne, c. 9, ii. 215. 283 
 
 4 Anne, c. 10, ii. 402. 072. iii. 979. 
 app. ii. iii. 1488 
 
 4 & 5 Anne, c. 9, ii. 205 
 
 4 & 5 Anne, c. 10, i, 231. ii. 653 
 
 5 Anne, c. 6, i. 99 
 
 6 Anne, c. 14, 1. 134. 516. ii. 500. 502. 
 500 
 
 5 Anne, 0. 31, i. 84. ii. 12 
 Anne, c. 10, ii. 47 
 
 6 Anne, c. 18, iii. 987. 1102 
 
 7 Anne, o. 20, ii. 108. iii. 782 
 
 7 Anne, o. 21, npp. ii. iii. 1509 
 
 8 Anne, c. 9, ii. 247, iii. 1054. app. ii- 
 iii. 1558 
 
 8 Anne, c. 14, iii. 849. 970, 971.1026. 
 app. ii. iii. 1408. 1554 
 
 8 Anne, c. 19, iii. 988. 940, 941 
 
 9 Anne, o. 10, iii. 849. app. ii. iii. 
 1521 
 
 9 Anne, c. 14, i. 95. 1.57. ii. 12. 246. 
 445. 507. 508. iii. 798. 851. 1234, 
 1285. app ii. iii. 1332. 1432 
 
 9 Anne, c. 25, ii. 501. 503 
 
 10 Anne, c. 15, ii. 186 
 10 Anne, c. 18, i. 412 
 12 Anne, iii. 849 
 12 Anne, c. 7, ii. 277 
 12 Anne, stat. 2, o. 16, iii. 1185 
 
 1 Geo. 1,0. 2, ii. 532 
 
 1 Geo. 1, stat. 2, c. 5, ii. 721 
 
 1 Geo. 1,0. 10, ii. 115 
 
 3 Geo. l,iii. 1021 
 
 4 Geo. 1,0. 11,1.98 
 6 Geo. 1, c. 18, iii. 892 
 
 6 Geo. 1,0. 23, ii. 302. 574 
 
 7 Geo. 1, 0. 21, iii. 1218 
 
 7 Geo. l,c. 31, ii. 185 
 
 8 Geo. 1, c. 25. ii. 403 
 h 4
 
 cxx 
 
 TABLE OF CASES. 
 
 Statutes — continued. 
 
 9 Geo. 1, c. 7 ii. 309. iii. 70G 
 9 Geo. 1, c. 22, i. 4(50. ii. 49, 50. 531 
 533. G94 
 10 Geo. 1, c. 10, ii. GOO 
 12 Geo. 1, ii. G8G 
 21 Geo. 1, c. 19, ii. 156 
 
 2 Geo. 2, iii. 1297 
 
 2 Geo. 2, c. 20, ii. 303 
 
 2 Geo. 2, c. 22, iii. 992 
 
 2 Geo. 2, c. 23, ii. 108, 109. iii. 1075. 
 
 app. ii. iii. 1341 
 2 Geo. 2, c. 24, i. 143, ii. 271. iii. 851. 
 
 app. ii. iii. 1374 
 2 Geo. 2, c. 2G, i. 40G 
 2 Geo. 2, c. 35, iii. 1306 
 
 2 Geo. 2, c. 3G, i. 406. iii. 1297 
 
 3 Geo. 2, c. 2G, iii. 848. 850. app. ii. iii. 
 1453 
 
 4 Geo. 2, c. 19, iii. 1180 
 
 4 Geo. 2, c. 28, i. 441. ii, 418. 422, 
 423. 445. iii. 971. app. ii. iii. 
 1590 
 
 5 Geo. 2, c. 30, i. 83. 92. 317. ii. 94. 
 110. 185, 186, 187. 190. 194. 675. 
 iii. 994 
 
 5 Geo. 2, ii. 122 
 
 6 Geo. 2, c. 32, iii. 992 
 
 5 Geo. 2, c. 39, iii. 1112 
 G Geo. 2, c. 5, ii. 157 
 
 6 Geo. 2, c. 31, ii. 201. 438 
 
 7 Geo. 2, c. 8, i. 191. iii. 1220. app. 
 ii. iii. 1598 
 
 7 Geo. 2, c. 20, ii. 53. app. ii. iii. 
 
 1411 
 7 Geo. 2, c. 22, ii. 590 
 
 7 Geo. 2, c. 28, ii. 246 
 
 8 Geo. 2, e. 6, i. 412 
 
 8 Geo. 2,0. 13, iii. 941 
 8 Geo. 2, c. 16, iii. 798 
 
 8 Geo. 2, c. 24, iii. 995 
 
 9 Geo. 2, c. 11, ii. 703 
 9 Geo. 2, c. 35, iii. 721 
 
 9 Geo. 2, c. 36, ii. 115. app. i. 622. 
 ajip. ii. iii. 1435 
 
 10 Geo. 2, c. 28, app. ii. iii. 1521 
 
 11 Geo. 2, iii. 1153. 1176 
 11 Geo. 2, c. l,iii. 976 
 11 Geo. 2, c. 14, iii. 970 
 
 11 Geo, 2, c. 19, i. 81. 83. ii. 389, 390, 
 
 391,392, 393, 394. 438. 475. 587. 
 
 iii. 971, f 72, 973. 1027. 1034. 1108. 
 
 1119. 1121. 1133. 1180. app. ii. iii. 
 
 1325. 1400 
 11 Geo. 2,0. 23, iii. 1024 
 
 11 Geo. 2, 0. 30, ii. -307 
 
 12 Geo. 2, 0. 13, ii. 110, ajjp. ii. iii. 
 1341 
 
 12 Geo. 2, c. 28, ii- 507 
 
 12 Geo. 2, c. 36, iii. 847. 938. 941 
 
 13 Geo. 2, ii. 507 
 
 13 Geo. 2, 0. 18, iii. 952 
 
 13 Geo. 2, 0. 19, iii. 1234 
 
 14 Geo. 2, c. 6, i. 84. ii. 605 
 14 Geo. 2, c. 20 iii. 963 
 
 14 Geo. 2, 0. 38, iii. 953 
 14Geo. 2, 0. 48,iii. 1234 
 
 15 Geo. 2, c. 13, ii. 468 
 15 Geo. 2, c. 18, i. 84 
 
 Statutes — continued. 
 
 15 Geo. 2, 0. 28, ii. 12. 312 
 15 Geo. 2, 0. 30, ii. 704 
 17 Geo. 2, ii. .596 
 17 (ieo. 2, c. 3, iii. 752. 953 
 17 Geo. 2, c. 5, ii. 585 
 
 17 Geo. 2, 0. 38, i. 246. 284. ii. 570. 
 691. iii. 752. 953. 1133. app. ii. iii. 
 1498 
 
 18 Geo. 2, c. 20, ii. 581. app. ii iii. 
 1540 
 
 18 Geo. 2, 0. 34, ii. 507, 508. iii. 
 1234 
 
 19 Geo. 2, 0. 32, ii. 171 
 
 19 Geo. 2, c. 33, app. ii. iii, 1482 
 
 19 Geo, 2, c. 37, i. 464. ii. 567. iii. 
 867 
 
 20 Geo. 2, 0. 19, ii. 588. app. ii. iii. 
 1625 
 
 20 Geo. 2, c. 29, iii. 969 
 
 22 Geo. 2, c. 44, ii. 596. app. ii. iii. 
 1489 
 
 23 Geo. 2, c. 13, i. 157. iii. 851 
 
 24 Geo. 2, iii. 730 
 
 24 Geo. 2, o. 19, iii. 848 
 
 24 Geo. .2,0. 23, iii. 1001 
 
 24 Geo. 2, c. 24, app. ii. iii. 14.j2 
 
 24 Geo. 2, c. 40, ii. 63. 247. iii. 
 
 1218 
 24 Geo, 2, c. 44, ii. 331. 389. 580. 582. 
 
 694. 596, 597, 598. 600. iii. 798. 
 
 1120. 1139. app. ii. iii. 1379. 1456. 
 
 1565 
 24 Geo. 2, c. .55, app. ii. iii. 1456 
 
 24 Geo. 2,0. 114, iii. 1145 
 
 25 Geo. 2, o. 6, iii. 1265 
 25 Geo. 2, c. 13, iii. 972 
 
 25 Geo. 2, o. 36, i. 84. ii. 560. iii. 793. 
 app. ii. iii. 1522 
 
 26 Geo. 2, o. 33, i. 241. ii. 698, 699. 701, 
 702, 703 
 
 26 Geo. 2, o, 59, iii. 1079 
 
 27 Geo. 2, o. 3, i. 84 
 
 27 Geo. 2, c. 20, ii. 389, 391. iii. 
 
 751 
 27 Geo. 2, c. 28, ii. 597 
 29 Geo. 2, c. 25, ii. 596 
 29 Geo. 2, c. 30, ii. 12 
 31 Geo. 2, 0. 10, i. 101. iii. 857 
 31 Geo. 2,0. 11, ii. 588 
 
 31 Geo. 2, 0. 35, iii. 1264 
 
 32 Geo. 2, o. 28, iii. 1031, 1032 
 
 2 Geo. 3, 0. 22, i. 246 
 
 3 Geo. 3, 0. 16, i. 342 
 
 4 Geo. 3,0. 33, ii, 184, 194 
 
 6 Geo, 3, c. 25, app. ii. iii. 1452 
 6 Geo. 3, 0. 36, ii. 674 
 
 6 Geo. 3, 0. 48, ii. 591 
 
 7 Geo. 3,0. 50, i. 450. ii. C15 
 
 12 Geo. 3, c. 21, i. 341 
 
 13 Geo. 3, c. 31, i. 83 
 
 13 Geo. 3,0. 51, iii. 1230 
 
 13 Geo. .3, 0. 63, i. 320. 322, 323 
 
 13 Geo. 3, 0. 78, ii. 80, 522, 523. 692. 
 
 iii. 970. 1171. 1259 
 13 Geo. 3, 0. 80, ii. 691 
 
 13 Geo. 3, 0. 84, ii. 527 
 
 14 Geo. 3, 0. 48, iii. 868. 1231. app. ii. 
 iii 1415. 1601 
 
 14 Geo. 3, c, 70, ii, 93
 
 TABLE OV CASES. 
 
 CXXl 
 
 Statutes — continued. 
 
 14 Geo. 3, c. 78, iii. 748. WZl. i\\)\>. ii 
 
 iii. 1416 
 1.5 Geo. 3, c. 39, i. 82 
 
 17 Geo. 3 
 17 Geo. 3 
 17 Goo. 3 
 17 Geo. 3 
 
 17 Geo. 3 
 
 18 Geo. 3 
 
 19 Geo. 3 
 
 20 Geo. 3 
 
 20 Geo. 3 
 
 21 Geo. 3 
 
 21 Geo. 3 
 
 22 Geo. 3 
 22 Geo. 3 
 
 22 Geo. 3 
 
 23 Geo. 3 
 23 Geo. 3 
 23 Geo. 3 
 
 1106 
 
 23 Geo. 3 
 
 24 Geo. 3 
 
 25 Geo. 3 
 
 26 Geo. 3 
 
 27 Geo. 3 
 
 27 Geo. 3 
 
 28 Geo. 3 
 28 Geo. 3 
 20 Geo. 3 
 31 Geo. 3 
 31 Geo. 3 
 
 c. 26, iii. 1186 
 
 c. 30, ii. 203 
 
 c. 47, iii. 940 
 
 c. 50, app. ii. iii. 15i)8 
 
 c. 57, iii. 940 
 
 c. 19, i. 84 
 
 c. 74, i. 99 
 
 c. 17, app. ii. iii. 1563 
 
 c. 57, i. 381 
 
 c. 37, i. 157, Iii. 851 
 
 c. 53, ii. 699 
 
 c. 19, ii. 586 
 
 c. 58, ii. 600 
 
 c. 83, ii. 569. iii. 752 
 
 c. 49, iii. 10.56 
 
 c. 50, iii. 1056 
 
 c. 70, ii. 97. 582. iii. 750. 
 
 iii. 1044. 
 
 C.88, ii. 590 
 c. 47, iii. 1106 
 c, 63, iii. 1049 
 c. 77, i. 503 
 c. 1, iii. 1077 
 c. 29, i. 1.58 
 c. 50, ii. 500 
 c. 56, iii. 872 
 c. 10, ii. 624 
 iii. 1297 
 c. 11, iii. 1001 
 31 Geo. 3, c. 25, ii. 254. 
 1055 
 
 31 Geo. 3, c. 35, i. 95 
 
 32 Geo. 3, iii. 1040 
 
 32 Geo. 3, c. 54, ii. 498, 499 
 
 32 Geo. 3, c. 56, iii. 851 
 
 32 Geo. 3, c. 57, ii. 247 
 
 32 Geo. 3, c. 58, i. 341. iii. 945. 949 
 
 32 Geo. 3, c. 60, ii. 645, 646 
 
 33 Geo. 3, c. 101, app. ii. iii. 1492 
 33 Geo. 3, c. 5, ii. 340 
 
 33 Geo. 3, c. 13, iii. 1059 
 
 33 Geo. 3, c. 54, ii. 498, 499. iii. 
 
 1044 
 33 Geo. 3, c. 55, iii. 1237 
 33 Geo. 3, c. 75, iii. 851 
 
 33 Geo. 3, c. 84, ii. 592 
 
 34 Geo. 3, c. 20, iii. 1247 
 
 34 Geo. 3, e. 68, iii. 809. 1217 
 84 Geo. 3, c. 74, ii. -529 
 
 35 Geo. 3, c. 55, iii. 1056 
 
 35 Geo. 3, c. 63, iii. 867. 1049. 1055 
 
 35 Geo. 3,0. 101, iii. 1007 
 
 36 Geo. 3, c. 83, iii. 944 
 
 37 Geo. 3, c. 19, ii. 533. iii. 1056 
 
 37 Geo. 3, c. 90. ii. 107. 111. 506. 
 
 iii. 1046. 1054. app. ii. iii. 1558 
 37 Geo. 3, c. 123, app. ii. iii. 146] 
 37 Geo. 3, c. 126, ii. 310. 312 
 
 37 Geo. 3, c. 136, iii. 1054, 1055, 
 1056 
 
 38 Geo. 3, c. 2, iii. 848 
 
 38 Geo. 3, c. 5, ii. 889. app. ii. iii. 
 
 1563 
 88 Geo. 3, c. 78, ii. 624 
 
 38 Geo. 3, c. 87, ii. 442 
 
 39 Geo. 3, c, 12, app. ii. iii. 1378 
 
 Statuti^s — continued. 
 39 (Jeo. 3, c. 69, iii. 730 
 39 Geo. 3, c. 8-5, ii. 611. 615 
 39 & 40 Geo. 3, c. 99, ai)p. ii. iii. 
 
 1512 
 39 & 40 Geo. 3, c. 105, iii. 1078 
 41 Geo. 3, c. 23, iii. 952 
 41 Geo. 3, c. 31, ajjp. ii. iii. 1375, 
 
 1436 
 41 Geo. 3, c. 70, ii. 563 
 41 Geo. 3, c. 90, i. 233 
 41 Geo. 3, c. 107, iii. 938. 941 
 
 41 Geo. 3, c. 109, i. 83. 86. iii. 1125 
 
 42 Geo. 3, c. 46, i. 246 
 42 Geo. 3, c.81,ii. 294 
 42 Geo. 3, c. 85, i. 322 
 42 Geo. 3, c. 107, i. 421 
 
 42 Geo. 3,0. 116, i. 251 
 
 43 Geo. 3, c. 26, iii. 954 
 
 43 Geo. 3, c. 46, ii. 688. iii. 1031. app. 
 
 ii. iii. 1476, 1477 
 43 Geo. 3, c. 58, ii. 50, 51, 52. 574. 691. 
 
 693, 694 
 43 Geo. 3, c. 59, ii. 273 
 43 Geo. 3, o. 85, ii. 585 
 43 Geo. 3, c. 99, ii. 268 
 43 Geo. 3, c. 126, iii. 1069 
 43 Geo. 3, o. 127, ii. 254 
 43 Geo. .3, c. 140, i. 81. ii. 584 
 43 Geo. 3, c. 141, ii. 584 
 
 43 Geo. 3, c. 160, iii. 882 
 
 44 Geo. 3, o. 77, ii. 699 
 44 Geo. 3, o. 92, i. 83 
 
 44 Geo. 3, c. 98, iii. 1040, 1041. 
 10.55 
 
 44 Geo. 3,0. 102, i. 81 
 
 45 Geo, .3, c. 72, ii. 247 
 45 Geo. 3,0.89, iii. 930 
 45 Geo. 3, o. 92, i. 83, 84 
 
 45 Geo. 3, c. 126, i. 194 
 
 46 Geo. 3, c. 37, i. 159. 190, 191 
 46 Geo. 3, c. 43, iii. 1040 
 
 46 Geo. 3, c. 101, iii. 992, 993 
 46 Geo. 3, c. 135, ii. 17.3, 174. 177 
 
 46 Geo. 3, c. 138, ii. 170 
 
 47 Geo. 3,0. 1,1.316 
 
 47 Geo. 3, c. 68, i. 247. iii. 1218 
 
 47 Geo. 3, o. 74, ii. 670 
 
 48 Geo. 3, c. 14, iii. 1055 
 
 48 Geo. 3, c. 74, i. 222. ii. 670 
 48 Geo. 3, o. 93, ii. 501 
 48 Geo. 3, c. 123, ii. 364. .563 
 48 Geo. 3, o. 126, iii. 875, 876 
 48 Geo. 3, c. 127, ii. 699 
 48 Geo. 3,0. 129, iii. 1056 
 
 48 Geo. 3, o. 149, ii. 249. 332. iii. 1038. 
 1040,1041.1044.1046, 1047, 1048, 
 1049. 1054. app. ii. iii. 1322 
 
 49 Geo. 3, c. 12, iii. 750 
 
 49 Geo. 3, c. 68, ii. 693. app. ii. iii. 
 
 1455 
 49 Geo. 3, o. 121, i. 77. 83. 110. 317. 
 
 ii. 125. 132. 185. 189. 259. iii. 1061, 
 
 1062. app. ii. iii. 1512 
 
 49 Geo. 3, c. 125, ii. 498 
 
 50 Geo. 3, 0. 48, i. 249. iii. 738 
 50 Geo. 3, 0. 49, iii. 750 
 
 52 Geo. 3, o. 3, iii. 1306 
 62 Geo. 3, o. 39, iii. 739 
 62 Geo. 3, c. 63, ii. 617
 
 CXXIl 
 
 TABLE OF C A H E S. 
 
 Statutes — ecu t in ncil. 
 52 Geo. ;3, f. !):$, ii. ^00 
 52 Geo. 3, c. VM, ii. 531 
 52 Geo. 3, c. 143, ii. 000 
 
 52 Geo. 3, c. 140, i. 243, 244. ii. 099 
 
 53 Geo. 3, c. 102, ii. 350. 5G2, 503. app. 
 ii. iii. 1445 
 
 63 Geo. 3, c. 127, ii. GOO. iii. 1080. app. 
 ii. iii. 1489 
 
 53 Geo. 3, c. 159, app. ii. iii. 1494 
 53 Geo. 3,0. 170. iii. 978 
 53 Geo. 3, c. 192, ii. 333 
 
 53 Geo. 3, c. 194, iii. 1310 
 
 54 Geo. 3, c. 15, i. 322 
 54 Geo. 3, c. 90, iii. 847 
 
 54 Geo. 3, c. 107, ii. 309. iii. 1002 
 
 54 Geo. 3, c. 137, i. 270. iii. 992 
 
 54 Geo. 3, c. 141, ii. 501 
 
 54 Geo. 3,0. 145, ii. 100 
 
 54 Geo. 3, c. 150, iii. 938. 939. 941 
 
 54 Geo. 3, o. 108, iii. 902 
 
 64 Geo. 3, c. 170, i. 100. 109. 158. 100. 
 191. 383. ii. 530. app. i. 596. 598. 
 ii. iii. 1412 
 
 64 Geo. 3, c. 91, app. ii. iii. 1566 
 
 54 Geo. 3, c. 184, app. ii. iii. 1557 
 
 64 Geo. 3. c. 194, app. ii. iii. 1325 
 
 55 Geo. 3, o. 19, app ii. iii. 1372 
 
 65 Geo. 3, c. 51, iii. 952 
 
 65 Geo. 3, o. 68, ii. 521, 522, 523 
 65 Geo. 3, o. 108, i. 83. 87. iii. 1007 
 55 Geo. 3, c. 137, i. 482. ii. 309. iii. 
 
 751. app. ii. iii. 1498 
 65 Geo. 3,0. 1 39, iii. 752 
 65 Geo, 3, c. 144, app. ii. iii. 1558 
 
 55 Geo. 3, o. 140, i. 392 
 65 Geo. 3, c. 180, ii. 438 
 
 65 Geo. 3,0. 184, iii. 1035, 1030. 1038. 
 
 1040. 1042, 1043, 1044, 1045, 1040, 
 
 1047,1048.1051. 1054, 1056. app. 
 
 ii. iii. 1322. 1372. 1557, 1588 
 65 Geo. 3, c. 192, ii. 333. app. ii. iii. 
 
 1384 
 
 65 Geo. 3, c. 194, ii. 47. app. ii. iii. 
 1325 
 
 56 Geo. 3, c. 50, ii. 390 
 
 66 Geo. 3, o. 68, iii. 1008 
 
 66 Geo. 3, c. 139, iii. 1001. app. ii. iii. 
 1548, 1549 
 
 67 Geo. 3, c. 19, iii. 730. app. ii. iii. 
 1461 
 
 57 Geo. 3, c. 29, ii. 528 
 
 67 Geo. 3, c. 93, ii. 389. 391. 393. 399. 
 
 app. ii. iii. 1400 
 67 Geo. 3, c. 97, app. ii. iii. 1531 
 
 67 Geo. 3, c. 99, iii. 904, 965. 1003 
 
 58 Geo. 3,0. 41, iii. 1171 
 
 68 Geo. iii. c. 45, app. i. 607 
 68 Geo. iii. o. 69, iii. 1233 
 68 Geo. 3, o. 70, i. 84 
 
 68 Geo. 3, c. 93, ii. 246 
 
 68 Geo. 3, c. 127, i. 96 
 
 69 Geo. 3, c. 12, i. 317. ii. 309. iii. 1007. 
 1100. app. ii. iii. 1498. 1588 
 
 69 Geo. 3, c. 40, ii. 11 
 
 69 Geo. 3, c. 50, ii. 1001, 1005 
 
 59 Geo. 3, o. 69, app. ii. iii. 1324. 
 1379 
 
 69 Geo. 3, c. 96, iii. 1231 
 
 Statutes — contlmied. 
 59 Geo. 3, c. 128, ii. 498 
 59 (Jco. 3, 0. 158, ii. 498 
 
 1 Geo. 4, c. 56, iii. 3851. 1444 
 
 1 Geo. 4, c. 87, ii. 424. app. ii. iii. 
 
 1411 
 1 Geo. 4,0. 101, i. 322 
 1 Geo. 4,0. 114, ii. 564 
 1 Geo. 4, 0. 119, ii. 350. 561, 562, 
 
 503, 504, 565. app. ii. iii. 1445 
 1 & 2 Geo. 4, 0. 21, i. 168. iii. 1002 
 1 & 2 Geo. 4, 0. 32, iii. 1002 
 1 & 2 Geo. 4, c. 55, iii. 764. 1047 
 1 & 2 Geo. 4, 0. 75, iii. 1152. 1299 
 1 &2 Geo. 4, 0. 77,ii. 224 
 1 & 2 Geo. 4, c. 78, ii. 204. 206. 209. 
 
 214. 255 
 1 & 2 Geo. 4, c. 87, ii. 24 
 1 & 2 Geo. 4,0. 118, ii. 590 
 3 Geo. 4, 0. 23, ii. 585 
 3 Geo. 4, 0. 39, iii. 1236, 1237. app. 
 
 ii. iii. 1351. 1565. 1003 
 3 Geo. 4, 0. 55, ii. 603 
 3 Geo. 4, 0. 75, ii. 701, 702 
 3 Geo. 4, 0. 102, iii. 1075 
 3 Geo. 4, 0. 123, ii. 561 
 
 3 Geo. 4, c. 126, i. 160. ii. 521, 522. 
 530. iii. 1172, 1173. app. ii. iii. 
 1521. 1505. 1508. 1578 
 
 4 Geo. 4, 0. 7, app. ii. iii. 1482 
 4 Geo. 4,0. 10, ii. 138 
 
 4 Geo. 4, c. 29, ii. 585 
 4 Geo. 4, 0. 33, ii. 146 
 4 Geo. 4, c. 34, ii. 586, 587. iii. 1296. 
 
 app. ii. iii. 1455. 1625 
 4 Geo. 4, 0. 41, ii. 156. iii. 868, 869. 
 
 1166. 1302 
 4 Geo. 4, 0. 54, ii. 629. app. ii. iii. 
 
 1664 
 4 Geo. 4, 0. 76, ii. 699. 702. app. ii. iii. 
 
 1482 
 4 Geo. 4, c. 8.3, ii, 42 
 4 Geo. 4, 0. 91, ii. 704. app. ii. iii. 
 
 1483 
 
 4 Geo. 4, c. 95, ii. 521. 527. app. ii. iii. 
 1437 
 
 5 Geo. 4, c. 11, app. ii. iii. 1373 
 
 6 Geo. 4, c. 18, ii. 591. 590. app. ii. iii. 
 1025 
 
 5 Geo. 4, 0. 74, ii. 480 
 
 5 Geo. 4, c. 83, iii. 732. app. ii. iii. 
 
 1452. 1521 
 5 Geo. 4, c 84; app. i. 592 
 5 Geo 4, 94, iii. 871 
 
 5 Geo. 4,0. 90, iii. 1296 
 
 6 Geo. 4, 0. 98, ii. 130 
 
 5 Geo. 4, c. 112, app. ii. iii. 1622 
 Geo. 4, 0.0, i. 85. iii. 1143 
 G Geo. 4, 0. 10, ii. 150 
 
 6 Geo. 4, 0. 16, i. 77. 83. 86. 92. 398. 
 ii. 70. 94. 114. 121, 122, 123, 124. 
 126, 127. 129, 130, 131, 188. 146. 
 147, 148. 150, 151, 152, 153, 154. 
 162. 165, 167, 168. 170, 171, 172, 
 173, 174, 175, 176, 177,178. 180, 
 181, 182, 183, 184, 185, 186, 187, 
 188, 189, 190. 193, 194. 350. iii. 
 IJ92. 1023. 1061, 1062. 1148. 1177. 
 1183. 1237. app. ii. iii. 1345, 1346,
 
 TABLE OF CASES. 
 
 cxxni 
 
 Statutes — continued. 
 
 i;U7,i:U8. 1;3.j1, VX,->. 13;j;j,li]r)(i, 
 
 13a7, 13/58, 13.'j<J, 13(J0, 13G1. 1449. 
 
 1520. 1582. 1G25 
 6 Geo. 4, c. 18, ii. 698 
 6 Geo. 4, c. 20, iii. 1218 
 6 Geo. 4, c. 41, iii. 1044. app. ii. iii. 
 
 1557 
 6 Geo. 4, c. 42, app. ii. iii. 1509 
 C Geo 4, c. 50, i. 536. ii. 580. app. ii. 
 
 iii. 1451 
 6 Geo. 4, c. 57. iii. 1004, 1005 
 6 Geo. 4, c. 66, iii. 1226 
 6 Geo. 4, c. 80, iii. 750 
 6 Geo. 4, c. 86, i. 317 
 6 Geo. 4,c. 87, app. ii. iii. 1423 
 6 Geo. 4, c. 92, ii. 699 
 6 Geo. 4, c. 94, ii. 648. iii. 872. 1146. 
 
 1149, 1150. app. ii. iii. 1419 
 6 Geo. 4, c. 104, iii. 868 
 6 Geo. 4, c. 107, i. 473 
 6 Geo. 4, c. 108, iii. 750. app. il. iii. 
 
 1520 
 6 Geo. 4,0. 109, iii. 890 
 6 Geo. 4, c. 110, iii. 869. 1302 
 6 Geo. 4, c. 112, iii. 1223 
 6 Geo. 4, c. 125, app. ii. iii. 1452. 
 1521 
 
 6 Geo. 4, c. 133, ii. 47. app. ii. iii. 
 1325 
 
 7 Geo. 4, c. 16, ii. 465. 
 7 Geo. 4, c. 36, ii. 120 
 7 Geo. 4, c. 37, ii. 350 
 
 7 Geo. 4, c. 46, ii. 146. iii. 800. 807. 
 
 app. ii. iii. 1303. 1505, 1506 
 7 Geo. 4, c. 48, iii. 869 
 7 Geo. 4, c. 57, i. 304. ii. 146. 561, 
 
 562, 563, 564. iii. 1021. 1027. 1177. 
 
 app. ii. iii. 1431. 1445, 1446. 1448 
 7 Geo, 4, c. 64, i. 24. 82. 85. 315. 327. 
 
 ii. 3. 38. 341. 386. 438. iii. 957. 
 
 app. i. 592. iii. 1460, 1461. 1580 
 7 Geo. 4, c. 65, ii. 382 
 7 & 8 Geo. 4, c. 3, iii. 1144 
 7 & 8 Geo. 4, c. 15, ii. 225 
 7 & 8 Geo. 4, c. 17, ii. 389 
 7 &8 Geo. 4, c. 18, iii. 736 
 7 & 8 Geo. 4, c. 20, s. 46, ii. 615 
 7 & 8 Geo. 4, c. 24, ii. 521. iii. 1172 
 7 & 8 Geo. 4, c. 27, ii. 12 
 7 & 8 Geo. 4, c. 28, i. 100, 101. ii. 
 
 302.470,471. 
 7 & 8 Geo. 4, e. 29, i. 95. 154. 158. 
 
 ii. 8, 9. 53. 277, 278, 279. 457. 609. 
 
 615, 616, 617. 681. 693. app. i. 628. 
 
 ii. iii. 1327. 1420, 1421. 1457, 1458. 
 1460. 1464 
 7 & 8 Geo. 4, c. 30, ii. 40, 50, 51, 52. 
 
 532, 533. 588. 591. 507. 604, 605. 
 
 iii. 1143, 1144. app. ii. iii. 1438. 
 
 1450. 1454. 1470. 1480 
 7 & 8 Geo. 4, c. 31, i. 158. ii. 530. 
 
 533 
 7 & 8 Geo. 4, c. 53. iii. 749 
 7 &8 Geo. 4, c. 90, iii. 1144 
 9 Geo. 4, c. 3, ii. 588 
 9 Geo. 4, c. 14, ii. 356. 373. 487. 655. 
 559. em. 660. iii. 824. 004. 1058. 
 app. ii. iii. 1397. 1442. 1473 
 
 Statutes — co7it'iniicd. 
 
 9 Geo. 4, c. 15, i. 23. 404. ii. G2G. app. 
 
 i. 632. ii. iii. 1522 
 9 Geo. 4, c. 17, ii. 338. app. ii. iii. 1406 
 
 9 Geo. 4, c. 22, app. ii. iii. 1378. 1412 
 
 9 Geo. 4, c. 24, ii. 200 
 
 Geo. 4, c. 31, i. 507. ii. 587. 691, 
 
 692. 694. iii. 724. 893. 895. 949. 
 
 1008. app. ii. iii. 1432. 1478. 1480. 
 
 1489. 1527. 1.533 
 9 Geo. 4, c. 32, i. 100, 101. 152. ii. 
 
 470. app. i. 580. 620. ii. iii. 1324 
 Geo. 4, c. 43, iii. 002 
 Geo. 4, c. 60, ii. 506 
 
 Geo. 4, c. 64, app. ii. iii. 1400 
 
 9 Geo. 4, c. 69, ii, 506. app. ii. iii. 
 
 1431 
 9 Geo. 4, c. 77, app. ii. iii. 1438 
 9 Geo. 4, c. 91, app. ii. iii. 1482 
 9 Geo. 4, c. 92, app. ii. iii 1585 
 
 10 Geo. 4, c. 7, app. ii. iii. 1496 
 
 10 Geo. 4, c. 44, ii. 601 
 
 10 Geo. 4, c. 56, ii. 408, 409 
 
 11 Geo. 4, ii. 204, 295. 424, 466 
 11 Geo. 4,0. 11, iii. 1027 
 11 Geo. 4 & 1 Will. 4, o. 20, iii. 1291 
 11 Geo. 4 & 1 Will. 4, o. 38, app. ii.iii. 
 
 1445 
 11 Geo. 4 & 1 Will. 4, c. 47, ii. 519. 
 
 521. app. ii. iii. 1355 
 11 Geo. 4 & 1 Will. 4, c. 64, app. ii. iii. 
 
 1452 
 11 Geo. 4 & 1 Will. 4, c. 66, app. ii. iii. 
 
 1424. 1426 
 11 Geo. 4 & 1 Will. 4, e. 68, app. ii. iii. 
 1377 
 1 Will. 4, app. ii. iii. 1568 
 1 Will. 4, c. 3, ii. 1310 
 1 Will. 4, 0. 7, ii. 170. iii. 1311. app. 
 
 ii. iii. 1355 
 1 Will. 4. c. 22, i. 322, 323. app. i. 612. 
 
 618 
 1 Will. 4, c. 32, app. ii. iii. 1452 
 1 Will. 4, 0. 40, ii. 441 
 1 Will. 4, 0. 46, iii. 901 
 
 1 Will. 4, 0. 60, app. i. 624. app. ii. iii. 
 1484. 1600 
 
 1 Will. 4, 0. 66, ii. 461. 466 
 
 1 Will. 4, 0. 68, ii. 294, 295 
 
 1 Will. 4. c. 70, ii. 424 
 
 1 & 2 Will. 4, 0. 32, ii. 499. 501. 503, 
 
 504, 505, 506. app. ii. iii. 1431, 1432. 
 
 1452. 1489. 1577 
 1 & 2 Will. 4, 0. 37, app. ii. iii. 1624 
 1 & 2 Will. 4, 0. 38, ii. 309 
 1 & 2 Will. 4, 0. 41, app. ii. iii. 1383 
 1 & 2 Will. 4, c. 42, app. ii. iii. 1571 
 1 & 2 Will. 4, 0. 56, ii. 121. 126. 151. 
 
 174. app. ii. iii. 1357 
 1 & 2 Will. 4, 0. 58, ii. 179. app. ii.iii. 
 
 1461 
 
 1 & 2 Will. 4,0. 60, iii. 1233 
 
 2 Will. 4, c. 34, ii. 310, 311 
 2 Will. 4, c. 39, i. 478. ii. 583. iii. 1311 
 2 Will. 4, 0. 45, app. ii. iii. 1450 
 2 & 3 Will. 4, c. 1. iii. 1251 
 2 & 3 Will. 4, 0. 42, app. ii. iii. 1385. 
 
 1415 
 2 & 3 Will. 4, c. 44, i. 317 
 2 & 3 Will. 4, c. 64, app. ii. iii. 1380
 
 CXXIV 
 
 T A B L K OF CASE S. 
 
 Statutes — continued. 
 
 2&3 Will. 4, c. 71, iii. 744. 851. 
 
 HI]. 1)13. Uli). m-l. 1130. 1-248. 
 
 1251. 1257. 1204, 1295. app. ii. iii. 
 
 1380. 1528, 152!). Kill, 1 012 
 2 & 3 Will. 4, c. 72, ii. 531. 533 
 2 & 3 Will. 4, c. 100, iii. 1088. ai)p. 
 
 ii. iii. 15(!7 
 2 & C Will. 4, c. 114, ii. 121. 150. 183 
 2 & 3 Will. 4, c. 120, app. ii. iii. 1450 
 
 2 & 3 Will. 4, c. 123, ii. 406. app. ii. 
 iii. 1424 
 
 3 Will. 4, iii. 920 
 
 3 & 4 Will. 4, iii. 901 
 
 3 & 4 Will. 4, c. 4. app. i. 590 
 
 3&4 Will. 4, c. 15, iii. 940 
 
 3 & 4 Will. 4, c. 22, app. ii. iii. 1551 
 
 3 & 4 Will. 4, c. 27, ii. 399. 400. 401, 
 
 402, 403, 404, 405. 407. 429. 051. 
 
 app. ii. iii. 1406.1411. 1470, 1471. 
 
 1473. 1539. 1590 
 3 & 4 Will. 4, c. 40, app. ii. iii. 1551. 
 
 1591 
 3 & 4 Will. 4, c. 42, 1. 80. 107. 109. 
 
 111. 113. 122. 490. ii. 4. 200. 439, 
 
 440. 490. 575, 570. 051. 056. 709. 
 
 iii. 823. 852. 972. 977, 978. 987. 
 
 1193. app. 1. 595, 590. 598. 009. 
 
 028. 600. 032. app. ii. iii. 1313. 1324. 
 
 1342, 1343, 1344. 1303, 1304. 1388 
 
 1402. 1404. 1418. 1450, 1451. 1462. 
 
 1471. 1484. 1524. 1541 
 8 & 4 Will. 4, c. 47, app. ii. iii. 1000 
 3 & 4 Will. 4, c. 49, i. 23. app. i. 589 
 3 & 4 Will. 4, c. 51, app. ii. iii. 1323 
 3 & 4 Will. 4, c. 52, app. ii. iii. 1338 
 3 & 4 Will. 4, c. 53, app. ii. iii. 1522 
 3 & 4 Will. 4, c. 55, app. ii. iii. 1583 
 3 & 4 Will. 4, c. 74, ii. 334. 402. 457. 
 
 app. i. 022. app. ii. iii. 1340. 1422 
 3 & 4 Will. 4, c. 82, i. 23. app. i. 589 
 3 & 4 Will. 4, c. 98, ii. 247. iii. 1067. 
 
 app. ii. iii. 1590, 1591 
 3 & 4 Will. 4, c. 99, iii. 1017. app. ii. 
 
 iii. 1554 
 
 3 & 4 Will. 4, c. 100, ii. 411 . 520. iii. 
 832, 833. app. ii. iii. 1414 
 
 4 Will. 4, c. 20, app. i. 620 
 4 Will. 4, c. 27, iii. 1185 
 
 4 & 5 Will. 4, c. 22, app. ii. iii. 1325, 
 
 1326 
 4 & 5 Will. 4, c. 25, app. ii. iii. 1484 
 4&5 Will. 4, c. 49, iii. 1200 
 4 & 5 Will. 4, c. 51, app. ii. iii. 1520 
 
 4 & 5 Will. 4, c. 70, app. ii. iii. 1300, 
 1301. 1378. 1443. 1452. 1489. 1498. 
 1542. 1547, 1548, 1549, 1550, 1551 
 
 5 & Will. 4, c. 18, app. ii. iii. 1508 
 
 6 & Will. 4, c. 19, iii. 1299. 1304. 
 app. ii. iii. 1625 
 
 6 & 6 Will. 4, c. 20, app. ii. iii. 1452 
 6 & 6 Will. 4, c. 41, ii. 245. app. ii. iii. 
 
 1.369. 1432 
 5 & Will. 4, c. 49, ii. 331 
 
 5 & 6 Will. 4, c. 50, i. 100. ii. 521. 620. 
 539. app. ii. iii. 1430, 1437. 1452. 
 1489 
 
 6 & Will. 4, c. 54, ii. 703 
 
 6 & Will. 4, c. 59, ii. 357. app. ii. iii. 
 1324. 1401, 1402. 1577 
 
 rifATUTES — continued. 
 
 6 & (! Will. 4, c. 62, iii. 1290. app. ii. iii. 
 
 1496 
 5 & Will. 4, c. 63, iii. 1260 
 5 & 6 Will. 4, c. (i5, iii. 938 
 5 & (; Will. 4, c. 69, app. ii. iii. 1378 
 5 & 6 Will. 4, c. 74, iii. 1080 
 5 & Will. 4, c. 76, ii. 338, 339. iii. 
 
 1248. app. ii. iii. 1372. 1375. 1380. 
 
 1386. 1438. 144.S, 1449. 1514. 1521. 
 
 1532. 1534. 1560. 1576 
 5 iV 6 Will. 4, c. 83, iii. 938, 939. app. 
 
 ii. iii. 1530 
 
 5 & 6 Will. 4, c. 96, app. ii. iii. 1497 
 Will. 4, c. Ixxvii. app. ii. iii, 1509 
 
 6 & 7 Will. 4, c. 8, i. 80 
 
 & 7 Will. 4, c. 58, ii. 225. app. ii. iii. 
 
 1304 
 6 & 7 Will. 4, c. 71, iii. 1080. app. ii. 
 
 iii. 1508 
 & 7 Will. 4, c. 70, ii. 625 
 6 & 7 Will. 4, c. 85, ii. 700. 703. app. 
 
 ii. iii. 1483 
 6 & 7 Will. 4, c. 86, i. 243. app. i. 
 
 609 
 6 & 7 Will. 4, c. 89, app. i. 592 
 
 6 & 7 Will. 4, c. 103, ii. 271. 338 
 6& 7 Will. 4, c. lll,ii. 470 
 
 & 7 Will. 4, c. 112, app. ii. iii. 1383 
 
 & 7 Will. 4, c. 114, app. ii. iii. 1398 
 
 7 Will. 4 & 1 Vict. c. 10, app. ii. iii. 
 
 1591 
 7 Will. 4 & 1 Vict. c. 20, ii. 333, 334 
 7 Will. 4 & 1 Vict. c. 20, ii. 334. 409. 
 
 433. iii. 784. 1289. app. ii. iii. 1419. 
 
 1010, 1017, 1618 
 7 Will. 4 & 1 Vict. e. 55, iii. 1032 
 7 Will. 4 & 1 Vict. c. 78, ii. 338 
 7 Will. 4 & 1 Vict. c. 80, app. ii. iii. 
 
 1591 
 7 Will. 4 & 1 Vict. e. 85, ii. 672. app. 
 
 ii. iii. 1327, 1328. 1459. 1478, 1479, 
 
 1480. 1534 
 7 Will. 4 & 1 Vict. c. 86, app. ii. iii. 
 
 1376 
 7 Will. 4 & 1 Vict. c. 87, app. ii. iii. 
 
 1504 
 7 Will. 4 & 1 Vict. c. 90, ii. 310. app. 
 
 ii. iii. 1400 
 
 1 Vict. c. 44, i. 80 
 
 1 Vict. c. 65, iii. 1023. app. ii. iii. 1555, 
 
 1556 
 1 Vict. c. 68, i. 80 
 1 Vict. c. 09, app. ii. iii. 1508 
 1 Vict. c. 84, ii. 338. app. ii. iii. 1426 
 1 & 2 Vict. c. 14, app. ii. iii. 1614 
 1 & 2 Vict. c. 17, app. ii. iii. 1496 
 1 iSc 2 Vict. c. 18, app. ii. iii. 1490 
 1 & 2 Vict. c. 74, app. ii. iii. 140 
 1 & 2 Vict. c. 77, app. ii. iii. 1490 
 1 & 2 Vict. c. 85, iii. 1054 
 1 & 2 Vict. c. 90, ii. 140. iii. 800. app. 
 
 ii. iii. 1509 
 1 & 2 Vict. c. 105, app. i. 105 
 
 1 & 2 Vict. c. 110, ii. 350. iii. 1017. 
 
 1237. app. ii. iii. 1349. 1445,1440. 
 1554. 1003, 1004 
 
 2 & 3 Vict. c. 11, app. ii. iii. 1591 
 2 & 3 Vict. c. 18, app. i. 010 
 
 2 & 3 Vict. c. 28, iii. 1248
 
 T A n I, K OF C A S E 3. 
 
 cxxv 
 
 Statutes — continued. 
 
 2 & 3 Vict. c. 2i), ii. 173. app. ii. iii. 
 
 135o, 1356. 15GG 
 2 & 3 Vict. c. 37, ii. 246. iii. 1188. app. 
 
 ii. iii. lo91 
 2 & 3 Vict. c. 81, app. ii. iii. 1437 
 2 & 3 Vict. c. 8o, app. ii. iii. 1361 
 
 2 & 3 Viet, c, 88, app. ii. iii. 14.J2 
 
 3 Vict. c. 9, app. ii. iii. 1498 
 3 &;4 Vict. c. 4, iii. 1117 
 
 3 & 4 Vict. e. 5, ii. 507 
 
 3 & 4 Vict. c. 24, app. ii. iii. 1407 
 
 3 & 4 Vict. c. 26, ii. o30. app. i. 596. 
 
 598 
 3 & 4 Vict. c. 27, app. ii. iii. 1591 
 3 & 4 Vict. c. 73, ii. 498 
 3 & 4 Vict. c. 83, app. ii. iii. 1591 
 3 & 4 Vict. c. 88, app. ii. iii. 1383 
 3 & 4 Vict. c. 92, app. i. 609 
 
 3 & 4 Vict. c. Ill, iii. 800 
 
 4 Vict. c. 14, app. ii. iii. 1509 
 4 Vict. c. 22, app. ii. iii. 1619 
 4 Vict. c. 35, app. ii. iii. 1422 
 
 4 & 5 Vict. c. 21, app. ii. iii. 1537 
 4 & 5 Vict. c. 36, app. ii. iii. 1568 
 4 & 5 Vict. c. 37, app. ii. iii. 1568 
 4 & 5 Vict. c. 45, app. ii. iii. 1551 
 4 & 5 Vict. c. 54, app. ii. iii. 1591 
 4 & 5 Vict. c. 57, app. ii. iii. 1575 
 
 Stavers v. Curling, app. ii. iii. 1387 
 Stead v. Dawber, ii. 491 
 
 V. Gascoigne, iii. 1028. 1157 
 
 r. Heaton, i. 44. 358. 472. iii. 1003 
 
 V. Liddiard, ii. 482, 483. 509. iii, 1038. 
 
 1053 
 
 V. Thornton, ii. 83 
 
 Steam r. Mills, ii. 448. app. ii. iii. 1417 
 Stears v. Smith, ii. 582 
 Steavenson v. Oliver, app ii. iii. 1325 
 Stedman v. Gooch, i. 300. ii. 71. 228. iii. 
 
 822 
 V. Martinnant, ii. 183, 184. 186. 
 
 189 
 
 V. Powell, ii. 705 
 
 Stedman's case, ii. 722 
 
 Stecde v. Berrier, iii. 772 
 
 Steel i: Houghton, ii. 358 
 
 V. Prickett, i. 182. ii. 26. 336. 406. 
 
 696. iii. 1126 
 Steele v. Lacy, iii. 882. 884. 890 
 
 V. Manns, iii. 1087 
 
 V. Mart, iii. 761 
 
 t: Rorke, ii. 449, 450 
 
 V. Smith, i. 482 
 
 V. Western, iii. 800 
 
 Steers v. Carwardine, app. i. 595 
 
 f. Lashley, ii. 78. 246 
 
 Steglitz v. Egginton,ii. 32 
 Stein & Co., In re,u. 186 
 Steiudale r. Hankinson, iii. 826 
 Steiiikeller v. Newton, iii. 985. app. i. 600. 
 
 612, 613. 624 
 Stcinman v. Magnus, ii. 16, 17. ii. 247 
 Steirnhold v- Holden, iii. 1157 
 Stephen v. Gwennap, i. 355 
 Stephen:! v. Badcock, ii. 82. 88 
 
 V. Crichton, i. 321 
 
 V. Elwall, iii. 1028. 1163. 1168 
 
 I'. Lemon and Lynn, app. ii. iii. 1587 
 
 Stephens r. Myers, iii. 1112 
 
 V. Pell, app. ii. iii. 1434 
 
 r. Robinson, ii. 103 
 
 r. Sale, ii. 155 
 
 {•. Srpiirc, ii. 476 
 
 V. Taprell, app. ii. iii. 1618 
 
 V. Wilkinson, ii. 242 
 
 ^.i" parte, iii 994 
 
 Stephenson i\ llart,ii. 286. iii. 1157 
 
 r. Taylor, ii. 108 
 
 Stevens ?•. Adanison, iii. 1215 
 
 r. Aldridgc, i. 45. 531. iii. 1083 
 
 V. Berwick (Mayor of), app. ii. iii. 1450 
 
 v. Elisee, ii. 185 
 
 V. Hill, ii. 215 
 
 r. Jackson, ii. 145. 557 
 
 V. Lloyd, ii. 255. iii. 1043 
 
 V. Lynch, ii. 88. 238. 251. 259 
 
 i\ Pinney, ii. 58 
 
 V. Tliacker, ii. 30 
 
 i\ Ufibrd, app. ii. iii. 1513 
 
 V. Webb, app. ii. iii. 1330 
 
 V. Whistler, i. 440. 448. iii. 1099. 
 
 1123. 1133 
 
 V. Willingale, app. ii. iii. 1332. 1504 
 
 V. Woodhouse, iii. 862 
 
 Ex 2)arte, ii. 127 
 
 Stevenson v. Blakelock, iii. 648 
 
 V. Nevinson, i. 121. ii. 339 
 
 r. Roche, ii. 120 
 
 V. Rowand, iii. 726 
 
 Ex parte, ii. 1 47 
 
 Steward i\ Coesvelt, iii. 1244 
 
 V. Lombe, iii. 1247 
 
 Stewart v. Aberucen, ii. 45. app. ii. iii. 1514 
 
 V. Ball, ii. 128 
 
 I'. Bell, iii. 877 
 
 V. Fry, ii. 81 
 
 V. Kennett, ii. 225 
 
 V. Lawton, iii. 775. 1041 
 
 V. Lee, iii. 819 
 
 V. Lovell, ii. 635 
 
 V. Moody, ii. 140 
 
 i\ Richman, ii. 23. 150. 175 
 
 V. Whitaker, iii. 1018 
 
 V. Wilkin s, ii. 372 
 
 Steyner v. Droitwich (Burgesses of), iii. 843 
 
 Stiles V. Rawlins, i. 485 
 
 Stilk V. Meyrick, ii. 56 
 
 Still V. Halford, i. 300. ii. 116, 117 
 
 i\ Walls, ii. 591 
 
 Stillman i\ Ashdown, ii. 498 
 
 Stirling's case, i. 305 
 
 Stobart v. Dryden, i. 221. app. ii. iii. 1396 
 
 Stock ?•. Denew, i. 315 
 
 V. Mawson, ii. 84 
 
 Stockdale i'. Chapman, app. ii. iii. 1576 
 
 v. Hansard, ii. 638. app. ii. iii. 1378. 
 
 1498. 1625 
 
 V. Onwhyn, iii. 938. 1217 
 
 V. Rosier, ii. 103 
 
 V. Tarte, app. ii. iii. 1466 
 
 Stockdale's case, app. ii. iii. 1485 
 
 Stocke V. Madder, ii. 64 
 
 Stocken i-. Collins, app. ii. iii. 1365 
 
 Stocker v. Carter, ii. 601 
 
 Stockfletli V. De Tastet, i. 192. 198. ii. 27. 
 37 
 
 Stockley ?■. Clement, ii. 641 
 
 Stockly V. Stockly, ii. 655
 
 CXXVl 
 
 TABLE OF CAPES, 
 
 Stocks V. llootli, ii. 395. iii. SGI, 802. 804, 
 
 805. 907 
 Stockwell V. Terry, iii. 1087. 1094 
 Stoddart r. Palmer, i. 4;U. 443, 444. 488. 
 
 ii. (i71). iii. 1010, 1011. 1017 
 Stoddon i\ Harvey, i. 510. 517 
 Stocr V. Crowley, ii. 280, 287 
 Stokes V. Bate, ii. 439. 441 
 
 V. Berry, ii. 405 
 
 I'. Carnc, i. 2 19. ;ii. 1301 
 
 V. Cooper, ii, 48. iii, 1184 
 
 V. La Riviere, ii, 104, Iii, 1220 
 
 i\ Lewis, ii. 75 
 
 r, Moore, ii. 484, 485 
 
 V. Twitchen, ii, 90 
 
 V. White, ajjp. ii. iii. 1572 
 
 StonardiJ, Dunkin, ii, 47. iii. IIGG, 1224, 
 
 1227 
 Stone V. Bale, iii. 787 
 
 V. Blackburn, i. 93 
 
 V. Can; ii. 540 
 
 V. Cartwrig-ht, iii. 738 
 
 V. Conipton, iii, 1000 
 
 V. Evans, ii. 351 
 
 V. Forsyth, ii. 409 
 
 V. Grubhani, ii. 497. iii. 923. 1080 
 
 I', Hunter, ii. 157. iii. 1247 
 
 i\ Liugwood, ii. 040 
 
 V. Metcalf, i. 372. ii. 211, 215 
 
 V. Rogers, iii. 1048. 1204 
 
 V. Minting, ii, 475. iii. 1182 
 
 Stone's case, i. 71, ii. 40, 324, 325. iii, 1097 
 Stonehouse v. De Silva, ii. 123. 174 
 
 11. Elliot, ii. 003. iii. 1110 
 
 V. Evelyn, iii. 1202, 1203 
 
 V. Read, ii. 240 
 
 Stonelake v. Babb, iii. 1048 
 Storace v. Longman, iii. 938 
 Storer i\ Hunter, ii, 150. iii. 1247 
 Storey r. Challands, app. ii. iii, 1404 
 Storke v. Storke, iii. 703 
 Storr V. Lee and wife, app. ii. iii. 1439 
 
 V. Scott, iii. 1203 
 
 Stort V. Clements, iii. 739 
 Story V. Atkins, ii. 79. 201 
 — — V. Pery, ii. 557 
 
 V. Richardson, app. ii. iii. 1500 
 
 i\ M'atson, app. i, 028 
 
 Story's case, ii, 450 
 Stott V. Stott, iii. 890. 1128. 1258 
 Stoughton V. Kilmorey (Earl of), ii, 244 
 Stourbridge Canal Proprietors, v. Wheeley, 
 
 iii. 1200 
 Stoveld V. Brewer, iii, 829, 830 
 
 V. Hughes, ii, 103, iii. 1224. 1220 
 
 Stovern v. Butt, ii. 210 
 
 Stowell v. Robinson, app, ii. iii. 1430 
 
 V. Zouch, ii, 420 
 
 Stracey v. England (Bank of), ii. 104 
 Strachan v. Thomas, app. ii. iii, 1471 
 Stracy v. Blake, ii. 20, 21, app. ii, iii. 1318 
 Strafford's (Lord) case, ii. 328, 383 
 Strahan v. Smith, iii. 1180 
 Straker v. Graham, ii, 222 
 Strange v. Lee, iii. 1007 
 
 ■ V. Price, ii. 229 
 
 V. Wig. c}', iii, 1 150 
 
 Stranger v. Soarle, ii. 515. 518 
 Stransham v. CuUington, iii, 1092 
 
 Stratford and Moreton Railway Company 
 
 V. Stratton, ii. 23, 
 Stratford's case, i. 285 
 Strath more /". Bowes, ii. 538 
 (Earl of) V. Strathmore (Countess of), 
 
 ii. 3 
 Strathmore Peerage case, ii, 519 
 Stratton v. Rastall, ii. 22. 80. iii, 758. 780, 
 
 819. 954 
 
 V. Savignac, iii. 1070 
 
 V. Synion, app. ii. iii, 1594 
 
 Streatfield r. Halliday, ii. 123 
 Street v. Blay, iii. 1210, 1211. 1227 
 
 V. Brown, i. 370. ii, 508 
 
 V. Tugwell, iii. 742 
 
 Street's case, iii. 1080 
 Streeter v. Horlock, i. 404. iii. 1297 
 Stretton i\ Busliacii, ii. 548 
 Strickland v. Maxwell, iii, 754 
 
 V. Ward, i, 284, ii, 581. 80, 587. 
 
 589 
 
 Stringer v. Martyr, ii. 594 
 Strode v. Byrt, ii. 310 
 
 17, Dyson, iii, 1240, 1241 
 
 V. Falkland, iii. 703 
 
 V. Palmer, iii. 948 
 
 V. Russell, iii, 704. 1273 
 
 V. Seaton, i, 200, 208, 
 
 V. Winchester, app. i. 013 
 
 Strong V. Dickenson, i, 91 
 
 V. Hart, iii. 822 
 
 V. Harvey, iii. 1009 
 
 V. Rule, i, 459 
 
 Strongitharm v. Lukyn, ii. 245 
 Strother v. Barr, i. 500. iii. 977, 978 
 
 V. Hutchinson, i. 520, 527. 530. 537 
 
 V. Willan, i. 249. iii. 807 
 
 Strutt V. Baker, iii. 1080 
 
 V. Bovingdon, i. 200, 204, iii, 958 
 
 V. Robinson, iii. 1048 
 
 V. Rogers, iii. 1071 
 
 V. Smith, iii. 1205 
 
 Stuart V. Barnes, i. 124, 125 
 
 V. Crawley, ii. 294, 
 
 V. Greenall, i, 241, iii. 1091, 1092 
 
 V. Lovell, ii, 035, 030. 044 
 
 V. Powell, iii. 890 
 
 V. Rowland, ii. 98 
 
 V. Whitaker, iii. 1019 
 
 V. Wilkins, iii. 1237 
 
 Stubbs V. Lainson, iii. 1017 
 
 V. Parsons, iii. 974 
 
 Studdy V. Sanders, i, 330, iii, 808, 818, 
 
 1204, 1297 
 Stump V. AylifFe, iii. 1090 
 Sturch V. Clarke, ii. 597. app. ii. iii. 1379 
 Sturdy v. Henderson, iii. 1042 
 Sturge V. Buchanan, i. 414, app, i, 019, 021 
 Sturgeon v. Painter, iii. 1178 
 Sturlyn v, Albany, ii. 55 
 Sturt v. Blandford (Marquis of), ii. 355 
 Styan i\ Hutchinson, iii. 742 
 Styles V. Cox, ii. 581 
 
 V. Nokes, ii, 039 
 
 ?\ Wardle, iii. 701 
 
 Sudlow V. Hickson, iii. 810 
 Suffolk's (Earl of) case, iii. 9GI 
 Sugars V. Briukworth, ii. 247
 
 TABLE OF CASES. 
 
 CXXVIl 
 
 Sugdcn I". Wilcockp, iii. 1071 
 
 Sull's case, i. 472 
 
 Sullivan v. Greaves, ii. 78. 96 
 
 r. Jones, Hi. 117,"j, 117G 
 
 ('. Sullivan, ii. 701 
 
 Sulston I". Norton, ii. 271 
 Summers v. Moseley, i. 187 
 Snmmersit ;•. Adamson, i. r).jO. ii. 25 
 
 r. Jiirvis, ii. 128. iii. 1 \-'>7 
 
 Sumner i\ Fcryniaii, ii. 344 
 
 Siinipter v. Cooper, ii. 108 
 
 Suul)olfi\ AUbrd, ii. G4'J 
 
 Surrey Canal Company, v. Ilall, app. ii. iii. 
 
 1612 
 Surtees v. Allan, iii. 849 
 
 i: Ellison, ii. 12G 
 
 V. Hubbard, ii. 75. 79, 80. iii. 827 
 
 Sussex (Earl of) v. Temple, i. 334 
 Sutcliife V. Greenwoud, iii. 1258 
 Sutton V. Bishop, i. 07. ii. 271. iii. 851 
 
 V. Buck, ii. G97. iii. 8G8. 1145. 1153 
 
 r. Burgess, app. ii. iii. 1477 
 
 V. Clarke, li. G59. G73. iii. 740. 747. 
 
 1230 
 
 ■ V. Hawkins, iii. 10G9. app. ii. iii. 1563 
 
 I'. Johnston, ii. 588 
 
 V. Moody, ii. 504 
 
 V. Tathani, app. ii. iii. 1323 
 
 v. Toomer, iii. 1057 
 
 ?•. Waite, iii. 1025 
 
 v. Weely, ii. 128 
 
 Ex parte, ii. 148 
 
 Sutton St. Nicholas r. Leveriiigton, i, 295 
 Swain v. Kennerley, iii. 771 
 
 i". Lewis, ii. 228 
 
 V. Roberts, app. ii. iii. 1503 
 
 i'. Shepherd, ii. 2S2. 284 
 
 Swaiuton v. Raven, ii. G55 
 
 Swallow V. Beaumont, i. 459. ii. 61. 343. 
 
 379 
 
 V. Ember^■on, ii. 442 
 
 Swallowe's case, ii. 595 
 Swau i: Cox, ii. 208. iii. 1188 
 
 V. Fox, ii. 346 
 
 V. Heald, iii. 809. 811 
 
 V. Phillips, app. ii. iii. 1396 
 
 V. Scotland (Bank of), app. ii. iii. 
 
 1372 
 
 V. Searles, ii. 343 
 
 V. Sewell, ii. 663 
 
 . V. Steele, ii. 205 
 
 Ex parte, app. ii. iii. 1372 
 
 Swancott v. Westgarth, ii. 72. iii. 1076. 
 
 1205 
 Swann v. Falmouth (Earl of), ii. 392. iii. 
 
 1153 
 
 • V. Sutton, ii. 565 
 
 Swansborough v. Coventry, iii. 743. 1295 
 Swanwick v. Sothern, app. ii. iii. 1354. 
 
 1599 
 Swears v. Wells, iii. 1057 
 Sweenie v. Sharpe, ii. 565 
 Sweetapple v. Jesse, iii. 930 
 Sweeting v. Asplin, app. ii. iii. 1620 
 
 V. Fowler, i. 472. ii. 21 1 
 
 V. Halse, iii. 1057. 1059 
 
 Sweetland v. Smith, iii. 1192 
 Swift V. Swift, app. ii. iii. 1027 
 
 Swinford v. Burn, ii. 116. 119. 578 
 Swinnerton v. Stafford (Marquis of), i. 
 
 240. 384 
 Swinyard r. Bowes, ii. 265, 266 
 Swinburne, Ex parte, ii. 179 
 Swire r. Bell, i. 134. 376. 381. 502 
 Sybray v. White, ii. 30 
 Sydenham f. Ruud, i. 78 
 Sydenham's (Sir J.) case, ii. 618. 626 
 Sydney's case, ii. 515 
 Syeds v. Hay, ii. 286. iii. 11.57 
 Syer's case, i. 463 
 Syers v. Bridge, i. 174. ii. 363. iii. 779. 
 
 867. 886 
 Sykcs V. Burkitt, ii. 413 
 
 I'. Dixon, app ii. iii. 1429 
 
 V. Dunbar, i. 18.5. ii. 678. 680. 682 
 
 y. Giles, ajip. ii. iii. 1514 
 
 V. M'Clise, app. ii. iii. 1340 
 
 d. Murgatroyd v. , ii. 426 
 
 Syllivan v. Stradling, iii. 973. 1180 
 Sylvester r. Hall, i. 425 
 Syme v. Brown, app. ii. iii. 1512 
 Symes, Ex parte, ii. 23 
 Symmers i\ Regem, iii. 946. 948 
 Symmons r. Blake, ii. 636 
 
 V. Hearson, iii. 1138 
 
 V. Knox, i. 454, 455. ii. 63. iii. 995 
 
 V. Want, ii. 510 
 
 Symon's (Sir Edward) case, iii. 1286 
 Symonds t>. Ball, ii. 480 
 
 V. Carr, ii. 1199 
 
 I". Page, ii. 435 
 
 Syms V. Chaplin, ii. 295 
 
 Ta'oart v. Tipper, ii. 626. 633. 640 
 
 Taft's case, ii. 463 
 
 Tait 1-. Harris, iii. 1106 
 
 Talbot V. Hodson, i. 373, 374. 379. 386 
 
 V. Hubble, ii. 586 
 
 V. Lewis, i . 334 
 
 V. Talbot, iii. 1287 
 
 V. Villebois, ii. 565. 569 
 
 Talbutt L\ Clark, app. ii.iii. 1466 
 Talmuth v. Gardiner, ii. 271 
 Talver v. West, ii. 488. iii. 1204 
 Tamplinr. Diggins, ii. 171. 177. 179 
 Tandv r. Tandy, In re, app. ii. iii. 1342 
 Tanner v. Bean, i. 437. li. 214. 222. 234 
 
 V. Bennett, iii. 882 
 
 V. Smart, ii. 662. 667 
 
 V. Taylor, i. 97. 177. 180 
 
 V. TapilD, i. 126 
 
 Tapley v. Martens, li. 266. iii. 827 
 
 V. Wain Wright, i. 440. iii. 11-30 
 
 Taplin v. Atty, i. 400. iii. 1012 
 
 Tapp V. Lee, li. 373 
 
 Tappenden r. Burgess, ii. 144, 145. 175 
 
 V. Randall, ii. 82. 94 
 
 Tapsell V. Crosskey, app. ii. iii. 1578 
 Tarbuck v. Bipsham, app. ii. iii. 1338 
 Tarleton v. Allhusen, ii. 16. 265 
 
 V. M'Gawley, ii. 300, 301 
 
 IK Tarleton, i. 274 
 
 Tarling v. Ba.xter, iii. 1221 
 Tarnu. Keys, ii. 110 
 Tarpley v. Blabey, app. ii. iii. 1465 
 Tarr v. M'Gakey, app. ii. iii. 1450
 
 CXXVlll 
 
 TABLE OF C; A 8 E S. 
 
 Tassell v. Lewis, ii. 222 
 Tate V. Ilmnpljrey, ii. 035 
 
 V. Meek, app. Ii. iii. 1408 
 
 v. Wcllings, i. 458. ii. 00. iii. 1180. 
 
 1220 
 Tutlock r. Harris, ii. 262. iii. 828 
 
 r. Smith, ii. 104 
 
 Tattersall r. Kniglit, iii. 802, 863 
 
 Taunton v. Costar, ii. 1 118 
 
 Market (Clerk of Trustees of) v. 
 
 Kinleedey, ii. 708 
 
 V. Wybourno, ii. 700 
 
 Tavernor v. Little, ii. 20. iii. 733. app. ii. iii. 
 
 1491.1495 
 Tawney v. Crowther, ii. 483 
 Taylerson r. Peters, app. ii. iii. 1402 
 Taylor v. Attorney-general, app. ii. iii. 
 
 1432 
 
 V. Baker, ii. 089. iii. 820 
 
 V. Barclay, i. 509 
 
 V. Beal, iii. 819 
 
 V. Bennett, iii. 748 
 
 V. Brewer, iii. 1298 
 
 V. Briggs, iii. 822 
 
 V. Brooke, i. 491 
 
 V. Brown, iii. 801 
 
 V. Buchanan, ii. 564 
 
 V. Clow, ii. 120 
 
 V. Cohen, i. Ill, 112. 152. iii. 750 
 
 V. Cole, i. 331. ii. 459. iii. 842. 1109. 
 
 1115. 1120. 1132. 1134. 1138 
 
 V. Cooke, ii. 517. iii. 936 
 
 t'. Croker, ii. 203, 204. 217 
 
 V. Dening, app. ii. iii. 1616 
 
 V. Devey, app. ii. iii. 1391 
 
 V. Diplock, iii. 929 
 
 V. Exchange Assurance, i. 321 
 
 V. Fenwick, ii. 681, 582 
 
 t;. Fisher, iii. 1139 
 
 V. Foster, ii. 320 
 
 V. Glassbrooke, ii. 112 
 
 V. Green, app. ii. iii. 1S96 
 
 V. Hague, ii. 254. iii. 1054 
 
 V. Hare, ii. 90 
 
 V. Harris, ii. 2 
 
 V. Henniker, app. ii. iii. 1401 
 
 V. Higgins, ii. 74. 240. iii. 1060 
 
 V. Hilary, ii. 101 
 
 V. Hi])kins, ii. 149 
 
 V. Hooman, i. 469. iii. 1099. 1177 
 
 V. Horde, ii. 405 
 
 V. Jones, i. 411. ii. 233. 238,498 
 
 V. Kinlock, ii. 149 
 
 V. Kymer, iii. 1149 
 
 V. Lanyon, iii. 1027 
 
 V. Lawson, i. 188 
 
 V. Lendy, ii. 95 
 
 V. M'Vicar, iii. 893 
 
 V. Neri, ii. 299 
 
 V. Okey, iii. 997 
 
 V. Osborne, i. 406. ii. 566. 568 
 
 • V. Parry, app. ii. iii. 1316. 1481. 1556. 
 
 1581 
 V. Plumer,ii. 160, 161. 176. 709. iii. 
 
 1151 
 
 V. Rowan, iii. 1103 
 
 V. Shaw, ii. 350 
 
 V. Shuttleworth, ii. 118. app. ii. iii. 
 
 1343,1344 
 V. Smith, iii. 1133. 1138 
 
 Taylor r. Taylor, ii. 170 
 
 u. Truenian, iii. 1149 
 
 V. Vale, i. 484 
 
 r. Waters, ii. 473. 481. iii. 990 
 
 V. Watson, ii. 00 
 
 ,,. Welsf.rd, ii. 183 
 
 V. Whitehead, iii. 1257 
 
 V. Willans, ii. 080. 082. 084 
 
 ,;. Williams, i. 69. 469 
 
 V. Young, ii. 189 
 
 r. Zamira, iii. 974. app. ii. iii. 140L 
 
 1514 
 and another r. Nicholl, a])]), ii. iii- 
 
 1003 
 
 Ex parte, i. 244. ii. 154 
 
 Taylor's case, ii. 463. 010, 017 
 Taynton v. Hannay, ii. 442 
 Teague v. Hubbard, iii. 815, 810 
 Teague's case, ii. 467 
 Tealby v. Gascoigne, iii. 1012 
 Teald, Ex parte, app. ii. iii. 1348 
 Teale r. Auty, ii. 99. 480, 481. iii. 1207 
 Tehbutt r. Ambler, iii. 1050. app. ii. iii. 
 
 1449 
 Teed v. Elworthy, ii. 804. 807 
 
 V. Martin, i. 249. 394 
 
 Teesdale v. Clement, i. 446. ii. 028 
 Tekel i: Casey, iii. 1041 
 Tempany v. Bernard, i. 458. 484. ii. 379 
 Tempest tJ. Fitzgerald, ii. 489. iii. 1195 
 
 V. Linley, iii. 101.5 
 
 V. Rawl'ing, ii. 00. iii. 1178 
 
 Temple V. Brown, ii. 68. iii. 1190 
 
 Ex 2)ctrte, ii. 428 
 
 Templer t). M'Lachlan, ii. 111. iii. 1309 
 Templeman v. Case, iii. 969 
 
 V. Reed, app. ii. iii. 1557 
 
 Tenant r. Elliott, ii. 95, 96 
 
 V. Mackintosh, ii. 81 
 
 V. Strachan, iii. 1156. 1158. 1100 
 
 Tenny v. Jones, iii. 923 
 
 V. Moody, ii. 423 
 
 Terrewest, Ex parte, app. ii. iii. 1691 
 
 Terrington v. HargreaA'es, ii. 172 
 
 Terry r. Huntington, i. 291. ii. 686. 538. 
 
 593, 594. 598 
 
 V. Parke, ii. 230 
 
 Testick's case, ii. 470 
 
 Tewkesbury (Bailiffs of) r. Bricknell, ii.449 
 
 iii. 744. 770. 909. 940. 975 
 Thacker v. Moates, ii. 76. iii. 938 
 
 V. Shepherd, ii. 77 
 
 Thackray v. Blackett, ii. 231 
 
 Thackwaite v. Cock, ii. 150, 157, 158. 
 
 101 
 Thaire v. Thaire, iii. 902 
 Thames Tunnel Company v. Sheldon, iii. 
 
 815 
 Thanet (Lord) v. Forster, i. 238 
 
 V. Paterson, i. 300 
 
 Thanet's (Earl of) case, iii. 843 
 Thatcher v. Waller, ii. 156. 385 
 The Attorney-general v. Bond, app. i. 
 
 005 
 The Cheltenham Union Railway Company 
 
 V. Price, app. ii. iii. 1510 
 Thellusson v. Gosling, iii. 1236 
 
 V. Ferguson, iii. 874 
 
 V. Fletcher, iii. 867 
 
 V. Gosling, i. 234
 
 TABLE OF CASES. 
 
 TIipIIiisoii I'. SlioiUloi), ii. Olo 
 Theobald ('.C'clclimoro, ii. 000 
 
 V. Trt'ggott, i. 118, 1 19. 148 
 
 Theresa Bouita (Case of tlie), iii. 1300 
 Thetford case, i. 245. 340 
 Thetis (Case of the), app. ii. iii. 1G22 
 Thiml)leby c. Barron, app. ii. iii. ]o3G 
 Thinne r. Thinnc, ii. G'.)ij 
 Thirsby ?-. Ilelbot, iii. 1220 
 Thistlethwaite v. Coclv, iii. 1224 
 Tliistlewood v. Cracroft, ii. 9G. iii. 849. 
 
 1077 
 Thomas r. Ansley, i. 299 
 
 V. Austen, ii. 27 
 
 i\ Bishop, ii. 4G 
 
 • V. Connell, app. ii. ill. 1347 
 
 V. Cooke, ii. 474, 47o. 478. iii. 1182 
 
 V. Courteimy, ii. G4. 84 
 
 V. David, i. 189, 190 
 
 ?;. Desanges, ii. 14G. 1G8. 170. iii. 
 
 1079 
 
 I'. Edwards, app. ii. iii. 1413 
 
 V. Evans, iii. 10G7. 1070 
 
 V. Foyle, iii. 808. 1153 
 
 V. Fraser, iii. 7G7. 779 
 
 ■ !'. Harries, app. ii. iii. 1400. 1402 
 
 V. Hawkins, app. ii. iii. 1338 
 
 V. Jenkins, app. i. COl 
 
 I', Morgan, iii. 735 
 
 V. Newton, i. 198. app. ii. iii. 13G8 
 
 V. Pearce, i. 119. iii. 1034. 11G9 
 
 V. Phillips, iii. 1103. app. ii. iii. 1581 
 
 V. Powell, app. ii. iii. 1673 
 
 V. Rideing, ii. 121 
 
 V. Shillibeer, app. ii. iii. 1331 
 
 V. Thomas, ii. 26. 415. iii. 770. app. ii. 
 
 iii. 1419 
 
 V. Tophani, iii. 940 
 
 r. Tucker, i. 191 
 
 L\ Whip, ii.84 
 
 V. Williams, ii. 184. 478, 479 
 
 JSx parte, ii. 148 
 
 Tliomas's case, ii. 53 
 Thomason v. Frere, ii.219 
 Tliomkius v. Hill, i 532 
 Tliomlow V. Thackrey, iii. 1234 
 
 Thompson v. Andrews, ii. 128 
 
 t'. Austen, ii. 34 
 
 V. Bearblock, iii. 1004 
 
 V. Berry, iii. 1115 
 
 V. Blackhurst, i. 277 
 
 t;. Brown, iii. 825 
 
 V. Ciiarnock, ii. 1 19 
 
 V. Churchill, ii. 633 
 
 V. Clark, iii. 1125 
 
 II. Clubley, app. ii. iii. 1307 
 
 V. Cooke, iii. 1045 
 
 V. Davenport, iii. 1198. 1203 
 
 V. Donaldson, i. 2GG. ii. 3G5. iii. 833 
 
 V. Farden, app, ii. iii. 1537 
 
 V. Finden, iii. 1302 
 
 V. Freeman, ii. 143 
 
 V. Gibson, app. ii. iii. 1494 
 
 V. Giles, i. 512. ii. 162. 164, 165 
 
 V. Lacy, ii. 5G0, 561 . 648 
 
 V. Lewis, ii. 48 
 
 V. Maberly, ii. 414 
 
 j;. Maceroni, ii. 488. iii. 1147. 120G 
 
 V. Miles, iii. 1190 
 
 Thompson v. Morgan, ii. 262 
 
 I'. Osborne, ii. 6(!2, 6(i3 
 
 c. Percival, ii. 183 
 
 r. Powlcs, ii.(i6 
 
 v. Sliackell, ii. 633. 640 
 
 V. Shirley, iii. IIGI 
 
 V. Spencer, ii. 100 
 
 V. Stent, ii. 444 
 
 V. Symonds, iii. 941 
 
 r. Taylor, iii. 874. 877 
 
 V. Thompson, ii. 449, 450, 451 
 
 r. Trail, iii. IIC.'^. 11G7 
 
 r. Travis, app. i. G19 
 
 V. Trevani-n, i. 222. 852 
 
 V. Wliitmore, iii. 877 
 
 V. Wilscn, ii. 474. iii. 1182 
 
 Ex parte, ii. 1 66 
 
 Thompson's case, i'i. 711. app. ii. iii. 1394 
 
 Thomson v. Bond, ii. 478 
 
 V. Bridges, ii. 175 
 
 V. Harvey, ii.546 
 
 V. Lumbe, ii. 34 
 
 V. Miles, iii. 1189, IIDO 
 
 V. Morgan, ii. 81. 261 
 
 r. Svmonds, iii. 940 
 
 Thorner.'Rolfe, ii.3G5 
 
 Thornes v. White, app. ii. iii. 1584 
 
 Thornley r. Hebron, iii. 880 
 
 Thornton i-. Adams, ii. 394 
 
 V. Dick, ii. 208 
 
 V. Hargreaves, il. 138, 139, 140. 142, 
 
 143 
 
 v. Illingworth, ii. 2. 557. GG2 
 
 V. Jones, i. 458, 459 
 
 V. Kerapster, iii. 1197 
 
 V. Lane, iii. 875 
 
 r. Meux, ii. 493. iii. 1196. 1197 
 
 V. Place, iii. 1307 
 
 V. Robin, app. ii. iii. 1422 
 
 V. Royal Exchange Assurance Com- 
 pany, i. 175. iii. 887 
 
 V. Stephen, app. ii. iii. 1462 
 
 Thornton's case, ii. 469 
 
 Thorogood v. Clarke, ii. 249 
 
 V. Marsh, ii. 292 
 
 Thorold v. Smith, ii. 44 
 
 Thoronghgood's case, i. 373 
 
 Thorp V. Fry, ii. 434 
 
 V. How, ii. 92 
 
 Thorpe i\ Booth, ii. 661 
 
 V. Burgess, app. ii. iii. 1563 
 
 V. Coombe, ii. 661 
 
 V. Gisburn, ii.513 
 
 V. Mettingley, iii. 1088 
 
 1". Thorpe, ii. 56. 67, 68. iii. 966 
 
 Thrale v. London (Bishop of), iii. 942 
 
 Threlfal v. Webster, i. 88 
 
 Thresher i: East London Waterworks Com- 
 pany, iii. 1247 
 
 Throgmorton i\ Walton, ii. 364 
 
 Throgmorton's case, ii. 40 
 
 Thrupp v. Fielder, ii. 556 
 
 Thrush v. Rooke, iii. 790 
 
 Thunder i: Belcher, ii. 427 
 
 Thurgood i\ Richardson, i. 142. iii. 1027 
 
 Thurle v. Madison, i. 412 
 
 Thurman v. Wild, app. ii. iii. 1316 
 
 Thursliy r. Plant, ii. 34G. 349. app. ii. iii 
 1527 
 
 v. Warren, ii. 107
 
 ox XX 
 
 TABLE or CASES. 
 
 Thurston r. Dclaliay, i. 394 
 
 V. Slatford, i.527 
 
 Thwaites v. Luinsbnry, i. 537 
 
 V. Mackerson, ii. 109 
 
 V. Richardson, iii. 808 
 
 Thynne v. Prothcroe, ii. 440. iii. 1035. 
 
 iOo7 
 Tihhetts r. Yorke, iii. 732. 1171 
 Tibbits *'. George, ii. 175 
 Tickle V. Brown, i. .353. 305. iii. 9-21, 922. 
 
 1125 
 Tickser r. Tickner, iii. 1287 
 Tidmarsh ?■. (jlrover, ii.255 
 Tidiniis r. Lees, i. 2()8 
 Tildarr. Sutton, iii. 1009 
 Tilk i\ Parsons, ii. G3G 
 Till r. Wilson, ii. 122 
 Tilley's case, i. 311 
 Tillotson, Ex parte, i. 81 
 Tilney i\ Norris, ii. 351 
 Tiinmins r. Rowlinson, ii. 415. 417 
 Timms v. Phitt, ii. 241. 444 
 Timothy v. Simpson, iii. 1135 
 Timperley i\ Scott, i. 326 
 Tindal v. Brown, i. 517. 519, 520. 522. 
 
 ii. 225, 22G. 229. 251 
 Tingrey v. Brown, ii. 444, 445 
 Tinkler i\ Rowland, app. ii. iii. 1613 
 V. Walpole, i. 249. 410, 411. iii. 807. 
 
 870 
 Tinkler's case, i.532. ii. 366, 367. 386 
 Tinley v. Porter, i. 81 
 Tinsley v. Nassau, iii. 1031. 1112 
 Tipper v. Bicknell, app. ii. iii. 1329 
 Tippetts V. Heane, ii. 606. 671 
 Tipton V. Greaves, app. ii. iii. 1477 
 Tisdale v. Essex (SirW.), ii.347 
 Title t'.Grevet, i. 191. 194. ii. 10 
 Titner r.Titner, iii. 1286 
 Titterton v. Conyers, iii. 748 
 Titus V. Perkins, i. 445 
 Tobin V. Crawford, app. ii. iii. 1622 
 Todd V. Enily, app. ii. iii. 1508 
 
 V. Hawkins, app. ii. iii. 14G4 
 
 V. Hoggart, iii. 1192 
 
 V. Maxfield, i. 257. 268 
 
 V. Redford, ii. 535 
 
 V. Reed, ii. 361. iii. 819. 892 
 
 V. Ritchie, iii. 880 
 
 V. Stokes, ii. 541.544 
 
 V. Winchelsea, i. 184. 327. iii. 1263 
 
 Tollit i: Shenstone, app.ii. iii. 1583 
 Tolputtv. Wells, ii. 498 
 Tolson V. Warwick G. L. Co., ii. 339 
 Tomkins v. Ashby, i. 338. ii. 20 
 
 17. Ashley, iii. 1036 
 
 V. Harrison, i. 322 
 
 V. Savory, iii. 1036. 1038 
 
 Tomkyns v. Barnet, ii. 93 
 
 V. Lawrence, app. ii. iii. 1675 
 
 Tonilinson v. Bentall, ii. 70 
 
 V. Brittlebank, ii. 629 
 
 V. Brown, app. ii. iii. 1539 
 
 V. Dtiy, ii. 48. iii. 1180. 1184 
 
 V. Lynier, iii. 1095 
 
 V. Wilkes, ii. 194 
 
 Tompkinson v. Russell, iii. 1100. 1102 
 
 Toms V. Powell, iii. 1078 
 
 Tone (Conservators of) i: Ash, ii. 338 
 
 Tong'scaso, ii. 11. .38. 40 
 Tonge r. Allen, app. ii. iii. 1482 
 Tookc V. Ilollingsworth, ii. 162. 166 
 
 V. Meering, iii. 1(),">3 
 
 Tooke's case, ii. 329. iii. 1097 
 Tooker V. Beaufort, i. 225. 238. 320 
 Tooley r. AVindham, iii. 884 
 Tooley's case, iii. 722 
 Toomes v. Etherington, i. .308 
 Toosoy V. Williams, i. 96. 398 
 Toovcy V. Milne, ii. 170 
 Tope V. Ilockin, ii. 144 
 Topham (?. Braddick, ii. 001 
 
 V. Dent, iii. 1099. 1101 
 
 Toplis V. Gi'ane, app. ii. iii. 1434 
 
 Torriano v. Young, ii. 414 
 
 Torrington's case, i. 54. 359, 300 
 
 Tothill V. Hooper, i. 159 
 
 Totterdell v. Glazby, ii. 358 
 
 Totty V. Nesbitt, ii". 370 
 
 Toulniin v. Anderson, iii. 1217 
 
 Toussaint v. Hartop, ii. 158 
 
 V. Martinnant, ii.58. 104. 184. iii 757. 
 
 1001 
 Tovey ii. Lindsay, ii. 700 
 
 V. Palmer, iii. 850 
 
 V. Plomer, iii. 849 
 
 Tower v. Cameron, ii. 185 
 
 V. Hayden, ii. 209 
 
 Towers v. Barrett, ii. 72. 91. iii. 1211. 1243 
 
 V. Moore, iii. 767, 708 
 
 V. Osborne, ii. 487. iii. 1039 
 
 Towgood, JEx parte, ii. 105 
 
 Towne v. Gresley, ii. 48 
 
 Townend v. Downing, i. 113. 130. 151. ii. 
 
 192. iii. 1061. 1066 
 
 r. Row, i. 158 
 
 Townley i: Crump, app. ii. iii. 1354 
 
 2\ Gibson, ii. 117 
 
 Townley 's case, iii. 1096 
 Townsend v. Champornown, ii. 406 
 
 r. Davis, iii. 1179 
 
 V. Inglis, iii. 821 
 
 r. Neale, iii. 1304 
 
 (Marquis of) v. Norwich (Bishop of), 
 
 iii. 917 
 
 V. Pearce, iii. 1261 
 
 U.Wallace., iii. 734 
 
 (Lord) V. Ashe, iii. 904' 
 
 (Lord) r. Windhiim, ii.498 
 
 Townsend's case, ii. 012 
 Townson v. Tickell, iii. 977 
 
 V. Wilson, ii. 89, 90. app. ii. iii. 1302 
 
 Towsey v. White, iii. 733 
 
 Tracy i\ M'Arlton, app. ii. iii. 1439 
 
 V. Talbot, ii. 280 
 
 Train v. Bennett, iii. 1304 
 
 Tralmin v. Copeland, app. ii. iii. 1516 
 
 Tranter and Reason's case, iii. 723 
 
 Trapp V. Spearman, ii. 255 
 
 Trappes r. Harter, ii. 155. 157. app.ii. iii. 
 
 13.53 
 Trapsliaw's case, ii. 281 
 Tratman v. Carrington, iii. 1094 
 Travers v. Townsend, ii. 578 
 Travis v. Chaloner, i. 260. 334. iii. 1089. 
 
 1092 
 
 V. Oxton, iii. 1082. 1090 
 
 Treaclicr v. Hinton, ii. 210 
 JJ.r jtarte, ii. 194
 
 T A H L E OF CASE S. 
 
 CXXXl 
 
 Treble's case, ii. 4(1!) 
 
 Trecothick r. Erlvvin, il. 21:1 
 
 Tredweii v. Bourk(^, app. ii. iii. ir)O0 
 
 Tree i: Qiiin, ii. 701 
 
 Tregaiiy r. Fletclicr, i. .508 
 
 Tregoning v. Attenborougli, iii. llG-2. 110(5. 
 
 ai)p. ii. iii. lo]2. 1591 
 Treil v. Edwards ii. 454 
 Trelawnev r. Coleman, i. 352. ii.354. 577 
 
 ?•. Thomas, i. 104. 1C8. 179. ii. 578 
 
 Tremaine i: Faith, i. 79 
 
 Treinlett v. Sharland, iii. 97G 
 
 Trent Navigation Co. v. IJarlev, ii. 511. 
 
 ii. 10G4 
 Trentliain v. Deverill, app. ii. iii. 1515 
 Treport's case, i. 484 
 Trevaniou v. Daubuz, ii. 355 
 Trevilian v. Pine, iii. 975 
 Trevivan i\ Lawrence, i. 268. 344 
 Trewhitt i: Lambert, app. 1. 020 
 Tribe r. Webber, ii. 145 
 Trickey v. Larne, ii. 242 
 Triebner v. Soddy, i. 146 
 Trier v. Bridgman, ii. 215 
 Triggs V. Newnhara, ii. 223 
 Trinilcy i'. Unwin, ii. 125 
 Trimmer v. Bayne, iii. 784 
 
 r. Jackson, iii. 1204. 1290 
 
 ?". Mutford (Inhabitants of), ii. 531 
 
 ■ r. Oddie, ii. 208 
 
 Tripe v. Potter, iii. 737. 1108. 1111 
 Tripp v. Armitage, app. ii. iii. 1351 
 
 V. Thomas, ii. 036. 086. iii. 1311 
 
 Trist V. Johnson, i. 400, 401 
 Tritton v. Foote, iii. 1275 
 Trothcr v. Simpson, ii. 059, 660 
 Trotter ik Harris, iii. 1252 
 Troup V. Brooks, ii. 563 
 Trowell v. Castle, i. 300 
 Trower v. Chadwick, iii. 746 
 
 V. Newsome, iii. 1213 
 
 Trueman v. Fenton, ii. 188. 003 
 
 r. Loder, ii. 494. app. ii. iii. 1323 
 
 Truman ?,'. Hurst, ii. 98. 100. 558 
 
 V. Walgbam, iii. 906 
 
 Truman's case, iii. 894 
 Truscott ?•. Christie, iii. 877 
 Trusler v. Murray, iii. 941 
 Truslove v. Bruton, ii. 115 
 Trusty's case, ii. 53 
 Truswell v. Middleton, iii. 1240 
 Tuani (Archbp. of; i\ Robeson, ii. 040 
 Tubb r. Harrison, ii.540 
 Tubcrville v. Stamp, ii. 41. 298 
 Tuck V. Fyson, iii. 1062 
 
 V. Tuck, app. ii. iii. 1541 
 
 Tucker v. Barrow, ii. 28. 97. 151, 152. iii. 
 
 795 
 
 V. Cracklin, i. 407. ii. 01. 285, 280 
 
 ■ i\ Jones, ii. 135 
 
 V. Newman, iii. 979 
 
 i>. Tucker, iii. 993 
 
 ?\ Wilkins, i. 241. 251 
 
 Tucker's case, ii. 029 
 
 Tiiftnell V. Page, ii. 333 
 
 Tufton V. Nevison, iii. 948 
 
 Tugwell v. Hayinan, ii. 70. 454 
 
 Tullidge V. Wade, i. 148. iii. 989. 990. 1116 
 
 Tulloch V. Dinni, ii. 005 
 
 Tullock V. Boyd, ii. 20 
 
 Tunnojj. Edwards, iii. 88i) 
 
 V. Morris, iii. 1029 
 
 Tunzcll r. Allen, app. ii. iii. 1450 
 Tapper v. H;iythorn, iii. 809 
 Turberville v'. Patrick, i. 418 
 Turk V. Tookc, ii. 268 
 Turlcy v. Tliomas, app. ii. iii. 1 491 
 Turlington's (Dr.) case, ii. 690 
 Turner v. Allday, app. ii. iii. 1406 
 
 V. Baynes, ii. 309 
 
 V. Beaurain, iii. 1191, 1192, 1193 
 
 V. Crisp, i. 357. iii. 932 
 
 v. Davis, ii. 76 
 
 I'. Diaper, app. ii. iii. 1541 
 
 V. Eyles, i. 492. ii.351. iii. 1020 
 
 V. Gethin, ii. 570 
 
 V. Giraud, iii. 862 
 
 V. Gow, ii. 684 
 
 V. Hawkins, iii. 1107 
 
 V. Hayden, li. 214. 224 
 
 V. Hoole, ii. 94 
 
 V. Leach, ii. 220. 2.30. 231 
 
 V. Meymott, iii. 1118 
 
 V. Pearte,i. 93. 137 
 
 V. Power, iii. 1036. 104r<. ]{):>G 
 
 V. Railton,ii. 321 
 
 V. Richardson, ii. 180. 189. 350. 562 
 
 V. Robinson, iii. 1304 
 
 V. Rookes, ii. 543 
 
 V. Trisby, ii. 557 
 
 V. Turner,ii. 082. iii. 1026 
 
 t\ Winter, ii. 545. iii. 939 
 
 Turner's case, ii. 278 
 
 Turnor v. Felgate, iii. 1032. 1111 
 
 Turpley v, Blakey, ii. 640 
 
 Turquand v. Knight, app. ii. iii. 13.il 
 
 IK Strand Union (Guardians of), apj). 
 
 ii. iii. 1449. 1624 
 Turton v. Benson, ii. 27 
 Turville v. Ainsworth, i. 471. 478 
 Tuson r. Batting, iii. 828. 1310 
 Twemlow v. Osmin, iii. 873. 878 
 Twigg f. Potts, iii. 1134 
 Twine's case, ii. 142 
 Twiss V. Osborne, app. ii. iii. 1477 
 
 V. White, ii. 563 
 
 Twogood V. Spyring, ii. 632. 634 
 
 Ex parte, iii. 994 
 
 Twopenny v. Young, iii. 1006 
 Tye I!. Fynmore, iii. 1199 
 Tyers v. Gwynne, ii. 243 
 
 V. Stunt, ii. 564 
 
 Tyler v. Leeds (Duke of), iii. 803. 101 B 
 Tyly V. Morris, ii. 292 
 Tyndal v. Hutchinson, ii. 309 
 Tyrrell v. Holt, 1. 419 
 
 V. Wool'ey, app. ii. iii. 1431 
 
 Tyrwhit v. Wynn, i. 398. 400. ii. 330. -111. 
 
 iii. 1126 
 Tyson v. Kemp, i. 229 
 
 V. Smith, app. ii. iii. 1392 
 
 Tyte V. Jones, ii. 264. iii. 10.">7 
 Tytler v. Dalrymple, iii. 1270 
 
 Udal's case, ii. 383 
 Ughtred's case, ii. 67 
 Uhde V. Walters, iii. 7.')0. 779 
 Ulrish V. Litchfield, iii. 1273 
 Umble V. Fisher, i. 443 
 Umphelby i\ Maclean, ii. 97. 657- 060 
 12
 
 OXXXll 
 
 TABLE OF CASES. 
 
 CJncle V. Watson, i. 45 
 
 Undcrhill v. Duiliain, i. 237. iii. 1000 
 
 V. Watts, ii. 331 
 
 V. Wilson, iii. 1011. 1029 
 
 V. Witts, i. r>01 
 
 Underwood v. Burrows, iii. 733 
 
 r. Hewson, iii. 1107. 1119 
 
 V. Mordant, iii. 1034 
 
 V Parks, ii. 040.043 
 
 V. Tlionias, iii. 743 
 
 Unwin u. Wolsdey, ii. 40. iii. 739. 1170. 
 
 1301 
 Upfold V. Leit, ii. 462 
 Upnor (Case of tlie), iii. 1199 
 Upsdell V. Stewart, iii. 1307 
 Upstone V. Marcliant, iii. 1043 
 
 V. Stacli, ii. 283 
 
 Upton V. Curtis, i. 110. iii. 976, 977 
 
 V. Else, ii. 670 
 
 V. Ferrers (Lord), ii. .'')76 
 
 Unnston v. Neweomen, iii. 1203 
 Urquliartr. Barnard, iii. 778 
 Usher ii. Dauncey, iii. 811 
 
 V. Noble, iii. 880 
 
 Uslier's case, ii. 470 
 Uspariclia i\ Noble, iii. 875 
 Utber ?.'. Rich, ii. 248 
 Utterson v. Vtrnon, ii. 45.3 
 Utterton v. Robins, ii. 493. iii. 1263 
 
 Vaclier v. Cocks, i. 64. 69. 350. 407. ii. 141 
 Vaillant v. Dodemead, i. 71. ii. 322,323 
 Vale V. Bayle, i. 474. ii. 010. iii. 1152 
 Valentia's case, ii. 200 
 Valentine v. Vauglian, ii. 127 
 Vallance i\ Dewer, iii. 886 
 
 V. Savage, iii. 977 
 
 V. Siddell, ii. 246, 247. app. ii. iii. 
 
 1591 
 
 Ex parte, app. ii. iii. 1352 
 
 Vallejo V. Wlieeler, iii. 880 
 Van i\ Corpe, app. ii. iii. 1592 
 Vanderheyden v. Paiba, ii. 75 
 Vandermanker I'. Desborougb, ii. 175 
 Vanderplank v. Miller, iii. 736 
 Vandervell v. Tyrell, ii. 262 
 Vandyck v. Hewitt, ii. 96 
 Vane's (Sir H.) case, i. 527. iii. 1096 
 Van Omeron v. Dowick, i. 233. iii. 876 
 936 
 
 Vansandau r. Brown, ii. 112 
 
 V. Burt, i. 475 
 
 V. Corsbie, iii. 1061, 1062 
 
 Van Wart v. Wolley, ii. 27. 265, 266 
 
 Vare v. Austen, i. 440 
 
 Viirley's case, ii. 310 
 
 Varnish, Ex parte, a.]}]), ii. iii. 1350 
 
 Vaughan v. Atkins, ii. 334 
 
 V. Browne, ii. 438 
 
 u. Davis, iii. 1119. 1121 
 
 V. Fuller, ii. 237 
 
 V. Hnrris, app. ii. iii. 1554 
 
 V. Howard, ii. 358 
 
 V. Martin, i. 97. 178. ii. 195 
 
 V. Mcnlove, iii. 734. 742 
 
 V. Plunkettjii. 69 
 
 7\ Watt, app. ii. iii. 1584 
 
 V. Whitcomb, ii. 508. iii. 1234 
 
 V. Wilkins, ii. 108 
 
 Vaughan's (Cupt.) case, iii. 1090, 1097. 
 
 1236 
 Vaux r. Vollans, iii. 965 
 
 Peerage, app. i. 009. ii. iii. 1517, 
 
 1518 
 Vauxhall Bridge Company, Ex parte, ii. 
 
 154 
 Vavasour v. Ornierod, i. 458 
 Vawser v. Jeftery, iii. 1289 
 Veal V. Nicholls, iii. 1054 
 Venables t'. Datfc, iii. 1074 
 Venafra v. Johnson, iii. 787 
 Venderleyden v. Paiija, ii. 75. iii. 1060 
 Venn v. Warner, i. 47 1 
 Vennall v. Ganner, iii. 741 
 Venning v. Leckie, ii. 99. iii. 816. 1039 
 
 V. Shuttleworth, ii. 258 
 
 Vent V. Pacey, ii. 321 
 Verany v. Warne, iii. 1298 
 Vera v, Ashby, iii. 805. 807. 810 
 
 V. Cawdor (Lord), ii. 505. iii. 1137 
 
 V. Lewis, i. 530. ii. 239. 252. 262 
 
 Verley v. Saunders, iii. 8151 
 Vernon v. Bouverie, iiL 822 
 
 V Cholmondely, ii. 576 
 
 V. Crew, ii. 1 15 
 
 V. Hall,ii. 171 
 
 r. Hankey, i. 533. ii. 131. 109. iii. 
 
 1023 
 
 V. Hanson ii. 168, 169. iii. 959 
 
 V. Keys, ii. 371, 372. iii. 1213 
 
 i\ Skipton, iii. 1165 
 
 Ex parte, iii. 146 
 
 Vernon's case, iii. 758 
 
 Verrall v. Ro!)inson, iii. 1163 
 
 Verry v. Watkins, app. ii. iii. 1540 
 
 Verulara (Lord) v. Howard, ii. 20 
 
 Vessey v. Pike, ii. 642 
 
 Vicars v. Wil cocks, ii. 299. 637 
 
 Vicary's case, ii. 32 
 
 Vice V. Anson (Lady), i. 401, iii. 805 
 
 Vickers i\ Gallimore, iii. 1141 
 
 Ville de Varsovie (Case of the), i. 96 
 
 Villers v. Beaumont, iii. 758. 789 
 
 Villiers v. Villiers, i. 394 
 
 Vince v. Francis, iii. 1294 
 
 Vincent v. Cole, i. 500. ii. 57. iii. 1296 
 
 V. Holt, ii. 107 
 
 V. Hurlock, ii. 214 
 
 V. Prater, ii. 134, 135 
 
 V. Sharp, ii. 447 
 
 V. Slaymaker, ii. 108 
 
 Vine V. Mitchell, ii. 17 
 
 V. Saunders, app. ii. iii. 1571 
 
 Vine (Case of the), iii. 1299 
 
 Viner v. Cadell, ii. 101 
 
 Vines v. Reading (Corp. of), i. 530 
 
 Viney .v Barss, ii. 518 
 
 Vooght V. Winch, i. 258. 268, 269. ii. 300. 
 
 iii. 958, 959. 1253,1254 
 Vowles V. Miller, i. 437. 408. 469. iii. 978. 
 1099. 1127 
 
 V. Young, ii. 201. iii. 834, 835 
 
 Voyce V. Voyce, iii. 1118. 1125 
 Vynior's case, ii. 118 
 Vyse V. Wakefield, ii. 345 
 
 Wadbridge v. Swann, ii. 205 
 Waddilove v. Barnett, iii. 1181. app. ii. iii. 
 1589
 
 TABLE OF CASES. 
 
 CXXXlll 
 
 Waddington v. Brlstow,ii. 480. i i i. 103<), 1040 
 
 • V. Cousins, a])]), ii. iii 14;sr) 
 
 V. Francis, iii. 1U:J7. 1052. 1054 
 
 V. Oliver, ii. 71 
 
 Waddy v. Newton, ii. 'iCtS 
 Wade V. Beasly, ii 2(i4. iii. 794 
 
 I'. Carr (Lady), iii. 136 
 
 Wade V. Wilson, ii. 75. 79. 80. iii. 8-27. 848. 
 
 118G 
 Wade's case, iii. 1068 
 Wadeson v. Smith, ii. 100, 110 
 M'adham v. Marlowo, ii. 185 
 Wadhurst v. Daiuiirc, ii. 505 
 Wadley v. Bayliss, iii. 778 
 Wadswortli i'. Gye, ii 558 
 
 1\ Hanishaw, ii. oil 
 
 WagstafF i\ Boardman, ii. 238 
 
 V. Wagstaff, ii. 3.0.3, 334 
 
 Wagstaffe v. Sharpc, ii. 102. app. ii.iii. 1325 
 
 V. Wilson, ii. 115 
 
 Wain V. Warltcrs, ii. 482 
 Waiusborough v. Matson, iii. 1246 
 Wainwright v. Bland, iii. 888. app. ii. iii. 
 
 1415. 1524 
 
 V. Clement, app. ii. iii. 1446 
 
 Waite V. Briggs, i. 488 
 
 V. Smith, ii. 522 
 
 Waite's case, ii. 611 
 Waithman i\ Wakefield, ii. 544 
 
 V. Weaver, ii. 641 
 
 Wake V. Locke, i. 117. app. i. 596 
 
 V. Russ, iii. 1082 
 
 Wakefield Bank, ex j)arte, ii. 165 
 Wakefield r. Gall, i. 81 
 Wakefield's case, i. 78. app. i. 597 
 Wakeman v. Robinson, iii. 1107. 1119 
 
 V. West, i. 351. iii. 1251 
 
 Wakley v. Jolmson, ii. 640. app. ii.iii. 1465 
 Waland v. Elkins, i. 474. ii. 285. 299. iii. 
 
 738. 805 
 Walcot V. Goulding, iii. 1044 
 Walcott V. Ochterlony, app. ii. iii. 1614 
 Waldegrave Peerage, app. ii. iii. 1482 
 Walden v. Holmaii, ii. 4. 708 
 Waldridge v. Keiinison, ii. 27. 237. 518 
 M'^aldron v. Coombe, i. 234. ii. 302. iii. 893 
 
 ?;. Ward, ii. 323 
 
 Wale I'. Booth, ii. 455 
 Walford r. Anthony, iii. 1099 
 
 V. La Pienne (Duchesse de), ii. 547 
 
 Walker v. Andrews, app. ii. iii. 1515 
 
 V. Barnes, ii. 185. 256. 576 
 
 V. Beanchanip, i. 245. 392. app. i. 602 
 
 V. Bellamy, ii. 646 
 
 V. Birch, ii. 648 
 
 V. Bradstock, i. 353. 866. ii. 34 
 
 V. Burnell, i. 524. ii. 23. 151. 156.157 
 
 V. Chapman, ii. 94 
 
 V. Consett, iii. 995 
 
 V. Coistable, ii. 82. 479. iii. 1 194 
 
 V. Dawson, iii. 1105 
 
 V. Dixon, iii. 1200. 1205 
 
 ■^ — V. Fawsoii, app. ii. iii 1517 
 
 V. Hardman, app. ii. iii. 1561 
 
 V. Kearney, i. 95, 06 
 
 V. Laiiig, ii. 168, 169 
 
 V. Maitland, iii. 877 
 
 V. Mills, ii. 503 
 
 V. Moore, iii. 1193. app. ii. iii. 1C05 
 
 V. Newell, ii. 23 
 
 Walker v. Rawson, iii. 828 
 
 V. Ricliardscin, app. ii. iii. 1502 
 
 V. Seaborne, ii. 17 
 
 V. Walker, iii. 7()8 
 
 V. Willoughby, i. 471 
 
 V. Wingfield,*i. 243 
 
 V. Witter, i. 270,271. 274. 292. 492 
 
 V. Woolcot, a])p. ii. iii. 1571 
 
 :Ex parte, ii. 242. iii. 1061 
 
 Jm re, app. ii. iii. 1346 
 
 Walker's case, ii. 349. 351. 608 
 Wall's case, ii. 465 
 Wallace v. Breeds, iii. 1223 
 
 (Administrator) v. Cook, i. 247 
 
 • V. Hardacre, ii. 247 
 
 V. Jarnian, ii. 376 
 
 V. Kelsall, app. ii. iii. 1315 
 
 V. King, ii. 390, 391. 393. iii. 1166 
 
 — — V. Small, ii. 27 
 
 V. Smith, ii. 97. 594 
 
 V. Woodgate, ii. 649, 650 
 
 Waller v. Andrews app. ii. iii. 1515 
 
 t\ Baker, ii. 534 
 
 V. Burrows, ii. 498 
 
 V. Drakeford, i. 537. ii. 169 
 
 V. Horsfall, i. 303. 409. iii. 1053 
 
 V. Lacy, ii. 109. 114. app. ii. iii. 1326. 
 
 1341. 1474 
 Walley v. Montgomery, ii. 163 
 Wallis I'. Alpine, ii. 683 
 
 V. Broadbent, iii. 1178 
 
 V. Brown, iii. 1056 
 
 V. Day, app. ii. iii. 1388 
 
 V. Delaney, i. 376. 370, 380 
 
 'V. Harrison, app. ii. iii 1468. 1539 
 
 V. Hodgson, iii. 1276 
 
 V. Saville, ii. 393 
 
 Walls I'. Atcheson, i. 211. ii. 475. iii. 1176. 
 
 1182. 1184 
 Walmcsley v. Abbott, ii. 47 
 
 V. Brierley, iii. 1045. app. ii. iii. 1557 
 
 V. Cooper, iii. 802. app. ii. iii. 1536 
 
 Walpole (Lord) v. Chobnondeley (Lord), iii. 
 
 774 
 
 V. Pulteney, ii. 252 
 
 Walbbyr. Oakeley, iii. 1135 
 Walsh V. Fusscll, ii. 67 
 
 V. Stockdale, i. 361. ii. 246. 261 
 
 Walsh's c;se, ii. 608 
 Walter II. Cobly, iii. 1051 
 
 V. Gunner, iii. 862. 605, 866 
 
 V. Haynes, ii. 227 
 
 ij.Holman, iii. 1092 
 
 .v. Pfiel,ii.441. iii. 746 
 
 V. Rumbal, ii. 392 
 
 Walters v. Lewi.-, i. 352 
 
 V. Mace, i. 471 . 619. ii. 678 
 
 V. Metford, ajp. ii. iii. 1618 
 
 V. Morgan, ii. 481 
 
 V. Rees", i. 92 
 
 Walton V. Fotliergill, app. ii- iii. 1393 
 
 V. Hastings, ii. 255. iii. 1051 
 
 V. Kersop, iii. 970 
 
 V. Shelley, i. 104. ii. 11. 257 
 
 Walwyn v. St. Quintin, ii. £30. 251 
 Wandlessf. Cawthornc, i. 136. ii. 102 
 Wandley v. Smith, app. ii. iii- 1361 
 Wandsworth i\ Putney, iii. 1000 
 WauktbrJ v. Wankfoni, ii. 253 
 Wansboiougii v. Matou, app. ii. iii. ICOJ 
 i3
 
 cxxxiv 
 
 TABLE OF CASES. 
 
 Wansborongli, In re, iii. 1041 
 Waiburton v. Eilge, ap]). ii. iii. 1470 
 Ward V. Andrews, iii. 110:3 
 
 V. Audland, fipp. ii. iii. 1431 
 
 V. Byrne, app. ii. iii. 1331 
 
 r. Clarke, ii. 15-2.171 
 
 V. EUayn, i. "277 
 
 V. Evans, ii. 44. iii. 8^1 
 
 V. Felton, ii. GoO 
 
 ??. Griffiths, i. 484 
 
 I'. Haydon, i. 147. iii. 799 
 
 V. Heiilev, iii. 1065 
 
 V. Hunter, ii. mi. G04. 670 
 
 V. Maeauley, yii. IIOO, 1104. 1119 
 
 V. Man, i. 143 
 
 V. Mason, i. 536. iii. 1175. 1181 
 
 V. Nanney, ii. 67 
 
 V. Pearson, app. i. 6-29 
 
 V. Peel, app. i. 631 
 
 V. Smith, ii. 629 
 
 V. Suffield, app. ii. iii. 1318 
 
 V. Weeks, ii. 637 
 
 V. Wells, i. 312. 376. 378 
 
 . y. Wilkinson, i. 118. 122. 161. iii. 
 
 1169. 1229 
 Ward's case, ii. 602 
 Warden r. Fermor, i. 377 
 
 r. Mourielyan, ii. 287, 288 
 
 Warden r. Bailey, iii. 1112 
 
 Mary, (in the Goods of), app. ii. iii. 
 
 1616 
 Wardle v. Nicholson, ii. 108, 109 
 Wardle's case, i. 465 
 Wardsworth v. Willan,iii. 736 
 Waring v. Bowles, i. 377 
 
 V. Cox, iii. 1146 
 
 V. Hoggart, iii. 1190. 1193 
 
 Ex parte, ii. 165 
 
 W^armington v. Sadler, iii. 1091 
 WarmoU v. Young, iii. 1018 
 W^arn v. Bickford, iii. 992 
 Warne r. Chadwell, ii. 635 
 
 V. Teri-y, ii. 680 
 
 V. Varley, ii. 586. iii. 1112 
 
 W^arneford v. Kendall, ii. 503 
 
 V. Warneford, iii. 1261 
 
 Warner I!. Barber, ii. 131. 133 
 
 V. Hargrave, iii. 809 
 
 V. M'Kav, iii. 995 
 
 Warrr. Solly" ii. 632 
 
 Warrall ?;. Clare, iii. 1122 
 
 Warre v. Calvert, ajip. ii. iii. 1562 
 
 V. Harbin, i. 482 
 
 V. Miller, iii. 873 
 
 W'arren v. Anderson, app. ii. iii. 1435 
 
 V. Consett,ii. 104. 369 Iii. 757 
 
 i: Cunningham, ii. 108 
 
 • r. Greenville, i. 362. iii. 962 
 
 V. Howe, iii. 1045 
 
 f. Stagg, iii. 761. 790 
 
 V. Taylor, app. i. -596. 599. app. ii. iii. 
 
 1360 
 
 V. Warren, ii. 634 
 
 V. Webb, i. 465. 468. iii. 742 
 
 w. Windle, iii. 850 
 
 Ex parte, iii. 730 
 
 Warren Hastings (case of), i. 250 
 AVarrender i'. Wiirrcndcr, app. ii. iii. 1483 
 Warrickshall's ('use, ii. 36. 38 
 A\ arrinj^tou v, Inirbor, ii. 266. 512. iii. 1030 
 
 Warwick v. Bruce, ii. 480. 555. iii. 1039 
 
 V. Collins, iii. 1094 
 
 V. Noitkcs, iii. 823 
 
 Warwick's (Lord), case, i. 99 
 
 Washington r. Bryiner, iii. 824. 923. 932. 
 
 966 
 Watchorn r. Cooke, iii. 1235 
 Waterer v. Freeman, ii. 689 
 Waterford's (Earl of; ease, app. ii. iii- 
 
 1159 
 Waterhousew. Atkinson, iii. 1028 
 
 V. Skinner, iii. 1219 
 
 V. Keen, ii. 85. 594. iii. 730 
 
 Waterman v. Sopcr, iii. 1127 
 Waters r. Taylor, iii. 731 
 
 v. Tompkins, ii. 665 
 
 Watkins v. Birch, ii. 496, 497. iii. 1030 
 
 V. Hewlet, ii. 89. 91. iii. 1036. 1049, 
 
 1050 
 
 V. Lee, app. ii. iii. 1477 
 
 V. Maund, ii. 172 
 
 V. Morgan, i. 496 
 
 V. Perkins, ii. 477 
 
 V. Robb, iii. 1068, 1069 
 
 V. Tow<5rs, i. 535. iii. 828. 1231 
 
 V. Vince, ii. 43, 44. iii. 1039 
 
 V. Wake, app. ii. iii. 13G2. 1365 
 
 V. Woolley, i'i. 1160 
 
 Ex parte, ii. 160 
 
 W'atkin's case, ii. 711 
 Watson V. Bayless, iii. 990 
 V. Bevern, i. 191 
 
 V. Carroll, app. ii. iii. 1552 
 
 V. Christie, ii. 300. iii. 1120, 1121, 
 
 1122 
 
 V. Clark, iii. 889 
 
 V. Denton, app. ii. iii. 1G05 
 
 V. Hai-dacre, ii. 248 
 
 V. King, i. 247. ii. 343. 345. 440. iii. 
 
 875 
 
 r. Main, ii. 394 
 
 V. Medex, ii. 189 
 
 V. Pears, iii. 940 
 
 V. Reeve, i. 531 
 
 V. Reynolds, ii. 641 . 643 
 
 V. Sutton, iii. 1015 
 
 V. Threlkeld, ii. 22. 546 
 
 V. Turner, ii. 70 
 
 V. Wace, app. ii. iii. 1553 
 
 V. Waltham, app. ii. iii. 1575 
 
 V. Ware, ii. 22. 151 
 
 Ex parte, ii. 122 
 
 Watson's case, i. 185. 198. ii. 326. 610. 
 iii. 1090, 1097 
 
 Watt V. Collins, ii. 108 
 
 V. Moir, iii. 889 
 
 Watts V. Ball, app i. 631 
 
 V, Fraser, ii. 640 
 
 V. Friend, ii. 486. iii. 1039 
 
 i>. Lawson, ii. 27 
 
 V. Thorpe, ii. 149 
 
 Waud V. Evans, ii. 266 
 
 Wangh V. Bussell, i. 369. 478, 479. ii. 279 
 
 V. Carver, ii. 102. iii. 804. app. ii. iii. 
 
 1505 
 
 V. Cope, app. ii. iii. 1473 
 
 Waully's case, ii.701 
 
 \A'aym'an j'. Bend, i. 450. ii. 214. 216. 262 
 
 — — V. liilliard, ii. 98
 
 taull: of cases. 
 
 cwxv 
 
 ■VVayman v. Reel, iii. 803. 1-218 
 
 Weakly v. Biieknell, ii. 4-J() 
 
 Weall "('. Kiug-, i. 44.45. ii. 28.^. iii. 800 
 
 Wcatlicrili c. Ciuai'intc, ii. ;U(J 
 
 Weatlierstoiic r. Hawkins, ii.G31. 035. 640 
 
 Weary v. Akiersoii, npyi. ii. iii. lol4 
 
 Weaver i'. Bush, iii. 11:57 
 
 r. Burrows, iii. 1207 
 
 V. Clifford, i. 508. iii. 1022 
 
 V. Lloyd, ii. 043 
 
 V. Pn'nticc, iii. 807 
 
 J'. Price, ii. 58!). iii. 1112 
 
 i;. Ward, ii.575. iii. 1107 IIU) 
 
 Webb I'. Allen, iii. 1110 
 
 ('. Batchelour, ii. COO 
 
 V. Bishop,, ii. 94. U(i. iii. 1216 
 
 ('. Brooke, ii. 247 
 
 V. Fairinaner, iii. 1074. 1204, 1205. 
 
 app. ii. iii. 1565 
 
 V. Fox, iii. 1153 
 
 V. Heme, ii. 686. iii. 1010 
 
 V. Hill, ii. 087,688,689 
 
 , 1)1 re, ii. 283. 287 
 
 V. Matthew, iii. 1016 
 
 I'. Paternoster, ii. 473. 481 
 
 I'. Plummer, iii. 782 
 
 • 1'. Potts, iii. 908 
 
 V. Pritehett, i.328. ii. 111. iii. 1075 
 
 V. Rhodes, app. ii. iii. 1340 
 
 ■ V. Smith, i. 216. ii. 28. app. ii. iii. 
 
 1374 
 
 Webber v. Maddocks, iii. 1044. 1051 
 
 V. Nieholas, ii. 690 
 
 I'. Richards, app. ii. iii. 1570 
 
 V. Tivill, i. 448. ii. 73. 071. iii. 803 
 
 V. Venn, iii. 992 
 
 Webster i'. Masou, app. i. 610 
 
 V. Scales, ii. 17.5 
 
 V. Seekamp, iii. 871. 1302 
 
 V. Spencer, ii. 443 
 
 W'eddall v. Capes, app. ii. iii. 1560 
 
 Wedderburn's (Sir J.) case, iii. 1096 
 
 Wedge V. Berkeley, ii. 580. 600 
 
 V. Newlyn, ii. 139, 140 
 
 W^edgewood v. Hartley, app. i. 595 
 
 Wedlake v. Hurley, ii. 82. 95 
 
 Wedrington's (Dr.) case, i. 285 
 
 Wee V. Gaily, i. 508 
 
 Weeding v. Aldritch, iii. 1156 
 
 Weedon v. Timbrel, ii. 355, 356 
 
 Weguelih v. Weguelin, app. i. 612 
 
 Weekes v. Gore, ii. 451 
 
 Weeks i;. Sparke, i. 30. 32, 33. 82. ii. 319. 
 359. iii. 835. 909 
 
 Weeton v. Woodcock, app. ii. iii. 1358. 
 1608 
 
 Weigall V. Waters, iii. 993 
 
 Weir V. Aberdeen, iii. 874. 1049 
 
 Welborne's case, ii. 367 
 
 Welbourne v, Dewsbury, ii. 447 
 
 W^elby V. Warren, iii. 1068 
 
 W^elcome i\ Upton, iii. 922 
 
 Welch V. Richards, ii.570 
 
 V. Phillips, app. ii. iii. 1615 
 
 Weld V. Crawford, ii. 108, 109 
 
 V. Gas Light Covupauy, iii. 734. 738, 
 
 739 
 v. Hornby, iii. 775, 776. 904. 1253 
 
 Weldou i: Bridgewalcr, iii. 1102 
 
 V. Gould, ii. 648 
 
 V. Grey, i. 328 
 
 Wollard v. Moss, iii. 1049 
 Wcleker v. Le Pelletier, ii. 3, 4 
 Weltbrd v. Bezilev, ii. 485 
 
 V. Liddel, ii. 671 
 
 Wellesley v. Welksley, app ii iii. 1470 
 Weller i'. B.iker, ii. 535 
 
 V. Foundling Hospital (Governors of), 
 
 ii. 340 
 
 V. Toke,ii. 580,581 
 
 Wellington v. Macintosh, ii. 119 
 
 I'. Wellington, iii. 1287 
 
 Wells V. Croft, iii. 994 
 
 V. Girling, i. m. ii. 211. 262 
 
 V. Gurney, iii. 1140 
 
 Wells Harbour case, ii. 313. 517 
 Wells I'. Head, iii. 1114 
 
 V. Hopwood, iii. 878 
 
 i'. Ilorton, ii. 482 
 
 V. Masterman, ii. 205. iii. 810 
 
 V. Moody, ii. 392 
 
 V. New College, O.xforJ, app. ii. iii. 
 
 1568 
 
 V. Ody, ii. 597. iii. 747, 748. app. ii. iii. 
 
 1.539 
 
 V. Watling, iii. 317. 396. iii. 1254 
 
 • V. Wells, ii. 56 
 
 V. Williams, i. 21 
 
 Welsh V. Fisher, i. 462. 486 
 
 V. Hole, ii. 648 
 
 V. Myers, ii. 350 
 
 V. Nash, ii. .523. 589. iii. 1122. app. 
 
 ii. iii. 1497 
 
 V. Rose, iii. 974 
 
 V. Seaborn, ii. 79. 823 
 
 Welsh's case, i. 316 
 
 Welstead v. Levy, ii. 29 
 
 VVennall v. Adney, ii. 56. 70 
 
 Wentworth v. Buller, ii. 17 
 
 r. Cock, app. ii. iii. 1415 
 
 Were i'. Taylor, ii. 263 
 
 West V. Andrews, i. 449. 457. iii. 752 
 
 i: Blakeway, app. ii. iii. 1498 
 
 V. Francis, iii 941 
 
 V. Pasmore, iii. 1159 
 
 t\ Skipp, iii. 803 
 
 V. Smallwood, iii. 1110 
 
 West's case, i.l92 
 
 Westam v. Russell, ii. 485 
 
 Westbeer's case, li. 367. 383 
 
 Westbroke v. Kennedy, iii. 1262 
 
 Westbrooke v. Strutville, ii. 537 
 
 Westbury v. Aberdein, iii 888 
 
 Westcott V. Hodges, iii. 1001 
 
 Westerdell v. Dale, iii. 870 
 
 Westlake v. Collard, ii. 27 
 
 Westley's case, iii. 1020 
 
 West Middlesex Water Comp. r. Suwer- 
 kropp, iii. 1039 
 
 Weston I'. Barton, iii. 1066 
 
 V. Carter, iii. 970 
 
 1-. Dobniet, ii. 638 
 
 V. Downes, ii. 72. iii. 1211. 1213 
 
 V. Emes, iii. 759. 867 
 
 (,'. Foster, app. ii. iii. 1339 
 
 V. Fournier, ii. 583,584. iii. 1077 
 
 -; r. Voughton, app. i. ii^'i 
 
 - — V. Wright, app. ii. iii. 1330 
 i 4
 
 CXXXVl 
 
 TABLE OF CASES. 
 
 Weston's case, il. 514. iii. 711 
 Westwood V. Cowne, ii. 393. iii. 1110 
 Wctiierden r. Einbden, ii. 089 
 Wetliercd v. Wctlicrcd, ii. 00 
 Wetliercll v. Clerkson, ii. 030 
 
 V. Jones, iii. 1218 
 
 Wetlicrston v. Elgington, i. 406. 409 
 Wlialey v. Bagenal, ii. 483,484 
 
 V. Pajot, iii. 1234 
 
 Whalley v. Pepper, ii. 088,689, 090 
 
 V. Tliomson, iii. 1250. 1259 
 
 V. Wlialley, ii. 659 
 
 V. Williamson, app. ii. iii. 1576 
 
 Wliaram v. Routledge, i. 403. 414. ii. 
 
 128 
 Wharton i: Lewis, iii. 708 
 
 V. Walker, ii. 80. 82. iii. 827 
 
 Whateley v. Feanilcy, i. 150 
 Wliatley v. Manhein), i. 260. iii. 808 
 Whatly V. Tricker, ii. 252 
 "Wiiattey i\ Williams, ii. 98 
 Wlieatley v. Patrick, app. ii. iii. 1492 
 Wheatly r. Williams, ii. 660 
 Wlieat V. Graham, app. i. 596 
 Wheeler v. Atkins, i. 326. 414 
 
 V. Bramab, ii. 180. 189. 350 
 
 r. Collier, ii. 103. 485. iii. 1212 
 
 V. Heydon, iii. 1081 
 
 V. Lowth, i. 300 
 
 V. Whiting, iii. 1137 
 
 Wheeler's case, ii. 40 
 Wheelwright v. Jackson, ii. 144 
 Wheldon v. Matthews, iii. 1036 
 Whelpdale's case, ii. 59. 378 
 Whiliy's case, ii. 464 
 Whilster v. Paslow, iii. 1100 
 Whin bled v. Malmberg, iii. 1047 
 Whipple V. Manley, app. ii. iii. 1566 
 Wiiippy V. Hillary, ii. 666 
 Whitaker v. Barker, ii. 475 
 
 V. Edmunds, ii. 221. 245 
 
 V. England, Bank of, i.64. ii. 223 
 
 r. Izod, i. 88 
 
 V. Tatham, iii. 783 
 
 Whitbread v. Brookesbank, ii.88 
 
 V. Brookhurst, ii. 482 
 
 V. Jordan, iii. 730 
 
 ■ V. May, iii. 774 
 
 Whitby V. Robert, ii. 597 
 
 i:.T parte, nl 1013 
 
 Whitchurch v. 13evis, ii. 481. 486 
 Whitcomb v. Jacob, ii. 161. 709 
 
 V. Whiting, ii. 31. 170. 666. iii. 808 
 
 White V. , ii. 560 
 
 V. Ansdell, app. ii. iii. 1511 
 
 V. Barber, ii. 409 
 
 V. Bartlett, ii. 95 
 
 V. Boulton and others, ii. 295 
 
 V. British Museum (Trustees of), iii. 
 
 1262 
 
 V. Cuyler, ii. 46. 104.539. 553 
 
 V. Driver, iii. 1283 
 
 V. Edmunds, ii. 601, 602 
 
 V. Gainer, ii. 650 
 
 V. Geroch, iii. 938, 939 
 
 V. Hussey, ii. 498. iii. 968 
 
 V. Jones, iii. 1014 
 
 V. Kilner, i.412 
 
 V. Lcroux, ii. 74 
 
 Wliite V. Lisle, i. 183 
 
 V. Montgomery, ii. 508 
 
 V. Parkins, ii. 104. iii. 757, 758. 
 
 785 
 
 V. Proctor, ii. 480. 492 
 
 V. Sayer, ii. 302,303. iii. 782 
 
 V. Taylor & Simcoe, ii. 601 
 
 V. Tcale, app. ii. iii. 1408. 1584 
 
 V. Wilkes, iii. 1223 
 
 V. Wilson, i. 445. 456. 458, 459. 467. 
 
 ii. 59. 62. iii. 1050, 1057. 1276. 1283 
 
 V. Wiltshire, ii. 597 
 
 ?;. Wright, iii. 1185 
 
 i:x jxirte, ii. 137. iii. 1052 
 
 White's case, iii. 1278 
 Whiteacre v. Symonds, ii.426 
 Wliitechurch v. Holworlhy, ii. 096 
 Whitehall v. Squire, iii. 1 168 
 Whitehead r. Barron, app. ii. iii. 1508 
 
 V. CliiFord, ii. 475. iii. 1 176. 1 182 
 
 v. Price, app. ii. iii. 1525 
 
 V. Scott, i. 40. 403. iii. 1 160 
 
 V. Tattersall, ii. 116 
 
 V. Tuckett, ii. 43 
 
 V. Vaughan, ii. 049 
 
 V. Wynne, i. 244 
 
 Whiteliouse v. Atkinson, i. 116. 142 
 
 r. Frost, iii. 1 223 
 
 Whitelock v. Baker, iii. 834. 837 
 
 V. Musgrove, i. 380 
 
 Whitelocke i\ Hutchinson, app. ii. iii. 
 
 1380 
 V/hitfield r. Prickett, ii. 176 
 
 V. Savage, ii. 90 
 
 Whitford v. Tutin, i. 400. app. i. 634 
 Whitlock V. Underwood, ii. 221. iii. 1043 
 Whitmore v. Waterhouse, i. 142. 
 
 V. Wllks, i. 108. 109. ii. 40. iii. 1172 
 
 Whitnash v. George, i. 358. iii. 1064 
 
 Whittaker v. Mason, iii. 781 
 
 Whittet V. Bradford, i. 542. app. ii. iii. 
 
 1580 
 Whittenbury v. app. Law, Ii. iii. 1512 
 Whittingham v. Bloxam, iii. 740 
 
 V. Hill, ii. 653 
 
 Whittle V. Henning, app. ii. iii. 1418 
 
 V. Oldaker, ii.l20 
 
 Whittington v. Gladwin, ii. 027 
 
 Whitton V. Peacock, app. ii. iii. 1389. 
 
 1405 
 
 Ex jxirte, app. ii. iii. 1484 
 
 Whittuck V. Waters, i. 244. iii. 833 
 WhitwelliJ. Bennett, i. 471. ii. 212. 262, 
 
 26.3. iii. 1044 
 V. Dimsdale, ii. 133. iii. 1044. 1046. 
 
 1058 
 
 V. Scheer, app. i. 629 
 
 • V. Thompson, ii. 140 
 
 Whitworth v. Clifton, app. ii. iii. 1570 
 
 V. Crockett, iii. 1039 
 
 V. Hall, ii. 687, 688 
 
 V. Smith, ii. -390 
 
 Whyte i;. Rose, app. i. 635 
 Wickens v. Evans, ii.66. iii. 1039 
 Wickes V. Clutterbuck, ii. 591 
 
 V. Gordon, i. 462. iii. 1220 
 
 Wickham v. Hawker, app. ii. iii. 1431. 
 
 1529 
 , ,,, R. app. ii. iii. 1420
 
 TABLE OP CASES. 
 
 CXXXVJl 
 
 Wicks V. Fciitliani, il. (!77 
 
 V. Gogerly, ii. 247 
 
 Wiclger v. Browning, ii. 125. 134 
 
 Widrington's (Dr.) caso, i, 306 
 
 WifFen v. Rol.erts, ii. 243, 244 
 
 Wigaii I'. Fowler and others, ii. 205, 206 
 
 Wiggins V. Uoddington, iii. 747. 1258 
 
 Wigglesworth v. Dallison, ii. 358. 302. iii 
 
 782 
 Wightman v. Townroo, ii. 445. iii. 805 
 Wigley V. Jones, i. 4i)2. iii. 1010. 1015. 
 
 1020 
 Wilien V. Law, i. 222. 245 
 Wilbe V. Simpson, iii. 882 
 Wilbeani v. Ashton, iii. 854 
 A\'ilbraliani ?;. Snow, iii. 1157 
 Wilcox V. Wilcox, aj))). i. 019 
 Wild V. Williams, aj)!). ii. iii. 1536 
 Wildbor v. Rainsforth, iii. 1100. 1118 
 Wildbore v. Bryan, ii. 110. 
 Wilder. Clark,' ii. 576 
 
 V. Fort, iii. 1190, 1191,1192 
 
 ■ r. Minsterley, iii. 743 
 
 V. Porter, ii. 005 
 
 Wilde's case, iii. 1273 
 
 V/ilder v. Specr, ii. 390 
 
 Wilder's case, iii. 785 
 
 Wildman v. Glossop, i. 460. ii. 61 
 
 Wilkes V. Farley, i. 357 
 
 V. Hungerford Market Company, app. 
 
 ii. iii. 1613 
 
 V. Jacks, ii. 236, 237 
 
 t\ Moorfoots, iii. 1227 
 
 Wilkins v. Casey, ii. 171 
 
 V. Despard, ii. 388. iii. 1104. 1119 
 
 V. Hemsworth, app. ii. iii. 1453 
 
 V. Jadis, ii. 224. 232 
 
 Wilkin's case, iii. 1148 
 Wilkinson v. Adam, iii. 772. 1271 
 
 ■ V. Byers, ii. 18 
 
 • V. Cawood, ii. 445 
 
 V. Diggell, ii. 107 
 
 V. Frazier, iii. 805 
 
 V. Godfrej', ii. 83 
 
 V. Hall, ii. 427 
 
 V. Howell, ii. 037 
 
 V. Johnson, i. 275. ii. 86, 87 
 
 V. King, iii. 1146. 1148. 1227 
 
 V. Kitchen, ii. 94 
 
 V. Lindo, app. ii. iii. 1.536 
 
 V. Loudonsack, iii. 1217, 1218 
 
 V. Lutwidgp, ii. 207 
 
 V. Martiti, app. ii.iii. 1623 
 
 V. Mawbey, '• 089 
 
 V. Payne, i. 534. iii. 934 
 
 V. Terry, app. ii. iii. 1401 
 
 WilksiJ. Atkinson, iii. 1039. 1199. 1219. 
 app. ii. iii. 1557 
 
 V. Back, ii. 40. 378 
 
 V. Gordon, ii. 62 
 
 r. Lorck, 1.471. iii. 708 
 
 JS.V parte, app. ii. iii. 1345 
 
 Willan V. Fenn, ii. 455 
 Willans v. Taylor, i. 530. ii. 680. 083 
 Willard v. Moss, iii. 1037 
 Willaume v. Gorges, ii. 270 
 Willcock V. Windsor, ii. 358 
 Willes i». Bridger, iii. 11-11 
 V\'illet I'. Pringlc, ii. 184 
 
 Willey i\ Cawthorne, i. 483 
 
 Williams v. Bagot (Lord), i. 277. 306. iii. 
 
 nil 
 
 V. Barber, ii. 110 
 
 — V. Bartholomew, iii. 973 
 
 I'. Bosunquet, ii. 351 
 
 V. Breedon, ii. 445. app. i. 634 
 
 V. Bridges, iii. 1014 
 
 r. Bryant, ii. 376 
 
 V. Burgess, ii. 488, iii. 750. 849. api>. 
 
 ii. iii. 1565. 1602 
 
 V. Byrne, app. i. 635 
 
 V. Callender, ii. 641 
 
 V. Carnardine, ii. 103 
 
 V. Cranston, ii. 284. 280 
 
 V. Davies, i. 417. iii. 995 
 
 V. Dyde, ii. 188 
 
 V. East India Company, i. 420. 505. 
 
 ii. 117.428. iii. 934, 935 
 
 V. Everett, ii. 81, 82. 95. 262 
 
 V. Frith, ii. 81 
 
 V. Gardiner, ii. 471. 029 
 
 V. Gesse, app. ii. iii. 1444 
 
 V. Glenister, ii. 001 
 
 V. Goodtitle, iii. 1292 
 
 V. Goodwin, iii. 907 
 
 V. Greaves, app. i. 615 
 
 V. Griffith, ii. 671. app. ii. iii. 1326 
 
 V. Harrison, ii. 217. 
 
 I'. Hedley,ii. 94. 96 
 
 V. Holland, iii. 741. 1103 
 
 V. Innes, ii. 30. 448 
 
 V. Jarrett, iii. 1038. 1043 
 
 V. Johnson, ii. 551 
 
 V. Jongs, ii. 186. 672. iii. 758. 953. 
 
 app. ii iii. 1400 
 
 V. Keats, ii. 257. 259 
 
 V. Lee, ii. 454 
 
 V. Leper, ii. 478. 508 
 
 V. Lewsey, iii. 1027 
 
 V. Millington,iii. 1195. 1202 
 
 V. Morland, i. 475. iii. 1248. 1250 
 
 V. Mostyn, app. ii. iii. 1014, 1015. 
 
 1552 
 
 u. Mundie, ii. 321 
 
 V. Mnnning, i. 368 
 
 V. Nunn, ii. 133 
 
 ti. Odell, ii. 109 
 
 V. Paul, ii. 67. 93 
 
 V. Payne, iii. 934 
 
 V. Plumridge, app. ii. iii. 1583 
 
 V. Powell, iii. 1083 
 
 V. Price, iii. 1082 
 
 V. Rawlinson, ii. 510. iii. 826. 1045 
 
 V. Sangar, ii. 85 
 
 V. Sawyer, iii. 1051 
 
 V. Scott, ii. 629 
 
 y. Sills, ii. 19. 343 
 
 V. Smith, i. 517, 518. ii. 111. 223. 226. 
 
 iii. 1216 
 r. Stevens, ii. 127.193 
 
 V. Stoiighton,iii. 1036, 1037. 1057 
 
 — — V. Taylor, ii. 683 
 
 V. Thomas, i. 418. 424. ii. 205. 243. 
 
 404 
 
 V. Walsby, ii. 1 79 
 
 V. Waring, ii. 213. 223 
 
 V. Wilcox, iii. 1253. ajip. i. 019. ii. iii. 
 
 1580
 
 CXXXVIll 
 
 TABLE OF CASES. 
 
 Williams v. Williams, 1. :31G. 3-''2. 327. 508. 
 
 ii. 192. :5.j3. iii. 1147. aijp. ii. iii. i;J5"J 
 
 V. Wingato, iii. 1 174 
 
 V. Woodward, ii. 38. iii. 787 
 
 V. Yoini^liiishaiid, i. 388, 389, 390 
 
 Ex parte, ii. 108 
 
 Williams's case, ii. 54. 574. G()5 
 Williamson v. Allison, i. 436, 437. ii. 214. 
 
 372. iii. 1242 
 
 V. Bennett, ii. 215 
 
 V. Clements, ii. 2G5 
 
 V. Innes, iii. 874 
 
 r. Johnson, ii. 219 
 
 V. Watts, ii. 557 
 
 Willies I). Farley, iii. 1031 
 
 Willingliam r. Matthews, i. 91 
 
 Willis V. Barnard, i. (!4. ii. 352. 354. 350 
 
 V. Barrett, i. 472. ii 212 
 
 i\ Brown, app. i. 009 
 
 I'. Commi.ssioners of Appeals, &c. 
 
 ii. 578 
 
 1'. Dyson, iii. 810 
 
 ■ V. England (Bank of), ii. 171 
 
 r. Farrer, ii. 567. iii. 1081 
 
 V. Freeman, ii. 84. 169 
 
 V. Newham, ii. 005 
 
 V. Peckham, i. 79 
 
 ■ V.Ward, ii. 315. 395 
 
 Willnian r Worrall,i. 378 
 
 Willmett V. Harmer, ii. 043 
 
 Willoughby r. Bacldiouse, ii. 392. 393. iii. 
 
 793 
 
 V. Small, ii. 18 
 
 V. Swinton, iii. 1044 
 
 Willoughby's case, iii. 723 
 
 Wills V. Langridge, iii. 831. app. ii. iii. 
 
 1325 
 
 ■ V. Maccarmick, ii. 118 
 
 V. Nurse, ii. 594 
 
 r. Ody, iii. 1108 
 
 V. W^ells, iii. 1 164 
 
 Willy i: Hawksmoor, ii. 535 
 
 Wilmer v. White, ii. 564 
 
 Wilmot V. Coventry Corporation, app. ii. iii. 
 
 1786 
 
 r. Smith, ii. 115. iii. 820. 1070. 1207 
 
 V. Wilkinson, iii. 1038. 10-15. 1189 
 
 (in the Goods of), app. ii. iii. 1565 
 
 Wilmshurst v. Bowker, app. ii. iii. 1354. 
 
 1599 
 Wilnerr. Hold, iii. 859 
 Wilsford r. Wood, ii. 59. iii. 801 
 Wilson V. Abbott, iii. 1176 
 
 ■ V. Allen, ii. 332. iii. 923 
 
 V. Anderton, ii. 1 161 
 
 . V. Bagshaw, app. ii. iii. 1611 
 
 V. Bailey, app. ii. iii. 1367 
 
 V. Barker, iii. 1108, 1109 
 
 V. Barthrop,ii. 222 
 
 V. Butler, app. ii. iii. 1414, 1427 
 
 V. Chambers, iii. 1155 
 
 r. Chisholm, iii. 1176 
 
 V. Clarke, i. 65. 69. iii. 1177 
 
 v. Coupland, ii. 80 
 
 V. Cutting, ii. 99 
 
 V. Day, i. 523. ii. 138. 142. 144 
 
 V. Field, i. 454 
 
 c. Freeman, ii. 292 
 
 Wilson I'. Fryer, i. 124, 125 
 
 V. Gardner, iii. 1237 
 
 V. Gallatly,i. 150. iii. 1230 
 
 V. Gilbert, i. 470. iii. 849. 095 
 
 i\ Gutteridge, ii. 108 
 
 -r. Hart, iii. 759. 788 
 
 r. Hartley, iii. 977. apn. ii. iii. 
 
 1537 
 
 r. Hirst, i. 139 
 
 V. Hoare, app. ii. iii. 1422 
 
 i: Hodges, i. 420. ii. 364 
 
 r. Kemble, ii. 521 
 
 V. Kemp, li. 183 
 
 ■ f. Kennedy, ii. 264. iii. 1057 
 
 1). Knapp, app. ii. iii. 1340 
 
 V. Lainson, app. ii. iii. 1573 
 
 V. Lewis, app. ii. iii. 1363 
 
 V. Mackreth, iii. 1102 
 
 r. Marryatt, iii. 892 
 
 V. Mawson, i. 481 
 
 V. Mitchell, ii. 537. 548 
 
 V. Norman, ii. 131, 132, 133, 134. iii. 
 
 1011. 1023 
 
 r. Page,ii. 364. 395. iii. 910 
 
 r. Peto, ii. 738. 745 
 
 V. Powell, iii. 1105 
 
 V. Poulter, ii. 108. 175. iii. 786 
 
 V. Rastall, i. 533. ii. 320. 322 
 
 V. Ray, app. ii. iii. 1336 
 
 V. Redman, iii. 1093 
 
 V. Rogers, ii. 570 
 
 V. Sewell, ii. 474. ui. 1182 
 
 V. Smith, ii. 252 
 
 V. Swabey, ii. 225 
 
 V.Tucker, ii. 112 
 
 V. Turner, i. 409 
 
 V. VanMildert,iii. 849 
 
 V. Vysar, iii. 1042. 1050, 1057 
 
 V. Weddell, ii. 334 
 
 V. Weller, i. 284. ii. 587. iii. 969 
 
 V. (Lady) v. Wigg, ii. 453 
 
 u. Wolfryes, ii. 343 
 
 JSx jyai'te, ii. 155 
 
 Wilton V. Girdlestone, iii. 1074, 1075. 
 1161 
 
 V. Webster, app. ii. iii. 1391 
 
 Wilts t'. Hague, iii. 739 
 
 Wiltshire v. Sidford, iii, 1100. 1127 
 
 V. Wiltshire, ii. 702 
 
 Wimbush i\ Tailbois, ii. 19 
 
 Winbled v. Malmberg, ii. 1047 
 
 Wincanton v. Crcditon, iii. 1000 
 
 Winch V. Keelcy, ii. 100. 175 
 
 V. Winchester, iii. 1214 
 
 Winchelsea (Earl of) v. Garatty,app. ii. iii. 
 1423 
 
 Winchester's (Bishop of) case, iii. 1084 
 
 (Marquis of), case, iii. 1277 
 
 Winchcombe v. Winchester (Bishop of), 
 ii. 1233 
 
 Winckworth v. Mills, ii. 479 
 
 Windham v. Paterson, ii. 131, 132, 133. 
 135 
 
 Windle v. Andrews, ii. 232. 240 
 
 V. Ricardo, iii. 1009 
 
 Windier c. Fearon, iii. 1047 
 
 Windsor v. Carlisle (Bishop of), iii. 942 
 
 (Dean and Canons of). Case of, i. 
 
 471
 
 TABLE OF CASES. 
 
 CXXXIX 
 
 Windsor i\ Herbert, iipp. ii. iii. 1340 
 Wing V. Earlo, ii. 303. iii. 1214 
 
 f. Mill.ii. 70. iii. l-2!)t) 
 
 Wingate i\ Wayte, app. ii. iii. 1551 
 Wingfield c. Atkinson, iii. 783 
 
 V. Stentfonl, ii. 500 
 
 Wingham ?■. Sellindge, iii. 1003 
 AVinksr. IIassall,ii. 152. iii. 1-227 
 AVinlow ('. Daniel, ii. 200 
 Winn ('. lugleby, iii. 1247 
 Winsuiore i: Grcenbank,ii. 350. 455 
 Winsor v. Pratt, iii. 1201. 1280. 1290 
 Winter v. Anson (Lonl), iii. 730 
 
 V. Brockwell, ii. 473. 481. iii. 748 
 
 V. Butt, app. i. 005 
 
 V. Charter, iii. 734 
 
 1\ HeuTi, ii. 355 
 
 r. Payne, ii. 108 
 
 V. Trininior, iii. 854 
 
 r. White, i. 476 
 
 V. Wroot, ii. 355 
 
 Wlnterborne t'. Morgan, ii. .391. iii. 1108. 
 1122 
 
 Winterstoke (Huntl. of), case, ii. 533 
 Wintle v. Crowtlier, iii. 809 
 
 t'. Freeman, app. ii. iii. 1553 
 
 AYinton ( Bishop of) r. Fournier, ii. 320 
 Wise f. Charlton, app. ii. iii. 13G2 
 
 I'. Metcalfe, iii. 964. 1246 
 
 Wish ?\ Small, iii. 805 
 Wishaw V. Barnes, i. 103 
 Witchell's case, ii. 457 
 Witcher v. Cheslara, iii. 865 
 Withal] r. Masterman,ii. 251 
 Withamr. Bland, ii. 410 
 
 V. Lee.ii. 247 
 
 Navigation Company v. Padley, ii. 
 
 523 app. ii. iii. 1452 
 Witherington i: Buckland, i. 474. ii. 58 
 Withers v. Lyss, iii. 1223 
 
 V. Reynolds, ii. 68 
 
 Witherssoll's case, i. 97 
 
 AVithington v. Herring, ii. 41 
 
 Withnell V. Gartham, iii. 770, 777. 908 
 
 AVitti'. Buck, iii. 1094 
 
 Witt's case, ii. 278 
 
 Wittersheim v. Carlisle (Countess of), ii. 
 
 600,661 
 W. Money (Case of the), iii. 1302 
 Woadson v. Nawton, iii. 1154 
 Wogan i\ Soraerville, ii. 47 
 Wolf r. Summers, ii. 649 
 Wolfe V. Beard, ii. 20. iii. 741 
 W^olferston's cae, iii. 944 
 Womersley's case, app. i. 592 
 Wood 11. Adams ii., 618 
 
 V. Akers, iii. 994 
 
 V. Benson, ii. 509 
 
 V. Braddick, i. 334. ii. 31 . 660. iii. 808. 
 
 810 
 
 V. Bretherton, ii. 285. 298 
 
 V. Brown, ii. 237, 238 
 
 V. Clarke, ii. 389, 390 
 
 i\ Day, i. 490 
 
 V. Dodgson, iii. 1061 
 
 r. Drury, i.375 
 
 v. Folliott, ii. 581, 582. iii. 750 
 
 V. Goodlake and others, app. ii. iii 
 
 1615 
 
 Wood ('. Grimwood, i. 530. ii. 152 
 
 V. Gunston, ii. 039 
 
 r. Jowott, ii. 504 
 
 V. Lake, ii. 473. 481 
 
 r. Mackinson, app. i. 602 
 
 1\ Maiik-y, app. ii. iii. 14(JS. 1575 
 
 V. Morewood, app. ii. iii. 1449 
 
 V. Newton, i. 329. iii. 1075 
 
 V. Norton, iii. 1045 
 
 1\ Nunu, iii. 1153 
 
 V. Smith, ii. 169. iii. 1238 
 
 V. Stanc, iii. 1266 
 
 r. Strickland, i. 403 
 
 ■ r. Tate, ii. 339 
 
 V. Veal,ii. 525. iii. 744. 913 
 
 V. Wain, ii. 373 
 
 V. Whitcomb, ii. 569 
 
 v. Wood, ii. 113. 353 
 
 V. Zimmer, iii. 939 
 
 Woodbridge v. Spooner, iii. 759 
 Woodburn v. Woodburn, iii. 966 
 
 Woodcock V. Gibson, iii. 751 
 V. Nuth, iii. 1181,1182 
 
 Woodcock's case, ii. 306 384 
 
 Wooden i\ Collins, ii. 344 
 
 Woodford v. Ashley, i. 480. 493. ii. 679 
 
 r. Whiteley, ii. 265 
 
 Woodgate i-. Kuatchbull, iii. 1029. 1031 
 
 Woodhouse v. Smith, app. ii. iii. 1338 
 
 Woodhouselee r. Dalrymple, iii. 772. 1271 
 
 Woodier's case, ii. 131. 133 
 
 Wooding ('. Oxley, app. ii. iii. 1576 
 
 Woodington, C. E. T. (in the goods of), 
 app. ii. iii. 1616 
 
 Woodley v. Brown, ii. 24 
 
 Woodmas v. Mason, i. 342 
 
 Woodman v. Gist, iii. 1009 
 
 Woodnoth V. Cobham (Lord), i. 364 
 
 WoodrofFe i'. Hayne, ii. 249 
 
 Woods V. Reed, app. ii. iii. 1386 
 
 r. Russell, iii. 1225. app. ii. iii. 1314. 
 
 1326 
 
 Woodthorpe v. Lawes, ii. 226, 227 
 
 Woodward v. Booth, i. 467. ii. 285 
 
 V. Cotton, i. 233 
 
 V. Lander, ii. 639 
 
 V. Larking, ii. 21. iii. 871. 1009. 1028 
 
 1\ Thomson, ii. 442 
 
 V. Walton, iii. 988. 989. 1098. 1115 
 
 -Ex parte, ii. 149 
 
 Woodyer v. Haddon, ii. 524, 525 
 
 Wookey v. Pole, iii. 11.50, 1 151 
 
 Woolbridge i>. Bishop, iii. 1075 
 
 Wooldridge v. Boydell, iii. 873 
 
 Woollam V. Hearn, iii. 754 
 
 Woolley I'. Bate, app. ii. iii. 1383 
 
 V. Birkenshaw, iii. 1081 
 
 V. Brownhill, i. 136 
 
 Woolley V. Clark, ii. 407. 444. iii. 1147 
 
 V. Scovell, iii. 740 
 
 V. Watkins, iii. 1175 
 
 Woolmery v. Rowe, ii. 260, 261 
 
 Woolner i: Devereux, app. ii. iii. 1449 
 Woolnoth V. Meadows, 644 
 Woolridge's case, ii. 311 
 Woolsey v. Crawford, ii. 240 
 Woolston V. Scott, ii. 353. 703 
 Woolway V. Rowe, i. 367. ii. 34. iii. 1125. 
 app. i. 602. 614. 617
 
 cxl 
 
 TABLE OF CASES. 
 
 Wootley V. Gregory, ii. 475 
 
 Wooton ??. Barton, i. 427 
 
 Worall V. Jones, iii. 799 
 
 Wordall v. Smith, ii. 495 
 
 Wordsworth ??. Uarley, ii. GGO 
 
 Worker's case, ii. 507 
 
 Worlish V. Massey, i. 508 
 
 Worlledge v. Maning, ii. 358 
 
 Wormwell v. Hailstone, iii. 1172 
 
 Worral v. Hand, ii. 447 
 
 Worrall v. Jacob, ii. 545 
 
 Worrel v. Grayson, ii. 101 , 102 
 
 Worseley v. Demattos, ii. 133. 139. 142. 
 
 144 
 Worsely v. Fillisker, i. 530 
 Worth V. Budd,ii. 12G, 127. 181 
 Worthington v. Barlow, ii. 448 
 
 V. Stafford Canal Conip., ii. 567 
 
 Wortley Montagu v. Sandwich (Lord), iii. 
 
 1167 
 Worton i\ Smith, iii. 797 
 Wray v. Egremont, ii. 170 
 
 V. Gutteridge, iii. 1195 
 
 V. Milestone, iii. 815 
 
 Wrench v. Lord, app. ii. iii. 1559 
 Wright V. Barlow, iii. 903 
 
 V. Barnard, ii. 34. iii. 891 
 
 V. Beckett, i. 216. 219 
 
 1). Bird,ii. 126.128 
 
 V. Campbell, iii. 872 
 
 V. Constable and others, ii. 602 
 
 V. Court, i. 517 
 
 V. Crookes, app. ii. iii. 1397. 1500 
 
 V. Dannah, ii. 486. 493 
 
 V. Davies, ii. 390 
 
 V. Elwood, app. ii. iii. 1482 
 
 V. Fairfield, ii. 153 
 
 V. Fearnley, ii. 171 
 
 V. Goddard, app. ii. iii. 1390 
 
 V. Horton,ii. 681. iii. 846 
 
 V. Howard, iii. 1249, 1250 
 
 V. Laing, iii. 827. 1186 
 
 V. Lainraer, iii. 1168 
 
 u. Lainson, ii. 147. 193. iii. 1017, 
 
 1018 
 
 V. Lawes, ii. 163, 164. iii. 1226 
 
 V. Littler, i. 199. ii. 368. iii. 1268 
 
 V. Melville, ii. 104 
 
 V. Netherwood, iii. 929 
 
 (Executors of) v. Nutt, ii. 453 
 
 V. Paulin, i. 147 
 
 V. Finder, i. 530 
 
 V. Pulliam,iii. 812, 813 
 
 V. Raniscott, ii. 505. iii. 1137 
 
 1\ Rattray, iii. 1269 
 
 V. Reed, iii. 1068. 1070 
 
 V. Riley, iii. 1055, 1056 
 
 V. Russell, iii. 1067 
 
 ??. Shawcross, i. 517, 518. i. 226. iii. 
 
 1049 
 
 V. Skinner, app. ii. iii. 1616 
 
 ?•. Smythies, iii. 214 
 
 v. Snell, ii. 647. app. ii. iii. 1468 
 
 V. Tatham, i. 258. 267. 318. 325, 326. 
 
 527. 532. iii. 1266. 1280 
 V. Wakeford, i. 374. iii. 902, 903. 
 
 1290 
 r. Wales, iii. 729. 1113, 1144 
 
 Wright V. Wardle, iii. 1229 
 
 V. Wheeler, iii. 1 187 
 
 V. Wilson, iii. 1214 
 
 V. Woodgate, ii. 630 
 
 V. Wright, iii. 799. 1262. 1290 
 
 Wright's case, i. 175 
 Wrightup V. Chamberlain, iii. 1243 
 Wrottesley v. Bendish, i. 333 
 Wyatt V. Bateman, i. 378 
 
 V. Bulmer, ii. 245. 
 
 V. Campbell, ii. 221. 246 
 
 V. Gore, i. 72. 184. ii. 642 
 
 11. Harrison, iii. 743. 746 
 
 V. Hodgson, ii. 666 
 
 V. Wilkinson, ii. 191 
 
 Wyberg v. Ainsley, ii. 498 
 
 Wy borne i'. Ross, ii. 185 
 
 Wyburd v. Tuck, iii. 1081. 1083 
 
 Wych r. Meal, i. 333 
 
 Wydown's case, ii. 145 
 
 Wykes v. Shipton, ii. 118 
 
 Wyllie V. Mott, iii. 862, 863 
 
 Wymer v. Kemble, 168. 170 
 
 Wyndham v. Chetwynd, i. 139. iii. 1265 
 
 V. Way, iii. 1246 
 
 V. Wycomb, ii. 355 
 
 Ex parte, app. ii. iii. 1345 
 
 Wynne v. Anderson, i. 147. iii. 1106 
 
 V. Raikes, ii. 206, 207 
 
 V. Tyrrwhitt, i. 381. 383 
 
 Wynne's case, ii. 606. 613 
 Wyvill V. Shepherd, i. 476 
 Wywall V. Champion, ii. 658 
 
 Ximenesr. Jaques,iii. 1037. 1047. 1234 
 
 Yabsley v. Doble, ii. 29. 30. iii. 1014, 
 
 1015 
 Yale, exjyarte, ii. 185 
 Yallop V. Ebers, ii. 184 
 Yarborough v. IBank of England, ii. 339. iii. 
 
 1170 
 Yard v. Ford, iii. 748. 863 
 Yarker v. Botham, i. 79 
 Yarly v. Turnock, i. 448 
 Yate?). Leigh, iii. 1082 
 
 V. Willan, iii. 829, 830 
 
 Yates V. Boen, ii. 379 
 
 V. Freckleton, iii. 821 
 
 V. Powell, ii. 158 
 
 V. Whyte, iii. 741 
 
 Yea V. Fouraker, ii. 557. 662 
 
 V. Lethbridge, iii. 1025 
 
 Yeates v. Pym, iii. 781 
 Yeomans v. Bradshaw, ii. 441 
 
 V. Legh, i. 126 
 
 Yewin's case, i. 172. 190. 195 
 Yorkv. Blott,i. 110. ii. 258 
 
 (Mayor of) v. Welbank, 358 
 
 V. Greenaugh, ii. 649. iii. 1163 
 
 Youle V. Harbottle, ii. 286. iii. 1157 
 Young u. Bairner, i. 164. ii. 1. 4. iii. 817. 
 
 1230 
 
 r. Brander, iii. ICOl 
 
 V. Brown, ii. 518 
 
 V. Cole, ii. 91 
 
 V. England (Bank of), ii. 178 
 
 V. GUisb, ii. 189
 
 TABLE OF CASES, 
 
 cxli 
 
 Young ?>. Grote, iii. 725 
 
 r. Gye,iii.092 
 
 V. HiggoHjiii. 1074 
 
 1'. Holmes, ii. 409 
 
 V. Hunter, iii. 810 
 
 V. Marshall, iii. 1023. 1028 
 
 V. Mantz, ii. 351 
 
 V. Smith, ii. 29, 33. 195 
 
 V. Spencer, iii. 744. 978, 979 
 
 V. Timmins, ii. G6. 124 
 
 V. Wright, i. 409. 464. ii. 116, 214 
 
 Young's case, iii, 1252 
 Yrisani v. Clement, ii. 628 
 
 Zagary v. Funicll, iii. 1223 
 Zenobio v. Axtfll, ii. 619 
 Zephyr (Case oftho), iii. 1299 
 Zinckij. Walker, ii. 160 
 Zouch I'. Clay, iii. 1051 
 
 V. Forse, ii. 431 
 
 V. Parsons, ii. 555 
 
 V. Waters, ii. 842, 843 
 
 V. Willingall, ii. 426 
 
 Zwingarv. Saniuda, iii. 1224 
 
 CASES OMITTED IN THIS TABLE. 
 
 Attorney-general v. Bond, app. i. 615 
 
 Betten, Ex parte, ii. 126 
 
 Binmer, Ejc parte, ii, 175 
 
 Bligh V. Brent, app. ii. iii. 1523 
 
 Caldecott, Ex parte, app. ii. iii. 1349 
 
 Calvert v. Loudon Dock Company, app. ii. iii. 1562 
 
 Cheltenliam Union Railway Company v. Price, app. ii. iii. 1510 
 
 Davis, Ex parte, app. ii. iii, 1357
 
 ERRATA, VOL. I. 
 
 Page 123, line 10,/o/- '• at the time," road " tlie name." 
 
 — 340, last line but two, fo7- " cliecks," rend " clerkf»." 
 
 — 418, lint! 12, dele the words " and therefore." 
 
 — 473, line 0, to the irords " by plea in abatement only," odtl " or by lli 
 
 ))roceeding- now substituted for such plea." 
 
 ERRATA, VOLS. IL IIL 
 
 Page 65, line 4, /or " distributing," read " marshalling." 
 
 — 103, note (/) Cope v. Boiolands, for " 2 M, & M." read " 2 M. .S: W." 
 
 — 1 20, line 21 , for " c. 36," read " c. 46." 
 
 — 123, note (u),for " two or three," 7'ead " two of them." 
 
 — 161, line 8,for' " being the," read " being as the." 
 
 — 172, note {t),for " evidence of an act," read " notice of an act." 
 
 — 351, note {t),for " an instrument of trade," read " in restraint of trade." 
 
 — 597, last line but two, /or " 2 Haw. c. 17," read " 2 Haw. c. 14." 
 
 — 889, line 11, for " under the general issue," read " under the proper 
 
 issue." 
 
 — 911, note {h),for "less objectionable," read " unobjectionable." 
 
 — 974, note («), after the loords, " let the land," ivseri the words " which 
 
 the defendant had before rented from them." 
 
 — 1045, line 20,/or " 35 5." read " 5 1." 
 
 note {a), for " 1 Mo. & R. 113," rend " I Mo. & R. 115." 
 
 — 1251, line 4,/br " 2 & 3 Will. 4, c 1," read " 2 & 3 Will. 4, c. 71." 
 
 — 1415, after " Baymond v. Fitch," add, " and see Powell v. Rees, 7 Ad. & 
 
 Ell. 426."
 
 LAW 
 
 OP 
 
 EVIDENCE. 
 
 iliVERY system of municipal law consists of substantive and 
 adjective provisions. 
 
 Substantive, which define primary (ct) rights (&) and duties; 
 adjective, which provide means for preventing or remedying the 
 violation of substantive provisions. 
 
 If all were both able and willing to fulfil the substantive pro- 
 visions of the law, those which are merely adjective would be 
 unnecessary. But without adjective provisions for preventing 
 and remedi/ing violations of the mandatory branches of the law, 
 by imposing actual restraint in some instances, and annexing 
 penal or remedial consequences to disobedience, in others, such 
 laws would be of no greater, frequently of less effect, than mere 
 moral precepts. It is of the very essence of a municipal law, not 
 only to prescribe a rule of conduct, but to compel obedience, either 
 by actual restraint, or by annexing such consequences to disobe- 
 dience as are on the whole the most convenient, so that any 
 addition or excess would be productive of more evil than good. 
 
 (a) That is, which exist independently estate or to damages, it is meant, that un- 
 
 of any violation of a law, as contradistin- der the circumstances the law directs that 
 
 guished from those which are consequent he shall have that estate or shall have da- 
 
 upon disobedience. Thus the right of per- mages. When it is said that JB. has a 
 
 sonal liberty is a substantive primary right, right of action, it is meant, that the law 
 
 as contradistinguished from a right to da- under the circumstances provides means 
 
 mages for imprisonment, which results from for enforcing his claim. 
 
 a violation of the primary right. When the learned author of the Com- 
 
 (h) Right, in its primitive legal sense, mentaries, in the language of the civil law, 
 
 is that which the law directs : in popular speaks of the rights of things, he uses the 
 
 acceptation, that which is so directed for term in its primitive sense, and treats of 
 
 the protection or advantage of an indivi- those legal incidents which the law pre- 
 
 dual, is said to be his right. scribes as to things, such as possession, 
 
 When it is said that A. has a right to aa enjoyment, succession, or transfer, 
 
 VOL. I. B
 
 2 LAW OF EVIDENCE : 
 
 Such adjective provisions are either -preventive or remedial. 
 
 Preventive, which'are devised for the actual prevention of viola- 
 tions of the law ; 
 
 Remedial, which are devised for the purpose of repairing the 
 consequences of disobedience. 
 
 Preventive provisions, again, are either such as are designed to 
 prevent violations of the law by interposing actual forcible corpo- 
 real restraint ; as where one is prevented by force from doing some 
 special injury to the person or the property of another, or is re- 
 strained from doing mischief generally by imprisonment ; or they 
 are such as operate on the mind by the fear oi penal consequences 
 annexed to defined transgressions (c). 
 
 Remedial, which afford a remedy or reparation in respect of some 
 violation of right, consist either in awarding specific restitution, as 
 by an actual restoration of goods wrongfully detained from the 
 owner ; or in giving damages co-extensive with the particular 
 injury. 
 
 In order to annex either remedial or penal consequences to their 
 proper predicaments in fact, it is essential that the true state of 
 facts should be investigated by competent means ; that the legal 
 consequences appertaining to such ascertained facts, as previously 
 defined by the law, should be declared hy judicial authority ; and 
 
 (c) A wrong, the subject of legal visita- and a rigid to damages for the violation of 
 
 tion, consists abstractedly in the mere pri- right in the second. But to say that a man 
 
 ration of right: the boundaries of right is a drunkard or a swindler is j^erse neither 
 
 and wrong, in a legal sense, are identical, actionable nor indictable, consequently to . 
 
 and to define the limits of the one is to de- say so does not constitute a lorong in a 
 
 fine the limits of the other. This conside- legal sense ; and therefore in this respect 
 
 ration by no means dispenses with the deli- a man has not a legal right. And there- 
 
 nition of particular wrongs and their con- fore, though wrong be generally nothing 
 
 sequences ; so far from it, that in practice more than a privation of right, yet in prac- 
 
 mere adjective provisions, by defining tice it frequently happens that the extent 
 
 wrongs and their consequences, in fact, de- and limits of the right are defined by the 
 
 fine and determine not merely the value extent and limits of the wrong. Again, the 
 
 but the extent of the right. And this must value of a legal right obviously depends on 
 
 be the natural if not the necessary conse- the nature and extent of the adjective 
 
 quence of a system, which depends in a provisions, whether remedial or penal, by 
 
 great measure on precedent and usage : for which it is protected. Be the right in its 
 
 instance, the law directs generally that a own nature ever so precious, its practical 
 
 man has a right to his reputation, but the value must depend on the efficacy of the 
 
 extent of the right and its value depend adjective provisions by which it is guarded, 
 
 upon the extent to which that right is pro- To punish a wilful homicide by the inflic- 
 
 tected by annexing remedial or penal con- tion, not of death, but of a pecuniary fine, 
 
 sequences to invasions of that right. To like the Saxon weregild, would be to ren- 
 
 say that a man is a thief is actionable ; it der life itself precarious ; to punish theft 
 
 is a wrono- in contemplation of law, and merely by the infliction of a trifling fine, 
 
 therefore to that extent the party has a would render property of little value. 
 right to his reputation in the first instance,
 
 ELEMENTARY DIVISIOX. 3 
 
 lastly, that the legal consequence, if not already annexed, should 
 be actually annexed by an executive process. 
 
 To the investigative process, again, it is essential that the par- 
 ties should by their pleadings mutually state what each deems to 
 be essential to his claim or charge, or defence, and that each should 
 be allowed to dispute or deny the statement of his adversary. By 
 this means, if any facts be disputed, they arc distinguished from 
 the admitted facts, in order to be submitted to inquiry before the 
 proper tribunal. 
 
 It is incumbent on the party who makes a claim or charge, to 
 state facts which, if true, show that the charge or claim is founded 
 in law : the law of England requires the defendant either by a de- 
 murrer to admit the facts and deny the legal consequence con- 
 tended for by the plaintiff or prosecutor, or to deny the facts so 
 alleged, wholly or in part, or, admitting the facts so alleged to be 
 true, to state others, which, taken in connection with the facts 
 already stated, show that the claim or charge is unfounded in law. 
 
 Again, where such additional facts are pleaded in defence, it is 
 for the prosecutor or plaintiff, in his turn, either to deny some 
 material fact so pleaded in defence, or, admitting those facts to be 
 true, either to demur in law, so as to raise a mere question of law, 
 or to allege additional facts; and in like manner, so long as 
 further facts are pleaded by the one party, the other may either 
 deny one or more of such facts, or demur, or allege further facts. 
 It is obvious that such a series of mutual allegations, where the 
 condition is that each which does not terminate the series must 
 contain the averment of some new and material fact, must rapidly 
 converge to an issue either of law or fact {d), 
 
 (d) The law, however, frequently sane- is obvious, that such an intermixture of law 
 
 tions a generality in pleading, which leaves and fact could not be avoided without the 
 
 the fact which is to be tried intermixed aid of minute and particular pleadings, in 
 
 with most important legal considerations. the course of which the real merits and 
 
 For instance, the declaration in an action justice of the case would frequently be 
 
 of trover alleges in substance nothing more embarrassed with difficulties, arising from 
 
 than the conversion by the defendant of a necessary adherence to technical rules, 
 
 the plaintiff's goods ; the defendant by his The science of special pleading having 
 
 plea denies such conversion ; and the ques- been frequently perverted to the purposes 
 
 tion for the jury is,* whether the defendant of chicane and delay, the Courts have, in 
 
 has so converted the goods of the plaintiff; some instances, and the Legislature in 
 
 and this issue frequently involves not many more, permitted the general issue to 
 
 merely one or more simple facts, but diffi- be pleaded, which leaves every thing open, 
 
 cult legal considerations, such as questions — the fact, the law, and the equity of the 
 
 of title, the law of bankniptey, the right of case ; and though it should seem as if much 
 
 stoppage 171 transitu, and many others. It confusion and uncertainty would result 
 
 from 
 
 * These observations were written previous to the late material alterations in the 
 rules of pleading. 
 
 B 2
 
 LAW OF EVIDENCE 
 
 By the law of England, questions or issues of fact thus agreed 
 
 from 90 great a relaxation of the strictness 
 anciently observed, yet experience has 
 shown it to be otherwise, especially with 
 the aid of a new trial, in case either party 
 be unfairly surprised by the other. 3 Bl. 
 Comm. 306. 
 
 For the finding a verdict on every issue, 
 tt is essential, in the first place, to know 
 what facts, when proved, will satisfy the 
 issue in point of law ; and secondly, to 
 inquire whether such facts have been 
 proved. The office of the jury is confined 
 altogether to the latter question; their 
 duty is to ascertain the existence of facts 
 by means of the judgment which they 
 form of the credibility of witnesses, and 
 by the inferences which they make from 
 the circumstances submitted to their con- 
 sideration. For the due discharge of this 
 important function, they are supposed to 
 be peculiarly well qualified by their expe- 
 rience of the conduct, affairs, and dealings 
 of mankind, and the manners and customs 
 of society. In this respect, and to this 
 extent, the law confides implicitly in their 
 knowledge, experience, and discretion. It 
 interferes no further than by laying down 
 cautionary rules to prevent the jury from 
 being deceived or misled, by providing, as 
 far as can be done, that the evidence of 
 none but faithworthy witnesses shall be 
 admitted, and by excluding all such as 
 flows from corrupt or suspicious sources. 
 Having done this, the rest is left to the 
 conscience and discretion of the jury. 
 
 It is with a view to those objects that 
 the rules of evidence are almost exclusively 
 framed. But, in the next place, a know- 
 ledge whether particular facts, if established 
 to the conviction of the jury, will satisfy 
 the issue, or the allegations to be proved, 
 is also essential to a verdict ; and this is 
 usually a question of law, and therefore 
 within the province of the Judge. In such 
 cases, therefore, it is for the Court to in- 
 struct the jury in point of law, to inform 
 them what facts are essential to the proof 
 of the issue, and that they ought to give 
 their verdict in the affirmative or negative, 
 according to the opinion of the jury that 
 
 the particular facts are proved or dis- 
 proved. 
 
 The jury, in finding a general verdict, 
 are bound to find it according to the just 
 application of the law as they receive it 
 from the Court, and their own judgment 
 whether the facts are proved or not; and 
 every such verdict is presumed to be 
 founded upon the law so expounded, and 
 the facts so found. 
 
 If the jury in a civil proceeding wilfully 
 misapply the law, they do it at the risk 
 and peril of an attaint ; a proceeding which 
 has now fallen into disuse, and which has 
 been superseded by a more easy and effica- 
 cious remedy* to the party injured. But 
 the jury are not in any case, whether civil 
 or criminal, bound to apply the law ; they 
 are always at liberty to find a special ver- 
 dict, that is, to state specially what facts 
 they find to be proved ; and the remainder 
 of that process which is essential to the 
 verdict, that is, the application of the law 
 to the facts so found, is left to be executed 
 by the Court. In finding a special verdict, 
 the jury discharge the whole of their office, 
 for a special verdict does not contain 
 merely a detail of the evidence given by 
 the witnesses, but is conclusive as to the 
 existence of all the ultimate specific facts 
 of the case, which are essential to its de- 
 termination, founded upon an examination 
 of the credit due to the witnesses, and 
 upon presumptions and inferences derived 
 from all the circumstances of the case as 
 detailed in evidence. 
 
 It is interesting to observe how nearly 
 the law of England corresponds with the 
 ancient Roman law in several most im- 
 portant points of its practical administra- 
 tion. In the first place, the pleadings in 
 the practice of the Roman law were trans- 
 acted before the prastor, as they are with 
 us in the courts above, or, as it is techni- 
 cally called, in Bank. The plaintiff, when 
 he had brought his adversary into court, 
 and had not agreed with him upon an Ini- 
 jMrlance, then formally (edebat actionem) 
 declared against him : " Quod si nee vin- 
 dices dati, nee de lite in via transactum 
 
 L e. By moving for a new trial.
 
 ELEMENTARY DIVISION. 
 
 upon are usually to be tried by the country, that is, by a jury oC 
 twelve men, a part of the great body of the community (e). 
 
 (e) Notwithstanding the difference of or body of suitors who decided causes iu 
 opinion which lias prevailed among legal the county courts of our Saxon ancestors, 
 antiquaries as to the origin of the English That the trial per jiiratain patrlce of Glan- 
 jury, there seems to be great reason for villc was derived from the trial per pa- 
 supposing that it is derived from the patria, triain, as used both before and after the 
 ^______ Conquest, 
 
 in jus veniri solebat ubi actor impetrata 
 loquendi potestate rco edebat actionem, id 
 est indicabat qua dcmum actione adversus 
 reum experiri vellet quum enim de uno 
 eodemque facto plures saepe actiones com- 
 peterent eligenda erat una ea que edenda 
 reo." Hein. A. R. v. 2, p. 227. 
 
 It must be allowed, that however our 
 modern system of pleading may excel that 
 of the Romans in other respects, the latter 
 were at least entitled to the merit of con- 
 ciseness ; take, for instance, a declaration 
 in assumpsit upon* a special agreement. 
 A Roman declaration in such a case ran 
 thus : " Aio te mini triticum de quo inter 
 nos convenit ob polita vestimenta tua dare 
 oportere." It is amusing to contrast the 
 laconic brevity of this form with a modern 
 declaration, expanded upon the record, 
 and amplified by counts on considerations 
 executory and executed, work and labour, 
 the money counts, and on an account 
 stated. 
 
 After the declaration followed the de- 
 fendant's plea, (except io,) and upon that 
 the plaintiff's rejjlication, the defendant's 
 rejoinder (duplicatio,) &c., until the matter 
 in difference was reduced to a single ques- 
 tion of law or fact, if the whole resolved 
 itself into a question of law, then, as upon 
 demurrer, it was decided by the prfetor ; 
 but if the question ultimately depended 
 upon a disputed fact, then came the joining 
 of issue, the " contestatio litis," by which 
 the litigants put themselves to the proof of 
 the fact by witnesses : " Festus ait, turn 
 demum litigantes contestari litem dici, cum 
 ordinate judicio utraque pars diceret testes 
 €stote." Hein. A. R. 2. v. 246. The issue 
 was then sent to be tried by Judices, who 
 in many respects bore a close resemblance 
 to an English jury. " Si enim de jure dis- 
 ceptabatur, ipse praetor qui dicebat extra 
 ordinem sin de facto~ judex dabatur, unde 
 formula si paret coudeuma." Conf. Seneca 
 
 de Benef. III. 7. The judices were, like 
 our jurors, private persons, selected for the 
 trial of matters of fact upon the particular 
 occasion. Their decision, however, was 
 final ; and instead of returning their verdict 
 to the Court above, in order that final 
 judgment might be pronounced, the jury 
 themselves pronounced the sentence, ac- 
 cording to the direction in the Formula, 
 " si paret condemna." 
 
 The principal and characteristic circum- 
 stance in which the trial by a Roman dif- 
 fered from that of a modem jury, consisted 
 in this, that in the former case, neither tlie 
 prastor, nor any other oflicer distinct from 
 the jury, presided over the trial to deter- 
 mine as to the competency of witnesses, 
 the admissibility of evidence, and to ex- 
 pound the law as connecting the facts with 
 the allegations to be proved on the record ; 
 but in order to remedy the deficiency, they 
 resorted to this expedient ; tlie jury gene- 
 rally consisted of one or more lawyers, and 
 thus they derived that knowledge of law 
 from their own members which was neces- 
 sary to enable them to reject inadmissible 
 evidence, and to give a correct verdict as 
 compounded both of law and fact. " De- 
 nique ut tanto minus esset periculi ne im- 
 perite judicarent, solebant aliquando iis 
 unus aut plures judicii socii jurisperiti 
 adjungi, quorum consilio omnia agerent." 
 Gell. Noct. Att. XII. 13 Conf. Sigon. 
 Hein. A. R. lib. 4, tit. 5, s. 3. Upon the 
 trial, tlie plaintiff proved his declaration or 
 replication, or the defendant his plea or 
 rejoinder (duplicatio), accordingly as the 
 pleadings threw the burthen of proving the 
 affirmative on the one or the otlier. " Ubi 
 ad judicium ventum, actor suam actionem 
 et replicationem, reus exceptionem et du- 
 plicationem probabat. Nam et reus exci- 
 piendo actor fiebat." L. 1. D. de Excep, 
 Hein. A. R. 2 V. 291. 
 
 B 3
 
 6 LAW OK evidknce: 
 
 Tliis justly celebrated institution is not more strongly recom- 
 
 Conquest, is rendered higldy probable, not. 
 only by the very deseriiitioii of the trial 
 ])€)• patriani, yet retained, but even still 
 more strongly by the powers, qualifications 
 and duties mrAdcnt to the jm-ata patrke of 
 Jlen. 2. and Hen. 3. This hypothesis seems 
 to explain many singular incidents to the 
 early trial per juratain patria;, incidents 
 which it would be difficult, if not impos- 
 sible, to account for in any other manner. 
 Thejurata patrice, like thepatrin, decided 
 on their oitm hiowledge : for this purpose 
 they were selected from the vicinage; those 
 (in the case of an assize) who had no know- 
 ledge of the facts were excluded to make 
 room for such others as were supposed to 
 know them ; and although the concurrence 
 of twelve was essential to the verdict, yet as 
 eleven might have been of acontrary opinion, 
 a 7najority in effect decided : and in the 
 case of a disputed deed, the witnesses were 
 included among the jury, and their duty 
 was, as it is still, in the language of our 
 records, Dicere veritatem. Such incidents 
 aiFord obvious reasons for supposing that 
 juries were but selections from the patria 
 or general assembly, who must have acted 
 in the double capacity of witnesses and 
 jurors. 
 
 Although this jurata patrice differed 
 from its original, the patria, both in re- 
 spect of number and of the obligation of 
 an oath, these were transitions which might 
 not only easily be made, but which were 
 likely to be made, and which we know 
 actually were made, in the most ancient, 
 perhaps, of all our courts, that is, the 
 county court ; where though, among the 
 Saxons, and even after the Conquest, the 
 verdict was given by the whole coinitatus, 
 and is still supposed to be the verdict of 
 the suitors, yet it is in fact given by twelve 
 jurors on oath. In the reign of H. 2, 
 Glanville speaks of the trial j-jer juratain 
 patrice as a known and established institu- 
 tion. Whether the practice of occasion- 
 ally delegating the duty of decision to a 
 select portion of the body of suitors, and 
 tliat sworn, was coeval with the popular 
 tribunal itself, or subsequently introduced 
 for the trial of civil rights, as we know it 
 to have been for the purpose of criminal 
 
 presentments, may be doubtful. It is pro- 
 l)ab]e, however, that the complete and final 
 establishment of the jury system is attri- 
 butable to many concurrent causes. In 
 the first place, it is clear that an ajjpeal 
 from the patria to a select numl)er was a 
 practice of great antiquity ; of this prac- 
 tice there is a very curious memorial in the 
 Monumenta Danica, lib. 1, p. 72 : " Erat 
 univcrsa ditio in certas parascias sive 
 curias divisa, liaj statis temporil)us locisque 
 per se quaeque seorsim suis cum armis, 
 patente sub Dio in campis conveniebant, 
 aderantque ejusdem loci viri nobiles qui 
 velut testes judicio assiderent. Ibi in 
 medium prodibant qui contra alios litem 
 se habere existimabant, auditisque et cog- 
 nitis partis utriusque actionibus defensioni- 
 busque, conventus universus in concilium, 
 ibat, idque temporis spatium quod interim 
 deliberando terebatur, curam vocabant. 
 Expeusis diligenter et velitatis in partem 
 utramque controversiis, in consessum re- 
 dibant, vocatisque litigatoribus, de jure 
 pronunciabant. Si quis stare judicio non 
 vellet, ad duodecim constitutos sive ju- 
 dices sive arbitros et ab his ad universae 
 ditionis conventum provocare ei licebat." 
 The expression " sive judices sive arbitros" 
 is singularly coincident with the doctrine 
 in Bracton, f. 193, that the jurata was not 
 liable to a conviction, as the assize was, 
 for a false verdict, because the parties had 
 made the jurata ^' quasi judice?n ex cou' 
 sensu." 
 
 In the next place, there are evident 
 traces of this practice in our own country ; 
 in illustration of which, the celebrated trial 
 in the county court before Odo, bishop of 
 Baieux, in the time of William the Conq., 
 may be cited, where the verdict by the 
 patj-ia was required to be confirmed by the 
 oaths of twelve selected for the purpose 
 from the body of suitors. There are in fact 
 many other vestiges of the (at least) occa- 
 sional practice of delegating the task of 
 decision to a select part ; twelve and its 
 multiples appears to have been a favourite 
 number for this purpose, not only among 
 the Saxons, but other nations of antiquity. 
 
 Again, that the modern jury are the 
 same with the ju?-ata putriw of Glanville 
 
 and
 
 ELEMENTARY DIVISION. 
 
 mended by its intrinsic excellence as a mode of attaining to the 
 truth (/), than by considerations of extrinsic policy. 
 
 (/) The trial by jury possesses in many 
 instances anotheradvantage, which, though 
 collateral to the main object, ought not to 
 pass unnoticed ; that is, the clearness and 
 facility given to the administration of the 
 adjective provisions of the law, by the 
 
 separation of law and fact; and in the 
 simplicity which proceeds from regarding 
 particular questions as questions of fact 
 for the jury, rather than as questions of 
 law to be determined by precedent. 
 
 and Bracton, their name, number and ge- 
 neral duty, which to this day is dlcere 
 veritateni, sufficiently prove, although it is 
 clear that a most important change has 
 taken place as to the manner of exercising 
 their important functions. Even so lately 
 as the reign of Hen. 3 they exercised a 
 kind of mixed duty, partly as witnesses, 
 partly as judges of the effect of testimony ; 
 in the case of a disputed deed, the wit- 
 nesses were enrolled amongst the jury, and 
 the trial was per jMtriam et per testes; 
 and to so great an extent was their cha- 
 racter then of a testimonial nature, that 
 it was doubted whether they were capable 
 of deciding in the case of a crime secretly 
 committed, and where the patria could 
 have no actual knowledge of the fact. 
 (Bracton, f. 137). It was, however, at 
 tills period that the capacity of juries to 
 exercise a far wider and more important 
 function, in judging of the weight of tes- 
 timony and circumstantial evidence, began 
 to be appreciated, for about this time the 
 trial by ordeal fell into disuse ; and when 
 this superstitious invention, the ancient 
 refuge of ignorance, had been rejected as 
 repugnant to the more enlightened notions 
 of the age, it happily became a matter of 
 necessity to substitute a rational mode of 
 inquiry by the aid of reason and expe- 
 rience, for such inefficacious and unrighte- 
 ous practices. From this aera probably 
 may be dated the commencement of the 
 important changes in the functions of the 
 jury, which afterwards, though perhaps 
 slowly, took place, until they were mo- 
 delled into the present form. 
 
 The learned author of the Commentaries 
 is inclined to derive the modern jury im- 
 mediately from the Saxons, referring to the 
 law of Ethelred, which provides that twelve 
 men, atate superiores, shall, with the 
 jjrcejjosltus, swear that they will condemn 
 no innocent, absolve no guilty person. It 
 
 is clear, however, that this constitution of 
 thirteen men was merely in the nature of a 
 jurata delator in, or jury of accusation, 
 not of trial, for the effi3ct of a charge by 
 the thirteen was merely to consign the 
 accused to the triplex ordalium. — Others 
 have asserted, that the origin of the pre- 
 sent jury was the assize established in the 
 reign of Henry 2d. It appears, however, 
 very clearly from Glanville's Treatise, that 
 the jury of twelve was of more ancient 
 origin; for it is repeatedly spoken of in 
 that work as a known and existing insti- 
 tution, and as the ordinary means of in- 
 quiry in the case of purprestures, nui- 
 sances, and trespasses which did not 
 amount to disseisins. These were then 
 tried per juratam patricB sive vicineti 
 coram justiciariis. Glanv. 1. 9, c. 11. 
 
 M. Meyer, in his truly valuable and in- 
 teresting work {Institutions Judiciaires), 
 is disposed to fix the origin of our juries 
 at so late a date as that of Henry 3d. 
 Inst. Jud. vol. 2, p. 165. But it is re- 
 markable, that one reason which lie 
 strongly urges in support of this opinion, 
 is the total silence of Glanville on this 
 subject : " Dans cet ouvrage il ne se ren- 
 contre ni le nom de jury ni la chose meme, 
 quoiqu'il soit souvent question de I'assise," 
 &c. Ins. Jud. vol. 2, p. 169. Glanville 
 himself aifords the most decisive refuta- 
 tion of this argument. See 1. 9, c. 11, 
 1. 14. c. 3; see also 1. 2, c. 6, 1. 5, c. 4, 
 1.7, c. 16: and consequently the hypo- 
 thesis of an origin later than the time 
 when Glanville wrote necessarily falls to 
 the ground. 
 
 The trial by jury, though undoubtedly 
 known and used in the king's courts in 
 the reign of Henry 2d, had become much 
 more frequent in the reign of Henry 3d, 
 an aera from which its gradual change to 
 its present form may be dated. It is not 
 improbable, us far as regards the county 
 B 4
 
 LAW UI' KVIDIiNCK : 
 
 Secret and complicated transactions, such as are usually the 
 subject of" legal investigation, are too various in their circumstances 
 to admit of decision by any systematic and formal rules ; the only 
 sure guide to truth, whether the object be to explore the mysteries 
 of nature, or unravel the hidden transactions of mankind, is reason 
 aided by experience. 
 
 It is obvious, that the experience which would best enable those 
 whose duty it is to decide on matters of fact, arising out of the 
 concerns and dealings of society, to discharge that duty, must be 
 that which results, and which can only result, from an intimate 
 intercourse with society, and an actual knowledge of the habits 
 and dealings of mankind : and that the reasoning faculties best 
 adapted to apply such knowledge and experience to the best 
 advantage in the investigation of a doubtful state of facts, are the 
 natural powers of strong and vigorous minds, unincumbered and 
 unfettered by the technical and artificial rules by which permanent 
 tribunals would be apt to regulate their decisions {g). 
 
 court, that when its powers had been 
 greatly abridged, the substitution of twelve 
 jurors for the whole comitatus was adopted 
 as a change of great convenience to the 
 suitors of the court, as well as the litigant 
 parties; the former would be more rarely 
 called on to perform a burthensome duty, 
 the latter would have their causes more 
 patiently tried. 
 
 If it was ever the practice, either pre- 
 vious or subsequent to the Conquest, that 
 tlie verdict by the patria or comitatus 
 should be subject to an appeal to or con- 
 firmation by twelve of the pares on an 
 oath, and of this, as has been seen, some 
 traces are to be found, the transition to 
 the select part would be perfectly easy ; 
 it would in effect be nothing more than 
 the mere omission of a step in the process 
 which had become useless and burthen- 
 some; experience having shown that jus- 
 tice was better done by a limited number, 
 acting under the obligation of an oath, 
 than by the precarious determination of 
 a large and indefinite body, few of whom 
 would possess any knowledge of the facts. 
 
 (gf) The Ld. Chancellor (Ld. Brougham), 
 in a recent case, in directing an issue at 
 law, thus expressed his opinion on the 
 subject: 
 
 " I certainly retain the opinion which 
 I always held in common with all the 
 
 profession, that the best tribunal for inves- 
 tigating contested facts is a jury of twelve 
 men, of various habits of thinking, of 
 various characters of understanding, of 
 various kinds of feeling, of moral feeling, 
 all of which circumstances enter deeply 
 into the capacity of such individuals. A 
 jury is, as I have more than once ob- 
 served in this place, an instrument pecu- 
 liarly well contrived in two cases — of 
 assessing damages and giving compensa- 
 tion in the nature of damages assessed, 
 and finding the way for the Court, which 
 is ultimately to decide, through a mass of 
 conflicting testimony. The divei'sity of 
 the minds of the jury, even if they are 
 taken without any experience as jurors, 
 their various habits of thinking and feel^ 
 ing, and their diversity of cast of under- 
 standing, and their discussing the matter 
 among themselves, and the very fact of 
 their not being lawyers, their not being 
 professional men, and believing as men 
 believe, and act on their belief, in the 
 ordinary aifairs of life, give them a capa- 
 city of aiding the Court in their eliciting 
 of truth, which no single Judge, be he 
 ever so largely gifted with mental endow- 
 ments, be he ever so learned with respect 
 to past experience in such matters, can 
 possess in dealing with either of thos§ 
 two matters.''
 
 ELEMENTARY DIVISION. 9 
 
 Nor is the trial by jury less recommended by considerations of 
 extrinsic policy. It constitutes the strongest security to the liber- 
 ties of" the people that human sagacity can devise; for, in effect, it 
 confides the keeping and guardianship of their liberties to those 
 whose interest it is to preserve them inviolate ; and any tempta- 
 tion to misapply so great an authority for unworthy purposes, 
 which might sway a permanent tribunal (A), can have no influence 
 when entrusted to the mass of the people, to be exercised by par- 
 ticular individuals but occasionally. 
 
 In addition to this, no institution could be better devised for 
 securing, on the part of the people, a lively attachment to the con- 
 stitution and laws, in the practical administration of which they act 
 so important a part, in diffusing a knowledge of the laws them- 
 selves, and producing ready obedience to a system which they 
 know to be justly and impartially administered. 
 
 That which is legally offered by the litigant parties to induce a 
 jury to decide for or against the party alleging such facts, as con- 
 tradistinguished from all comment and argument on the subject, 
 falls within the description of evidence. 
 
 Where such evidence is sufficient to produce a conviction of the 
 truth of the fact to be established, it amounts to proof. 
 
 The origin, nature and quality of such evidence, the principles 
 and rules which regulate its admissibility and effect, and its appli- 
 cation to the purposes of proof, form the subject of the present 
 Treatise. 
 
 The brief outline which has been given to show the relation 
 which this branch of the law bears to the whole system, is sufficient 
 to manifest its great importance. 
 
 There is, perhaps, no greater blessing incident to a highly im- 
 proved state of civilization, than the substitution of a rational and 
 satisfactory mode of judicial proof, for the rude, barbarous, and 
 even impious practices resorted to in the dark and unlettered ages. 
 Without certain modes of investigating truth, in cases where its 
 light is ever liable to be obscured by fraudulent practices exercised 
 for the evasion of justice, the wisest laws are but vain and in- 
 
 (h) The power of deciding on matters of subject of public attention, and any mate- 
 fact is mucli more capable of abuse, and rial departure from ordinary principles 
 liable to corrupt partiality, without ap- would necessarily be remarked ; but the 
 pearing to be manifestly unjust, than the testimony and evidence offered in proof of 
 power of deciding on matters of law is. facts in particular instances, are capable 
 A judgment in law on ascertained facts, of such infinite complexity and variety, 
 must be justified by comparison with pre- that they admit of no certain standard for 
 cedents, and it attracts public notice, judging, and consequently a corrupt or 
 because in its turn it becomes a precedent erroneous decision is the less easy to be 
 for future decisions. It is therefore the detected.
 
 10 LAW OK evidence: 
 
 effectual : they may embellish the statute-book, as beautiful in 
 theory, but in other respects they are a dead letter; frequently 
 even worse; for where offenders cannot be detected and punished, 
 the laws may do mischief in holding out a show of protection, 
 which being but delusive, tends to induce a false and dangerous 
 sense of security : what is still worse, whilst the criminal escapes, 
 they may stamp the innocent with infamy, and crush them with 
 judgments designed only for the guilty; and under an arbitrary 
 constitution, may be converted into a dangerous instrument in the 
 hands of power, for the destruction of those whose possessions are 
 tempting, or principles obnoxious. 
 
 In order to appreciate the advantages which result from modes 
 of investigation founded on just and rational principles, we have 
 only to recollect the absurd, monstrous and impious practices 
 resorted to by our own ancestors, in common with other nati«as of 
 antiquity (i). It was for the want of them that judicial oaths were 
 multiphed to an extent of itself sufficient to bring the obligation 
 into contempt : it was vainly hoped that the rank and number of 
 compurgators, who swore not to any fact, but to mere belief, would 
 compensate for their want of knowledge. Hence the superstitious 
 appeals to the Deity by the trial by ordeal, and the ferocious and 
 impious practice of the trial by duel. They did not venture to rely 
 on the simple oaths of individual witnesses to facts, although 
 with a flagrant degree of inconsistency they gave credit to the 
 cumulative oaths of those who knew nothing of the facts : whilst 
 they were either too ignorant or too indolent to try the credit of 
 witnesses by dihgent examination and comparison of testimony 
 and facts, judicial oaths were multiplied to an absurd and profli- 
 gate extent. Hence also the rude limits of prescription, which 
 were established for the purpose of avoiding the necessity for 
 inquiry (k). It may, however, be recollected to their credit, that 
 the shocking expedient of applying torture to extort confession, 
 a practice sanctioned by many, even Christian legislators, was 
 never resorted to by the Anglo-Saxons. 
 
 But however absurd, objectionable and mischievous such prac- 
 
 (i) In spite of the somewhat romantic imagine concerning the moral truth and 
 notions wliieh moderns are apt to entertain sincerity of men who live in a rude and 
 of the virtues and simplicity of ancient barbarous state, there is much more false- 
 times, history teaches, what indeed our hood, and even perjury among them, than 
 own experience might lead us to suspect, among civilized nations." 
 that the most rude and uneducated in (k) If a man wounded his slave, he was 
 every age are usually the most addicted not to be presumed to be guilty of the 
 to deceit, falsehood and perjury. See the murder, unless the slave died the day 
 remarks of Mr. Hume, History of Eng- after. 
 land, vol. i. p. 222 : " Whatever we may
 
 Elementary division. U 
 
 tices must appear at the present day, the progress of improvement 
 has been slow ; tor though the trial by duel in civil suits received 
 a considerable check in the reign of Henry II. in consequence of 
 the introduction of the trial by the grand assize, yet the practice 
 was continued in appeals till long afterwards, and has but very 
 lately ceased to be the law ; and though the trial by ordeal seems 
 to have fallen into disuse ever since the early part of the reign of 
 Henry III. without any formal abolition, the doctrine of com- 
 purgation by wager of law is but just abolished. It was not 
 until long after the establishment of the jury trial that the 
 investigation was conducted by the open examination of wit- 
 nesses, and that the functions of jurors and witnesses were distin- 
 guished and separated ; it was not until the reign of queen Anne 
 that witnesses for prisoners tried for felony were examined upon 
 oath. 
 
 It is not, however, part of the present design to enter into 
 any historical detail of the law on this interesting subject, further 
 than as reference to the ancient law may be occasionally connected 
 with its present details. 
 
 The subject may be conveniently considered. 
 
 First. In relation to the elementary principles on which the 
 
 leo;al doctrine rests. 
 Secondly. The instruments of evidence, as governed by these 
 
 principles and elementary rules. 
 Thirdly. Their application to the purposes of proof, either 
 generally or particularly. 
 
 First, then, as to the general principles on which the law of 
 evidence is founded. 
 
 The means which the law employs for investigating the truth 
 of a past transaction are those which are resorted to by mankind 
 for similar, but extrajudicial purposes. These are the best, 
 usually the only means of inquiry, and it is for this reason that 
 a jury of the country forms a tribunal so well qualified to judge 
 of mere matters of fact; for, subject to certain exceptions, they 
 decide by the aid of experience and reason, as they would do 
 on any extrajudicial occasion. With these general principles 
 the law can interfere in two ways only ; either by excluding or 
 restraining mere natural evidence by the application of artificial 
 tests of truth, or annexing an artificial effect to evidence beyond 
 that which it would otherwise possess. Hence it is that the great 
 principles of evidence may be reduced to three classes, com- 
 prising, 
 
 \^i. The principles of evidence which depend on ordinary ex-
 
 12 LAW OP evidence: 
 
 perience and natural reason, independently of any artificial rules 
 of" law ; 
 
 2dly. The artificial principles of law, which operate to the 
 partial exclusion of natural evidence by prescribino- tests of admis- 
 sibility, and which may properly be called the excluding principles 
 of law ; 
 
 3dly. The principles of law which either create artificial modes 
 of evidence, or annex an artificial effect to mere natural evidence. 
 
 In the first place, it rarely happens that a jury, or other tri- 
 bunal (l), whose business it is to decide on a matter of fact, can do 
 so by means of their own actual observation. It is obvious, that 
 when inquiry is to be made into the circumstances of a past trans- 
 action before a jury, information must be derived for the most part 
 from the same sources, and must be judged of and estimated, to 
 a great extent, by the same rules that would be resorted to and 
 applied by any individual whose business or whose interest it was, 
 in the ordinary course of human events, to institute such an 
 inquiry. 
 
 What, then, are the means to which a person interested in such 
 an inquiry into a past transaction would naturally resort ? He 
 would, in the first place, ascertain what witnesses were present at 
 the transaction, and would obtain all the information which 
 they could supply. If none were present, or none could be found 
 from whom he could obtain immediate intelligence, he would 
 procure information from others, who, although they had not 
 actual personal knowledge of the fact, had yet derived information 
 on the subject, either directly or mediately, from others who pos- 
 sessed or had acquired and communicated such their knowledge, 
 either orally or in writing. 
 
 Again, in the absence of other information on the subject, he 
 would endeavour carefully to ascertain the circumstances which 
 accompanied the transaction, and had such a connection with it as 
 enabled him to draw his own conclusions on the subject of 
 inquiry. 
 
 In short, where knowledge cannot be acquired by means of actual 
 and personal observation, there are but two modes by which the 
 existence of a by-gone fact can be ascertained : 
 
 1st. By information derived either immediately or mediately 
 from those who had actual knowledge of the fact; or, 
 
 {I) To a limited extent, a jury or Court, litigation: Judges may decide by inspec- 
 
 in deciding matter of fact, may have actual tiou of a record, or of the person in cases 
 
 personal knowledge. Thus a jury may of disputed inftmcy. So also of a jury of 
 
 have a view of lands, &c. the subject of matrons in case of alleged pregnancy, &c.
 
 EXCLUDING TESTS. 18 
 
 2dly. By means of inferences or conclusions drawn from other 
 facts connected with the principal fact which can be sufficiently 
 estabhshed. 
 
 In the first case, the inference is founded on a principle of 
 faith in human veracity sanctioned by experience. In the second, 
 the conclusion is one derived by the aids of experience and reason 
 from the connection between the facts which are known and that 
 which is unknown. In each case the inference is made by virtue 
 of previous experience of the connection between the known and 
 the disputed facts, although the grounds of such inference in the 
 two cases materially differ. 
 
 All evidence thus derived, whether immediately or mediately, 
 from such as have had, or are supposed to have had, actual know- 
 ledge of the fact, may not improperly be termed direct evidence ; 
 whilst that which is derived merely from collateral circumstances 
 may be termed indirect or inferential evidence. 
 
 It is obvious that the means of indii'ect proof must usually be 
 supplied by direct proof; for no inference can be drawn from any 
 collateral facts until those facts have themselves been first satisfac- 
 torily established, either by actual observation, or information de- 
 rived from others who have derived their knowledge from such 
 observation. 
 
 Such, then, being the ordinary sources of evidence (m), what are 
 the excluding principles which restrain the admission of evidence ? 
 As juries must decide by the aid of the same general principles of 
 belief on which any individual would act who was desirous of satis- 
 fying himself by inquiry as to the truth of any particular fact, and 
 as an individual inquirer would not think it necessary to limit him- 
 self by any particular rules, why should the evidence to be sub- 
 mitted to a jury be limited or affected by any technical rules? 
 
 The answer is, that the law interferes for two purposes ; first, in 
 order to provide more certain tests of truth than can be provided, 
 or indeed than are necessary, in the ordinary course of affairs, and 
 thereby to exclude all weaker evidence to which such tests are in- 
 applicable, and which, if generally admitted, would be more likely 
 to mislead than to answer the purposes of truth ; and in the next 
 place, to annex an artificial effect to particular evidence, which 
 would not otherwise belong to it, on grounds of general policy and 
 convenience. 
 
 (m) The principles on which the force hereafter, in discussing the application of 
 and efficacy of mere natural evidence, un- the rules of evidence to the general pur- 
 affected by technical considerations, de- poses of proof. 
 pend, will be more conveniently considered 
 
 3 9to^v>^ liJj/^
 
 14 i,Aw or evidence: 
 
 The great principle on which tlie law ])roceeds in laying- down 
 rules of an exclusive operation is, not to alter the value and etiiect 
 of evidence in the investigation of truth ; that would be absurd, 
 especially where the tribunal vested with the power of decision 
 consisted of jurors selected from the great body of tlie people, who, 
 being unskilled in technical rules and unaccustomed to judicial 
 habits, must necessarily decide by the aid of their own experience 
 of things and natural power of their reason, by principles on which 
 they would act in the affairs of ordinary life : on the contrary, one 
 great object of the law is to aid the natural powers of decision, by 
 adding to the weight and cogency of the evidence on which a jury 
 is to act. Another great object is, to prevent the reception of evi- 
 dence which in its general operation would injure the cause of truth, 
 by its tendency to distract the attention of a jury, or even to mis- 
 lead them. 
 
 The necessity for resorting to superior tests of truth, the effect 
 of which is to exclude evidence not warranted by those tests, is 
 founded on the apprehension that the evidence on which an indi- 
 vidual in the ordinary transactions of life might safely rely, could 
 not, without the additional sanction of such tests, be safely relied 
 upon, or even admitted, injudicial investigations. For in the first 
 place, in the ordinary business of life neither so many temptations 
 occur, nor are so many opportunities afforded for practising deceit, 
 as in the course of judicial investigations, where property, reputa- 
 tion, liberty, even life itself, are so frequently at stake : in the com- 
 mon business of life each individual uses his own discretion with 
 whom he shall deal and to whom he shall trust ; he has not only 
 the sanction of general reputation and character for the confidence 
 which he reposes, but slight circumstances, and even vague reports, 
 are sufficient to awaken his suspicion and distrust, and place him 
 on his guard ; and where doubt has been excited, he may suspend 
 his judgment till by extended and repeated inquiries doubt is re- 
 moved. In judicial inquiries it is far otherwise ; the character of 
 a witness cannot easily be subjected to minute investigation, the 
 nature of the proceeding usually excludes the benefit which might 
 result from an extended and protracted inquiry, and a jury are 
 under the necessity of forming their conclusions on a very limited 
 and imperfect knowledge of the real characters of the witnesses on 
 whose testimony they are called on to decide. 
 
 It has been truly observed, that there is a general tendency 
 among mankind to speak the truth, for it is easier to state the 
 truth than to invent ; the former requires simply an exertion of the 
 memory, whilst to give to false assertions the semblance of truth
 
 EXCLUDING TESTS. ]5 
 
 is a work of difficulty. It is equally apparent that the suspicion 
 of mankind would usually depend on tlieir ordinary experience of 
 human veracity ; if truth were always spoken no one would ever 
 suspect another of falsity, but if he were frequently deceived he 
 would frequently suspect. Hence it is that jurors, sitting in judg- 
 ment, would usually be inclined to repose a higher degree of con- 
 fidence in ordinary testimony than would justly be due to it in the 
 absence of peculiar guards against deceit ; for as the temptations 
 to deceive by false evidence in judicial inquiries are far greater than 
 those which occur in the course of the ordinary transactions of life, 
 they would be apt to place the same reliance on the testimony 
 offered to them, as jurors, to Which they would have trusted in ordi- 
 nary cases, and would consequently, in many instances, overvalue 
 such evidence. 
 
 The law therefore wisely requires that the evidence should be 
 of the purest and most satisfactory kind which the circumstances 
 admit of, and that it should be warranted by the most weighty and 
 solemn sanctions. This indeed is but a consequence of one great 
 and important rule of law, viz. that the best evidence shall be 
 adduced ; the effect of which is, as will afterwards be seen, to 
 exclude inferior evidence, whenever it is offered in place of that 
 which is of a superior degree and more convincing nature. 
 
 Again, for the purposes of saving both time and expense, and 
 to prevent the minds of juries from being distracted from that 
 which is material, it is indispensably necessary to place bounds 
 to collateral evidence, and to exclude such as is of too weak 
 and suspicious a nature to deserve credit, and which, though it 
 possessed no tendency to mislead, would still be mischievous in 
 occasioning delay and expense, and attracting fruitless attention. 
 
 In order to exhibit clearly the nature and extent of the ex- 
 cluding tests recognized by the law of England, it is essential first 
 to consider the different classes of evidence to which such tests 
 apply ; and then to consider what tests are applicable to each of 
 such classes. 
 
 For this purpose all evidence may be divided into two classes : Evidence, 
 1st. Direct, which consists in the testimony, whether immediately j^^^* ^'" 
 or mediately derived from those who had actual knowledge of 
 the principal or disputed fact; or 2dly, indirect or inferential 
 evidence, where an inference is made as to the truth of the dis- 
 puted fact, not by means of the actual knowledge which any 
 witness had of the fact, but from collateral facts ascertained by 
 competent means. 
 
 Direct or testimonial evidence, again, is either immediate, that is, ^"™gj^'^te^
 
 10 
 
 LAW OF EVIDEXCE 
 
 -IMMEDIATE TESTIMONY. 
 
 Immediate 
 or mediate. 
 
 Principles 
 wliich regu- 
 late the ad- 
 mission of 
 immediate 
 testimony. 
 
 Oath. 
 
 Tests of 
 truth — 
 disqualifi- 
 cation, 
 tui-pitude. 
 
 Disqualifi- 
 cation, 
 interest. 
 
 where a witness states his own actual knowledge of the fjict, or 
 mediate, where the information is conuiiunicated, not immediately 
 by the party who had actual knowledge of the fact, but from 
 him through the intermediate testimony of one or more other 
 witnesses. 
 
 First, then, what are the principles which govern the reception 
 of immediate testimony ? 
 
 To render the communication of facts perfect, the witness must 
 be both able and wllUng to speak or to write the truth. It is 
 necessary that he should have had, in the first place, the means 
 and opportunity of acquiring a knowledge of the facts ; and, in 
 the second, that he should possess the power and inclination to 
 transmit them faithfully; consequently, the first great object of the 
 law is to secure, by proper means, the inclination of the witness to 
 declare the truth, and to ascertain his abihty to do so by adequate 
 tests ; and it is for the jury afterwards to judge of the credit due to 
 the witnesses, considering their numbers, their opportunities for 
 observing the facts, the attention which they paid, their faculties 
 for recollecting and transmitting them, their motives, their situa- 
 tion with respect to their parties, their demeanour, and their con- 
 sistency. 
 
 In order to exclude impure or suspicious testimony, and to add 
 the most solemn and binding sanction to that which is admitted, 
 the law, in the first place, excludes all testimony which is not 
 given under the sanction of an oath : and in the next place, sub- 
 jects the witness to cross-examination by the party against whom 
 the evidence is offered. 
 
 An immediate consequence of the first test is, that the testimony 
 of a person who by the turpitude of his conduct has made it pro- 
 bable that he would not regard the obligation of an oath, ought 
 not to be received ; and therefore it may be taken as a general rule^ 
 that no witness is competent to give evidence in a court of justice 
 who has been convicted of any infamous crime. What is to be 
 considered as an infamous crime, which will thus wholly render a 
 witness incompetent ; 2dly, in what manner the testimony of such 
 a witness is to be objected to ; and 3dly, by what means his 
 competency may be restored, will be more properly considered 
 hereafter. 
 
 And, in the next place, the law will not receive the evidence of 
 any person, even under the sanction of an oath, who has an 
 interest in giving the proposed evidence, and consequently whose 
 interest conflicts with his duty. 
 
 This rule of exclusion, considered in its principle, requires little
 
 EXCLUDING TESTS — INTEREST. 17 
 
 explanation ; it is founded on the known infirmities of lunnan Disqnaiifi- 
 nature, which is too weak to be generally restrained by religious r''^'""' '"" 
 or moral obligations, when tempted and solicited in a contrary 
 direction by temporal interests. There are, no doubt, many whom 
 no interested motive could seduce from a sense of duty, and by 
 their exclusion this rule may, in particular cases, operate to shut 
 out the truth. But the law must prescribe general rules ; and ex- 
 perience renders it probable that more mischief would result from 
 the general reception of interested witnesses than is occasioned by 
 their general exclusion. The principle is sufficiently obvious ; its 
 application frequently difficult. The very extensive operation of 
 this principle will afterwards be considered in all its different bear- 
 ings : it remains at present to sketch the outline of its general and 
 immediate consequences. 
 
 The necessity for defining and limiting the extent of the opera- Disqualifi- 
 tion of this principle is an immediate consequence of its adoption, J^n^eregt— 
 for the sake of certainty in its application, and also to prevent necessity 
 its operating too largely to the exclusion of evidence, which would t^g rule. 
 be productive of great inconvenience. Hence the law defines the 
 kind of interest which shall exclude ; it must be a legal interest in 
 the event, as contradistinguished from affection, prejudice or bias. 
 Here the law draws the line of distinction, which must be drawn 
 somewhere, and which would exclude too much of the means of 
 discovering the truth, were it to incapacitate every witness who 
 from kindred, friendship, or any other strong motive by which 
 human nature is usually influenced, might be suspected of partiality. 
 Hence, although a man and his wife cannot give evidence for each 
 other (m), (for their interests are in law identical), yet no other 
 degree of relationship or cormection in society, whether natural or 
 artificial, will incapacitate the parties from giving evidence for each 
 other. A father is a competent witness for his son {n), and the 
 son for the father ; the guardian and his ward, the master and his 
 servant, may mutually give evidence for each other (o). 
 
 It is no fair ground of objection, that the law excludes a witness Tiiis rule 
 who is interested in the event to the smallest pecuniary extent, and 
 yet admits those who, influenced by the strongest ties of natural 
 affection, lie under a much greater temptation to deceive. Is any 
 
 (m) Nor against each other, as will be dependent was also incompetent to give 
 
 seen, on grounds of policy. evidence for his master, and the testimony 
 
 (n) The application of the principle by of a friend or enemy was regarded with 
 
 the civil law was much more strict, and great jealousy. Pand. lib. 22, tit. 5, s. 140, 
 mutually excluded father and son, patron (o) For the application of this rule, see 
 
 and client, guardian and ward, from giving tit. Interest. 
 evidence for each other ; a servant or other 
 
 VOL. I. C
 
 1 
 
 LAW OF evidence: — IMMEDIATE TESTIMONY, 
 
 Tills rule 
 reasonable. 
 
 Exclusion 
 by interest 
 
 exclusive rule necessary ? Assuming that the law properly recog- 
 nizes such a test, and that the exclusion of a witness actually 
 interested in the event is in some cases necessary, the law must 
 exclude all such witnesses, however trifling the amount of that 
 interest may be ; for a general rule must be laid down ; and as it 
 is impossible to define what extent or degree of interest shall inca- 
 pacitate a witness, the necessary consequence of recognizing this 
 principle is, to exclude all who are so interested to any extent (j9). 
 Now what would be the consequence of extending the rule to 
 cases where the witness is influenced by the ties of blood, or of 
 friendship, or by any other of the relations which exist in society ? 
 Wiiere is the line to be drawn ? If a father cannot be admitted as 
 a witness for his son, must not the same principle exclude the 
 testimony of a brother in favour of a sister; and if so, why not that 
 of an uncle for his nephew, or of one intimate friend for another ? 
 and where is the line of exclusion to be drawn ? Would it be pos- 
 sible to define the particular degree of influence or bias which 
 would render the witness incompetent ? If that were not, as it is, 
 an insuperable difficulty, it would be inconsistent and unreasonable 
 to assign an arbitrary limit not co-extensive with the operation of 
 the principle itself. If, on the other hand, all who labour under 
 influence, prejudice or bias, were to be excluded, the consequence 
 would be that the rule would be too vague and indefinite to be put 
 in practice ; of which any one may easily convince himself, who 
 attempts to conceive the extent of its operation, and the infinity of 
 motives and prejudices which arise out of human affairs, gradually 
 diminishing from the most potent by shght shades whose bounda- 
 ries are imperceptible, and which become at last so faint and weak 
 as to leave the mind in doubt where the operation of the principle 
 terminates. No niconsistency, therefore, in this respect, is attri- 
 butable to the law, as admitting more suspicious evidence than 
 that which it rejects. The law excludes all who have an actual 
 legal interest in the event, however minute that interest may be ; 
 because it must exclude all or none ; but it does not exclude those 
 who labour under a mere influence, because it cannot lay down any 
 rule short of excluding all who are influenced or prejudiced; and 
 this rule is impracticable from its ambiguity and extent. The 
 difficulty arises from the general and extensive nature of human 
 motives and prejudices, which exclude any definite limitation; and 
 it is no fair ground of objection to the law, that it lays down one 
 
 {p) See, however, the observations of Best, L. C.J. in Hov'dl v. Steplienson, 5 Bing. 
 4'J7 : and infra, tit. Intekkst.
 
 EXCLUDING TESTS INTEREST. 19 
 
 rule which is essential to the pure administration of justice, and is Exclusion 
 capable of practical application, and does not lay down another ^y '"t'-rest. 
 which would be impracticable and mischievous. 
 
 There is another strong reason of a practical nature for making Rcason- 
 this distinction: where the legal interest in the event is small, ••ii'i'i"!^s of 
 although it must, as long as it exists, exclude the testimony, yet tinctiou, 
 it may in most instances be removed by means of a release, or by 
 payment ; but partiality or influence, arising from natural affection 
 or friendship, admits of no release. 
 
 What constitutes a legal interest in the event of a cause, will be Natiiro of 
 hereafter fully considered (</) ; it may, however, be stated generally, tiieintm'st 
 that it must either be a direct and certain interest in the event of 
 the cause^ or an interest in the record for the pui^poses of evidence. 
 The law considers it to be more safe to admit the evidence where 
 there is a doubt, than to exclude it altogether; for on the one 
 hand, the rejection is peremptory and absolute ; on the other, if 
 the witness be received, it is still for the jury to consider what 
 credit is due to his testimony, taking into consideration all the 
 circumstances of the case, and the motives by which he maybe 
 influenced. Hence it is the inclination of the courts, that objec- 
 tions of this nature should go to the credit of the witness rather 
 than to his competency ; and they will not wholly exclude a witness 
 from giving evidence, unless he would be immediately and directly 
 affected by a result contrary to the tendency of his testimony, or 
 unless he has an immediate interest in the record. It is of the 
 highest importance that a fundamental rule of this nature, which 
 is so extensive in its operation, should be simple, and easy to be 
 applied in practice ; a very sufficient reason for confining it to 
 cases where the interest is certain and immediate, and not per- 
 mitting it to operate where it is contingent, remote and dubious : 
 the uncertainty of such a rule would be productive of infinite con- 
 tention ; the evil would be certain, the advantage doubtful The 
 law, therefore, never excludes testimony unless the interest of the 
 witness be direct and certain. It must, however, be recollected 
 that in all cases, even where the witness is strictly competent, the 
 degree of credit which he deserves is always a question for the 
 peculiar consideration of the jury, who are to form their judgment 
 as to his veracity, from his demeanour, his situation, and all the 
 surrounding circumstances. 
 
 Two classes of cases are here to be noticed where a witness is Excci tior:s. 
 
 competent, notwithstanding his interest. 1st. Where the witness 
 
 has previously, and with a view to deprive a party of the benefit 
 
 of his testimony, or even wilfully and wantonly, acquired an in- 
 
 {q) Sec tit. Witness — Inteuest. 
 
 C 2
 
 20 
 
 LAW OF EVIDENCE : — IMMEDIATE TESTIMONY. 
 
 Exceptions. 
 
 Operation 
 of tliis ex- 
 cludinpf 
 principle. 
 
 terest in tlie event ; for this is to be considered as a species of 
 fraud upon the individual or the public, who had an interest in his 
 testimony. 2dly. There is a class of cases where the law admits 
 the testimony of an interested witness, on the ground of the neces- 
 sity of the case, and where, in the common course of human affairs, 
 if the witness were to be considered as incompetent, a failure of 
 justice would result from defect of testimony. These exceptions, 
 however, are rare, and confined principally to the cases of a ser- 
 vant who transacts his master's business, and who in the usual 
 course of affairs is the only person who can give evidence for his 
 master; of a wife on a charge against the husband of having 
 committed violence to her person ; and of one who brings an 
 action against the hundred under the statute to recover the value 
 of the property of which he has been robbed ; for here, from the 
 very nature of the case, it is highly improbable that he should be 
 able to adduce any witness to prove the robbery. It is not suffi- 
 cient that the inability to procure evidence should result from the 
 circumstances of a particular case, for that would amount to little 
 short of the destruction of the general rule ; the necessity must 
 arise from a general presumption arising from the nature of the 
 case, that in the common course of human affairs there will be 
 a defect of evidence and a failure of justice, unless such evidence 
 be admitted. Since the benefit of such testimony is purchased at 
 the price of a departure from a most beneficial and fundamental 
 rule, it is not probable that the courts would be willing to extend 
 this class of exceptions. 
 
 The operation of this excluding principle is not confined to the 
 mere rejection of interested witnesses, but also excludes all written 
 evidence which proceeds from an interested source. Hence the 
 deposition of one who, being interested^ could not have been 
 examined as a witness, cannot be read ; and this seems to be one 
 principal reason for rejecting, in a civil action, a record in a cri- 
 minal proceeding, as proof of the fact found by the verdict in the 
 criminal proceeding : for the verdict on the trial of the indictment 
 may have been procured by the evidence of the party who seeks to 
 avail himself of it in the action, and therefore to admit such evi- 
 dence would virtually be to allow the party to give evidence in his 
 own cause. So that if A. indict and convict B. of an assault, 
 and afterwards bring an action against him to recover damages 
 for the same injury, the record of the conviction would not be 
 admissible to prove the assault, since that conviction may have 
 resulted entirely from the credit given to J..'s testimony (r). 
 (r) See tit. Judgment, &c. and Gilb. L. E. 31.
 
 EXCLUDING TKSTS — OATH. 21 
 
 The first great safeguard which the law provides for the uscer- oiiii^^ation 
 tainment of the truth in ordinary cases, consists in requiring all "f'*"«'itl»- 
 evidence to be given under the sanction of an oath. This imposes 
 the strongest obligation upon the conscience of the witness to 
 declare the whole truth that human wisdom can devise ; a wilful 
 violation of the truth exposes him at once to temporal and to 
 eternal punishment. 
 
 A judicial oath may be defined to be a solemn invocation of the 
 vengeance of the Deity upon the witness, if he do not declare the 
 whole truth, as far as he knows it (5). 
 
 Hence it follows that all persons may be sworn as witnesses what belief 
 who believe in the existence of God, in a future state of rewards 1,1"^*"*' 
 and punishments, and in the obligation of an oath, that is, who 
 beheve that Divine punishment will be the consequence of perjury ; 
 and therefore Jews (0, Mahometans (m), Gentoos(y), or in short, 
 persons of any sect possessed of such belief, are so far competent 
 witnesses (z/;). Hence also it follows, that children who are too 
 young to comprehend the nature of an oath (j:), and adults, who, 
 from mental infirmity or for want of instruction, do not understand 
 this solemn obligation, or who do not believe in the existence of 
 a Deity, or in a state where that Deity will punish perj ury (?/), 
 cannot be admitted as witnesses ; since in all these cases, either 
 from want of understanding, or want of belief, that obligation to 
 speak the truth is wanting which the law has appointed on such 
 occasions as an indispensable security. 
 
 As the object of the oath is to bind the conscience of the wit- Form of an 
 ness, it follows that some form of swearing must be used which the 
 
 oath. 
 
 («) Est autem Jusjurandum religiosa New or Old Testament was held to be 
 
 adseveratio per invocationem Dei tanquam essential; 2 Haw. c. 4G, s. 148; but this 
 
 vindicis, si jiiratus sciens fefellerit. Hei- idea has been exploded. See Atk. 21 ; 
 
 neccius, pars 3, s. 13. 2 Hale, 279; CoAvp. 390. 
 
 (J.) It was held that Jews might be sworn {x) Vide sup7-a ; and see East's P. C. 
 
 on the Pentateuch, previous to their ex- 441 ; and JR. v. Pmcell, Leach's C. C. L, 
 
 pulsion from England; i. e. before the 128.237. 
 
 18 Ed. 1, when they were first expelled (t/) AnAtlieistisnotcoi patent. B.N. P. 
 
 from the kingdom. Wells v. Williams, 262. Bex v. White, Leach's C. C. L. 483. 
 
 1 Lord Raym. 282 ; Vernon, 263 ; Cowp. Lee v. Zee, 1 Atk. 43. 45. Co, Litt. 6. 
 
 389. See Seld. torn. 2 foL 1467, as to the 2 Inst. 479; 3 Inst. 165; 4 Inst. 279; 
 
 form of swearing a Jew, temp. Ed. 1. Fleta, b. 5, c. 22; Bract. 116. See Bex v. 
 
 (m) Fachlnav. Sabine, StrAlOi. Mor- Taylor, Peake, Ca. Ni. Pri. 11, where 
 
 gran's Case, Leach, 52 ; 2 Hawkins, c. 46, BuUer, J. held that the proper question to 
 
 s. 162. Omichund v. Barker, 1 Atk. 21 ; be asked of a witness is, whetlier he be- 
 
 1 Wils. 84. Bex v. Taylor, Peake, 1 1 . lieves in God, the obligation of an oath, 
 
 (y) Eamkisseiisent v. Barker, 1 Atk. and in a future state of rewards and 
 
 19. punishments. 
 
 ((o) According to some, swearing on the 
 
 C 3
 
 22 LAW OF EVIDENCE: — IMMEDIATE TESTIMONY. 
 
 Form of an witness considers to be binding(0) ; and therefore every witness is 
 °^*^'- now (a) sworn according to the form which he holds to be the most 
 
 solemn, and which is sanctified by the usage of the country or of 
 the sect to which he belongs. A Jew is sworn upon the Penta- 
 teucli(Z;Sand a Turk upon the Koran (c); so it has been held 
 that a Scotch covenanter (rf) may be sworn according to the 
 form of his sect, by holding up his hand without kissing the 
 book (e). 
 Oatiimnst The testimony must be sanctioned, not merely by an oath, but 
 be judicial. ^^ a judicial oath, in the course of a regular proceeding, adminis- 
 tered by an authorized person; for if the oath were extrajudicial, 
 the witness could not be punished for committing perjury under 
 that oath ; and therefore one of the securities for truth which the 
 law has provided would be wanting. Hence, although every other 
 leo-al requisite may concur to render what a party has sworn ad- 
 missible, and although the fullest opportunity has been afforded 
 to the opposite party to cross-examine the witness, yet if the oath 
 was extrajudicial, the testimony given under it is not admissible. 
 A further objection to such evidence is, that the party against whom 
 it was offered was not bound to notice it, and he ought not to be 
 placed in a worse situation by omitting to make himself a party to 
 an extrajudicial and illegal proceeding. This doctrine, and the 
 minor distinctions arising upon it, will be more fully discussed 
 hereafter, when the different cases relating to the reception of 
 judicial proceedings in evidence are considered ; for the present, it 
 may suffice to observe, that it is a general rule that testimony given 
 under an oath merely extrajudicial, cannot afterwards be admitted 
 in evidence, for the reasons already stated. 
 Declaration There are two exceptions to the general rule : the case of de- 
 
 ]>y party clarations made by a person under the apprehension of impending 
 in extremis. j r i i i c^ 
 
 dissolution, and the exception introduced by the express provisions 
 
 (z) On the principles of common law no Eex v. Fitzpatrick, Leacli, 459; 2 Sid. 6. 
 
 particular form is essential to the oath. Button v. Cole. When Lord Hardwicke 
 
 Cowp. 389. Button v. Cole, 2 Sid. 6. was desired to appoint a form for swearing 
 
 (a) It was formerly doubted whether the the Gentoos, he said that it was improper, 
 
 oath must not be taken on the Old or New and that it must be taken according to the 
 
 Testament ; 2 Hale, 279 ; but it is now fonn which they held to be most solemn, 
 
 settled that it need not. 1 Atk. 21 ; 2 Eq. Ramldssensent v. Barlier, 1 Atk. 19. 
 
 Ab. 397 ; 1 Wils. 84 ; Cowp. 390. (e) The form of the oath taken by those 
 
 {h) Cowp. 389; 1 Lord Rajon. 282. who matriculate in the University of Cam- 
 
 (c) Fach'ma v. Sabine, ^twWOA:. Mor~ bridge iliflers from the common form; the 
 
 gan's Case, Leach, C. C. L. G4. words, instead of " So help you God," being 
 
 " {d) Per Lord Mansfield, Cowp. 390. " Sic to adjuvct Deus et saucta Dei Evan- 
 
 liex V. Mildrone, Leach, C. C. L. 459. gelia." 
 Mee V. Head, Peake's Ca. JN'i. Pri. 23.
 
 EXCLUDING TESTS — OATH. 23 
 
 of the Legislature in favour of the religious scruples of Quakers and Dpcliiration 
 some others. Tlie princi[)1e upon which the first of these exceptions i',H.x'|"l^,*,[s. 
 stands is very clear and obvious ; it is presumed that a person who 
 knows that his dissolution is fiist approaching, that he staiuls on 
 the verge of eternity, and that he is to be called to an immediate 
 account for all that he has done amiss, before a Judge from whom 
 no secrets are bid, will feel as strong a motive to declare the truth, 
 and to abstain from deception, as any person who acts under the 
 obligation of an oath. The exception in favour of Quakers, formerly Affirmatiim 
 confined to civil, has lately been extended to criminal proceed- ''y '^ 
 ings, and similar provisions have been made in favour of some 
 other religious sects (/). The rank or age of the party in no case 
 forms an exception. A peer of the realm cannot give eviderice 
 without being sworn {g), and will incur a contempt of court if he 
 refuses to be sworn (Ji). It is now settled that the testimony of 
 a child cannot be received except upon oath (i), although the 
 contrary practice once prevailed {j) . 
 
 Formerly, the general rule did not extend to the witnesses ex- Witnosses 
 amined on behalf of prisoners charged upon an indictment (A) with j^!rs are n° w 
 felony or treason {I) ; an exception which certainly was not founded to be 
 in principle, and which was reprobated by Lord Coke (m). The 
 statute 4 Jac. 1, c. 1, directed, that upon the trial of offenders in 
 the three northern counties, for offences committed in Scotland, 
 the defendants' witnesses should be examined upon oath ; and a 
 like provision was made by the stat. 7 Will. 3, c. 3, in all cases of 
 treason which worked corruption of blood. The exception was 
 
 (/) 9 G. 4, c. 15. The Stat. 7 & 8 W. 4, some cases, where a chilJ, from ignorance 
 
 c. 34, made a Quaker's affirmation admissi- of the obligation of an oatli, cannot be 
 
 ble in civil cases. By the stat- 9 G. 4, c. 32, sworn, the Court will put off the trial, to 
 
 Quakers and Moravians are admitted to afford an opportunity of instructing the 
 
 give evidence upon their solemn affirmation child. 
 
 in all cases, criminal as well as civil. By {j) The Court should hear the information 
 
 the stat. 3 & 4 W. 4, c. 49, their affirmation of children not of discretion to be sworn, 
 
 has the same force and effect as an oath In without oath. 1 Hale, H. P. C. 634; 2 
 
 the usual form. By the stat. 3 & 4 W. 4, Hale, H. P. C. 279. 284. But Lord Hale 
 
 c. 82, similar provisions are extended to adds, tiiat such testimony is not sufficient 
 
 Separatists. of itself. 1 Hale, H. P. C. 634. 
 
 {g) Rex V. Lord Preston, Salk. 278. {k) But the evidence for a defendant 
 
 (/*) Ibid. And it has been said that the upon an appeal, or on an indictment or in- 
 same rule applies to the Sovereign himself; formation for a misdemeanor, was always 
 2 Rol.Abr,686; Hob. 213; but in the time on oath. 1 Sid. 211.325. 
 of Ch. 1, the question was not allowed to be (/) 2 Hale, 283 ; 2 Bulstr. 147. Rex v. 
 agitated. 1 Pari. Hist. 43. See 3 \Yoode- Throgmorton, State Tr. 1 M. ; Haw. c. 36. 
 son, 276, Com. Dig. Testmoigne, A. 1. Rexv. Co??er/c, 3 Inst. 79; 4State Tr.l78; 
 
 (i) Rex V. Brasier, Leach, C.C. L. 3d Cro. Car. 292. 
 ed. 237 ; lb. 128. And see the cases, East's (to) 3 Inst. 79. The practice was derived 
 
 P. C. 441 ; and post. tit. Infant. But in from the civil law. 4 Bl. Com. 352. 
 
 C 4
 
 cross-exii 
 mination 
 
 24 LAW OF EVIDENCE : IMMEDIATE TESTIMONY. 
 
 Witnesses finally and generally abolished by the stat. 1 x\nn. c. 9, s. 3, which 
 ers are now directed that the witnesses for the prisoner should be sworn in all 
 
 to be sworn. caseS. 
 
 It will presently be seen under what circumstances evidence is 
 admissible, though it want the sanction of an oath. 
 Test of And next, the power given to the party against whom evidence 
 
 is offered, of cross-examinivg the witness upon whose authority the 
 evidence depends, constitutes a strong test both of the ability and 
 of the willingness of the witness to declare the truth. By this 
 means, the opportunity which the witness had of ascertaining, the 
 fact to which he testifies, his ability to acquire the requisite 
 knowledge, his powers of memory, his situation with respec tto 
 the parties, his motives, are all severally examined and scru- 
 tinized. 
 
 It is not intended in this place to enter into a detail of the nume- 
 rous consequences which follow from the adoption of this test {n). 
 It may be observed, generally, that it operates to the exclusion of 
 all that is usually described as res inter alios acta ; that is, to all 
 declarations and acts of others which tend to conclude or affect 
 the rights of a mere stranger. 
 
 Thus th^ depositions of witnesses before magistrates, under the 
 statutes of Phil. & Mary, and the late stat. 7 Geo. 4, c. 64, are not 
 admissible against the accused, unless he has had an opportunity 
 to cross-examine those witnesses. 
 
 The voluntary aflSdavit of a stranger is not evidence against one 
 who had not the power to cross-examine him (o). An answer in 
 chancery is not evidence against one who neither was a party to 
 the suit, nor claims in privity with a party who had the opportu- 
 nity {p). And, in general, the mere act, declaration or entry of a 
 stranger, as to any particular fact, is not evidence against any other 
 person {q), so as to conclude or affect him. 
 
 To satisfy this principle, it is not necessary that the party on 
 whose authority the statement rests should be present at the time 
 when his evidence is used, in order that he may then be cross- 
 examined ; it is sufficient if the party against whom it is offered 
 has cross-examined, or has had the opportunity, having been 
 legally called upon to do so when the statement was made. Hence 
 it is that examinations or depositions taken in a cause or proceed- 
 ing between the same parties are evidence, the witnesses or de- 
 
 (n) See tit. Judgments — Deposi- East, 539. Sir John Faiicick's Case, 
 
 TiONS. Obj. 4. 5 State Tr. 69. 
 
 {(j) Bac. Ab. Ev. (527 5 Sty. 446 ; Bac. (/;) Hardres, 315. 
 
 Ab. Ev. 628. And see Rex v. Erith, 8 (</) See Index, tit. Res ikter alios.
 
 cross-cxa- 
 ininutioii. 
 
 EXCLUDING TESTS CROSS-EXAMINATION. 25 
 
 ponents being dead; for in such case the party has had, or Test of 
 might have had, the benefit of a cross-examination. With respect 
 to these classes of cases, it is worthy of notice, that if the party 
 might have had the benefit of a cross-examination in the course of 
 a judicial proceeding, it is the same thing as if he had actually 
 availed himself of the opportunity. It is also to be observed, that 
 if the examination or deposition was taken in the course of an 
 extrajudicial proceeding, it will not afterwards be admissible in 
 evidence, although the witness be since dead ; because the party 
 against whom the evidence is offered was under no obligation to 
 pay any attention to it (r). 
 
 This test of truth not only excludes evidence of mere hearsay, Excludes 
 for there the party on whose authority the statement rests cannot g^fjj^^^ 
 be cross-examined; but also decrees and judgments in private 
 matters, in causes to which the party against whom they are offered 
 was not privy, and consequently where he had not the opportunity 
 to cross-examine the witnesses on whose testimony the judgment 
 or decree was founded. For as it would be dangerous to admit 
 the testimony of a witness given upon a former occasion, where the 
 party to the present cause had no opportunity to cross-examine 
 him, it would be equally so to admit the judgment or decree which 
 is founded upon that testimony ; it would be indirectly giving full 
 effect to evidence which is in itself inadmissible. 
 
 It is, however, to be observed that there is one class of cases 
 where decrees or judgments are evidence against a party, although 
 he was not actually privy to the proceeding or suit in which the 
 judgment or decree was pronounced. This happens where the suit 
 or proceeding does not relate to a mere private transaction between 
 individuals or particular parties, but to some more public subject- 
 matter beyond the mere rights of the htigants, in which the public 
 possess an interest. It will be necessary hereafter to consider 
 these cases with some minuteness ; for the present, it may suffice 
 to advert to them generally, and briefly to state the principle on 
 which such evidence is admissible ; and how far it is inconsistent 
 with the general and ordinary rule, that a party is not to be 
 affected either by any testimony or judgment founded upon that 
 testimony, where he has not had an opportunity to cross-examine 
 the witness and to controvert his testimony. In many instances a 
 court possesses a jurisdiction which enables it to pronounce on the 
 nature and qualities of particular subject-matter, where the pro- 
 ceeding is, as it is technically termed, in rem : as where the Ordi- 
 
 (/•) See tit. Res inter alios— Judicial Pkoceedikus, &:c.
 
 26 
 
 LAW OF EVIDENCE 
 
 -IMMEDIATE TESTIMONY. 
 
 Excludes 
 
 hearsay 
 
 evidence. 
 
 Exception. 
 Dying de- 
 claration. 
 
 nary or the Court Christian decides upon questions of marriage or 
 bastardy ; or the Court of Exchequer upon condemnations ; or the 
 Court of Admiralty upon questions of prize ; or a court of quarter 
 sessions upon settlement cases. Decisions of this nature, as will 
 be seen (s), are for the most part binding and conclusive upon all 
 the world. At present it is to be observed, in the first place, that 
 this class of cases is scarcely to be considered as an exception to 
 the general rule ; because, in most instances, every one who can 
 possibly be affected by the decision may, if he chuse, be admitted 
 to assert his rights to cross-examine and to controvert by evidence. 
 But, secondly, if this class of cases is to be considered as forming 
 an exception to the general rule, it is a necessary exception, since 
 in such cases a final adjudication is absolutely essential to the 
 interests of society, which require that the subject-matter should 
 be settled and ascertained, and cannot bear that such questions 
 should be left in a precarious, doubtful and fluctuating state. For 
 example : the Spiritual Court has an immediate and direct juris- 
 diction upon the validity of marriages ; a jurisdiction which involves 
 questions of the greatest importance to society in general — rights 
 of property — questions of bastardy — and even criminal liabilities. 
 It is therefore obviously essential to the existence of such a juris- 
 diction for useful and beneficial purposes, that its adjudication upon 
 the subject-matter should be binding upon all ; it would be in vain 
 that a sentence of nullity of marriage should be pronounced in a 
 spiritual court, if the marriage could still be considered in courts 
 of law to exist as to all the legal rights and consequences of a 
 valid marriage ; and it would produce infinite inconvenience and 
 confusion, if the same marriage could be considered as existing for 
 some purposes, but not as to all ; not to mention the great evil of 
 permitting interminable litigation on the same question, which 
 would be left open to dispute as often as the fluctuation of times 
 and of circumstances introduced new interests, and brought fresh 
 litigants into the field. 
 
 There is another exception to the general rule, in the case where 
 a declaration made by a person in extremis, and under the appre- 
 hension of approaching dissolution, is received in evidence ; for 
 such declarations are admitted to be proved, although the party 
 against whom they are offered was not present, and therefore had 
 not an opportunity to cross-examine and elicit the whole of the 
 truth. But as this is an exception to a rule which is in general to 
 be considered as absolutely essential to the ascertainment of truth, 
 
 (s) See Judgments, &c. in rem.
 
 EXCLUDING TESTS — MEDIATE TESTIMONY. 27 
 
 it is to be received with the p;reutcst caution, and is never admitted Kxcpption. 
 unless tlie Court be first satisfied that the party who made the 'laraUoIi ' 
 declaration was under the impression of approaching death. It 
 has indeed been said, that the depositions of witnesses taken in the 
 absence of the prisoner before justices of the peace, and before 
 coroners, by virtue of the statutes 1 & 2 Philip & Mary, c. 10, and 
 2 & 3 Philip & Mary, c. 13, were admissible in evidence against the 
 prisoner after the death of the deponent ; but it seems now to be 
 settled that such depositions before justices are not admissible, 
 unless the prisoner was present, and had the benefit of cross- 
 examination {t) ; and depositions taken by coroners, under the 
 same statutes, seem to stand upon the same foundation. This 
 subject will afterwards be more fully considered in its proper place; 
 it must be recollected that at present the object is to consider the 
 general operation of this principal test of truth established by the 
 law. How far reputation and tradition are to be looked upon as 
 exceptions to this general rule will afterwards be considered (u). 
 
 Thus far as to the immediate testimony of witnesses as to facts 
 within their own actual knowledge, under the obligation of an oath, 
 and subject to cross-examination. 
 
 Next, as to the admissibility of evidence derived not imme- Mediate 
 diately from those who have, or are supposed to have actual know- ^'* '"'°"J' 
 ledge of the fact, but mediately through the testimony of one or 
 more other witnesses (w). 
 
 Such mediate testimony is in some particular cases to be re- Original or 
 garded as original evidence ; but in general it is of so inferior and ^''^""' '"^' 
 secondary a nature as to be admissible only in cases of urgency, on 
 the failure of better evidence, and under the sanction of particular 
 circumstances, which warrant its admissibility. 
 
 In the first place, such evidence is in some instances admissible 
 originally, and without any proof of the failure of better evidence. 
 Thus general reputation is in many instances receivable, although ' 
 it may rest on no other foundation than what the witness may have 
 heard from others (.r). 
 
 General reputation is the general result or conclusion formed by General 
 
 reputation. 
 
 (0 See tit. Depositions. principle; the only difference is that writing 
 
 (?<) Tliore ara also some exceptions which is the surer medium, 
 
 have been introduced by, and which wholly {x) Reputation is sufficient evidence of 
 
 depend upon, particular statntes; but as marriage, although the parties are still 
 
 these arc mere arliitrary exceptions, uncon- alive, and the party seeks to recover as 
 
 nected with general principles, they need heir-at-law, Dier v. Fleming, 4 Blng. 
 
 not be noticed here. V2oQ. See tit. Custom — Marriage — 
 
 (w) Or by the writing of the original wit- Pedigree — Prescription. 
 ness, for both must depend on the same
 
 28 LAW OF EVIDENCE : MEDIATE TESTIMONY. 
 
 Gonorai society as to any public fact or usage, by the aid of the united 
 knowledge and experience of its individual members : such a gene- 
 ral concurrence and coincidence of opinion on facts known to 
 many, affords a reasonable degree of presumption that their con- 
 clusion is correct {y) ; and therefore in particular cases, where the 
 fact is of a public nature, general reputation is admissible evidence 
 to prove it. But as it could not be necessary, and otherwise would 
 not be practicable, to examine the whole body of society as to the 
 prevalence of general reputation on any particular fact, it is suffi- 
 cient to call individual witnesses, a portion of society, who can, 
 under the sanction of an oath, and subject to cross-examination, 
 pledge their personal knowledge that such reputation exists. 
 
 It is observable that, in one respect, such evidence can scarcely 
 be considered as forming an exception to the general rule which 
 requires the sanction of an oath and the opportunity to cross- 
 examine ; for the witnesses are called to prove what they actually 
 know, viz. that such a reputation exists : they are sworn and 
 subject to cross-examination, and the very nature of such evidence 
 excludes any more solemn sanction. 
 
 The particular subjects to which such evidence is applicable 
 requires further consideration. 
 
 It is to be observed that many facts, from their very nature, 
 either absolutely or usually exclude direct evidence to prove them, 
 being such as are in ordinary cases imperceptible by the senses, 
 and therefore incapable of the usual means of proof. Among these 
 are questions of pedigree or relationship, character, prescription, 
 custom, boundary, and the like. Such facts, some from their 
 nature, and others from their antiquity, do not admit of the ordi- 
 nary and direct means of proof by living witnesses ; and, conse- 
 quently, resort must be had to the best means of proof which the 
 nature of the cases affords. Now the knowledge of facts of this 
 description consists either in the knowledge and recollection of that 
 part of society which has had the means of observing them, or in 
 the traditionary declarations of those who were likely to have 
 possessed a knowledge on the subject, derived either from their 
 
 {y) In the case of Du Bost v. Beresford, the coincident opinions of numbers as evi- 
 2 Camp. 512, tlie defendant, justifying tiie dence of the resemblance. Reputed owner- 
 destruction of a picture which the plaintiff ship is (perGibbs, C. J. in Grove v. Rut- 
 had exliibited to the public for money, as ten, Holt's C. 327), made up of the opinion 
 being meant to libel liis sister and her hus- of a man's neighbours ; it is a number of 
 band, it was held, that declarations by voices concurring in one or otlier of two 
 spectators were admissible to show that the facts. See Oliver v. Bartlett, 1 Br. &c B. 
 figures were meant to represent the parti- 26!) j and Vol. II. tit. Bankrupt. 
 cular persons. This was in effect to admit
 
 REPUTATION. '29 
 
 own observation, or the information of others; or, lastly, in <j<^n('r"i 
 
 , 1-1 11 11 r 1 1- ri^piitation. 
 
 questions of skill and judgment, the knowledge ot the relation 
 
 must be derived from those who are possessed of the proper 
 qualifications for forming a conclusion on the subject. The 
 character of a particular individual in society is formed by society 
 from their experience and observation of the conduct of the indi- 
 vidual ; and here reputation is not so much a circumstance from 
 which the character of the individual is to be presumed, as the 
 very fact itself, proved by the direct evidence of witnesses who 
 constitute part of that society. The knowledge of the existence of 
 a particular public custom does not reside peculiarly in the breast 
 of any one individual whatsoever, but in the opinion and conclu- 
 sions which society, or some indefinite part of it, have collected 
 from actual observation and experience. 
 
 In cases of pedigree, the nearest relation, even that of parent Reputation 
 and child, can seldom be proved, after the death of the parents, pejig'ree. 
 by direct evidence; and no knowledge upon the subject exists 
 except that which is inferred from circumstances, or derived from 
 the hearsay testimony of those who, from their intimacy with the 
 family, possessed peculiar means of knowledge. The circumstance 
 that the parents cohabited as husband and wife, acknowledged 
 and addressed each other in society as such ; that they recognized 
 and educated children as their own, and introduced them to the 
 world on a variety of occasions as their legitimate offspring ; that 
 a pedigree was hung up in the family mansion, stating the different 
 degrees of relationship of the members of the family ; that similar 
 entries were made in a family bible ; that a monument or tomb- 
 stone was exhibited to the public, announcing a relation between 
 the deceased and the surviving, or deceased and late, members of a 
 family ; all such circumstances are either strictly facts, or are solemn 
 and deliberate declarations accompanying facts, and partaking of 
 the nature of facts, which, in the absence of all suspicion of fraud, 
 afford the strongest presumptions that the parties really did stand 
 in the relative situation of husband and wife, parents and children, 
 or other degree of kindred ; for it is improbable that such circum- 
 stances should have been acted with a view to deceive, particularly 
 in a manner so open and public as to render the fraud liable to im- 
 mediate detection. From such circumstances the belief is formed, by 
 those who are acquainted with the family, and a reputation obtains 
 in society that they are so related ; for reputation seems to be no 
 more than hearsay, derived from those who had the means of know- 
 ing the fact. Hence it is that the reputation may exist when those 
 Avho were best acquainted with the fact are dead ; and that such
 
 30 
 
 LAW OF EVIDKNCE : — MEDIATE TESTIMONY. 
 
 Reputation 
 in case of 
 pedigree. 
 
 Ancient 
 facts. 
 
 Presump- 
 tions, why 
 founded on 
 reputation. 
 
 Reputation, 
 in what 
 cases evi- 
 dence. 
 
 reputation and even traditionary declarations become the best, if not 
 the only, means of proof; and when they are derived from those 
 who were most likely to know the truth, and who lay under no 
 bias or influence to misrepresent the fact, they afford a fair^ and 
 reasonable presumption of the truth of the fact. 
 
 Again : upon questions of fact, to which antiquity is essential, 
 as of prescription, custom and boundary, (and also of pedigree, 
 where the relationship is to be traced through a remote ancestor,) 
 the evidence of living witnesses is of little avail, except as to the 
 observance of the right, privilege or obligation, in modern times ; 
 for any knowledge concerning such rights, drawn from times 
 more remote, recourse must be had to reputation and tradition ; 
 such evidence being supported by proof of the enjoyment of such 
 rights and privileges, and of acquiescence in them in more recent 
 times. 
 
 On these grounds, therefore, general reputation is admissible 
 evidence, as affording presumptions upon which juries are to exer- 
 cise their discretion in cases of this nature. Such instances have, 
 it seems, been regarded as anomalous, and as forming exceptions 
 to the general rule which has already been noticed, viz. that mere 
 naked declarations are too vague, uncertain and fallacious, to afford 
 sufficient presumptions for the consideration of a jury (z). Such 
 evidence is at all events warranted by the necessity of the case. 
 The particular objection which excludes mere hearsay in general 
 does not apply to those cases which are of a public nature, which 
 may be presumed to be matters of public notoriety, as in the 
 instances of public prescriptions, customs and character, and 
 where reliance is placed not on the credit due to the assertion of 
 a single individual, but is sanctioned by the concurrent opinion 
 and assent of indefinite numbers; in such cases a presumption 
 exists that the truth of the fact is known and faithfully communi_ 
 cated. 
 
 Hence, therefore, common reputation is evidence to prove, 1st, 
 
 (z) Per Lord Ellenborough, C. J. The 
 admission of liearsay evidence upon all oc- 
 casions, whether in matters oi jiublic or 
 private right, is somewhat of an anomaly, 
 and forms an exception to the general rules 
 of evidence. And his Lordship afterwards 
 observed, " I confess myself at a loss fully 
 to understand upon what principle, even in 
 matters of public right, reputation was ever 
 deemed admissible evidence. It is said, 
 
 indeed, that upon questions of public right 
 all are interested, and must be presumed 
 conversant with them ; and that is the dis- 
 tinction taken between public and private 
 rights ; but I must confess that I have not 
 been able to see the force of the princii)le 
 on which this distinction is founded, so 
 clearly as others have done, though I nuist 
 admit its existence." Weelis v. Sparke, 
 1 M. & S. G8C.
 
 REPUTATION AND TRADITION. 31 
 
 a man's character in society (a) ; 2dly, reputation and (as will Ri^i>iif.ation, 
 afterwards be seen) traditionary declarations are evidence to prove '" "''"'•. 
 a pedigree, including the state of a family as far as regards tlie <ii:"ce. 
 relationship of its diflerent members, their births, marriages and 
 deaths; 3dly, reputation and traditionary declarations are evi 
 dence to prove certain prescriptive or customary rights and ob- 
 ligations, and matters of public notoriety. But inasmuch as the 
 reception of such evidence is founded upon the supposition that 
 the persons from whom it is derived possessed the means of 
 knowledge; and since such evidence is in its own nature very 
 weak, unless it be supported by other circumstances (6), the follow- 
 ing sanctions appear to be necessary to warrant a presumption 
 from such evidence. 
 
 First, In order to warrant such a presumption, the fact to which l. Tlie facts 
 the reputation or tradition applies, must in general be of a imblic a'pubiic ^ 
 nature ; for otherwise it cannot be presumed that the persons from nature. 
 whom the knowledge is derived possessed the means of knowledge, 
 or if they did possess the means, that their attention and obser- 
 vation were attracted to it ; and therefore such evidence is admis- 
 sible in cases of character, public prescriptions, and customs 
 relating to manors (c), parishes, and of rights of common, and 
 public boundaries and highways {d). Such evidence is also re- 
 ceived with respect to the existence of a modus (e), because, 
 although it is in strictness a private right, yet it affects a great 
 number of occupiers within a district (y"). 
 
 So where the defendant in trespass pleaded a prescriptive right 
 of common over the locus in quo, at all times, for his cattle levant 
 and couchant, and the plaintiff, in liis replication, prescribed in 
 right of his messuage to use the locus in quo for tillage with corn, 
 and until the taking in of the corn to hold and enjoy the same in 
 
 (a) See tit. Character. It is not pro- (b) 1 M. & S. 687. Reputation is, in 
 
 bable tliat a man of good conduct, and general, weak evidence; and when it is 
 
 therefore, as may be inferred, of good prin- admitted, it is the duty of the Judge to 
 
 ciples, would commit a crime. But the impress upon the minds of the jury liow 
 
 opinion which a particular person may have little conclusive it ought to be, lest it 
 
 formed and expressed as to tlie honesty of should have more weight with them than 
 
 another, is not adraissiljle, it is only his it ought to have. Per Lord Ellenborough, 
 
 own single judgment; but if indefinite 1 M. & S. 686. 
 
 numbers coincide in forming and express- (c) Barnes v. Neicsom, 1 M. & S. 77. 
 
 ing the same opinion of the honesty of any {d) 1 M. & S. 686. See tit. Custom — 
 
 person, that general coincidence of opinion Prescription, &c. 
 
 on a subject which they were likely to (e) 2 Vez. 512. Gwill. 854. 
 
 know and discuss, gives to it such weight (/) Per Dampier, J. 1 M. & S. 691 ; see 
 
 and importance, that the law admits it as tit. Tithes. 
 a medium of proof.
 
 32 LAW OF EVIDENCE : — MEDIATE TESTIMONY. 
 
 mftur^"'''*^ every year, and travei-sed the defendant's prescription, on which 
 issue was joined, it was held {g) that many persons besides the 
 defendant having a right of common over the locus in quo, evi- 
 dence of reputation, as to the right claimed by the plaintiff, was 
 admissible, a foundation having been first laid, by evidence of the 
 enjoyment of such right. But it seems to be now settled, although 
 the question was long suhjudice, that general evidence of reputa- 
 tion is not admissible in the case of a private prescription or other 
 claim. In the case of Morewood v. Wood (li), the question was, 
 whether general evidence of reputation as to a prescriptive right of 
 digging stones on the lord's waste, annexed to a particular estate, 
 was admissible ; and the Judges were divided upon it (i). In 
 Outram v. Morewood (k), Lord Kenyon said, " that although a 
 general right might be proved by traditionary evidence, a particular 
 fact could not." There the question was, whether Cow Close had 
 been part of the estate of Sir J. Zouch, out of which certain rents 
 and coals had been reserved ; and the Court held that the fact 
 could not be proved by entries made by a third person deceased, 
 in his books of receipts of rents from his tenant, such entries being 
 considered as no more than a declaration of the fact by such third 
 person ; which was different from entries by a stevi^ard, who thereby 
 charged himself with the receipt of money. In Doe v. Thomas {I), 
 where in an action of ejectment the lessor of the plaintiff claimed 
 as tenant in tail under the will of A. who gave B. his son an estate 
 for life, and the defendant claimed as the devisee of B.^ the 
 question was, whether the land in dispute was part of the entailed 
 estate, or had been purchased by B. ; it was held that evidence of 
 reputation that the land had been purchased oi J. S. by A. was in- 
 admissible {m). And although traditionary reputation is evidence 
 of boundary between two parishes and manors (n), it is not evi- 
 
 (g) TTeefev. SparTie, 1 M.&S. 691. (m) In the Bishop of Meath v. Lord 
 
 (h) 32 G.3, B.R. 15 East, 327, in note. Belfield, B. N. P. 295, it was held that 
 
 {i) Lord Kenyon, and Ashurst, J., who evidence of reputation was admissible, in 
 
 were for rejecting the evidence, were of the quare impedlt, to prove that one Knight 
 
 Oxford circuit, on which such evidence had had been in by the presentation of one from 
 
 usually been rejected; and BuUer and whom the defendant claimed. But in R. v, 
 
 Grose, Js., deemed it admissible, in con- Erisioell, 3 T. R. 723, Lord Kenyon denied 
 
 formity with the practice of their own, the that this case was law. 
 
 western circuit. Report is not evidence to {ii) Nicholls v. Parher, Ex. Summer 
 
 prove private rights. Per Lord Kenyon, Ass. 1805, cor. Le Blanc, J., Taunt. 1795; 
 
 2 East, 357. Report is evidence to prove R. v. Parish of Hammersmith, Sitt. after 
 
 reputed ownership of goods, if supported Hil. 1776; Down v. Hale, cor. Lawrence, 
 
 by facts. Oliver v. Bartlett, 1 B. & B. see 14 East, 331. Peake's Ev. App. 33 ; 
 
 269. Ireland v. Powell, Salop S. Ass. Peake's 
 
 (k) 5T. R. 123. Ev.App. 33. 
 
 (0 14 East, 323. ■
 
 REPUTATION AND TIIADITION. 33 
 
 dence of boundary between two private estates (o). Upon the ^^ a puhUc 
 principle that it is a matter of general and public not(M-iety, a par- "" "'^'" 
 ticular historical fact may, as it seems, be proved by reputation of 
 the fact, and (as falling within the scope of such evidence) by a 
 generally received historical account of it(/j). 
 
 2dly. Neither reputation nor traditionary declarations are ad- 2. Must be 
 missible as to a particular fact (g). Evidence of reputation upon ^'^'"^''" ' 
 general points is receivable, because all mankind being interested 
 in them, it is natural to suppose that they may be conversant 
 with the subjects, and that they should discourse together about 
 them(r), all having the same means of information ; but this does 
 not apply to particular facts, which may not be notorious, which 
 may be misrepresented or misunderstood, and which may have 
 been connected with other facts by which their effect would be 
 limited and explained. Such evidence would obviously be open to 
 all the uncertainty, and liable to all the objections, incident to mere 
 hearsay evidence, and is therefore of too slight a nature to support 
 any presumption. And therefore, upon a question of modus, evi- 
 dence of the declaration of an old person, since deceased, that so 
 much per acre had always been paid in lieu of tithes, would be good 
 evidence as to reputation; but a declaration by such a person that he 
 paid so much in lieu of tithes would not be admissible, since it is a 
 particular fact(s). So in those cases where evidence of perambula- 
 tions is admitted, it is in the nature of hearsay evidence, not of par- 
 ticular acts done, as that such a turf was dug, or such a post put 
 down in a particular spot ; but it is evidence of the ambit of any 
 particular place or parish, and of what the persons accompanying 
 the survey have been heard to say and do on such occasions (0. 
 
 3dly. If the reputation or tradition relate to the exercise of 3. Must he 
 a right or privilege, it should be supported by proof of acts of ),y proof of 
 enjoyment of such right or privilege within the period of living actsotou- 
 memory (u) ; and when that foundation has been laid, then, inas- 
 much as there cannot be any witnesses to speak to acts of enjoy- 
 
 (o) Clothier v. Chapman, 14 East, 331, C. 482, Lord Kenyon, in an action forkecj)- 
 
 in the note. ing a malicious dog, which had bit the 
 
 {]}) B. N. P. 248 ; I Salk. 282; 1 Vent. plaintiff's child, is reported to have admit- 
 
 151 ; Skinn. 14. 623. ted (!vidence of a report in the nciglibour- 
 
 (q) Per Lord Kenyon, Oxitram y. More- hood that the dog liad been bitten by an* 
 
 tt"oo<f, 5 T. R. 123. other dog. This case, however, seems to 
 
 (r) Per Lord Kenyon ; see Mareicood v. go beyond the general princiide, as it is 
 
 Wood, 14 East, 339. reputation oi & particular fact only. 
 
 (s) Harwood v. Sims, 1 Wightw. 112. {u) See the observations of the Judges in 
 
 (0 Per Lord Ellenborough, 1 M. & S. Weehs v. Sparlte, 1 M. k S. G7'J, and of 
 
 687. In thecaseof./o/jfA- V. Pm?/, 2Esp. Grose, J., 5 T. R. 32. 
 VOL. I. D
 
 mediate. 
 
 34 LAW OF EVIDENCE : MEDIATE TESTIMONY. 
 
 ment beyond the time of living nicnioiy, evidence is to be admitted 
 from old persons conversiint with the neighbourhood where the right 
 is claimed, of what they have heard other old persons, who were 
 in a situation to know what the rights were, say concerning them('M;). 
 Direct Another class which falls within the description of direct mediate 
 
 evidence, and which is admissible, though the usual tests are in- 
 applicable, consists of declarations made by one of the parties to a 
 suit, in the nature of a confession or admission contrary to his own 
 interest. Whatever a party voluntarily admits to be true, though 
 the admission be contrary to his interest, may reasonably be taken 
 for the truth. The same rule it will be seen applies to admissions 
 by those who are so identified in situation and interest with a 
 party that their declarations may be considered to have been made 
 by himself (a;). As to such evidence the ordinary tests of truth are 
 properly dispensed with ; they are inapplicable : an oath is admi- 
 nistered to a witness in order to impose an additional obligation on 
 his conscience, and so to add weight to his testimony ; and he is 
 cross-examined to ascertain his means of knowledge, as well as his 
 intention to speak the truth. But where a man voluntarily admits 
 a debt or confesses a crime, there is little occasion for confirmation ; 
 the ordinary motives of human conduct are sufficient warrants for 
 belief. 
 Declaration There is also another species of hearsay evidence which in some 
 accom- instances may be referred to this class. Where a declaration 
 
 jiaiiying an -^ . _ . . 
 
 act. accompanies an act, it is frequently admissible as part of the act 
 
 itself. Such declarations, it will be seen, aie more frequently used 
 as collateral or indirect evidence from which some other fact is to 
 be inferred, than as direct evidence of a fact ; and as such will be 
 afterwards considered. Suffice it to observe, for the present, that 
 declarations are usually admissible where the fact which they ac- 
 company is material and admissible, and where the nature and 
 quahty of the act are also material ; for in such instances a declara- 
 tion accompanying the act may either be regarded as part of the 
 act itself, or as the most proximate and satisfactory evidence for 
 explaining and illustrating the fact. 
 
 Experience supplies a reasonable presumption that a declaration 
 made by a person in doing an act, as to his intention and object, 
 and where that person laboured under no temptation to deceive, 
 was spontaneous, natural, and consistent with truth. The most 
 usual example (y) adduced in illustration of this doctrine, is that 
 
 (w) 1 M. & S. 679; 14 East, 330; 12 (ij) See below, tit. Witness; Vol. II. 
 
 East, C5. tit. Bankrupt. 
 
 {x) See Vol. II. tit. Admissions.
 
 ADMISSIONS. 35. 
 
 of a declaration made by a trader, at the time of desertin*^ his 
 house or place of business, as to his intenti(jn and object in so 
 doing, in order to prove an act of bankruptcy. Here it is ob- 
 servable that the fact of departure is material : the question is as to 
 the nature and quality of the act, that is, as to the object and in- 
 tention of the trader in doing that act ; and to prove this, the 
 declarations which he made at the time of leavint^ his house or 
 counting-house, are constantly admitted in proof of his design, as 
 being natural and spontaneous indications of the truth, although 
 his subsequent declarations, even upon oath, would be absolutely 
 rejected. 
 
 It is emphatically to be observed, that the rule admitting evi- 
 dence of a declaration accompanying an act, is not founded on any 
 general presumption that in every such case credit is to be given 
 to the veracity of the declarant ; for if that were so, and acted on 
 as a general rule, tlie acts of strangers would be admissible for the 
 purpose of sanctioning the admission of such declarations. But, 
 as will be seen, the acts of strangers are excluded, for reasons as 
 strong, if not stronger, than those which exclude the mere de- 
 clarations of strangers ; and as the transactions of mere strangers, 
 not in themselves material to the subject of inquiry, are properly 
 regarded as inadmissible, so likewise must declarations be excluded 
 which depend for their credit on their connection with the acts of 
 strangers. 
 
 Whether, therefore, declarations accompanying acts are to be 
 deemed of value from credit given to the declarant, or as being part 
 and parcel of the collateral circumstances from which the j ury are 
 to draw their conclusion as to the nature and quality of the act 
 itself, it is essential that the act itself should be material and ad- 
 missible. If, for the sake of illustration, the question for what 
 purpose a sum of money was paid by A. ioB., were material to the 
 issue, what A. said to B. on paying the money would be most 
 important, it may be, conclusive evidence. But if A. and B. were 
 strangers to the cause, and the fact of payment were not material 
 to the issue, then, although A. at the time of payment made a 
 declaration as to the truth of a fact material to the issue, as that 
 he had lost a wager betted on that fact, the declaration would 
 neither be evidence in itself nor as explanatory of the act of ^., 
 which, as being the act of a stranger, was also inadmissible (c^). 
 
 These classes of mediate evidence are distinguishable from all. 
 
 {z) The principle of admitting declara- Wrifjht, 5 IVcv. & M. 132; 4 Bing. N. C. 
 lions as accompanying acts was mucli con- 489 ; 2 Nev. & P. 305. 
 sidered in the case of Doe d. Tatham v. 
 
 D 2
 
 36 
 
 LAW OF EVIDENCE 
 
 -MEDIATE TESTIMONY, 
 
 Se:!ondfiry 
 
 mediate 
 
 testimony. 
 
 others by this cliaracteristic difference, that such evidence may 
 be resorted to in the first instance as original evidence, whilst all 
 other mediate testimony is admissible only on a principle of neces- 
 sity, as SECONDARY evidence, after the failure of evidence of a 
 higher and more satisfactory nature (a). 
 
 Next, as to such mediate testimony as is of a secondary 
 description. 
 
 As information derived mediately through another person is in 
 its own nature inferior in point of certainty to that which is de- 
 rived innuediately from an eye or ear witness ib), so, even in cases 
 
 (a) There is this essential distinction be- 
 tween a declaration which is admissible as 
 accompanying an act, and one admissible 
 merely as secondary evidence ; in the for- 
 mer case, the admissibility results imme- 
 diately from its connection with a fact ma- 
 terial to the cause, and already in evidence; 
 whilst to warrant the admission of secon- 
 dary evidence, a foundation must first be 
 laid by proof of extrinsic circumstances, 
 usually unconnected with the cause. 
 
 {h) The highest degree of certainty of 
 which the mind is capable, with respect to 
 the existence of a particular fact, consists 
 in a knowledge of the fact derived from 
 actual perception of the fact by the senses ; 
 and even this degree of evidence is obvi- 
 ously capable of being strengthened or 
 weakened by particular circumstances. It 
 is seldom, however, that a jury can act 
 upon knowledge of this description; it 
 rarely happens that a fact which can be 
 decided by mere inspection is submitted to 
 their consideration. In some instances, 
 however, an inspection by the jury con- 
 duces to their decision ; where the question 
 turns upon local situation, a view is neces- 
 sary. So the Judges, in cases of mayhem, 
 act stiper visum vulneris ; so a jury of 
 matrons, upon a plea of pregnancy, inspect 
 the person of the jirisoner. Tlie degree of 
 evidence which ranks the second in the 
 scale, consists of information derived, not 
 from actual percejjtiou by our senses, but 
 from the relation and information of others 
 who have had the means of acquiring actual 
 knowledge of the facts, and in whose qua- 
 lifications for acquiring that knowledge, 
 and retaining it, and faithfulness in after- 
 wards communicating it, we can place 
 confidence. 
 
 Information thus derived is evidently 
 inferior, in pointof certainty, to that know- 
 ledge which is acquired by means of the 
 senses, since it is one step removed from 
 the highest and most perfect source. The 
 truth of the fact in question depends upon 
 the powers of perception possessed by an- 
 other; tlie opportunity afforded him of ap- 
 plying them ; his diligence in making that 
 application ; the strength of his recollec- 
 tion, and his inclination to speak or to 
 write the truth. It is, however, upon 
 knowledge thus derived that juries must in 
 general act ; they must be informed of the 
 res gestcB by those who have been eye and 
 ear witnesses of them; their means of 
 knowledge, and their faithful communica- 
 tion of it, being guarded by the securest 
 means which the law can devise. A third, 
 and still inferior ground of belief, consists 
 in information which we derive, not imme- 
 diately from one who has had actual know- 
 ledge of the fact by the perception of his 
 senses, but from one who knows nothing 
 more of the fact than that it has been as- 
 serted by some other person : this species 
 of evidence, wliich is generally termed 
 hearsay evidence, is evidently inferior, in 
 ])oint of certainty, to the former, even for 
 the common purposes of daily intercourse 
 in society ; for although the author of the 
 assertion may be known, and his veracity 
 highly appreciated, there is a greater lati- 
 tude afforded for deception, mistake, and 
 misapprehension, and for defect of memory, 
 and hence a degree of doubt must result, 
 which must evidently be increased in pro- 
 portion to the number of persons through 
 whom the communication has been trans- 
 mitted ; and, consequently, where the 
 author is unknown, and the number of in-
 
 SECONDARY WHEN ADMISSIBLE. 
 
 .37 
 
 III I'll iiite 
 tc'stiiiioiiy. 
 
 where the party from vvliom such testimony is derived delivered Scconliiry 
 it under the sanction of a judicial oath, and although the party 
 to be affected by it had the opportunity to cross-examine, yet the 
 testimony so given would still be inferior in degree to the direct 
 testimony of the same witness, and consequently such inferior 
 evidence would be excluded by the general principle already 
 adverted to, so long as the original witness could himself be pro- 
 duced. 
 
 But in ordinary cases, where the testimony formerly given con- 
 sists of mere declarations^ which rest principally, if not entirely 
 on the credit of the party who made them, such evidence is of a 
 still weaker and more imperfect description, not being sanctioned 
 by either of the great tests of truth already mentioned. Hence 
 the general rule of law is, that such evidence cannot be received 
 except in particular instances where the necessity is urgent, and 
 peculiar considerations sanction a departure from the general rule. 
 
 termediate parties who have acted in the 
 transmission is also unknown, the know- 
 ledge must also be vague and uncertain, 
 even as applied to the common affairs of 
 life. But for the purjioscs of proof in a 
 court of justice, a still stronger reason ope- 
 rates to the rejection of such evidence, 
 namely, that it cannot be subjected to the 
 ordinary tests which the law has provided 
 for the ascertainment of truth, the obliga- 
 tion of an oath, and the opportunity afforded 
 for cross-examination ; for these, or equiva- 
 lent ones, are the guarantees of truth, which 
 the law in ordinary cases invariably re- 
 quires. In the common course of life, evi- 
 dence of this nature is frequently, nay 
 usually, acted upon without scruple; but 
 in tlie ordinary affairs of life there is, in 
 general, no considerable temptation to de- 
 ceive : on the contrary, a legal investiga- 
 tion of a fact, which involves the highest 
 and dearest interests of the parties con- 
 cerned — property, character, nay liberty, or 
 life itself — presents the greatest possible 
 temptations to deceive ; and therefore that 
 evidence which is admitted before a jury 
 must be guarded and secured by greater 
 restraints, and stricter rules, than those 
 which are sufficient for the common pur- 
 poses of life. 
 
 If it were to be assumed, that one who 
 had been long enured to judicial habits 
 might be able to assign to sucli evidence 
 just so much and no greater credit than it 
 
 deserved, yet, upon the minds of a jury, 
 unskilled in the nature of judicial proofs, 
 evidence of this kind would frequently 
 make an erroneous impression. Being ac- 
 customed, in the common concerns of life, 
 to act upon hearsay and report, they would 
 naturally be inclined to give such credit 
 when acting judicially; they would be 
 unable to reduce such evidence to its pro- 
 per standard, when placed in competition 
 with more certain and satisfactory evi- 
 dence ; they would, in consequence of their 
 previous habits, be apt to forget how little 
 reliance ought to be placed upon evidence 
 which may so easily and securely be fabri- 
 cated ; their minds would be confused and 
 embarrassed by a mass of conflicting testi- 
 mony ; and they would be liable to be pre- 
 judiced and biassed by the character of the 
 person from whom the evidence was de- 
 rived. In addition to this, since every 
 thing would depend upon the character of 
 the party who made the assertion, and tlie 
 means of knowledge which he possessed, 
 the evidence, if admitted, would require 
 support from proof of the character and 
 respectability of tlie asserting party; and 
 every question might branch out into an 
 indefinite number of collateral issues. 
 
 Upon these grounds it is that the mere 
 recital of a fact, that is, the mere oral 
 assertion or written entry by an individual 
 that a particular fact is true, cannot be 
 received in evidence. 
 D 3
 
 38 LAW OF EVIDENCE : — MEDIATE TESTIMONY. 
 
 MtMlmtc Whore a witness to facts miolit be produced and examined on 
 
 Kecoiidary . . 
 
 t'vidcucc. oath, little doubt could be entertained that hearsay evidence of 
 his mere declaration, heard and detailed by another, ought to be 
 excluded, so infinitely inferior in degree must such hearsay evi- 
 dence be when compared with direct testimony delivered in open 
 court. 
 
 Immediate testimony is given under the solemn sanction of an 
 oath, in the presence of the public ; the jury have the advantage 
 of observing the deportment of the witness, the manner in which 
 he gives his testimony ; in particular, whether, as one relying on 
 the consistency of truth, he answers promptly and readily accord- 
 ing to the suggestions of his memory, or with hesitation and 
 difficulty, either attempting to evade direct answers, or to gain time 
 to weigh them, in order to avoid contradictions and inconsistency ; 
 whether he readily answers all questions indift'erently, whether they 
 make in favour of or against the party whose witness he is, or he 
 gives favourable answers on the one side with willingness and 
 readiness, on the other with difficulty and reluctance. The atten- 
 tion of such a witness is called directly and immediately to the 
 very facts the disclosure of which is material ; his means of know- 
 ledge, his memory, and his situation, connection with the parties, 
 and his motives, are subject to the severe and trying test of cross- 
 examination, by means of which fraudulent witnesses are often 
 surprised and detected. 
 
 In all these important particulars mediate testimony is usually 
 defective ; for although no doubt be entertained that the witness 
 examined heard from another the statement which he is ready to 
 repeat, yet that other did not make the communication under the 
 sanction of an oath ; there are no sufficient means of ascertaining 
 whether he had the opportunity or the capacity for minute and 
 accurate observation, nor of judging as to the tenacity of his 
 memory : his attention in making the communication may not have 
 been sufficiently directed to many of the particular facts, which 
 afterwards appear to be material ; he may have omitted many 
 which are important, or not knowing that any such use would 
 afterwards be made of his declarations, may have expressed him- 
 self without that caution and accuracy which he would have deemed 
 to be necessary had he been examined under the sanction of an 
 oath before a public tribunal, having his attention particularly 
 directed to each material fact, and with a full knowledge of the 
 important consequences which might result from his testimony 
 with respect to the property, liberty or lives of others, and the 
 necessity for attention and caution in his answers. In addition to
 
 SECONDARY WHEN ADMISSIULE. 30 
 
 this, lie may have been induced to misrepresent facts on the par- Mi^diate 
 ticular occasion, under the influence of indirect motives, which, ^ '"""y* 
 without the opportunity of cross examination, it is impossible to 
 trace or even to surmise. 
 
 Where the communication is derived through several interme- 
 diate witnesses, it is still weaker in degree ; there is greater latitude 
 afforded for misunderstanding and mistake, or even designed wilful 
 misrepresentation ; and it is more difficult to appreciate the vera- 
 city of the original witness, the means which he possessed of ac- 
 quiring information, and the motives by which he was actuated 
 in making the communication. Ordinary experience shows how 
 little credit is due to such mediate testimony, and how frequently 
 it happens that even most absurd and improbable reports acquire 
 credit. 
 
 But where such immediate testimony is unattainable, and decla- 
 rations oral or written can be proved to have been made, why, it 
 may be asked, should not these, in default of better evidence, be 
 admitted ; as such evidence would, in numerous instances, be 
 sufficient to convince an ordinary individual, why should truth 
 derivable from such evidence be excluded ? The answer is, because 
 if such evidence were generally receivable, the uncertainty and con- 
 fusion which would result from its general reception would far out- 
 weigh the benefit which might possibly be derived from its admis- 
 sion in particular instances. 
 
 The law for regulating the reception of evidence ought to pro- 
 ceed upon certain grounds, and prescribe plain and determinate 
 limits : if none were to be prescribed, the most serious inconve- 
 nience would be experienced in the administration of justice ; the 
 trials of causes would be unnecessarily protracted by the admission 
 of unnecessary evidence, and the attention of the jurors would 
 often be distracted from the consideration of that which was mate- 
 rial and useful, and applied to that which was unimportant or even 
 irrelevant : on the other hand, indefinite and obscure boundaries, 
 which occasioned the admission of evidence to be encumbered 
 with doubts and difficulties, would be worse than none. 
 
 To take a strong case : suppose that a man, asserting that he is 
 urged by the reproaches of his conscience to confess a crime of 
 great enormity, surrenders himself into the hands of justice, and 
 that his ample confession involves others as having been his guilty 
 associates ; it may easily be supposed that in such a case the ap- 
 parently sincere penitence of the self accuser, and the great impro- 
 bability that such a statement under the circumstances could 
 
 D 4
 
 40 LAW OF EVIDENCE : — MEDIATE TESTIMONY. 
 
 Mediate possibly be founded on any but sincere motives, would strongly 
 es intony. ^gj^^^ ^q induce one who heard tlie confession and knew the circum- 
 stances under which it was made to give it credit. This may 
 readily be admitted : the question, however, is not what might 
 happen under special circumstances, but whether they warrant a 
 general rule, and whether a general rule which would include such 
 evidence would not also in(;lude a great deal more of a suspicious 
 and unsatisfactory nature. In order to form a conclusion on this 
 subject, all peculiar and adventitious circumstances as to the parti- 
 cular manner, conduct and demeanour of the penitent, his expres- 
 sions of sorrow and contrition, must be left out of the account ; 
 these are merely adventitious, and are circumstances in themselves 
 too variable and indefinite to furnish a rule of admission or exclu- 
 sion. Stripped of such merely casual circumstances as, whatever 
 their influence might be in particular instances, could supply no 
 general and certain rule, the question would be, whether the con- 
 sideration that the party accusing another avowed his own guilt, 
 to the same or it may be to a less extent, supplied a general sanc- 
 tion for the reception of such evidence. On this question it is 
 difficult to raise a doubt. 
 
 To ascertain by what impulses and motives a person so situated 
 might be actuated in making such a statement, is far beyond the 
 power of human wisdom ; that he was really the guilty person he 
 avowed himself to be, might indeed be readily inferred so far as he 
 alone was concerned ; but in charging others as his associates, it 
 is far from impossible that he might practise deceit or misrepre- 
 sentation from sinister motives : it might be in the hope of pro- 
 curing in his own favour a mitigation of punishment or even a 
 pardon ; it might be for the purpose of extenuating his own con- 
 duct ; or even that he acted from motives of malice and revenue, 
 or for the sake of reward, in a case where security and reward were 
 held out as inducements to a detection, or might expect such a 
 result in the event of the conviction of the party whom he thus 
 charged with being a guilty associate. 
 
 To establish therefore a general rule, that where a self-accuser 
 at the time of his confession charged another with the commission 
 of the same crime, the confession should be received against the 
 latter, would be to admit evidence in many cases of too suspicious 
 and dangerous a description to be relied on generally, especially by 
 juries, who would frequently be destitute of those collateral aids 
 which would enable an individual acquainted with all the minute 
 circumstances of the case to form his own judgment, and who for 
 want of such means might frequently be induced to give credit to
 
 SECONDARY WHEN ADMISSIBLE. 41 
 
 a statement where an individual would have withheld his confidence 
 altogether. 
 
 Again, in respect of civil liability, it is very possible that a dccla- Mediate 
 ration by A. that he was jointly liable with JB. to the payment of s^'cfj'x'^ry 
 
 J * 1 »/ cviucucc* 
 
 a debt or duty, would, under particular circumstances, entitle him 
 to credit; it might be that the very circumstance of his at once 
 admitting his own responsibility would be a sanction for believing 
 that JB. was also liable : but it might also happen that such an 
 admission was but a mere artifice, resorted to for the purpose either 
 of causing another who was not liable to contribute to the payment 
 of ^.'s debt, or even resulted from collusion with one setting up 
 a false claim to defraud S. 
 
 It is obvious, therefore, that a general rule which admitted the 
 mere statement of one man to be used against another, merely on 
 the ground that such statement was apparently contrary to the 
 interest of him who made it, though it would occasionally tend to 
 the ends of justice, would in other instances be productive of mis- 
 chief and injustice. 
 
 But if the consideration that the statement was apparently con- 
 trary to the interest of the party who made it, would not in general 
 warrant its reception, it is plain that the reasons for exclusion 
 would operate still more forcibly to the general exclusion of state- 
 ments the reception of which was not sanctioned by some general 
 rule of law. In individual instances, casual and adventitious cir- 
 cumstances, and in particular a full conviction of the veracity and 
 accuracy, as well of the party who made as of the party who com- 
 municated the declaration, would be a sufficient ground for belief, 
 on which an individual might safely act ; but such special grounds 
 can seldom form the basis of a general rule ; and the consideration 
 that a man might in particular instances trust to such evidence, 
 would supply no sufficient reason for the general reception of such 
 evidence before a jury, who would usually be destitute of those 
 peculiar means of judging of the credit due to the evidence by the • 
 aid of which an ordinary individual would be enabled to decide, 
 and consequently be peculiarly liable to imposition were such evi- 
 dence to be generally admissible. 
 
 Hence it is that, except in the instances which will presently be 
 noticed, where a rule of exception can be established to the con- 
 trary, the law excludes all mediate or hearsay evidence of mere 
 declarations made by others to those who are sworn and examined. 
 In so doing, the truth may sometimes be excluded, but ample com- 
 pensation is made by the further exclusion of a mass of evidence 
 which would tend to deceive and mislead : the result is, on the whole,
 
 42 
 
 LAW OF EVIDENCE : — MEDIATE TESTIMONY. 
 
 Mediate 
 
 secondary 
 
 evidence. 
 
 Depositions 
 of wit- 
 nesses in 
 former pro- 
 ceedings. 
 
 Tradi- 
 tionary 
 evidence. 
 
 greatly on the side of justice ; the rule obstructs one source of 
 truth, but it also excludes a flood of error. 
 
 Next, then, in what instances and under what sanction does the 
 law admit mediate secondary evidence ? 
 
 In the first place, tlien, it seems to be a general rule, that where 
 a witness already examined in a judicial proceeding between the 
 same parties is since dead, his former examination is admissible as 
 secondary evidence; for in such case the testimony was given 
 under the obligation of an oath, and the adversary had or might 
 have had the benefit of a cross-examination. 
 
 Where, however, the party against whom the evidence is offered 
 had not the opportunity to cross-examine, the deposition or exa- 
 mination is usually inadmissible, at least its admissibility is not 
 warranted by the rule just adverted to. On this ground it is that 
 the depositions of witnesses taken by magistrates in cases of felony, 
 under the statutes 1 & 2 Ph. & M. c. 10, and 2 & 3 Ph. & M. c. 13, 
 though admissible when taken in the presence of the prisoner, who 
 has thus had the opportunity to cross-examine, have been held to 
 be inadmissible as depositions when taken in the absence of the 
 prisoner (c). It is again to be observed, that where a party against 
 whom such evidence is offered had the opportunity to cross-examine, 
 it is the same thing in effect as if he had availed himself of the 
 opportunity, provided it was taken in the course of a proceeding 
 to which he was a party, for otherwise he was not bound to pay 
 any attention to it. 
 
 The first great class where mediate testimony is receivable as 
 secondary evidence on special grounds, although the statement was 
 not on oath, and although the adversary had no opportunity to 
 cross-examine, consists of the declarations made by persons since 
 deceased, on the subject of pedigree, custom, boundary, and the 
 like, where from the nature of the subject-matter of the declaration 
 and situation of the party it is reasonably to be presumed that he 
 knew the fact. 
 
 In the first place, the fact to be proved must be of a public 
 nature ; otherwise it is not to be presumed that the individual from 
 whom the tradition was derived had the means of knowledge. 
 
 2dly, As in the case of general reputation, such evidence must, 
 in all cases where any question of public concern is in issue, be 
 confined to general declarations, to the exclusion of mere declara- 
 tions as to particular facts. 
 
 (c) Infra, tit. Depositions; and see 
 Vol. II. tit. Depositions. It lias been 
 said that a deposition before coroners is 
 
 admissible after the death of the witness, 
 althof.gli not taken in the presence of the 
 prisoner; sed qu.
 
 SECONDARY WHEN ADMISSIBLE. 43 
 
 3dly, Traditionary evidence as to ri<^hts must be derived from 3. Derived 
 those persons who were in a situation to know wliat the rights »,[,'"" /[I^^L 
 were ; and in the case of pedigree, declarations are not admissible ti) know 
 unless they be derived from such as were connected with tiie 
 family. 
 
 4thly, As evidence of this description partakes of the weakness Must be 
 and infirmities of hearsay report (rf), its credibility depends mainly ^'■'''' r™"* 
 on the absence of all temptation to misrepresent the facts ; it follows 
 that it cannot be trusted, and is inadmissible, under circumstances 
 which were likely to influence and bias those from whom it is 
 derived. Upon this principle it has been held that a declaration 
 relating to a pedigree made post litem motam, cannot be received (e). 
 But in the case of Nicholls v. Parker {f), traditionary evidence of 
 what old persons, then dead, had said concerning the boundaries 
 of the parish and manors (the subject of the action) was admitted 
 in evidence, although the old persons were parishioners, and claimed 
 rights of common on the wastes, which would be enlarged by their 
 several declarations, there not appearing to be any dispute at the 
 time respecting the right of the old persons making the declarations, 
 at least no litigation pending. (Although, in fact, the boundary 
 had been long in dispute between the respective parishes and ma- 
 nors, and intersecting perambulations had been made both before 
 and after such declarations by the respective parties.) So that 
 those persons could not be considered as having it in view to make 
 declarations for themselves at the time. 
 
 Lastly, as in the case of general reputation, such evidence is of 
 little or no weight, unless it be supported and confirmed by evidence 
 
 {d) Grose, J., in the case of Morewood Camp. 401. See the case below, tit. Pedi- 
 
 V. Wood, 14 East, 330, states tlie case of a gree; and see Rex v. Cotton,^ Camp, 
 
 pedigree which was tried at Winchester, 444, cor. Dampier ; wliere, upon an indict- 
 
 wliere there was a strong reputation raent against an occupier of a farm, for not 
 
 throughout all the country one way, and repairing a road ratiojie tenurcB, an award 
 
 a great number of persons were examined made many years before, when the same 
 
 to it; but after all, the whole was over- subject was in dispute between a former 
 
 turned, and proved to have no foundation occupier and the township, was rejected as 
 
 whatsoever, by the production of a single inadmissil)le, on the ground that the decla- 
 
 paper from the Heralds' office ; which rations of witnesses, since deceased, made 
 
 shows (observed the learned Judge) how before the arbitrator on that occasion, 
 
 cautiously this sort of evidence ouglit to be could not have been received, having been 
 
 admitted. See also Lord Ellenborougli's made pos^ litem motam, and tliat the opi- 
 
 observations, 1 M. & S. 616, 7, wliere he nion of the arbitrator, founded upon such 
 
 observes that reputation in general is weak testimony, could not be entitletl to greater 
 
 evidence; and of Buller, J., 31orejvood v. credit. 
 Wood, 1 M. & S. 330. (/) 14 East, 331. 
 
 (e) Case qf the Berkeley Peerage, 4
 
 44 
 
 LAW OF EVIDENCE : — MEDIATE TESTIMONY. 
 
 Declara- 
 tions, &c. 
 made 
 
 against the 
 interest of 
 tlio party. 
 
 of the actual exercise and enjoyment of the right to which such 
 traditionary declaration relates. 
 
 In the next place, notwithstanding- the general rule, that the 
 mere declarations of a person, as to a particular fact, are not 
 evidence of that fact ; and notwithstanding the limitations by which 
 the reception of evidence of reputation and tradition is guarded, 
 particularly those which confine the admission of such evidence to 
 matters of some public nature and interest, and exclude reputation 
 and tradition, which relate merely to particular facts ; there are 
 some cases which form exceptions to these rules, and where the 
 privacy of the fact, so far from excluding the hearsay declaration 
 concerning it, seems to induce the necessity of its admission. As. 
 far as these are referable to any certain principles (for some of them 
 have been looked upon as mere anomalies and arbitrary exceptions, 
 and the boundaries by which this class of cases is to be limited 
 are not very clearly ascertained) {g), they seem to be confined to 
 instances of facts known only to a few individuals who possessed 
 peculiar means of knowledge, and consequently where, if the decla- 
 ration of such individuals were not admissible, all evidence on the 
 subject would be excluded. And, secondly, according to the 
 authorities, the reception of such declarations seems to be prin- 
 cipally warranted by the consideration that the declaration or entry 
 was made against the interest of the party who made it, which 
 affords a presumption that the fact was true ; or, at all events, it 
 seems to be necessary that the declaration should have been made 
 by one who had peculiar knowledge of the fact, and who had no 
 interest to falsify it {h). Most of these exceptions seem to have 
 been founded upon the presumption, that the party who made the 
 entry or declaration would not have made it contrary to his own 
 interest, unless it had been true. Where a steward has admitted^ 
 by entries in his accounts, the receipt of rents (i), or churchwardens 
 have made similar entries of the receipt of monies from the inhabit- 
 ants of a subdivision of the parish, for parochial purposes, such 
 admissions have been held to be evidence of payments for those 
 purposes {k). 
 
 The declaration of a deceased tenant, that he held the land under 
 a particular person, was held to be admissible to prove the seisin 
 of that person ; such a declaration was in some degree against his 
 
 {g) See Lord Kenyon's observation, o T. (<) Barry v. JBeibington, 4 T. R, 
 
 R. 123. 514. 
 
 (h) See Lord Ellenborough's observations (/.■) Stead v. Hcaton, 4 T. R. 6G9. 
 
 iu Roe V. RawUngs, 7 East, 290.
 
 SECONDARY WHEN ADMISSIBLE. 45 
 
 interest, since it would have been evidence against liim, by the Modiatn 
 landlord, in an action for use and occupation (Z). s<'<oii<iury 
 
 There are, however, several instances to be found where the 
 declaration as to a fact, by a party who possessed peculiar means 
 of knowing the fact, and laboured under no temptation, bias 
 or influence, to misrepresent it, has been admitted in evidence 
 after his death. As the rules by which the reception of this class 
 of evidence is governed do not appear to be very distinctly defined, 
 the decisions on the subject will be detailed at a future opportunity ; 
 for the present, it will suffice to make a few observations on the 
 general principle which ought to regulate the admissibility of such 
 evidence. 
 
 In the first place, as such mediate testimony is in general excluded 
 on the grounds already adverted to, it is essential that some special 
 necessity should exist in the particular class of cases for deviating 
 from the general rule, and that such evidence should never be 
 resorted to until the higher degree of evidence be no longer 
 attainable. 
 
 And even then, in order to warrant the reception of such secondary 
 evidence, it is essential that circumstances should exist which afford 
 a reasonable presumption that the person who spoKe or wrote that 
 which is offered in evidence had peculiar means of knowing the 
 fact, and that he was not likely to have misrepresented it. The 
 circumstance that the entry or declaration was contrary to the in- 
 terest of the party who made it, affords, as has been already 
 observed, suflScient reason for presuming on his veracity, to the 
 extent at least of admitting the declaration or entry to be read in 
 evidence. 
 
 There may, however, be many instances where such evidence 
 derives credit from circumstances, independently of the considera- 
 tion of an interest to the contrary on the part of the person who 
 made it : where, for instance, it is made by a party in the usual 
 course of his profession, trade or business. An entry so made 
 obviously derives its claim to credit from a consideration of the great 
 improbability that such a person would, without any assignable 
 motive, wantonly make an entry of a false fact. The consideration 
 that the entry was accompanied with this further circumstance, 
 viz. that it contained an acknowledgment as of the receipt of money, 
 
 (Z) Uncle V. Watson, 4 Taunt. 16. See delivered a woman of a child on a particu- 
 
 also Perigal v. Nicholson, 1 Wiglitw. 65. lar day, and referring to his ledger, iu 
 
 See also H'ujham v. Ridgway, 10 East, which the charge for his attendance was 
 
 109, where it was held tliat an entry made marked paid, was evidence on tlie trial of 
 
 by a deceased man-midwife that he had an issue as to the age of the child.
 
 40 LAW OF evidence: MEDIATE TESTIMONY. 
 
 Mediate by wliicli, if untrue, the party mij^ht be prejudiced, is entitled to 
 evWencZ ^^^y ^^^^^^ weight, and more perhaps is attached to it than it really 
 deserves ; for in the absence of all suspicion of fraud, and supposing 
 the entry to be genuine, the circumstance that the party had been 
 paid for a particular service stated to have been performed, would 
 not materially add to the probability derived from the mere entry 
 itself; and the probability of fraud in the one case rather than the 
 other, founded on the acknowledgment against the interest of the 
 party, is of little or no weight ; for it would be just as easy for one 
 who made a false entry with a view to evidence, to make it with as 
 without such an admission or acknowledgment as might, if genuine, 
 weigh against his own interest. 
 
 The bare possibility of the casual publication of a false entry, 
 made for the purpose of future evidence, could have little weight 
 when compared with the importance of the object to be ultimately 
 attained. 
 
 In such cases, therefore, no distinction can be made on tlie sup- 
 position or probability of fraud, in the one case, rather than the 
 other; it must, to prevail, depend on the position, that where 
 the entry contains no acknowledgment against the interest of the 
 vouchee, there exists a greater probability that it was wantonly, 
 carelessly, or mistakenly made ; this, however, must depend on 
 the circumstances under which it was made ; if it was a written 
 entry made in the usual course of a man's profession or trade, in 
 the absence of fraud, it carries with it a reasonable degree of pro- 
 bability that it was made according to the truth. At all events, 
 it is difficult to see how the further circumstance of admitted pay- 
 ment can stamp the evidence with such an additional degree of 
 credit, as to make the difference between the admission of the 
 evidence and its absolute rejection. 
 
 By way of illustration, suppose a professional accoucheur to 
 have made an entry in the ordinary course, of his attendance on 
 a particular individual, and her delivery of a son : in the absence 
 of all suspicion of fraud, could it fairly be doubted that the fact 
 had taken place ; could it be supposed that, without motive, such 
 a person would wilfully have made an entry of a fact which he 
 knew to be untrue ? In such a case, how would the addition that 
 he had received such a fee for his attendance, operate ? Not at 
 all, it is quite clear, so far as any suspicion of fraud was con- 
 cerned, for it would have been just as easy to make that addition 
 as to omit it ; and if such an entry were forged, the addition, it is 
 clear, would not have been omitted. Mistake, in such a case, is 
 out of the question. How then does any consideration of interest
 
 INDinECT EVIDENCE. 47 
 
 operate ? How can such an entry, doubly false, in stating a ser- Modiato 
 vice done and rennmeration made, affect the interest of a party ? **'';' ""^^ry 
 
 . . ... I J evidence. 
 
 How, if published, is it to operate to his prejudice ? but still more, 
 how is it to have that effect when it remains in his own private 
 keeping? If these observations be just, it follows that, although, 
 the admission of mediate secondary evidence may, in some in- 
 stances, be founded on the consideration that the original declara- 
 tion or entry was made contrary to the interest of the party who 
 made it, yet that where it is sanctioned by the consideration that 
 the entry was made in the ordinary course of a man's profession, 
 trade or business, the mere circumstance of an admission made 
 remotely against his interest is of little weight. 
 
 Next, as to the admission of indirect evidence. Indirect 
 
 Having now briefly noticed the general principles which govern 
 the reception of direct evidence to prove a disputed fact by the 
 aid of testimony, whether immediate or mediate, we are next 
 to consider those which govern the admission of indirect evi- 
 dence ; that is, of facts collateral to the disputed fact, but from 
 the existence of which the truth of the fact in dispute may be 
 inferred. 
 
 The necessity for resorting to indirect or circumstantial evidence Necessity 
 is manifest. It very frequently happens that no direct and posi- f'"" '■<^sort- 
 tive testimony can be procured; and often, where it can be had, direct evi- 
 it is necessary to try its accuracy and weight by comparing it with 
 the surrounding circumstances. 
 
 The want of written documents, the treacheiy and fallaciousness 
 of the human memory, the great temptations which perpetually 
 occur to exclude the truth, by the suppression of evidence, or the 
 fabrication of false testimony, render it necessary to call in aid 
 every means of ascertaining the truth upon which the law can 
 safely rely. 
 
 Where direct evidence of the fact in dispute is wanting, the 
 more the jury can see of the surrounding facts and circumstances, 
 the more correct their judgment is hkely to be. It is possible 
 that some circumstances may be misrepresented, or acted with 
 a view to deceive ; but the whole context of circumstances cannot 
 be fabricated ; the false invention must have its boundaries, where 
 it may be compared with the truth ; and therefore, the more ex- 
 tensive the view of the jury is of all the minute circumstances of 
 the transaction, the more likely will they be to arrive at a true 
 conclusion. Truth is necessarily consistent with itself; in other 
 words, all facts which really did happen, did actually consist and 
 agree with each other. If then the circumstances of the case, as 
 detailed in evidence, are incongruous and inconsistent, that incon- 
 
 dence.
 
 48 
 
 LAW OF evidence: — INDIRECT EVIDENCE. 
 
 Eviilcmce 
 of circum- 
 stances 
 connected 
 witli the 
 fact. 
 
 Juries for- 
 merly re- 
 turned 
 from the 
 vicinage. 
 
 sistency must have arisen either from mistake, from wilful mis- 
 representation, or from the correct representation of facts prepared 
 and acted with a view to deceive. From whatever source the in- 
 consistency may arise, it is easy to see that the greater the number 
 of circumstances which are exhibited to the jury, the more likely 
 will it be that the truth will prevail ; since the stronger and more 
 numerous will be the circumstances on the side of truth. It will 
 be supported by facts, the effect of which no human sagacity could 
 have foreseen, and which are therefore beyond the reach of sus- 
 picion : whilst, on the other hand, fraudulent evidence irmst neces- 
 sarily, either be confined to a few facts, or be open to detection, 
 by affording many opportunities of comparing it with that which 
 is known to be true. Fabricated facts must, in their very nature, 
 be such as are likely to become material. Hence it has frequently 
 been said, that a well-supported and consistent body of circum- 
 stantial evidence is sometimes stronger than even direct evidence 
 of a fact; that is, the degree of uncertainty which arises from a 
 doubt as to the credibility of direct witnesses, may exceed that which 
 arises upon the question whether a proper inference has been made 
 from facts well ascertained. A witness may have been suborned 
 to give a false account of a transaction to which he alone was privy, 
 and the whole rests upon the degree of credit to be attached to the 
 veracity of the individual ; but where a great number of inde- 
 pendent facts conspire to the same conclusion, and are supported 
 by many unconnected witnesses, the degree of credibility to be 
 attached to the evidence increases in a very high proportion, 
 arising from the improbability that all those witnesses should be 
 mistaken or perjured, and that all the circumstances should have 
 happened contrary to the usual and ordinary course of human 
 affairs. The consideration, however, of the credit due to circum- 
 stantial evidence, belongs to another place {m) ; at present, the 
 subject is mentioned merely with a view to illustrate the necessity 
 of opening to a jury the most ample view of all the facts which 
 belong to the disputed transactions ; leaving the consideration of 
 the importance due to such evidence to be examined hereafter. 
 
 Agreeably to this notion, and according to the simplicity of the 
 ancient law, it was provided that every trial should be had before 
 a jury who lived so near to the scene of the disputed transaction 
 that they might reasonably be supposed to possess actual and 
 personal knowledge of the circumstances, to have heard and seen 
 what was done {71). Later experience has shown that a knowledge 
 
 {m) Vide infra, tit. Circumstantial 
 Evidence. 
 
 (h) See the observations made above.
 
 INDIRECT EVIDENCE. 49 
 
 of the facts to be tried, such as a residence in the neighbourhood Ancient 
 supphes, alfords but an imperfect and dubious li"lit for the investi- '""''^'^'.'-'^^ ^ 
 gation of truth; and that justice suffers more from the prejudices 
 and false notions of the facts which a residence in the neie hbour- 
 hood usually supplies, than it gains in point of certainty from 
 a previous knowledge, on the part of the jury, of the parties or of 
 the circumstances of the case. At this day, therefore, it is no 
 longer necessary, either in civil or in criminal cases, that the jury 
 should be returned from the vicinage ; they are taken, without 
 distinction, from the body of the county at large ; and being in 
 general strangers to the litigant parties and to the facts in dis- 
 pute, may be presumed to discharge their important duties without 
 partiality or prejudice. Still, however, the end to be attained is 
 the same, although the means of attaining it are different; it is 
 still the great object of the law that the jury should be fully 
 possessed of all the facts and circumstances of the case ; and as 
 they have not been actually witnesses of the transaction, either in 
 fact or in contemplation of law, the scene is to be exhibited to 
 them by the only means of recalling a past transaction, that is, 
 by oral evidence and written documents, and the jury are to collect 
 the facts by the senses and perceptions of others, to whose account 
 credit is due. 
 
 In consequence, too, of the frequent failure of direct and 
 positive evidence, recourse must be had to presumptions and 
 inferences from facts and circumstances which are known, and 
 which serve as indications, more or less certain, of those which are 
 disputed and contested. It is, consequently, a matter of the • 
 
 highest importance to consider the grounds, nature and force 
 of such indirect evidence ; and to inquire what facts, either singly 
 or collectively, are capable of supplying such inferences as can 
 safely be acted upon (o). 
 
 Presumptions, and strong ones, are continually founded upon Foundation 
 knowledge of the human character, and of the motives, passions tfonr^ls't'o' 
 and feelings, by which the mind is usually influenced. Experience motives. 
 and observation show that the conduct of mankind is governed by 
 general laws, which operate, under similar circumstances, with 
 almost as much regularity and uniformity as the mechanical laws 
 of nature themselves do. The effect of particular motives upon 
 human conduct is the subject of every man's observation and 
 experience, to a greater or less extent ; and in proportion to his 
 attention, means of observation, and acuteness, every one becomes 
 a judge of the human character, and can conjecture, on the one 
 
 (o) See Vol. II. tit. Presumptions. 
 VOL. I. E
 
 60 
 
 INDIRECT EVIDENCE 
 
 Foundation 
 ofpivsuinp- 
 tioiis as to 
 motives. 
 
 Prosuni])- 
 tions from 
 conduct. 
 
 Presump- 
 tions from 
 conduct as 
 to motive. 
 
 liand, what would be the cfiect and influence of motives upon any 
 individual under particular circumstances ; and on the other hand, 
 is able to presume and infer the motives by which an agent was 
 actuated, from the particular course of conduct which he adopted. 
 Upon this ground it is that evidence is daily adduced in courts 
 of justice of the particular motives by which a party was in- 
 fluenced, in order that the jury may infer what his conduct 
 was under those circumstances ; and on the other hand, juries are 
 as frequently called upon to infer what a man's motives and in- 
 tentions have been, from his conduct and his acts. All this is 
 done, because every man is presumed to possess a knowledge of 
 the connection between motives and conduct, intention and acts, 
 which he has acquired from experience, and to be able to presume 
 and infer the one from the other. 
 
 The presumption of conduct, or of any particular act, from 
 the motives by which the supposed agent was known to be in- 
 fluenced, is more or less cogent as the motive itself was stronger 
 or weaker, and as experience has proved it to be more or less 
 efficacious in affecting a man's conduct. The presumption of 
 particular intention, from a man's acts and conduct, is more or 
 less forcible, according to their nature, and their greater or less 
 tendency to effect the supposed intention, and the improbability, 
 derived from experience, that they could have resulted from any 
 other motive, or have been done with any other intention. Pre- 
 sumptions of this nature are of most essential importance in 
 criminal cases. Where a heinous crime has been committed, as 
 for instance, murder, by means of poison, and where it is obvious 
 that theft was not the object of the guilty party, it is essential 
 to inquire whether the accused was influenced by any motive to 
 commit such an offence ; the absence of all motive, whether of 
 avarice or revenge, affords a strong presumption of innocence, 
 where the fact is in other respects doubtful, because experience 
 of human nature shows that men do not commit mischief wan- 
 tonly and gratuitously, without any prospect of advantage ; still 
 less do they perpetrate enormous crimes, and subject themselves 
 to the severest penalties of the law, without the strongest motives : 
 when, on the contrary, other strong presumptions appear against 
 the accused, the knowledge that he was influenced by a very 
 strong motive to commit such a crime, must of necessity greatly 
 add to the probability of his guilt. 
 
 In criminal cases a question usually aiises as to the intention of 
 the accused, since it is, in general, the guilty intention with whicli 
 an act is done that renders it criminal ; and in numerous instances
 
 INFERENCES FROM CONDUCT, 51 
 
 a particular intention is made an essential ingredient in the sta- Pr.sumi)- 
 tutory offence. But intention, which is the mere internal and ^'""•'**'""' 
 
 - . , , 1 p 1 -1 1 • conduct as 
 
 invisible act or resolve oi the mmd, cannot be judged of except to motive. 
 from external and visible acts ; and in all such cases, and many 
 others, a man's object and motives must be inferred from his 
 conduct ; and what particular acts and conduct are sufficient to 
 indicate the guilty intention which is imputed to tlie accused, 
 is a question of fact to be decided by those who are conversant in 
 human affairs, and whose experience enables them to judge of 
 the connection between conduct and intention. 
 
 In many of the common concerns of life a man may act from 
 a complication of motives which human sagacity cannot unravel ; 
 the secret workings of which Omniscience alone can understand ; 
 but in the case of a crime defined by the law, and where, conse- 
 quently, both the act itself and the intention are simple and 
 definite, so much difficulty does not prevail in the ascertainment 
 of intention ; in such instances it is reasonable to infer, that a man 
 intended and contemplated that end and result which is the 
 natural and immediate consequence of the means which he used ; 
 and this is the ordinary presumption of law. In criminal pro- 
 ceedings, the consideration of the conduct of the accused will, in 
 other respects, be found to be of great importance in determinino- 
 upon his guilt or innocence, where there is either no direct evidence 
 of the fact, or such as cannot standing alone be safely relied upon. 
 
 The conduct which may afford an inference in such a case 
 may consist either in the seeking opportunities and means for 
 committing such an act, or in attempting to avoid suspicion or 
 injury by flight, or in concealing evidence of guilt, or even in 
 showing an anxiety to do so; for it is certain that the guilty 
 person must have had the opportunity and means of committino- 
 the offence ; and it is probable that he would previously watch for 
 such an opportunity, and he must have procured the means. 
 Again, it is also probable that the guilty person, goaded by the 
 stings of conscience, or at least actuated by fear of detection and 
 of punishment, would use every effort within his power to avoid 
 suspicion, or at least inquiry; and experience fully proves that 
 means, in the hour of terror and alarm, are often resorted to by the 
 guilty, in the hope of providing security, which, so far from pre- 
 venting or lulling suspicion, provoke and excite it, and turn out to 
 be forcible evidence of guilt. Flight ; the fabrication of false and 
 contradictory accounts, for the sake of diverting inquiry ; the con- 
 cealment of the instruments of violence ; the destruction or removal 
 of proofs tending either to show that an offence has been com- 
 
 E 2
 
 52 
 
 INDIRECT EVIDENCE : 
 
 PreBump- 
 tioiis as to 
 motives. 
 
 Presump- 
 tions from 
 conduct. 
 
 mittetl, or to ascertain the offender, are circumstances indicatory 
 of guilt, since they are acts to which some motive is attributable, 
 and are such as are not likely to have been adopted by an innocent 
 man ; but such, on the contrary, as according to experience are 
 usually resorted to by the guilty. A full confession (p) of guilt, 
 although it be but presumptive evidence, is one of the surest proofs 
 of guilt, because it rests upon the strong presumption that no in- 
 nocent man would sacrifice his life, liberty, or even his reputation, 
 by a declaration of that which was' untrue. The presumption 
 immediately ceases as soon as it appears that the supposed confes- 
 sion was made under the influence of threats or of promises, whicli 
 render it uncertain whether the admissions of the accused resulted 
 from a consciousness of guilt, or were wrung from a timid and 
 apprehensive mind, deluded by promises of safety, or subdued by 
 threats of violence or of punishment. It may be proper also to 
 remark in this place, that some of those presumptions which have 
 lately been touched upon are to be regarded with gi'cat caution ; 
 for it sometimes happens that an innocent, but weak and inju- 
 dicious person, will take very undue means for his security, when 
 suspected of a crime. A strong illustration of this is afforded 
 by the case of the uncle, mentioned by Lord Hale. His niece had 
 been heard to cry out, " Good uncle, do not kill me !" and soon 
 afterwards disappeared ; and he being suspected of having de- 
 stroyed her, for the sake of her property, was required to produce 
 her before the justices of assize : he being unable to do this, (for 
 she had absconded,) but hoping to avert suspicion, procured 
 another girl resembling his niece, and attempted to pass her off as 
 such. The fraud was however detected ; and, together with other 
 circumstances, appeared so strongly to indicate the guilt of the 
 uncle, that he vsfas convicted and executed for the supposed murder 
 of the niece, who, as it afterwards turned out, was still living. 
 
 In civil cases also, the most important presumptions are (as will 
 be afterwards more fully seen) continually founded upon the con- 
 duct of the parties : if, for instance, a man suffer a great length of 
 time to elapse without asserting the claim which he at last makes, 
 a presumption arises, either that no real claim ever existed, or that, 
 if it ever did exist, it has since been satisfied (q) ; because, in the 
 usual course of human affairs, it is not usual to allow real and well- 
 founded claims to lie dormant. So the uninterrupted enjoyment 
 of property or privileges for a long space of time raises a presump- 
 tion of a legal right ; for otherwise it is probable that the enjoy- 
 
 (p) See tit. Admission — Confes- (q) See Vol. II. tit. Presumptions- 
 
 sign. Limitation — Prescription.
 
 INFERENCES FROM COURSE OP DEALING. .W 
 
 merit would not have been acquiesced in (r). Upon this principle Prosiinip 
 the Legislature seems to have founded the provision in the Statute comiuct?" 
 of Limitations, which raises a presumption that after a lapse of six 
 years a debt on simple contract has been satisfied ; a presumption 
 liable to be rebutted by proof of a promise to pay the debt, or an 
 acknowledgment that it still remains due, made within the six 
 years (s). 
 
 The conduct of a party in omitting to produce that evidence, in Omission 
 elucidation of the subject-matter in dispute, which is within his gvifiync"^^ 
 power, and which rests peculiarly within his own knowledge, fre- witiiin tiie 
 quently affords occasion for presumptions against him ; since it and^ower 
 raises a strong suspicion that such evidence, if adduced, would ope- °*" ^^^ 
 rate to his prejudice. So forcible is the nature of this presumption^ 
 that the law founds upon it a most important elementary rule> 
 which excludes secondary evidence where evidence of a higher 
 degree might have been adduced ; and this it does, because it is 
 probable that a party who withholds the best and most satisfactory 
 evidence from the consideration of the jury, and attempts to sub- 
 stitute other and inferior evidence for it, does so because he knows 
 that the better evidence would not serve his purpose it). 
 
 Upon the same principle, juries are called upon to raise an infer- 
 ence in favour of a defendant from the goodness of his character 
 in society ; a presumption too remote to weigh against evidence 
 which is in itself satisfactory, and which ought never to have any 
 weight except in a doubtful case (m). 
 
 Upon similar grounds, presumptions may be derived from tlie Prcsump- 
 artificial course and order of human affairs and dealings, wherever the course 
 any such course and order exist ; because, in the absence of any ^^ dealing. 
 reason to suppose the contrary, a probability arises that the usual 
 course of dealing has been adopted. Hence presumptions are 
 founded upon the course of trade {x), the course of the post, the 
 customs of a particular trade, or of a particular class of people? 
 and even the course of conducting business in the concerns of a 
 
 (r) Wliere a party neglects to take out (t) Vide infra, tit. Best Evidence. 
 execution within a year after his judgment, 
 
 he must, in general, revive it by scire facias (") See tit. Character. 
 before he can proceed to execution ; and 
 
 this is founded upon a presumption that the (^> '^° P™^'' ^^^ °^^"°'^'" "^ conducting 
 
 debt or damages have in the meantime been ^ particular branch of trade at one place, 
 
 _^jjj evidence may be given of conducting the 
 
 (.) See tit. Limitations. Such pro- ^^™*^ ^'"^"'^'^ ^^ ^°°t^^^^- ^"^^^ "'• ^^""^'' 
 miscs, to be available, must now be in '^^^/j Doug. 510. 
 
 writinp 
 
 E 3
 
 64 
 
 INDIRECT evidence: 
 
 csunip- 
 
 tion as to 
 
 ooutinu- 
 
 aiice. 
 
 private inflividual, to prove u particular act done in the usual routine 
 of business {y). 
 
 In all such cases the course of deahng may be proved before the 
 jury, and is evidence in matters connected with it. The usual time 
 of credit in a particular trade is evidence to show that goods were 
 sold at that credit ; the course of the post is evidence to show that 
 a particular letter, proved to have been put into the post-office, was 
 received in the usual time by the party to whom it was directed. 
 TJie ground of presumption in this and a multitude of similar in- 
 stances is, that where a regular course of dealing has once been 
 established, that which has usually happened did happen in the 
 particular instance ; and such presumptions, like all others, ought 
 to prevail, unless the contrary be proved, or at least be encountered 
 by an opposite presumption. 
 
 Where a fact or relation is in its nature continuous, after its 
 existence has once been proved, a presumption arises as to its con- 
 tinuance at a subsequent time ; for, from the nature of the fact or 
 relation, a very strong presumption arises that it did not cease im- 
 mediately after the time when it was proved to exist ; and as there 
 is no particular time when the presumption ceases, it still continues; 
 therefore, where a partnership between two persons has once been 
 established, its continuance at a later period is to be presumed, 
 unless the termination be proved {z). So, where the existence of a 
 particular individual has once been shown, it will, within certain 
 limits, be presumed that he still lives. The presumption as to a 
 man's life after a number of years must depend upon many circum- 
 stances; his habits of life, his age, and constitution: the probable 
 duration of the life of a person, as calculated upon an average, may 
 of course be easily ascertained in every particular case ; but for the 
 sake of practical convenience, the law lays down a rule in some 
 instances, which appears to have been very generally adopted, that 
 after a person has gone abroad, and has not been heard of for seven 
 years, it is to be presumed that he is dead {a). The various in- 
 stances in which facts not in issue may properly be admitted in 
 evidence in order to prove some other fact by inference from them, 
 are far too numerous to be detailed on this occasion. Some of them 
 will be more properly adverted to in considering the evidence pe- 
 culiar to the proof of particular issues {h) ; suffice it to observe at 
 
 (?/) See Lord Torrington's Case, 1 Salk. 
 285. 
 
 (z) See tit. Pahtnekship. 
 
 (a) See tit. Polygamy. — Ejectment 
 BY Heik at Law. — Death. 
 
 (b) Connections frequently consist in 
 similarity of custom or tenure. See tit. 
 Copyhold — Custom ; or in unity of de- 
 sign or purpose, sec Conspiracy. In 
 order to show the necessity of calling in the
 
 CIRCUMSTANTIAL AND PRESUMPTIVE EVIDENCE. ft^ 
 
 present, that the admissibihty of such evidence always depends on 
 some natural or artificial connection between that which is offered 
 to be proved and that which is proposed to be inferred. 
 
 In general, all the affairs and transactions of mankind arc as Circmn- 
 much connected together in one uniform and consistent whole, jinsumit" 
 without chasm or interruption, and with as nmcli mutual depend- t'^"-' '^V" 
 
 (it^llCG ill 
 
 cnce on each other, as the phtBuomena of nature are; they are general, 
 governed by general laws ; all the links stand in the mutual rela- 
 tions of cause and effect ; there is no incident or result which exists 
 independently of a number of other circumstances concurring and 
 tending to its existence, and these in their turn are equally depend- 
 ent upon and connected with a multitude of others. For the truth 
 of this position the common experience of every man may be 
 appealed to ; he may be asked, whether he knows of any circum- 
 stance or event which has not followed as the natural consequence 
 of a number of others tending to produce it, and which has not in 
 its turn tended to the existence of a train of dependent circum- 
 stances. Events the most unexpected and unforeseen are so con- 
 sidered merely from ignorance of the causes which were secretly at 
 work to produce them ; could the mechanical and moral causes 
 which gave rise to them have been seen and understood, the con- 
 sequences themselves would not have created surprise. 
 
 It is from attentive observation and experience of the mutual 
 connection between different facts and circumstances, that the force 
 of such presumptions is derived ; for where it is known from expe- 
 rience that a number of facts and circumstances are necessarily, or 
 are uniformly or usually connected with the fact in question, and 
 such facts and circumstances are known to exist, a presumption 
 that the fact is true arises, which is stronger or weaker as expe- 
 rience and observation show that its connection with the ascer- 
 tained facts is constant, or is more or less frequent. 
 
 The presumptions or inferences above alluded to are chiefly those 
 which are deducible by virtue of mere antecedent experience of the 
 ordinary connection between the known and the presumed facts (c); 
 but circumstantial or presumptive evidence in general embraces a 
 far wider scope, and includes all evidence which is of an indirect 
 nature, whether the presumption or inference be drawn by virtue of 
 previous experience of the connection between the known and the 
 
 aid of the military to execute process, proof is admissible. Burdettv. Colman, 14 East, 
 of acts of violence by the mob collected in 183. 
 
 another quarter, but collected for the same (c) See tit. Circumstantial Evi- 
 
 purpose as those about the plaintiff's house, dence. 
 
 E 4
 
 56 
 
 INDIRECT evidence: 
 
 General 
 rule, all 
 facts are 
 cviileuce 
 which 
 alford rea- 
 sonal^le 
 lutercnces. 
 
 Natural 
 course of 
 inquiry on 
 failure of 
 direct evi- 
 deuce. 
 
 inferred facts (d), or be a conclusion of reason from the circum- 
 stances of the particular case, or be the result of reason aided by- 
 experience. 
 
 From what has been said, it seems to follow that all the sur- 
 rounding facts of a transaction, or as they are usually termed, the 
 res gestce, may be submitted to a jury, provided they can be esta- 
 blished by competent means, sanctioned by the law, and afford 
 any fair presumption or inference as to the question in dispute ; 
 for, as has already been observed, so frequent is the failure of 
 evidence, from accident or design, and so great is the temptation 
 to tlie concealment of truth and misrepresentation of facts, that 
 no competent means of ascertaining the truth can or ought to 
 be neglected by which an individual would be governed, and on 
 which he would act, with a view to his own concerns in ordinary 
 life. Let it be considered, then, first, what is the kind of evidence 
 to which he would naturally resort ; and in the next place, how 
 far the law interferes to limit and restrain the reception of such 
 evidence; remembering, at the same time, that all artificial and 
 purely conventional modes of evidence form a subject for future con- 
 sideration. 
 
 Where an ordinary inquirer could not obtain information from 
 any witness of the fact which he was anxious to ascertain, either 
 immediately from such witness, or mediately through others, or 
 where the information which he had obtained was not satisfactory, 
 his attention would be directed to the circumstances which had a 
 connection with the transaction, as ascertained either by his own 
 observation, or by means of the information of others, to enable 
 him to draw his own conclusions ; and in pursuing such an inquiry, 
 where it was a matter of importance and interest, he would neglect 
 no circumstances which were in any way connected with the trans- 
 action, which could, either singly or collectively, enable him to 
 draw any reasonable inference on the subject. All his experience 
 of human conduct, of the motives by which such conduct was 
 likely to be influenced under particular circumstances, of the 
 ordinary usages, habits and course of dealing among particular 
 classes of society, or in particular transactions, even his scientific 
 skill in medicine, surgery or chemistry, abstract probabilities or 
 natural philosophy, might be called into action, to enable him, by 
 a general and comprehensive view of all the circumstances, and 
 their mutual relations to each other, to draw such a conclusion as 
 reason, aided by experience, would warrant. 
 
 {d) See tit. CiiiccMsiANTiAL Evidence; Vol. II. tit. Pkesumptions, 3 Comni. 
 371; GU.L. Ev.lGO.
 
 GENERAL PRINCIPLE. 57 
 
 There is, in truth, no connection or relation, whether it be natural 
 or artificial, which may not afford the means of inferring a fact 
 previously unknown, from one or others which are known. 
 
 Where the connection between facts is so constant and uniform Presump- 
 that from the existence of the one that of the other may be imme- 
 diately inferred, either with certainty, or with a greater or less 
 degree of probability, the inference is properly termed a presump- 
 tion (e), in contradistinction to a conclusion derived from circum- 
 stances by the united aid of experience and reason. 
 
 Circumstantial proof is supplied by evidence of circumstances, Circum- 
 the effect of which is to exclude any other supposition than that evidence, 
 the fact to be proved is true. 
 
 The nature and force of such proof will be more properly con- 
 sidered at another opportunity. The mere question at present is, 
 how far the law interferes to limit and restrain the admission of 
 evidence of collateral circumstances tending to the proof of a dis- 
 puted fact. 
 
 In the first place, as the very foundation of indirect proof is the 
 establishment of one or more other facts from which the inference 
 is sought to be made, the law requires that the latter should be 
 established by direct evidence, in the same manner as if they were 
 the very facts in issue. 
 
 The next question then is, what limit is there to the admission 
 of collateral evidence for the purpose of indirect proof. 
 
 The nature of the evidence, and the principles by which it is to To what 
 be appreciated, are, as has already been observed, to a great extent ^^.t*'^* a^- 
 common to judicial and extrajudicial inquiries. Its force and 
 efficacy, in the one case as well as in the other, must necessarily 
 depend either on the known and ordinary connection between the 
 facts proved and the fact disputed, or on the force and tendency 
 of the facts proved to establish the truth of the disputed fact or 
 issue, by the excluding any other supposition. 
 
 Great latitude is justly allowed by the law to the reception of 
 indirect or circumstantial evidence, the aid of which is constantly 
 required, not merely for the purpose of remedying the want of 
 
 (e) Sucb inferences are wliolly independ- the heir to a real estate was seised, or that 
 
 ent of any actual knowledge of the neces- a bill of exchange was founded on a good 
 
 sity of the connection between the known consideration, Tliese, however, wUl be a 
 
 and unknown facts. Many of tlie pre- subject for consideration when inquiry is 
 
 sumptions which we have to deal with, as made with respect to the artificial effect 
 
 connected with the present subject, are annexed by the law to particular evidence; 
 
 legal presumptions, where the law itself for such presumptions are of an artificial 
 
 establishes a connection or relation between and teclinical nature, whilst those at preseDt 
 
 particular facts or predicaments ; as that considered are merely natural. 
 
 A
 
 58 
 
 INDIRECT EVIDENCE : — RES INTER ALIOS. 
 
 lies int^r 
 alios acta, 
 grounds of 
 tlui rule. 
 
 Declara- 
 tions by 
 strangers. 
 
 direct evidence, but of sujDplying an invaluable protection against 
 imposition. The law interferes to exclude all evidence which falls 
 within the description of " res inter alios acta;" the effect of 
 which is, as will presently be seen, to prevent a litigant party from 
 being concluded, or even affected, by the evidence, acts, conduct 
 or declarations of strangers. And this rule is to be regarded, to a 
 great extent at least, not so much as a limitation and restraint of 
 the natural effect of such collateral evidence, but as a restraint 
 limited by and co-extensive with the very principle by which the 
 reception of such evidence is warranted ; for the ground of receiv- 
 ing such evidence is the connection between the facts proved and 
 the facts disputed ; and there is no such general connection between 
 the acts, conduct and declarations of strangers, as can afford a 
 fair and reasonable inference to be acted on generally even in the 
 ordinary concerns of life, still less can they supply such as ought 
 to be relied on for the purpose of judicial investigation. And 
 therefore this extensive branch of the rule which rejects the res 
 inter alios acta, may be considered as founded on principles of 
 natural reason and justice the same with those which warrant the 
 reception of indirect evidence. 
 
 In the first place, the mere declarations of strangers are inad- 
 missible, except in the instances already considered, where, on par- 
 ticular grounds, and under special and peculiar sanctions, they 
 are admissible as direct evidence of a fact. Declarations so cir- 
 cumstanced may be used either for the purpose of directly esta- 
 blishing the principal fact in dispute, or for the purpose of proving 
 the existence of collateral facts from which the principal fact may 
 be inferred ; but other declarations, which are of too vague and 
 suspicious an origin to be received as evidence of the facts declared, 
 must also, on the same principle, be rejected as indirect evidence. 
 If such declarations as to the principal fact be inadmissible, they 
 must also be at least equally inadmissible to establish any collateral 
 fact, by the aid of which the principal fact may be indirectly 
 inferred. It would be inconsistent to reject them when offered as 
 direct testimony, but to receive them as collateral evidence, the 
 more especially as even immediate testiniony is in one sense but 
 presumptive evidence of the truth ; for it is on the presumption of 
 human veracity, confirmed by the usual legal tests, that credit is 
 usually (/) given to human testimony. 
 
 (J") Usually, but not necessarily ; for 
 belief, amounting to certainty, may be 
 founded on the mere coincitlence of testi- 
 
 mony, without any consideration of the 
 credit due to human veracity.
 
 GROUNDS OF THE RULE. 59 
 
 If, for example, the question were whether A. had waylaid and Rf^s inter 
 wounded JJ., if the declaration of a third person, not examined on frroumisof 
 the trial, that he saw the very fact, could not be received in evi- *'"^ ^^*^- 
 dence, neither, on any consistent prmciple, could his declaration 
 that he saw A. near the place, armed with a weapon, be received in 
 order to establish that fact as one of several constituting a body of 
 circumstantial evidence. 
 
 For circumstantial proof rests wholly on the effect of established 
 facts, and cannot, therefore, be properly founded wholly or in part 
 on mere declarations, which are of no intrinsic weight to prove any 
 facts (^). 
 
 Neither, in general, ought any inference or presumption to the Acts of 
 prejudice of a party to be drawn from the mere acts or conduct of ^ ''^"sers. 
 a stranger ; for such acts and conduct are but in the nature of de- 
 clarations or admissions, frequently not so strong ; and such decla- 
 rations are inadmissible, for the reasons already stated. An ad- 
 mission by a stranger cannot be received as evidence against any 
 party ; for it may have been made, not because the fact admitted 
 was true, but from motives and under circumstances entirely col- 
 lateral, or even collusively, and for the very purpose of being- 
 offered in evidence. On a principle of good faith and mutual con- 
 venience, a man's own acts are binding upon himself (A), and his 
 acts, conduct and declarations are evidence against him ; but it 
 would not only be highly inconvenient, but also manifestly unjust, 
 that a man should be bound by the acts of mere unauthorized 
 strangers. But if a party ought not to be bound by the acts of 
 strangers, neither ought their acts or conduct to be used as evi- 
 dence against him for the purpose of concluding him; for this 
 would be equally objectionable in principle, and more dangerous in 
 effect, than the other. It is true, that in the course of the affairs 
 of life a man may frequently place reliance on inferences from the 
 conduct of others. If, for instance, A. and S. were each of them 
 insurers against the same risk, ^. to a large, and £. to a small 
 amount, it is very possible that, on a claim made against each for 
 a loss, which was admitted and paid by ^. to the extent of his 
 liability, .B., trusting to the knowledge and prudence of ^., might 
 reasonably infer that the loss insured against had occurred, and 
 that he also was bound to pay his proportion. It is plain, how- 
 ever, that such an inference would rest on the special and peculiar 
 
 ((f) This observation of course docs not itself material ; any such declaration is of 
 extend to any case wliere the mere fact of itself a fact. 
 such a declaration having been made is in (/<) See Vol. II. tit. Admissions.
 
 6CV INDIRECT evidence: — RES INTER ALIOS. 
 
 Res inter circumstances of the case ; and that, so far from warrantine: the 
 general admission of such evidence by inference on a legal trial to- 
 ascertain the fact, it would supply no general rule, but must be 
 regarded as an exception, even in the ordinary course of business. 
 
 In addition to this, it is obvious that whilst an individual might 
 with discretion rely on the conduct of others, where, under the 
 peculiar circumstances, there was no reason for suspicion (in which, 
 case a principle of self-interest would usually secure the exercise 
 of a sound discretion), such inferences could not be safely left to a. 
 jury, who could not possibly be put in possession of all the col- 
 lateral reasons by which an individual might properly be influenced, 
 in trusting to such evidence, and, which is more material, could not 
 act on those collateral circumstances of suspicion which would 
 have induced an individual to withhold his confidence. 
 
 An act done by another, from which any inference is to be drawn. 
 as to his knowledge of any bygone fact,, is an acted declaration of 
 the fact, and is not in general evidence of the fact, because there is 
 no sufficient test for presuming either that he knew tlie fact, or that^ 
 knowing the fact, his conduct was so governed by that knowledge 
 as to afford evidence of the fact which ought to be relied on. A 
 man may frequently act upon very uncertain evidence of a fact ; 
 he may have been deceived by others ; and even where he has 
 certain knowledge, his conduct may frequently be governed by 
 motives independent of the truth, or even in opposition to it. 
 
 Where a party professes to act on his knowledge of the truth of 
 a particular fact, so that his so acting is accompanied by or is equi- 
 valent to a direct or express declaration of the truth of that fact,, 
 the question of admissibility falls under principles already con- 
 sidered. A test is necessary to show, first, that he had competent 
 knowledge of the fact ; secondly, that he faithfully communicated 
 what he knew. 
 Effect of The rule, therefore, in the absence of special tests of truth, 
 
 the rule. operates to the exclusion of all the acts or declarations or conduct 
 of others, as evidence to bind a party, either directly or by in- 
 ference ; and, in general, no declaration or written entry, or even 
 affidavit, made by a stranger, is evidence against any man (i). 
 Neither can any one be affected, still less concluded, by any evi- 
 
 (i) For illustrations of this general prin- commission against A,, and JB., evidence of 
 
 ciple, vide infra, tit. Depositions — acts and declarations of 2?., for the purpose 
 
 Judgments — Examinations. In tres- of showing tliat he had become bankrupt, 
 
 pass against the sheriff and an execution is inadmissible. Hernasconi §• others v- 
 
 creditor, for seizing goods of A., which the Farchrother, 1 B, cSc Ad, 372. 
 plaintiffs claimed as assignees under a joint
 
 EXTENT OF THE RULE. 61 
 
 dence, decree or judgment, to which he was not actually or in 
 consideration of law privy. 
 
 As this is a rule which rests on the clearest principles of reason 
 and natural justice, it has ever been regarded as sacred and 
 inviolable. 
 
 The importance of the principle, and the extent of its operation. Does not 
 make it desirable to ascertain its hmits, by inquiring negatively '^^^^ *^'' 
 what it does not exclude. 
 
 In the first place, then, it is scarcely necessary to observe, that a The acts 
 man's own acts, conduct and declarations, where voluntary, are g-ons^^r" 
 always admissible in evidence against him. party. 
 
 As against himself, it is fair to presume that his words and 
 actions correspond with the truth : it is his own fault if they do 
 not. In many instances he is conclusively bound, more espe- 
 cially wliere he has formally engaged to be so bound ; in others, 
 his declarations or acts furnish mere prima facie presumptions 
 against him. The rule, therefore, above adverted to never ex- 
 cludes evidence of any acts or declarations made either by the 
 party himself, or which he has authorized, or to which he has 
 assented {j ). 
 
 It is plain also that this principle does not exclude the operation L^iws and 
 of any general rule of law or custom ; of these, and all their con- 
 sequences, he is bound to take notice at his peril. 
 
 It follows, therefore, that even the acts and declarations of 
 others are not excluded by this principle, whenever they have 
 any legal operation which is material to the subject of inquiry ; 
 for legal consequences can no more be regarded as res inter alios 
 than the law itself. For instance, where the contest is as to the Does not 
 rio-ht to a personal chattel, evidence is admissible, even against an ^'"^^"de 
 
 ' o facts which 
 
 owner who proves that he never sold the chattel, of a subsequent have a legal 
 sale of the property in market overt ; for although he was no party ^'P'^^j^t^*^" 
 to the transaction, which took place entirely between others, yet as question. 
 such a sale has a legal operation on the question at issue, the fact 
 is no more res inter alios than the law which gives effect to such 
 a sale. So in actions against a sheriff, it very frequently happens 
 that the law depends wholly on transactions to which the sheriff 
 is personally an entu'e stranger ; where the question is as to the 
 right of ownership to particular property seized under an execu- 
 tion, all such transactions and acts between others are admissible 
 in evidence, which in point of law are material to decide the right 
 of property. 
 
 So in all cases where any statute or law, or decree or judgment, 
 
 U) Vol II. tit. Admissions. Sparf/o v. Brown, 9 B. & C. 93G.
 
 r>2 
 
 INDIRECT evidence: — RES INTER ALIOS. 
 
 Effect of 
 the rule as 
 to declara- 
 tions, &c. 
 
 Declara- 
 tions ac- 
 company- 
 ing acts. 
 
 Why ad- 
 missible. 
 
 is of a public nature, or operates in rem ; for to such proceedings 
 all are privy. 
 
 Nor does the objection ever apply where the conduct or declara- 
 tion of another operates not by way of admission or mere statement, 
 but as evidenca. Thus, if A. make a private memorandum of a 
 fact in which B. has an interest, that memorandum, generally 
 speaking, would not be evidence against B. ; it would fall within 
 the description of res inter alios ; but if it were a memorandum of 
 a fact peculiarly within the knowledge of ^., and made in the usual 
 course of business, and especially if J., by that entry charged him- 
 self, it would be admissible in evidence after the death of J..; not 
 that it operates against B. by way of admission of the fact, for if 
 so it would be admissible whether A. were hving or dead, but 
 because, under those circumstances, the law considers the entry 
 to be a proper medium for communicating the original fact to the 
 jury, the testimony of ^. himself being unattainable. 
 
 So the declarations of deceased persons, and evidence of re- 
 putation, in matters of public prescription, pedigree, and character, 
 are admissible, not because strangers have any power to conclude 
 a party by what they may choose wantonly to assert upon the 
 subject, but because the law considers the evidence to be suffi- 
 ciently deserving of credit, as a means of communicating the real 
 fact, to be offered to a jury. And whenever that is the case, it 
 is obvious that such declarations or reputation are no more res 
 inter alios than if the declarants themselves had stated what they 
 knew upon oath to the jury. 
 
 In the next place, although the general principle above an- 
 nounced excludes the declarations, writings, acts and conduct of 
 strangers, as falling within the general description of res inter 
 alios acta, the objection does not extend to a class of declarations 
 already described as declarations accompanying an act ; for these, 
 when the nature and quality of the act are in question, are either 
 to be regarded as part of the act itself, or as the best and most 
 proximate evidence of the nature and quality of the act : their 
 connection with the act either sanctions them as direct evidence, or 
 constitutes them indirect evidence, from which the real motive of 
 the actor may be duly estimated. 
 
 Hence it is that declarations made by a trader at the time of his 
 departure from his residence or place of business, are evidence of 
 the intention with which he went. His real intention, in such a 
 case, cannot be inferred otherwise than from external appearances, 
 from his acts j and his declarations are collateral indications of the
 
 DECLARATIONS ACCOMPANYING ACTS. 
 
 63 
 
 nature of his acts and his intention in doino- them (k). Upon the Wliy ad- 
 same principle, in Lo7'd George Gordon's Case, the cries of the 
 mob, at the time they were committing acts of violence, were held 
 to be admissible evidence to show their intention (Z). Such evi- 
 dence is also admissible in actions against the hundred, in case of 
 an action to recover the value of property feloniously demolished 
 by persons riotously assembled. Declarations by a patient (m) to a 
 medical attendant, as to his state of body and sufferings at the 
 time, are evidence of the fact (n). Again, in order to prove that a 
 husband had obliged his wife to leave his house by ill treatment, 
 the declaration of the wife at the time of leaving the house was 
 held to be admissible evidence against the husband to prove the 
 fact. Here the fact itself of leaving the house was material and 
 admissible, and the declaration accompanying the fact was collateral 
 evidence of the nature of the act. The same principle apphes, as 
 will be seen, in actions for criminal conversation. There the terms 
 on which the plaintiff and his wife lived previous to the adultery, 
 being material to the inquiry, declarations by the wife in the ab- 
 sence of the husband, and letters written by her, not only to him 
 but even to third persons, are admissible evidence to show the state 
 of her mind and her affection for him (o). 
 
 (k) See tit. Bankrupt. 
 
 (0 21 Howell's St. Tr. 542. 
 
 (m) 6 East, 188. It has been truly 
 observed, that representations made by 
 a party, as to Ms health and sensations, 
 when made to a medical attendant, who 
 has the opportunity of observing wliether 
 tliey correspond witii the symptoms to 
 whicli they refer, are entitled to greater 
 weight tlian such as are made to an 
 inexperienced person. Pliilipps on Evi- 
 dence, 8th ed. Vol. i. p. 202, citing the 
 observations made by the Attorney-general 
 (Copley), in the Gardiner Peerage Case. 
 In Aveson v. Lord Kinnaird, the rule is 
 laid down as to patients without qualifica- 
 tion. The admissibility of such evidence 
 is in principle confined to representations 
 made as to the state of the party at the 
 time of making the representation, as con- 
 tradistinguished from any statement of a 
 particular fact occurring at any antecedent 
 time. In the Gardiner Peerage Case, 
 p. 79-136. 170, where it became material 
 to inquire into the ordinary period of gesta- 
 tion, the medical witnesses were not per- 
 mitted to state what had been said by 
 women whom they had attended in confine- 
 ment, as to the date of their conception. 
 
 {n) In the case of Aveson v. Lwd Kin- 
 naird, 6 East, 188, the plaintifi" sued on a 
 policy on the life of his late wife ; he called 
 a medical man as a witness, on whose cer- 
 tificate that the wife was in good health on 
 a particular day, on which the policy had 
 been effected, and who swore to his belief 
 of the fact. He stated on cross-examina- 
 tion, that his opinion was formed principally 
 from her answers given at the time. The 
 defendant called a witness who had been 
 an intimate friend of the wife, who having 
 called upon her within a week after the 
 day to which the certificate related, found 
 her in bed, apparently ill, and the wife then 
 related to her that she had not been well 
 from a time previous to the day referred to 
 in the certificate. The evidence was held 
 to be admissible on two grounds: 1st, to 
 show her own opinion as to the state of her 
 health ; 2dly, as also in contradiction of the 
 evidence of the surgeon called by the 
 plaintiff. 
 
 (o) See Vol. II. Criminal Conversa- 
 tion. See further on this subject. Entries 
 BY Third Persons, Vol. I. — Rape, Vol. 
 II. In the case of The King v. Foster, 
 6 Carr. & P. C. 325, it is said to have 
 been held (by Guniey, B. and Park, J.),
 
 n4 
 
 INDIRECT evidence: — COLLATERAL CIRCUMSTANCES. 
 
 Declara- 
 tions, wlion 
 part of tlie 
 res gcstffi, 
 liow 
 proved. 
 
 A recital 
 may be evi- 
 dence for 
 some pur- 
 poses, al- 
 though not 
 for others. 
 
 It is, however, to be particularly observed, that in these cases, 
 when declarations or entries (p) are admitted in evidence as part of 
 the res gestcB or transaction, they are admitted, either because they 
 constitute the very fact which is the subject of inquiry {q), or be- 
 cause they elucidate the facts with which they are connected, hav- 
 ing been made without premeditation or artifice, and without a view 
 to the consequences ; and as such they are the best evidence, it may 
 be, better than even the subsequent testimony of the party who 
 made them, to prove the object for which they are admitted in 
 evidence ; for the party who made the declaration, if he were com- 
 petent as a witness, would frequently be under a temptation to 
 give a false colouring to the circumstance when its tendency was 
 known ; besides, as in this case the effect of the evidence is inde- 
 pendent of the credit due to the party himself (r), it could be of no 
 use to confirm his credit by examination upon oath, and his decla- 
 ration as a mere fact is as capable of being proved by another wit- 
 ness as any other fact is. 
 
 It sometimes happens that a declaration is evidence for a parti- 
 cular purpose, although it is not to be taken as evidence to prove 
 the truth of the fact declared ; for the rule seems to be, that if the 
 declaration be evidence as a circumstance in the cause, for any pur- 
 pose, it is to be received ; and the jury are to be directed not to 
 consider it as in evidence for other purposes, for which, abstractedly, 
 it could not have been received {s) ; as, for instance, where it is 
 used as introductory of some other matter. Suppose the question 
 to be, whether A. had wounded B., if C. had asserted in the pre- 
 sence of ^. that he had seen him wound B., this would be admis- 
 sible evidence, but only as introductory, and for the purpose of 
 introducing and explaining J..'s conduct and behaviour when the 
 charge was made, and his answer upon that occasion, and not as 
 having any intrinsic tendency to prove the fact asserted. 
 
 that a declaration by one since deceased, 
 immediately on receiving a fatal injury, as 
 to the cause of the injury, was admissible. 
 See Vol. II. tit. Death-bed Declara- 
 tions. 
 
 (p) In future, to avoid repetition, the 
 term declaration alone will be used ; but it 
 must be remembered, that the same prin- 
 ciple applies to a written entry. 
 
 {q) See Kent v, Lowen, 1 Camp. C. 
 177. For further illustrations of these 
 principles, see tit. Entries by Third 
 Persons. See also Doe d. Tatham v. 
 Wright, C Nev. & M. 132; 4 Bing. N. S. 
 .489; and 2 Nev. & P. 3U5. 
 
 (>■) It may often happen that a declaration 
 clearly false and incredible, is evidence of 
 fraud in doing a particular act. As if a 
 trader, meditating a long absence, were to 
 represent to a creditor that he was going 
 for a few miles only. 
 
 («) In the case of Vacher v. Cocks, 6 
 M. & M. 353, Lord Tenterden allowed that 
 part 'only of the letter to be read which 
 contained the refusal. See further, tit. 
 Written Evidence ; and Willis v. 
 Barnard, 8 Bing. 376. Whitehead v. 
 Scott, 1 M. & Nev. 2. Whituker v. Bank 
 of England, 6 C. & P. 708. Fairlie v. 
 Denton, 2 C. & P. G03.
 
 COLLATERAL CIRCUMSTANCES. O.'i 
 
 In the next place, it is observable that the principle is confined CN.llatiml 
 to those cases where an inference is attempted to be made from the '"^'^'*" 
 acts, conduct or declarations of strangers, on the presumption that 
 they would not have done such acts, or made such declarations, 
 had not the fact so to be inferred been true ; and that it is the 
 want of any certain or known connection between such acts or de- 
 clarations and the truth of the fact which occasions the exclusion. 
 Hence it is that the principle does not extend to the exclusion of 
 any of what may be termed real or natural facts and circumstances 
 in any way connected with the transaction, and from which any 
 inference as to the truth of the disputed fact can reasonably be made. 
 
 Thus upon the trial of a prisoner on a charge of homicide or 
 burglary, all circumstances connected with the state of the body 
 found, or house pillaged, the tracing by stains, marks or impres- 
 sions, the finding of instruments of violence, or property, either on 
 the spot or elsewhere, in short, all visible vestigia, as part of the 
 transaction, are admitted in evidence^ for the purpose of connecting 
 the prisoner with the act. 
 
 Such facts and circumstances have not improperly been termed 
 inanimate witnesses. It may be asked, whether the same principle 
 which excludes all inferences from the acts, conduct and declara- 
 tions of others, ought not also to exclude such real circumstances ; 
 for an artful person may not only deceive by speaking and writing, 
 but may also create false and deceptive appearances, calculated to 
 induce others to draw false conclusions from them; he may act as 
 well as speak a lie, and may deceive by false facts as well as false 
 expressions (^). Real facts, that is, such as are the object of 
 
 (t) An ancient and celebrated argument and also it maybe, as suggested intlie case 
 
 supplies an illustration. A young man cited, for the further purpose of screening 
 
 who was blind, a resident in his father's the real perpetrator of the offence, 
 house, was charged by his stepmother with Since, tlien, it is possible that sucli aji- 
 
 having assassinated liis father by stabbing pearances may be tlie result of fraud and 
 
 him whilst he slept. The evidence was cir- artifice, ought they to be admitted ; or, at 
 
 cumstantial ; and one of the prominent facts least, are they not subject to the same 
 
 urged against the son was the circumstance objection which is urged against the re- 
 
 that the walls of the apartments which ceiving evidence of tlie declarations or 
 
 separated tlie chamber of the father from writings of otiiers ? The answer seems to 
 
 that of the son were smeared witli the im- be, that altliough a possibility exists that 
 
 pressions of bloody hands, proceeding from sucli appearances may have resulted from 
 
 the chamljer of tlie father to that of the contrivance and design, yet that much less 
 
 son. Witli respect to such evidence, whicli danger is to be apprehended from the recep- 
 
 according to the rules of our law would tion of such evidence of actual facts tlian 
 
 clearly be admissible, it may be objected, would result from receiving cvidcnice of 
 
 that such appearances may have resulted mere statements of facts, 
 from the art and cunning of another, for In the case al)ove 8uj)pose(l, two circum- 
 
 the very purpose of implicating the accused; stances tended to show that tlie traces on 
 VOL. I. F
 
 r>6 INDIRECT EVIDENCE : 
 
 Colliitoral actual o1)scrvation, in contradistinction to mere recitals of facts, 
 
 ciiciim- ^j.g ji^ themselves always true, whilst a mere recital or statement 
 
 stances. j ' 
 
 may be wholly false ; and although collateral circumstances, when 
 considered without careful comparison, may, either in consequence 
 of contrivance and design, or even fi'om accident, present appear- 
 ances which tend to false conclusions, that tendency is always 
 subject to be corrected by a multitude of other facts which are 
 genuine. 
 
 The whole context of facts must be consistent with truth ; to 
 speak more |)roperly, they constitute the truth ; if all were known, 
 nothing would be left for inquiry ; the greater the number known, 
 the more probable will it be that an artificial or spurious fact, 
 from inconsistency with the rest, will be detected, and the truth 
 manifested. 
 
 This is the more evident, when it is considered that the practice 
 of creating false appearances, must always be difficult, limited in 
 its extent, and constantly subject to detection and exposure from 
 a comparison of the deceptive fact with such as are undoubtedly 
 genuine. 
 
 By way of illustration, the following instance may be selected : 
 A person having been robbed and murdered, the body is so placed 
 by the offender, with a discharged pistol beside it, as naturally to 
 induce the inference that the deceased had fallen by his own hand ; 
 but on close examination, it is discovered that the ball extracted 
 from the body, and which occasioned death, is too large to have 
 been discharged from that pistol, an inconsistency which imme- 
 diately detects the imposture, and refutes the false inference to 
 which some of the circumstances apparently tend. 
 
 The general admission, therefore, of evidence of the actual 
 visible state of things, in the absence of any special reason for 
 suspecting fraud, is quite consistent with the exclusion of state- 
 ments or declarations, as contradistinguished from real facts ; such 
 statements may be altogether fictitious, they are easily invented, 
 and would therefore be the more dangerous, because if they were 
 to be admitted to any credit, they would usually be conclusive. 
 
 At all events, there is a strong practical necessity for resorting, 
 especially in criminal proceedings, to the aid of circumstantial 
 evidence ; the consequences would be infinitely mischievous if such 
 
 the walls were the result of artifice and pressions on the walls were all equally clear 
 
 imposture. Tlie accused being blind, night and distinct; had they been natural and 
 
 to him was the same as tlie day, and being genuine, they would have gradually become 
 
 familiar with the apartments, he wanted faint and indistinct, 
 not the walls for his giudance. The im-
 
 ANCIENT DEEDS. G7 
 
 evidence were to be excluded ; and the real practical result from Ooiiatoml 
 any suggestions as to the probability of fraud and dece})tion being stmiees. 
 practised through the medium of such evidence, is, that it ought 
 in all cases to be received and acted on with the highest degree of 
 caution and circumspection. 
 
 As the possession and enjoyment of disputed property are always Possession ; 
 indirect evidence of right, by reason of the obvious and natural ^"ru,"^','^' 
 presumption, when the right is in other respects doubtful, that 
 such possession and enjoyment so acquiesced in had a lawful 
 origin ; so, acts of open delivery of possession, or written instru- 
 ments by which a dominion over such property was exercised, and 
 with which the possession and enjoyment correspond, are also pre- 
 sumptive evidence of right ; for these are, in fact, not rnere recitals 
 of a fact, but are of themselves acts of dominion and ownership. 
 Hence, when such instruments are so ancient that their connection 
 with acts of enjoyment and dominion cannot be proved by the 
 testimony of living witnesses, they are nevertheless admissible as 
 the best and most proximate evidence to explain the origin and 
 nature of such possession and enjoyment, where they can by other 
 evidence be sufficiently connected with those facts. 
 
 Hence it seems that to support any presumption or inference Essentials 
 from such an instrument, first, its antiquity is essential ; secondly, *" '^"i'^' 
 that it should have been found in the place or repository in which 
 a true and genuine deed or writing of that kind would have been 
 deposited (u) ; thirdly, that it should be free from all suspicion 
 which may rebut the presumption raised in its favour (x) ; fourthly, 
 in order to give it any weight, it should be supported by proof of 
 possession or enjoyment, corresponding and consistent with it(?/). 
 Upon such a connection the force, if not the admissibility, of such 
 evidence essentially depends. Declarations are, as has been seen, 
 evidence as explanatory of the act which they accompany ; and 
 where long-continued enjoyment, and user of a right, has been 
 proved, extending as far back as the duration of human life will 
 permit, a deed or writing which is consistent with such usage and 
 enjoyment, and explanatory of it, may, under the same principle, 
 be fairly admitted, as affijrding a presumption that it was a genuine 
 instrument which has been used and acted on. And where proof 
 of the actual execution and use of such instruments would have 
 been evidence, then when such proof is absolutely excluded by 
 lapse of time, the production of the deed, coupled with such cir- 
 
 (u) Vide infra, Private Writings — Ancient Deeds. 
 (x) Ibid. (y) Ibid. 
 
 F 2
 
 68 
 
 INDIRECT EVIDENCE: 
 
 Essentiitls ciimstaiices as give it credit, appears to be the next best evidence 
 proof! ' which the case admits of, and when accompanied with proof of 
 actual enjoyment, affords a strong presumption as to the existence 
 of the ripht accordino- to that deed. Hence ancient hcenses on 
 the court-rolls, granted by the lords of a manor, in consideration of 
 certain rents, to fish in a particular river, are evidence to prove a 
 prescriptive right of fishery in that river, without any proof of the 
 rents being formerly paid, where it appears that such rents have been 
 paid in modern times, or that the lords of the manor have exercised 
 other rights of ownership over the fishery (z). But it was held, 
 that to give any weight to such evidence it was necessary to sup- 
 port it by evidence of payments, or of acts of ownership (a). 
 
 Where the question was, whether by the custom of a particular 
 manor, a custom existed that after the turbary had been cleared 
 away from a certain moss, the lord had a prescriptive right to hold 
 the land cleared away, free from all right of common, it was held 
 (in an action between a grantee of the land and one who claimed 
 right of common in the locus in quo, in respect of an ancient 
 messuage) that counterparts of old leases found among the muni- 
 ments of the lord of the manor, by which such cleared portions of 
 the moss had from time to time been granted by the lord, were 
 admissible in evidence, although they were so old that no one 
 could speak to possession under them. It was objected, both at 
 the trial and on a motion for a new trial, that such evidence ought 
 not to be admitted without proof of enjoyment under those leases. 
 But the Court held that it was clear that such leases might be 
 given in evidence ; tliey only showed the existence of a fact, viz. 
 that at the time of the dates of the leases the lord granted the 
 land after the moss had been taken away (b). 
 
 Declara- ^^ ^^ ^^ ^^ observed that oral or written declarations, although 
 
 tions ad- excluded as direct evidence of a fact, by the rules which govern 
 
 missil^Ip fm . • • • 
 
 explanatory the reception of such evidence, may still in many instances be used 
 evidence. indirectly as explanatory of other evidence. Thus though a letter, 
 stating particular facts, could not be read in evidence merely be- 
 cause it was so sent, yet if the party to whom it was addressed 
 wrote an answer, such answer might be read as evidence against 
 the party who wrote it, and the letter to which it was an answer 
 would be admissible for the purpose of explaining such answer. 
 So letters and declarations, in themselves inadmissible, are ad- 
 
 (2) Rogers and others v. Allen, cor. 
 Heath, J. 1 Camp. 309. 
 
 (a) Per Heath, J. 1 Camp. 311. 
 
 (6) Clarkson v. Woodhouse, 5 T. R. 
 412.
 
 EXCLUSION OF SECONDARY EVIDENCE. fiO 
 
 missible if they communicate any fact to tlie party against whom De.ijira- 
 thev are read which either affects the riohts in question or explains '".""^ 'V'' 
 his subsequent conduct (c). Thus the proof of notice of the dis- explanatory 
 honour of a bill of exchange to a drawer or indorser is evidence, <^^'"'^"'=''- 
 not of the fact of dishonour stated in the notice, but because sucli 
 notice casts a legal liability on the party to whom it was given. 
 So again, in an action on a policy of insurance, for a libel, 
 keeping a mischievous animal, malicious prosecution, and indeed 
 in any other case where the knowledge, motives or intentions 
 of the parties were material, communications, whether oral 
 or written, may be very important evidence, though not of the 
 truth of the facts communicated, yet forjudging as to the motives, 
 intention and honesty of the party to whom the communication 
 was made. 
 
 Of the class of facts which require proof by means of indirect On ques- 
 evidence, there are some of so peculiar a nature that juries cannot ^^^n^ 
 without other aid come to a correct conclusion on the subject. In 
 such instances, where the inference requires the judgment of per- 
 sons of peculiar skill and knowledge on the particular subject, the 
 testimony of such as to their opinion and judgment upon the facts, 
 is admissible evidence to enable the jury to come to a correct con- 
 clusion. Thus the relation between a particular injury inflicted 
 on a man's body and the death of that man, is an inference to be 
 made by medical skill and experience, and may be proved by one 
 who possesses those qualifications. So again, where the question 
 is as to a general result from books or accounts of a voluminous 
 nature, the general result from them may be proved by the testi- 
 mony of one who has examined them. 
 
 Having thus noticed the great principles which affect the admis- Exclusion 
 sibility of evidence in reference to the main sources from which it jarTevl' 
 is derived, whether it be in its nature direct, as derivable from dence. 
 original testimony, or indirect and collateral, as consisting in facts 
 
 (c) See further, as illustrative of this gistrate, a letter written by a judge's clerk, 
 principle, Cof^onv.J^ames, 1 M.&M. 273. and purporting to have been written by 
 Letters received by a trader previous to the authority of the judge, but without 
 his bankruptcy, were admitted in evidence proof of that autliority, was read to show 
 to prove notice to the trader of a particular the fact that the justice was induced by 
 fact; Vackery. Cock, I M. & M. 353, a that letter to bail J.. In the same case, an 
 letter received by a trader shortly before affidavit made by the clerk of the defend- 
 liis bankruptcy, was received in evidence to ant's attorney was admitted, for the pur- 
 prove the fact of refusal. In the case of pose of showing that those who coiulucted 
 Taylor v. Williams, 2 B. & Ad. 845, in the prosecution had endeavoured to prevent 
 an action for a malicious prosecution, the a person from becoming bail for A, 
 plaintiff having been taken before a ma- 
 
 F 3
 
 70 
 
 EXCLUSION FROM POLICY. 
 
 Exclusion 
 of secon- 
 dary evi- 
 dence. 
 
 Exclusion 
 
 from 
 
 policy. 
 
 Hnsliand 
 and wife. 
 
 Confidcn- 
 tiiil com- 
 iiiunication 
 to a bar- 
 rister, at- 
 torney, &c. 
 
 and circumstances collateral to the principal subject of inquiry ; 
 anotlicr rule, which operates to the exclusion of evidence, not 
 generally, but on comparison with other and more satisfactory 
 evidence, is next to be noticed. It is a general rule of evidence 
 already adverted to, that evidence of an inferior degree shall not 
 be admitted whilst evidence of a higher and more satisfactory 
 degree is attainable. This inile, it will be seen, depends on a well- 
 founded jealousy that the best evidence is withdrawn, and the in- 
 ferior substituted, from a desire to suppress the truth. As this is a 
 principle which affects the course and order of proofs, its application 
 will be better considered hereafter, in conjunction with other rules 
 applicable to the nature and modes of proof. 
 
 There are some instances where the law excludes particular 
 evidence, not because in its own nature it is suspicious or doubtful, 
 but on grounds of public policy, and because greater mischief and 
 inconvenience would result from the reception than from the exclu- 
 sion of such evidence ; on this account it is a general rule that the 
 husband and wife cannot give evidence to affect each other, as it 
 seems, either civilly or criminally. For to admit such evidence 
 would occasion domestic dissension and discord ; it would compel 
 a violation of that confidence which ought, from the nature of the 
 relation, to be regarded as sacred ; and it would be arming each 
 of the parties with the means of offence, which might be used for 
 veiy dangerous purposes {d). 
 
 Upon the same principle, the law prohibits a barrister, solicitor 
 or attorney, from divulging that which has been reposed in him 
 confidentially by his client. This prohibition rests on very obvious 
 principles of convenience and policy. It is absolutely essential to 
 the ends of justice that the fullest confidence should prevail 
 between a litigant and those who conduct his cause ; and it is 
 equally clear that there would be an end of all such confidence, if 
 the agent could be compelled to divulge all he knew. It is suffi- 
 cient here, according to the plan originally proposed, to state this 
 principle generally : its practical operation and effect, as to the 
 relative situation of the parties when the communication was made, 
 the nature, time and manner of the communication, will be dis- 
 cussed hereafter (e). It may be observed here, that this is the 
 privilege, not of the counsel or attorney, but of the client; and, 
 
 {d) Co. Litt. 6. b. See Vol. II. Hus- 
 band AND Wife. The rule, it will l)e 
 seen, <lnes not extend to criminal charges 
 founded on violence offered to the wife. 
 
 (e) See Vol. II. 
 Communication. 
 
 tit. Confidential
 
 ON GROUNDS OP STATE POLICY. 71 
 
 therefore, tliat the former ought not to be allowed to divulge his Confidcn- 
 client's secrets, even though he should be willine: to do so. ^^'^^ ^''""" 
 
 ... . " niuriication 
 
 The same prmciple evidently applies to the case of an interpreter to a bar- 
 between an attorney and his client. tornrv^&c 
 Here, however, the law draws the line, and the principle of policy E.xtcnt of 
 
 which, in the instances of husband and wife, and of attorney and 5'"* P"^'" 
 
 ' . . . •' lege. 
 
 client, forbids a violation of confidence, ceases to operate. The 
 
 law will not permit any one to withhold from the information of 
 the jury any communication which is important as evidence, how- 
 ever secret and confidential the nature of that communication may 
 have been, although it may have been made to a physician or a 
 surgeon, or even to a divine, in the course of discharging his pro- 
 fessional duties ; for it has even been held, that a minister is 
 bound to disclose that which has been revealed to him as a matter 
 of religious confession (f). 
 
 Upon a principle of humanity, as well as of policy, every witness Witnessnot 
 
 is protected from answerins; questions by doing which he would ''°"°f^t^ 
 . . , on JO ^ criminate 
 
 criminate himself. Of policy, because it would place the witness himself. 
 under the strongest temptation to commit the crime of perjury ; 
 and of humanity, because it would be to extort a confession of the 
 truth by a kind of duress, every species and degree of which the 
 law abhors (g). It is pleasing to contrast the humanity and deli- 
 cacy of the law of England in this respect with the cruel provisions 
 of the Roman law, which allowed criminals, and even witnesses in 
 some instances, to be put to the torture, for the purpose of extort- 
 ing a confession (A). 
 
 There are also some instances in which particular evidence is On grounds 
 excluded on grounds of pohcy, where the disclosure might be poiigy**^ 
 prejudicial to the community. Thus, in a state prosecution, a * 
 witness cannot be called upon to disclose the names of those to 
 whom he has given information of practices against the State, 
 whether such persons be magistrates, or concerned in the adminis- 
 tration of government, or be merely the channel through which 
 information is communicated to government (i). So it was held, 
 
 (/) Peake, N. P. C. 77; Butler v. (i) R. v. Watson, 2 Starkie's C. 135; 
 
 Moore, Macnall, 253; Vaillant v. Doder- and a note from Hardy's Case, by Abbott, J. 
 
 mead, 2 Atk. 524. ib. 136; and Lord Ellenborough's observa- 
 
 {g) It is partly upon this principle that tions as to Stone's Case, lb. 137 ; 24 How- 
 
 an examination of a prisoner, taken before ell's State Tr. 753. See also 32 Howell's 
 
 a magistrate on oath, cannot be afterwards State Tr. 100; a witness was not allowed 
 
 read against him as a confession. Another to answer the question, whether he had 
 
 reason is, that the oath is extrajudicial. delivered a short-hand note to an under 
 
 (ft) See Quintilian's Inst. C. De Tor- secretary of state. See also De Berenger's 
 
 mentis, Pan. lib. 48, s. 242. Case, Gurney's Rep. 344. 
 
 F 4
 
 evidence. 
 
 72 ARTIFICIAL EVIDENCE : 
 
 On sroimds that an officer from the Tower of London could not be examined 
 policy.^ as to the accuracy of a plan of the Tower which was produced (k). 
 Upon the same ground an official communication between the 
 governor of a colony and the law officers there, relating to the 
 state of the colony, cannot be disclosed (/). So it seems that 
 the orders given by the governor of a foreign colony to a military 
 officer acting under his command, ought not to be produced (m). 
 The same objection applies to letters written by a secretary of state 
 to a person acting under his authority (n) ; and, as it seems, to 
 minutes taken before the privy council (o). 
 
 The principle does not exclude a communication which, although 
 made to an official person, is not made in the discharge of any 
 public duty (p). 
 Crration of Thus far the law controls the admission of ordinary evidence, by 
 
 artiticial ^]^g application of excluding; tests ; it is next to be considered how 
 
 anil con- . . 
 
 ventional far the law interferes to create evidence, or to add to its efficacy, 
 by artificial means. 
 
 It is essential, in the first place, that the law should provide the 
 means of preserving public statutes and ordinances, the decrees 
 and judgment of its courts, and many other transactions of public 
 interest, and for authenticating them as such when it should be- 
 come necessary ; and it is also essential to the convenience of 
 individuals that the evidence of their mutual dealings and engage- 
 ments should not be left to depend on the defective memories of 
 living witnesses, but should be preserved by the aid of written 
 memorials, mutually agreed upon, for the purpose of perpetuating 
 those transactions. The law itself, therefore, provides authentic 
 
 (k) R.\. Watson, 2 Starkie'sC. 148. plaintiff, and to report the opinion of the 
 
 (0 Wyatt V. Gore, Holt's C. 299. officers, and the plaintiff brought an action 
 
 (m) Cooke v. Maxtvell, 2 Starkie's C. for an alleged libel contained in that report, 
 
 185. Tlie document was there called for, and the secretary of the commander-in- 
 
 in order to prove that the plaintiff's factory chief attended with the minutes of the 
 
 had been destroyed inconsequence of orders report, the Court refused to allow it to be 
 
 from the defendant; and it was held, tliat read. Home v. Bentinch, 2 B. & B. 130. 
 
 although on i)rinciples of public convenience So official communications between an agent 
 
 the document could not be read, the effect of government and a secretary of state ; 
 
 was the same as if the document had not Anderson v. Sir W. Hamilton, 2 B. & B. 
 
 existed, and that the witness might be 15G; are also privileged. For further ob- 
 
 asked whether what had been done had not servations on this subject, see tit. Witness 
 
 been done by order of the defendant. — Confidential Communication. 
 
 (n) 2 Starkie's C. 186. (;^) Blake v. Pilfield, 1 M. & R. C. 198; 
 
 (o) 6 St. Tr. 281, Layer's Case. Where which was the case of a letter written by 
 
 the commander-in-chief directed the de- a private person to the secretary of the 
 
 fendanl, a major-general, with six other postmaster-general, complaining of the con- 
 
 ofKccrs, to inquire into the conduct of a duct of the guard of a mail.
 
 RECORDS — VERDICT. 73 
 
 memorials of judicial proceedings, and of many other matters of 
 a public nature, by means of its own officers specially delegated to 
 the trust (q). 
 
 Of this description are the rolls of Parliament, public registers, Records, 
 and all records of courts of justice ; and as these are made by 
 ministers or officers specially authorized by the law, for the very 
 purpose of perpetuating the facts which they contain, it is to be 
 presumed that they are true memorials, and they are admissible 
 evidence of those facts, though they are not sanctioned by the 
 ordinary tests of truth. And it may further be observed, that as 
 these memorials relate for the most part to matters of public con- 
 cern and notoriety, the application of the ordinary tests is not so 
 requisite as in ordinary cases. On this principle, even books of 
 history are admissible to prove public and notorious historical 
 facts. 
 
 But though the law in such cases does not require the aid of 
 the ordinary tests of truth, yet in these, as well as in all other 
 instances, the res inter alios acta is always excluded. Many of 
 the matters which the law records by instruments of its own 
 creation are of a public nature, to which all may be considered 
 privy ; as in the case of public proclamations, acts of state, public 
 registers of births and marriages. In the case of judicial records, 
 although in one sense they are of public notoriety, and therefore, 
 although such a record is always evidence of the mere fact that 
 such a cause was litigated and such a judgment given, whenever 
 the mere fact is material, yet they are not admissible evidence of 
 the facts and rights decided by the decree or judgment, where they 
 are of a private nature, unless as against one who was party or 
 privy to the proceeding, nor usually, as will be seen, even then, 
 unless he who offers the evidence was also a party or privy ; in all 
 other cases the objection that the affair was res inter alios acta 
 must prevail (r). 
 
 As the law creates instruments for the purpose of evidence, so 
 it frequently annexes to them an artificial weight and consequence 
 on grounds of legal policy. 
 
 Thus a record in a judicial proceeding is in many instances not 
 simply admissible evidence, but conclusive as to the facts ad- 
 judged (s). 
 
 It is however very clear, that the previous verdict of a jury is Verdict. 
 not only inconclusive, but that in its own nature it cannot possibly 
 
 (7) See tit. Judgment — Record. («) See tit. Judgment— Recokd. 
 
 (r) See tit. Judgment.
 
 74 
 
 AHTIFICIAL EVIDENCE 
 
 Verdict. 
 
 Conven- 
 tional 
 evidence. 
 
 be conclusive as to the truth of a fact whicli it professes to ascer- 
 tain, where that fact is again disputed. It is possible that the 
 former jury may not have been supplied with sufficient evidence 
 to enable them to come to a correct conclusion, or that they may 
 have fallen into error, or even that they have been swayed by in- 
 direct motives. But the law, on a strong principle of policy and 
 convenience, and in order to exclude continual litigation, frequently 
 annexes an artificial conclusive effect to a former verdict. 
 
 Again, where formal instruments are prescribed or adopted by 
 convention, for the purpose of manifesting and perpetuating the 
 acts and transactions of private individuals, the law interferes not 
 only in prescribing the manner and form, but also in giving an 
 artificial effect to such instruments. 
 
 The ordinary instances in which the law prescribes the form and 
 manner in which private persons shall express their acts and inten- 
 tions, and record their engagements, are, in cases of wills of real 
 property, grants of incorporeal rights, which must be evidenced by a 
 specialty ; agreements, which in many instances prescribed by the 
 statute of frauds {t), must be evidenced by some written memo- 
 randum of the transaction. In these and other instances where 
 the law prescribes the form, the evidence of the fact must of course 
 consist in proof that the legal requisites have been comphed with 
 in the particular instance. 
 
 The admissibility of such conventional means of perpetuating 
 the transactions between individuals, falls for the most part within 
 the ordinary and natural rules of evidence. They are, in effect, 
 formal admissions by the parties who make them, and as against 
 themselves are therefore admissible. The admission of such evi- 
 dence is quite consistent with the general rule which excludes all 
 that is res inter alios ; such evidence would therefore be admissible 
 independently of any artificial rule of law, but when admitted, the 
 law frequently annexes an artificial efficacy which such evidence 
 would not otherwise possess (m). 
 
 The law not only in many instances prescribes the manner and 
 form of the instrument by which such acts and intentions shall be 
 signified, but frequently annexes an artificial and arbitrary effect 
 to the evidence. Thus the law provides that a specialty, such as 
 a bond, shall carry with it intrinsic and conclusive evidence that it 
 was founded on a good and sufficient consideration, without any 
 other proof; that a bill of exchange shall afford, not conclusive. 
 
 (0 See Fkauds, Stat. of. 
 
 {u) See tit. Bond— Deed — Bill op 
 Exchange.
 
 ESTOPPELS — PRESUMPTIONS. 75 
 
 hut prima facie evidence of consideration ; whilst in other cases of Convcn- 
 merc parol engagements a consideration will not be presumed, but [,vijeJ,j.e 
 to give them effect must usually be alleged and proved. 
 
 The doctrine of estoppels by deed affords another prominent Estoppels, 
 instance of the law's interference to annex an artificial effect to 
 particular evidence. It is a general rule of law that a man shall 
 be estopped or excluded from the averment or proof of that which 
 is contrary to his admission by deed (x) ; but he is not estopped in 
 the strict legal sense of the term by a mere oral admission, or 
 even a written one not under seal. Independently of an artificial rule, 
 there is no reason why a man should be estopped or excluded from 
 asserting the truth in one case and not in the other. So also 
 there are numerous instances where, on a just and equitable prin- 
 ciple, the Courts hold a man to be concluded by his own conduct 
 and representation of a fact, although contrary to the truth. If, 
 for instance, a man induces a tradesman to supply a woman with 
 goods by a representation that she is his wife, he will be concluded 
 by that representation, and will not afterwards be admitted to show 
 that she was not his wife (y). 
 
 In the next place, the law interferes by annexing to particular Prf^sump- 
 classes of evidence artificial presumptions, as contradistinguished 
 from the natural inferences and presumptions which a jury would 
 have made by virtue of their own knowledge and experience. 
 Such presumptions are not rules for arriving at the simple truth ; 
 on the contrary, they are frequently used for the very purpose of 
 
 (a?) See tit. Deed. In an original writ -4. having obtained a patent as for a new 
 
 the defendant was described as T.B. of C. invention, but which in fact had been dis- 
 
 in the county of N. ; upon a writ of error covered already, enters into an agreement, 
 
 brought to reverse the outlawry, the errors under seal, with S., permitting him to use 
 
 assigned were, that T. B. was not before, it in a particular manner. In an action on 
 
 or at the time of the original writ, of or the agreement by A. against B. for using 
 
 conversant in C. aforesaid, and that there it in a different manner, B. is not estopped 
 
 was not any town, hamlet, or place of the by his deed from disputing the novelty of 
 
 name of C in that county. Plea to this tlie invention. Hayne v. Maltby, 3 T. R. 
 
 assignment of errors, that plaintiff pro- 438. 
 
 secuted his writ with intent to declare upon {y) See Vol. II. tit. Admissions. 
 a bond made by tlie defendant, by which he Wliere a person assents to an act, and de- 
 was described as T.B. of C. in the county rives and enjoys a title under it, he cannot 
 of N. Held, that tins was an estoppel. impeach it. Rex v. Stacey, 1 T. R. 4. 
 Bonner v. Wilkinson, 6 B. & A. G82. Where a copyholder has been admitted 
 
 The rule that a party is estopped by his to a tenement, and done fealty to a lord of 
 
 deed, does not hold where he is contracting a manor, he is estopped, in an action by the 
 
 for the benefit of the public; thus, as a lord for a forfeiture, from showing that the 
 
 trustee under a public turnpike act, or legal estate was not in the lord at tlie time of 
 
 where to admit it would control a public admittance. Nepeanv.Budden,[>B.&i, A. 
 
 statute. Fail-title, ex. dem. Mytton v. G2G. 
 Gilbert, 2 T. R. 169.
 
 76 ARTIFICIAL evidence: — PRESUMPTIONS. 
 
 Presump- excluding the truth 6n grounds of special legal policy. Their 
 tions. object is to annex particular consequences to certain defined pre- 
 
 dicaments ; in fact, therefore, they are in their operation mere rules 
 of law. 
 
 For instance, the law raises a presumption of title on an undis- 
 puted possession of land for twenty years ; but if from such a pos- 
 session unanswered, title must be presumed, the result is precisely 
 the same as if the law had said at once, that twenty years of 
 adverse possession, unanswered, shall confer a title. 
 
 Such artificial presumptions are of two kinds ; first, those which 
 are made by the law, that is, by the Courts which administer the 
 law, without the aid of a jury ; secondly, such as cannot be made 
 but by the aid of a jury. The former again consist of conclusive 
 presumptions, which, like the presumptions juris et de jure of 
 the civil law, admit of no proof to the contrary, or are simply prts- 
 sumptiones juris, which may be rebutted in fact, or by some other 
 presumption raised by the facts. Thus a deed under seal, where 
 the execution of the instrument stands unimpeached, afibrds con- 
 clusive evidence of consideration (z). 
 
 But although the law will presume or intend, on proof of a fine, 
 that it was levied with proclamations, or that the heir-at-law of 
 one who died seised of an estate was in possession of that estate, 
 yet these are but prima facie presumptions, which may be repelled 
 by actual proof to the contrary. 
 
 Other presumptions, again, which may be termed presumptions 
 in law and fact, are those which are recognized and warranted by 
 law as the proper inferences to be made by juries under particular 
 circumstances ; these, it will be seen, are founded on principles of 
 policy and convenience, and not unfrequently on an analogy to 
 express rules of law. Thus, in the instance above mentioned, a 
 jury would be warranted in presuming, and even directed to pre- 
 sume a right, from evidence of an adverse and uninterrupted enjoy- 
 ment of lands for twenty years, in analogy to the provisions of 
 stat. 21 Jac. 1 ; although if the jury did not infer the right from 
 such evidence, the Court could not do it. 
 
 {z) Vol. II. tit. Presumptions.
 
 ORAL EVIDENCE. ^^ 
 
 OF THE INSTRUMENTS OF EVIDENCE. 
 
 Having thus considered generally the principles which regulate Of thein- 
 the admission of evidence, we are next to consider what are the o/evidence. 
 means and instruments of evidence ; how they are to be procured 
 and used ; their admissibility and effect. These are, first, oral 
 witnesses, examined viva voce in court as to facts within their own 
 knowledge, and in some particular instances, as to what they have 
 heard ; and secondly, written evidence. 
 
 And first, as to oral witnesses. Oral testimony, it is to be Oral evi- 
 remarked, in natural order precedes written evidence. It is in jJatural'^* 
 general more proximate to the fact than written evidence, being priority. 
 a direct communication by one who possesses actual knowledge 
 of the fact by his senses ; whilst written evidence in itself requires 
 proof, and must ultimately be derived from the same source with 
 oral evidence, that is, from those who possessed actual knowledge 
 of the facts. 
 
 Under this head may be considered, 
 
 1st. I'he mode of enforcing the attendance of a witness in 
 
 civil and criminal cases, and his production of writinog 
 
 in his possession. The incidents to his attendance 
 
 and default. 
 
 2dly. Objections in exclusion of his testimony. 
 
 3dly, The mode of examination in chief; cross-examination, 
 
 and re-examination. 
 4thly. The mode of rebutting his testimony. 
 5thly. The mode of confirming his testimony. 
 1st. The mode of enforcing the attendance of a witness in 
 civil and criminal cases, and also of enforcing his production of 
 writings in his possession, and the incidents to his attendance 
 or default. 
 
 1. His attendance upon the trial is enforced by subpcena or 
 habeas corpus, in civil as well as criminal cases, and also in the 
 latter by means of his recognizance. 
 
 The attendance of a witness in civil cases {a) is compelled Compul- 
 sory pro- 
 
 (a) Commissioners of bankrupt had rupts in execution are to be brouglit before ^^^^' ^'^' 
 power to enforce the attendance of wit- them. And now see the stat. 6. Geo. 4, 
 nesses, under the Stat. IJac. 1,0.15, s. 10; c. 16. Under the stat. 1 Jac. 1, c. 15, 
 and by the 49 Geo. 3, c. 121, s. 13, bank- it was not necessary, upon summoning
 
 of witness. 
 
 78 WITNESS — PROCESS. 
 
 Compui- (where the witness is not in custody) by means of a subpoena, 
 ceS on"' which is a judicial writ, commandincr the witness to appear at the 
 witness not trial to testify for the plaintiff or defendant, under pain of for- 
 incusto y. ^^j^j^^ IQO l. in case of disobedience (&). One writ cannot con- 
 tain the names of more tlian four witnesses (c), and must be 
 renewed at every subsequent assizes or sitting, if the cause be made 
 a remanet (d). But although the subpoena contain more than four 
 witnesses, a witness who is served with a subpoena-ticket in court 
 cannot refuse to give evidence (e). A subpoena-ticket, which is a 
 copy of the writ (/), should be made out for each witness, and 
 must be served upon him personally (g), a reasonable time before 
 the day of trial (k). Notice in London, at two in the afternoon, 
 calling upon the witness to attend at the sittings at Westminster 
 the same day, is too sliort (i). 
 
 The service of a ticket is sufficient (7e), but the original should 
 be shown to the witness when the ticket is delivered to him. It 
 is also requisite, in civil cases, to tender to the witness his rea- 
 Expenses sonable expenses, not only of going to attend the trial, but also 
 of his return ; for although he may refuse to be sworn till such 
 expenses be paid, the party may not choose to call him, and he 
 may find it difficult to get home again (^). Where the witness 
 lives within the bills of mortality, it is usual to deliver a shilling 
 with the subpoena-ticket for his attendance in London or at West- 
 minster (m). In other cases the sum tendered should be propor- 
 tioned to the circumstances. Where an attachment is moved for, 
 
 a witness to attend before commissioners (e) Cowp. 846. 
 
 of bankrupts, that bis expenses should have ^y) ^ jg sufficient if the subpoena-ticket 
 
 been tendered {Battie v. Gressley, 8 East, contain the substance of the writ. 6 Mod. 
 
 319); and therefore a warrant issued by grj^. Cro. Car. 540. 
 
 tlie commissioners on account of the non- . ^ m . , . , 
 
 , , , , (fi') To warrant an attachment, niicere, 
 
 attendance of a witness without lawful ^ ''^, , . , . 
 
 . . , . ^ whetlier personal service be necessary m 
 
 impediment, and authorising his arrest, was ' „.,...„ 
 
 , ' ' „ , , ^, , tlie case of an action. Smalt v. WhitimlL 
 legal, and proof of excuse lay on the party 
 
 arrested. lb. 
 
 ib) See the form Tidd's P. App. c. 35, 
 
 8. 16. Tlie Stat. 5 Eliz. c. 9, s. 12, gives (^0 1 Str. 510 ; 2 Str. 1054. 
 
 an additional remedy of 10 Z. to the party i) Hammond \. Stewart, Str. 510. 
 
 grieved. A subpoena to bring a party (^) Goodwin v. West, Cro. Car. 522. 
 
 into contempt for non-attendance, must 54OJ Tl/twMson v. S'/tore, 5 Mod. 355. 
 
 have inserted in the body of it the jAace 
 
 where the cause is intended to be tried, if (^) Cfm^nan v. ?o-mton, 2 Str. 1150; 
 
 at the sittings in London or Middlesex. ^"'^^'- ^- ^'•^"^'''^' ^ ^■^- ^^ ' Halhtty. 
 
 Mihmn V. Day, 3 M.& P. 333. ^^^«'-^' ^^ East, 15; Ex parte Roscoe, 
 
 ( \ C 846 ^ Meriv. 191. The obligation depends on 
 
 Id) Sydmlmm v. Band, T. 24 Geo. 3 ; ^^^ s*^*' ^ ^liz. c. 9. 
 
 Tidd, 723, 3d ed. ; Gillett v. Mawman, (»0 2 Str. 1054 ; Tidd's Pr. 848; 3 Bl. 
 
 T. 47 Geo. 3. C. P. C^""'- 309. 
 
 Str. 1054; Wakefield's Case, Cas. Tem. 
 Hardw. 313.
 
 WITNESS — PROCESS. 79 
 
 the Court will not enter into any nice calculation as to the expense, Exponses 
 but will consider whether the non-attendance originated in obsti- "* ^^'^'"^■'*'** 
 nacy or not (n). If a feme covert be subpoenaed, the tender should 
 be to her, and not to her husband (o). In an action under the 
 statute of Elizabeth, it has been held, that the payment of a 
 shilling, with a promise to pay the witness all further reasonable 
 charges upon his appearance, which the witness accepted, was 
 sufficient (p). The case of a witness bonajide brought over from 
 a foreign country, does not differ in principle from a witness resi- 
 dent in this country; and the expenses in each case of his going 
 to and from the place of trial, and of his residence, are allowed on 
 taxation of costs ((^). 
 
 A witness is not in general entitled to remuneration for loss of 
 time (r). 
 
 A witness in a civil case may maintain an action for his ex- 
 penses, although he has refused to give evidence at the trial because 
 they have not been paid is), or, as it seems, although the cause has 
 not been called on {t); but he cannot recover for loss of time even 
 upon an express assumpsit (u). 
 
 A witness who has been summoned before commissioners of a 
 bankrupt may recover the expenses allowed by the commissioners, 
 although he was a creditor, and the allowance was by parol (x). 
 
 (n) Chapman y. Vointon, Sir. WbQ. Company, 7 Bing. 729; though detahied 
 
 (o) Cro. Eliz. 122; Jon. 430. At all pending an injunction; ib. 13. 
 
 events, it is safer to make the tender to the (5) Hallett v. Mears, 13 East, 15. 
 
 wife than to the husband. 
 
 {p) Cro. Car. 522.540; March, 18. So 
 
 {t) Barrow v. Humphries, 3 B. & A. 
 
 . ^, .^ , . ... •''>08, doubting BJand v. Sivaff'ord, Peake's 
 
 where the witness liavmg received a guinea ,n ^^ o, t, ,, ,, 
 
 ,^ ■, . , J .-, C. GO. See Hallett v. Blears, 13 East, 
 
 with a subpoena, on the defendant s side, ^ _ 
 
 consented to take 1 s. with the plaintiflp's 
 
 subpoena, it was held to be sufficient in an (") ^^^^'* v-PecJiham, I B. & B 515. 
 
 action for not obeying tlie plaintiff's sub- ^^ t^^^ ^^te case of Collins v. Godefroy, 
 
 poena. Betteleij v. M'Leod, 3 Bing. N. C. ^ ^- '^ ^"^^ ^^^' i* ^^^^^ ^''^^'^ *'»»* 'i" ^ttor- 
 
 g()5_ ney, who attended on a subpoena, could 
 
 (9) Tremainey. Faith, 1 Marsh, 563; maintain no action for compensation for 
 
 6 Taunt. 88 ; 4 Taunt. 55. 699. ^°^^ ^^ ^""^5 and an express promise to re- 
 
 (r) Moore v. Adam, 5 Maule & S. 156 ; ^unerate would make no dilTerence, for it 
 
 and Lowry v. Douhledny, there cited; would be without a consideration to support 
 
 Willis V. Peckham, 1 B. & B. 515; Sevei-n ^*- ^"* expenses of subsistence to a sea- 
 
 v. Olive, 3 B. & B. 72. In some instances, ^'»""? '"'^n' t'lo"?^ »« Englishman, liave 
 
 however, such expenses have been allowed >'een allowed. Berry v. Pratt, 1 B. & C. 
 
 to attornies and medical practitioners; 276. The expenses of making scientific 
 
 5 M. & S. 159. But see CoUinsv. Gode- experiments, with a view to evidence, are 
 
 fray, 1 B. & Ad. 950. Where a f )reign "o* allowable. Severn v. Olive. 3 B. & B 
 
 witness would not attend witliout being ''^' 
 
 paidforlossof time, the costs were allowed; (x) YarJter v. Botham, 1 Esp. C. 65; 
 
 Lonergan v. Royal Exchange Assurance under the stat. 1 Jac. 1, c. 15, s. 10.
 
 80 
 
 WITNESS 
 
 Expenses 
 of witness. 
 
 Conse- 
 quence of 
 disobe- 
 dience. 
 
 The summary remedy given to witnesses by the stat. 53 Geo. 3, 
 is not hmited to witnesses summoned for the petitioner, but ex- 
 tends to costs and expenses becoming due from the sitting 
 Member as well as the petitioner. The certificate of the Speaker 
 is conclusive as to the proof of the witness having been sum- 
 moned (y). 
 
 If a witness wilfully neglect to attend upon the subpoena, he is 
 guilty of a contempt of Court, for which he is liable to an attach- 
 ment (^r). He is also liable to damages at common law, in an 
 action on the case by the party injured (a); and lastly, by the 
 stat. 5 Eliz. c. 9, s. 12, he shall forfeit for such offence 10 L, and 
 yield such further recompense to the party grieved as, by the dis- 
 cretion of the Court out of which the process shall issue, shall be 
 awarded (h). The most usual mode of proceeding is by attach- 
 ment, in which case an affidavit of personal service is necessary, 
 and of the payment or tender of reasonable expenses (c). 
 
 {y) Magreave v. White, 8 B. & C. 412. 
 
 (2) 1 Str. 510; 2 Str. 810. 1054. 1150; 
 Cowp. 386; Doug. 561. 
 
 (a) Doug. 661. It has been said that 
 no action lies unless the cause were called 
 upon, and the jury sworn; Bland v. 
 Stoafford, Peake's C. 60; but qu. and see 
 the observations of the Court in the case 
 of Barrow v. Humphnes, 3 B. & A. 
 598. 
 
 (ft) In an action to recover the ten 
 pounds, the plaintiff must set forth 
 special damages; Cro. Car, 522. 540; 
 Goodwin v. West, Jon. 430 ; 6 Mod. 355 ; 
 for unless there be a party grieved there 
 is no cause of forfeiture. Aliter, Cro. 
 Eliz. 130; Leon. 122. An action will not 
 lie for further recompense unless it has 
 been assessed by the Court out of which 
 the process issues ; neither the Judge nor 
 the jury at Nisi Prius are competent to 
 do it. Pearson v. lies, Doug. 556. 
 
 (c) Chapman v. Pointo7i, 2 Str. 1150. 
 It seems that an attachment will be 
 granted by the Court of C. P. as well as 
 by the Court of K. B. ; but that the prac- 
 tice was formerly confined to the Court 
 of K. B. See Str. 1150 ; Barnes, 33. 497 ; 
 Ld. Raym. 1528; 1 H. B. 49; 5 Taunt. 
 260. The Court will not grant an attach- 
 ment unless a clear case of contempt be 
 made out, and everything has been done 
 which was necessary to call for his attend- 
 
 ance. Garden v. Cresstcell, 2 M. & W. 
 319. An attachment has been refused 
 where the whole of the expenses of the 
 journey, and of the necessary stay at the 
 place of trial, were not tendered at the 
 time of serving the subpoena {Fuller v. 
 Prentice, 1 H. B. 49). So where, the 
 witness living at the distance of thirty- 
 four miles from the assize town, the ex- 
 penses were not tendered to him till the 
 evening before the trial {Home v. Smith, 
 G Taunt. 9). So where the witness, in the 
 course of the third day's attendance, left 
 the court to attend to urgent business of 
 his trade, although the consequence was 
 a nonsuit; no notice having been given him, 
 when the subpoena was served, when the 
 trial would come on {Blaiidford v. De 
 Tastef, 5 Taunt. 260) ; even although the 
 witness was induced to leave court by the 
 representations of the defendant's attorney. 
 A witness is guilty of a contempt of 
 Court in not attending at the assizes under 
 a subpoena, although the jury have not 
 been sworn. Mullet v. Hunt, 1 Cr. & 
 M. 752; and even although cause be 
 not called on. Barroio v. Humphries, 
 3 B. & A. 598, P. C. doubting the case of 
 Bland v. Swafford, Peake's C. 60. If it 
 appear from the notes of the Judge upon 
 the trial, or by affidavit, that the testi- 
 mony of the witness could not have been 
 luatcrial, an attachment will not be
 
 ATTENDANCE OF — HABEAS CORPUS. 81 
 
 Where the witness is in custody, his testimony is obtained by wiiere wit- 
 means of a habeas corpus ad testificandum, which was grantable "ustody." 
 at the discretion of the Courts at common law {d) : and by the 
 Stat. 44 Geo. 3, c. 102, any Judge of the Courts of King's Bench 
 and Common Pleas in England or Ireland, or any Baron of the 
 Court of Exchequer of the degree of the coif in England, or any 
 Baron of the Court of Exchequer in Ireland, or any Justice of Oyer 
 and Terminer, or gaol delivery, being such Judge or Baron, may 
 at his discretion award a writ or writs of habeas corpus for bring- 
 ing up any prisoner or prisoners detained in any gaol or prison, 
 before any of the said Courts, or any sitting of Nisi Prius, or before 
 any other court of record in the said parts of the said United 
 Kingdom, to be examined as a witness, &c. in any cause or causes, 
 matter or matters, civil or criminal, depending or to be inquired 
 into or determined in any of the said courts (e). 
 
 An application for such writ, either to the Court or to a 
 Judge (/), must be accompanied by an affidavit of the applicant, 
 stating that the witness is a material one (g) ; and if he be at a 
 great distance, the affidavit should further show the materiality (h). 
 It is said (i) that the affidavit should also state that the witness is 
 willing to attend; and this appears to be necessary where the 
 witness is not a prisoner, as in the case of a seaman on board a 
 
 granted. Dieas v. Lawson, 1 Cr. M. & R. and brought up on a habeas corpus for tlie 
 
 934. Where the attorney, not expecting purpose of being examined as a witness in 
 
 the cause to be called on, gave the witness a civil suit. Leigh v. Slierry, 2 Moore, 
 
 leave to depart until the next day, and in 33. 
 
 the meantime the cause was called on, (e) Previous to this statute it was the 
 
 an attachment was refused. Furrah v. usual practice for the Courts to award 
 
 Keate, 6 Dowl. 470. The affidavit should this writ upon motion, accompanied with 
 
 state that the writ was shown to the a proper affidavit. By the stat. 43 G. 3, 
 
 witness at the time of service. Garden c. 140, a Judge of any of the courts at 
 
 v. Cresswell, 2 Mee. & W. 319. Westminster may at his discretion award 
 
 The affidavit to found an attachment in a writ of habeas corpus for bringing a 
 
 the P. C. must state that the witness was prisoner detained in any gaol in England 
 
 duly called at the trial. Malcolm v. Kay, before a court-martial, or before commis- 
 
 3 Moore, 222. It seems that the name of sioners of bankrupt, commissioners for 
 
 the witness, inserted in the copy of the auditing public accounts, or other com- 
 
 subpoena at the time of service, may be missioners acting by virtue of any royal 
 
 inserted in the original writ of subpoena commission or warrant, 
 
 when the witness is called. Wahefield v. (/) The application ought, it seems, 
 
 Gall, Holt's C. 526, cor. Gibbs, C. J. to be made to a Judge at chambers. 
 
 {d) See Tidd's Pr. 858 ; Ex parte Gordon's Case, 2 M. & S. 582. 
 
 TiZio^sow, 1 Starkie's C. 470. The Court (</) Cowp. 672; Peake's Ev. 192, 3, 
 
 of Common Pleas refused to grant an order 4th ed. ; Fortescue, 396 ; 4 State Tr. GU(i 
 
 to commit a prisoner to the custody of tlie Thiley v. Porter, 5 Dowl. 744. ' 
 
 warden of the Fleet, who had been charged (/<) Tidd's Pr. 4th ed. 724. 
 
 in custody of the sheriff upon an extent, (i) Peake's Ev. 201 ; Tidd's Pr. 724. 
 
 VOL. I. G
 
 82 
 
 WITNESS : 
 
 When 
 granted. 
 
 In criminal 
 
 cases, wit- 
 nesses for 
 the prose- 
 cution. 
 
 man of war, for lie cannot be l)rought up as a prisoner without 
 his consent (/f); and therefore in sucli case it should appear that 
 the witness has been served with a subpoena, and is willing to 
 attend (Z). 
 
 This writ will not be granted to bring up the body of a prisoner 
 of war {m) ; and he cannot be brought up without an order from the 
 Secretary of State ; and the writ was refused where it appeared to 
 be a mere contrivance in order to remove a prisoner in execution {n). 
 If the Court make a rule, or the Judge grant his fiat, the writ is 
 sued out, signed and sealed, and is left with the sheriff, or other 
 officer in whose custody the witness is, who will bring him up on 
 being paid his reasonable charges (o). When the attendance of a 
 material witness cannot be procured, either in a civil or criminal 
 proceeding, the usual course is, either to move to put off the 
 trial (j9), or to examine him upon interrogatories (5-). 
 
 The compulsory process in criminal cases is, first, by means of 
 a subpoena issued in the King's name by the Justices of the court 
 in which the offence is to be tried (r) ; the more usual course is, 
 secondly, for the justices or coroners who take the informations, 
 examinations and depositions, to bind the witnesses under the 
 statute of 7 G. 4, c 64, s. 2, by recognizance, to appear at the 
 next gaol delivery or quarter sessions to give evidence (s). The 
 j ustices {t) may take these recognizances at any time before the 
 
 (Ji) Hex V. Rodham, Cowp. 672. 
 
 {l) lb. ; but this seems to be unnecessary 
 where the party is an actual prisoner ; for 
 there is no reason wliy he should not be 
 compelled to attend as well as a person 
 who is at large, or for allowing him, be- 
 cause he is a prisoner, to deprive a party 
 of the benefit of his testimony. 
 
 (w) Furley v. Neionliam, Doug. 419; 
 6 T. R. 497 ; 7 T. R. 745. 
 
 {n) 3 Burr. 1440. 
 
 (0) Tidd, 726; 1 Cromp. 248. Qu. 
 whether the officer may require an indem- 
 nity? He would be liable for an escape if 
 he brought up a prisoner in execution for 
 debt without such a writ. R. v. Eliz. 
 Cellier, 3 St. Tr. 97; R. v. Sir John 
 Friend, 4 St. Tr. 599. 
 
 {j}) See below, tit. Trial. 
 
 ((/) Vid. infra, Depositions. 
 
 (/•) R. V. Ring, 8 T. R. 585 ; see ib. as 
 to the form of the affidavit in moving for 
 an attachment. Where the witness re- 
 sides beyond the jurisdiction of the court, 
 
 a subpoena may be issued from the crown- 
 office; ib. Disobedience of a subpoena 
 issued by the court of quarter sessions is 
 not a ground of attachment for a contempt. 
 R. V. Broimell, 1 Ad. & E. 602. 
 
 (s) 2 St. Tr. 580 ; 4 St. Tr. 37 ; Dalt, 
 J. Ill ; 4 Comm. 359; 2 Haw. c. 46, 
 s. 17. 
 
 (t) Magistrates cannot in general en- 
 force the attendance of witnesses except in 
 cases of felony, where a prisoner is brought 
 before them on suspicion of felony ; for in 
 such cases the stat. 2 & 3 of Ph. & M. 
 c. 10, (and now the st. 7 G. 4, c. 64, s. 2), 
 wliich requires them to take the examina- 
 tions of those who bring the prisoner, inci- 
 dentally gives them a power to examine 
 witnesses upon oath, and to enforce the 
 attendance of material witnesses. Bennett 
 V. Watson, 3 M. & S. 1; Dalt, J. c. 6 ; 
 Lamb. 517; 12 Rep. 131. See the stat. 
 15 Geo. 3, c. 39. 
 
 By particular statutes courts of various 
 jurisdictions have power given them to
 
 ATTENDANCE OF EXPENSES. 83 
 
 trial ; and if tlie witness refuse to enter into such recognizance, In criminal 
 the justice or coroner may connnit hiui, or bind him to liis good ^^**'^^' 
 behaviour, and to appear at the next gaol delivery or quarter 
 sessions of the peace («). Where a feme covert, having given 
 evidence l)efore a magistrate in a case of i'elony, refuses to attend 
 at the trial, or to find sureties, the justice may commit her (a;). 
 If the witness cannot find sureties, the justice ought to take his 
 own recognizance ; it would in such case be illegal to commit the 
 witness (y). In proceedings before the justices of the peace at 
 their quarter sessions, whose jurisdiction does not extend beyond 
 the county for which they act, in order to procure the attendance 
 of a witness who resides in another county, the process is issued 
 from the crown-office {z.) Where an offender who has escaped 
 from one part of the United Kingdom is tried in another, under the 
 stat. 13 Geo. 3, c. 31, and 44 Geo. 3, c. 92, and in general by 
 virtue of the stat. 45 Geo. 3, c. 92, s. 3, service of a subpoena on a 
 witness in one part of the United Kingdom to give evidence in a 
 criminal prosecution in another part, is as effectual as if the 
 witness had been served with the subpoena in that part of the 
 United Kingdom where he is required to appear, and upon default, 
 notified by a certificate under the seal of the court whence the 
 subpoena issued, to the Court of King's Bench in England or 
 Ireland respectively, or of the High Court of Justiciary in Scotland, 
 he is liable to be punished as for a contempt of the process of 
 those courts respectively. By the express provision of the latter 
 statute (sec. 4), the witness cannot be punished for a default, un- 
 less the reasonable expenses of coming and attending to give 
 evidence, and of returning, have been tendered to him (a). In other 
 cases the witness is bound to obey the writ, or to perform the 
 condition of his recognizance, although no expenses have been 
 tendered to him (Z*) ; for the calls of justice are paramount to all 
 
 enforce tlie attendance of witnesses. Com- (y) Per Graham, B. Bodmin Summer 
 
 missioners of banlcrupt, by the stat. 1 Assizes, 1827. 
 
 Jac. 1, c. 15, s. 10, and see tlie stat. (z) See R, v. limg, 8 T. R. 58o. 
 
 5 G. "2, c. 30, s. 6, and 49 G. 3, c. 121, (a) The provision is confined to cases 
 
 B. 13, and the late st. 6 G. 4, c. 16, s. 33, where the witness making default is out 
 
 infra, 80. Courts martial, by the stat. of the jurisdiction of the court to which 
 
 55 G. 3, c. 108, s. 28. Commissioners of the certificate is transmitted. R. v. Broio- 
 
 inclosure, by stat. 41 G. 3, c. 109, s. 33, nell, 1 Ad. & Ell. 602 ; and it does not 
 
 34. apply to a subpoena from the quarter scs- 
 
 (m) 2 Hale, P. C. 52. 282; Dalt, J. Ill ; sions. lb. 
 
 Bemictt V. Watson, 3 M. & S. 1 ; Haw. {h) 2 St. Tr. 124; Rex v. Lore, 1 
 
 b. 2, c. 8, s. 58, and c. 16, s. 2. Burn's J. 533. 
 
 (.r) Bennett v. Watsov, 3 M, & S. 1. 
 
 G 2
 
 84 
 
 WITNESS 
 
 In criminal private considerations and claims (c). In cases of felony, the 
 cases. Legislature has made provision for the expenses of the prosecution 
 
 and witnesses {d). 
 
 (c) Hawk. b. 2, c. 4G, s. 173; 2 Hale, 
 282. R. V. Cooke, 1 Cam & P. 321 ; 
 and see a MS. case to the same effect 
 cited in Burn's J. by D'Otjly & Williavi^, 
 vol. 1, p. 1076. In the former of these 
 cases the witness was called by the de- 
 fendant. It is the common practice in 
 criminal cases for the Court to direct the 
 witness to give his evidence, notwithstand- 
 ing his demurrer on the ground that his 
 expenses have not been paid. Some doubt 
 has been expressed on the subject (Chitty's 
 Crim. Law, vol. 1, 612), on account of the 
 provision for payment of expenses by the 
 Stat. 45 G. 3, c. 92, s. 3. It seems, how- 
 ever, to be without foundation: if, in 
 general, a witness were entitled to his 
 expenses in a criminal as well as in a civil 
 case, the clause in that statute for payment 
 of such expenses would have been unne- 
 cessary. A witness subpoenaed to give 
 evidence in a different part of the United 
 Kingdom, would usually be placed under 
 greater difficulty, and subject to a greater 
 expense, than in ordinary cases. 
 
 (d) The Stat. 18 Geo. 3, c. 19, s. 8, has 
 directed, that where any person shall ap- 
 pear, on recognizance or subpoena, to give 
 evidence as to any grand or petit larceny, 
 or other felony, whether any bill of indict- 
 ment be preferred or not, to the grand 
 jury, it shall be in the power of the court, 
 provided the person shall, in the opinion of 
 the court, have bonA fide attended in obe- 
 dience to such recognizance or subpoena, 
 to order the treasurer of the county, &c. to 
 pay him such sura as to the court shall 
 seem reasonable, not exceeding the ex- 
 penses which it shall appear to the court 
 the said person was boruL fide put unto by 
 
 reason of such recognizance and subpoena 
 making a reasonable allowance, in case he 
 shall appear to be in poor circumstances, 
 for trouble and loss of time. See also the 
 statutes 25 Geo. 2, c. 36 ; 27 Geo. 2, c. 3, 
 s. 3. The latter of these/ statutes extends 
 to those cases only where the witness was 
 bound by recognizance to appear. These 
 statutes are conlined to cases of felony. 
 It. V. Justices of the West Riding of Yorh- 
 sJiire, 7 T. R. 377. 
 
 By the statute 58 Geo. 3, c. 70, s. 4, the 
 court before which any person is prosecuted 
 or tried for any grand or petit larceny or 
 other felony, may order the sheriff or trea- 
 surer of the county to pay to the prosecu- 
 tor, or any other person who shall be bound 
 to prosecute or give evidence, &c. or who 
 shall be ubpoenaed to give evidence, and 
 who shall appear to give evidence, or who 
 shall appear to the said court to have been 
 active in the apprehension of any person or 
 persons accused of any of the offences spe- 
 cified in the several Acts recited in the 
 statute,* as well the costs, charges and ex- 
 penses which the prosecutor shall be put to 
 in preferring the indictment or indictments 
 against the person or persons so accused 
 as also such sum and sums of money as to 
 the said court shall seem reasonable, to 
 reimburse such prosecutor and witnesses, 
 person or persons, so concerned in such 
 apprehensions as aforesaid, for the expenses 
 they shall have been severally put to in 
 attending before the grand jury to prefer 
 such indictment or indictments, and in 
 otherwise carrying on such prosecution ; 
 and also to compensate such prosecutor 
 and witnesses, and person or persons, in 
 such apprehension as aforesaid, respec- 
 tively. 
 
 * The recited Acts are 4 W. & M. c. 8, relating to highway robberies ; 6 &: 7 W. 3, 
 c. 17, relating to the counterfeiting of coin; 10 & 11 W. 3, c. 2.3, to burglaries, house- 
 breaking, robbing in shops, &c. ; 5 Ann. c. 31, to house-breakers; 14 Geo. 2, c. 6, to the 
 stealing and destroying sheep and other cattle; and 15 Geo. 2, c. 18, to the uttering of 
 counterfeit coin.
 
 ATTENDANCE OF FOR DEFENDANTS, 
 
 85 
 
 At common law, a defendant in capital cases had no means of Witnossfor 
 compelling the attendance of witnesses on his behalf without a 
 
 ill criiiiiiial 
 
 cases. 
 
 tivply, for tlicir loss of time and trouble in 
 such ai>i)rcliensiou and j)rosecution us afore- 
 said. 
 
 By sec. 8, no person shall be entitled to 
 any such costs or expenses for attendinf^ 
 the court, unless he shall have been bound 
 by recognizance, or have previously re- 
 ceived a subpoena to attend, or a written 
 notice for that purpose from the prose- 
 cutor, his agent, or attorney. 
 
 By the stat. 7 Geo. 4, c. 64, it is enacted, 
 tliat the court before which any person 
 shall be prosecuted or tried for any felony, 
 is hereby authorized and empowered, at 
 the request of the prosecutor, or of any 
 other person who shall appear on recog- 
 nizance or subpoena to prosecute or give 
 evidence against any person accused of 
 any felony, to order payment unto the 
 prosecutor of the costs and expenses 
 which such prosecutor shall incur in pre- 
 ferring the indictment, and also payment 
 to the prosecutor and witnesses for the 
 prosecution, of such sums of money as the 
 court shall deem reasonable and sufficient 
 to reimburse such prosecutor and wit- 
 nesses for the expenses they shall have 
 severally incurred in attending before the 
 examining magistrate or magistrates or 
 grand jury, and in otherwise carrying on 
 such prosecution, and also to compensate 
 them for their trouble and loss of time 
 therein; and although no bill of indict- 
 ment be preferred, it shall still be lawful 
 for the court, where any person shall, in 
 the opinion of the court, bonil Jide have 
 attended the court in obedience to any 
 such recognizance or subpoena, to order 
 payment unto such person of such sum of 
 money as to the court shall seem reason- 
 able and sufficient to reimburse such per- 
 son for the expenses which be or she shall 
 have honit fide incurred by reason of 
 attending before the examining magistrate 
 or magistrates, and by reason of such 
 recognizance or subpoena, and also to 
 compensate such person for trouble and 
 loss of time ; and the amount of the ex- 
 penses for attending before the examining 
 magistrate or magistrates, and the com- 
 pensation for trouble and loss of time 
 
 therein, sliall he ascertained by the cer- 
 tificate of such magistrate or magistrates, 
 granted before the trial or attendance in 
 court, if such uuigistrate or magistrates 
 shall think fit to grant the same ; and tlio 
 amount of all the other expenses and 
 compensation shall be ascertained by the 
 proper officer of the court, subject never- 
 theless to the regulations to be established 
 in the manner hereinafter mentioned. 
 
 Sec. 23. That where any prosecutor or 
 other person shall appear before any court 
 on recognizance or subpoena to prosecute 
 or give evidence against any person in- 
 dicted of any assault with intent to commit 
 felony, of any attempt to commit felony, 
 of any riot, of any misdemeanor for receiv- 
 ing any stolen property, knowing the same 
 to have been stolen, of any assault upon 
 a peace officer in the execution of his duty, 
 or upon any person acting in aid of such 
 officer, of any neglect or breach of duty as 
 a peace officer, of any assault committed 
 in pursuance of any conspiracy to raise the 
 rate of wages, of knowingly and design- 
 edly obtaining any property by false pre- 
 tences, of wilful and indecent exposure of 
 the person, of wilful and corrupt perjury, 
 or of subornation of perjury, every such 
 court is hereby authorized and empowered 
 to order payment of the costs and expenses 
 of the prosecutor and witnesses for the 
 prosecution, together with a compensation 
 for their trouble and loss of time, in the 
 same manner as courts are hereinbefore 
 authorized and empowered to order the 
 same in cases of felony; and although no 
 bill of indictment be preferred, it shall still 
 be lawful for the Court, where any person 
 shall have bouii fide attended the Court in 
 obedience to any such recognizance, to 
 order payment of the expenses of such 
 person, together with a compensation for 
 his or her trouble and loss of time, in the 
 same manner as in cases of felony; pro- 
 vided, that in cases of misdemeanor the 
 power of ordering the payment of expenses 
 and compensation shall not extend to the 
 attendance before the examining magistrate. 
 On an indictment for a felony, re- 
 moved by certiorari and tried at Nisi 
 G 3
 
 riiptcy. 
 
 86 witness: 
 
 For dp- special order from the Court ; and if they attended voluntarily, 
 they could not be sworn (e). But in cases of misdemeanor a defen- 
 dant might always take out subpoenas as of course (/). By the 
 statute 7 Will. 3, c. 3, s. 7, it was provided, that defendants, m case 
 of treason, should have the same process to compel the attendance 
 of witnesses for them as was granted to compel witnesses to 
 appear against them ; and ever since the statute 1 Ann. 2, c. 9, 
 s. 3, which provides that witnesses for the prisoner, in cases of 
 treason or felony, shall be sworn in the same manner as the wit- 
 nesses for the Crown, and be subject to the same punishment for 
 perjury, the process by subpoena is allowed to defendants in 
 cases of felony, as well as in other instances {g) ; and consequently, 
 as the law now stands, a witness who refused, after being sub- 
 poenaed to attend, to give evidence for a defendant in a criminal 
 case, would be liable to an attachment for a contempt of court {h). 
 In iiaiik- By the stat. 6 Geo. 4, c. 16, s. 33, commissioners of bankrupt 
 
 may summon before them any persons whom they believe to be 
 capable of affording information concerning the trade, dealings or 
 estate of the bankrupt, and in default they may order the party 
 summoned to be apprehended. Every such witness is entitled to 
 have his expenses tendered him (i). 
 
 Where magistrates are authorised by a statute to hear and 
 determine, or to examine witnesses, they have, incidentally, autho- 
 rity to summon witnesses, and take the examination on oath (k). 
 
 In the case of a reference to arbitration by rule of Court, or by 
 a Judge's order or agreement to make the submission a rule of 
 Court, the Court making such rule or order, or any Judge, may 
 direct the attendance of a witness to be examined before the 
 arbitrator on the production of any document, by the statute 3 &: 4 
 Will. 4, c. 42, s. 11. 
 
 Commissioners of inclosure, under the statute 41 Geo. 3, c. 109, 
 ss. 33, 34, have power to summon in writing any person within a 
 certain distance to appear before them to be examined, and if the 
 party summoned refuse to appear, he will be liable to a penalty. 
 
 Prius, neither the Court nor the judge (e) 2 Haw. c. 46, s. 170; Bex v. Turner, 
 
 who tried it has power to award costs to 2 State Tr. 505 ; 1 State Tr. 969; 3 State 
 
 the prosecutor, under the above Statute. Tr. 1002. 
 
 Rex V. Exeter Co. Treas. 5 M. & Ry. 167. (/) 2 Haw. c. 46, s. 170; 1 State Tr. 
 
 By the statute 1 Vict. c. 44, the power to 969; 2 State Tr. 238. 252. 450. 
 
 grant costs is extended to the case of (g) 2 Haw. c. 46, s. 172. 
 
 a misdemeanor in concealing the birth of (h) Even, as it seems, although his ex- 
 
 a child. By the statute 6 & 7 Will. 4, penses had not been paid or tendered, vide 
 
 c. 89, and 1 Vict. c. 68, provision is made supra, 83. 
 
 for the expenses of medical and other wit- (i) 6 G. 4, c. 16, s. 35. 
 
 ncsses attending on coroners' inquests. (A) I-amb, 517; Dultou's, J. c. 6.
 
 ATTENDANCE — SUBPCEN A DUCES TECUM. 
 
 S7 
 
 Witnesses also being duly summoned to attend on Courts Martial, 
 are, by the statute 55 Geo. 3, c. 108, s. 28, liable, on neglect to 
 attend, to attachment in the Court of King's Bench, as in case of 
 neglect to attend a trial on a criminal proceeding in that Court. 
 
 Where either party cannot safely proceed to trial on account of ProcceiUng 
 the absence of a material witness, the proper course is to move ^!'^^^ *''** 
 
 ' . . witness 
 
 the Court in term time, or to apply to a Judge in vacation, or to caunot be 
 the Judge at the sittings, on a proper affidavit, to put off' the P'""'^"''^ • 
 trial (Z). 
 
 Where a witness is resident abroad, or is going abroad, the 
 proper course is to apply to the Court to have him examined on 
 interrogatories (m). 
 
 Where an instrument is in the hands of a third person, the Subpojna 
 production is compelled by means of a writ of subpcena duces tecum. 
 tecitm (n). 
 
 By this writ the witness is compellable, it seems, to produce 
 all documents in his possession, unless he have a lawful or rea- 
 sonable excuse to the contrary (o). Of the validity of the excuse 
 
 (/) This is granted by the Court where 
 it appears that injustice would be done by- 
 refusing the application, and that tlie 
 party who applies has conducted himself 
 fairly. In some instances it has been 
 refused even to a defendant, where it ap- 
 peared that he intended to set up a de- 
 fence which, though legal, is not favoured, 
 as that the plaintiff is an alien {Bobinson 
 V. Smyth, 1 B. & P. 454) ; or even to give 
 the defendant an opportunity which he has 
 lost by his neglect of applying to a court 
 of equity for a commission {Calliard v. 
 Vaufjhan, 1 B. & P. 212); so, in general, 
 where the applicant has been guilty of im- 
 proper delay {Saunders v. Pitman, 1 B. & 
 P. 53). Such a rule will not be granted 
 to a defendant after pleading a sham plea, 
 unless he will pay the money into court. 
 Tidd's Pr. 831. 
 
 An application to put off the trial to 
 a future sittings will not be granted at the 
 iustance of the plaintiff, because he may 
 withdraw his record ; but when, in conse- 
 quence of some sudden indisposition or 
 accident, a witness is unable to attend, 
 but is likely to be able to do so before the 
 sittings are over, the Judge will usually 
 make an order that the cause shall stand 
 over. Anshij v. Birch, 3 Camp. C. 333. 
 In the Court of Common Pleas a trial 
 
 cannot be put off by consent of the defend- 
 ant, the plaintiff must either proceed to 
 trial or withdraw the record. 2 Taunt. 
 221. 
 
 Where a defendant makes the applica- 
 tion at Nisi Prius, the course is to give 
 notice to the plaintiff's attorney, with a 
 copy of the affidavit, which, where the 
 defendant is abroad or out of the way, may 
 be made by his attorney or a third person. 
 Peake's C. 97. The affidavit should state 
 that the person is a material witness, 
 without whose testimony the defendant 
 cannot safely proceed to trial ; that he has 
 endeavoured to procure him to be sub- 
 poenaed, and expects to procure his future 
 attendance. See Tidd's App. 312. 
 
 (m) Infra, Written Evidence. — 
 Index, tit. Examination on Interro- 
 
 G.\TORIES. 
 
 (w) From the entries cited in the case 
 of Amey v. Long (9 East, 473), it appears 
 that this writ has in fact been used from 
 the time of Charles the Second ; but so 
 necessary is the power of compelling the 
 production of documents in the possession 
 of third persons, that the means of doing it 
 must have been coeval with the courts of 
 law. See Appendix. 
 
 (o) Amey v. Loyuj (9 East, 473), wliere 
 if was held that an action lay against 
 
 G 4
 
 86 
 
 WITNESS : 
 
 Subpoena 
 
 duces 
 
 tecum. 
 
 the Court, and not the witness, is to judge {p). As evei*y man 
 is, in furtherance of justice, bound to disclose all the facts within 
 his knowledge which do not tend to his crimination, upon the 
 very same principle he is also bound to produce such documents 
 as are essential to the discovery of truth and the great ends of 
 justice. But as he is protected from answering questions, the 
 answers to which may subject him to penal responsibility, so he 
 is not compellable to produce any document in his possession, 
 where the production would be attended witli similar conse- 
 quences l^'). 
 
 There seems, however, in one respect, to be a distinction be- 
 tween the compelling a witness to answer a question orally, and 
 the obliging him to produce a written document. He must 
 answer questions, although the answer may render him civilly 
 responsible ; but it seems that he is not compellable to produce 
 title-deeds, or any other documents which belong to him, where 
 the production might prejudice his civil rights. And this is, as 
 it seems, a rule of legal policy founded upon a consideration of 
 the great inconvenience and mischief to individuals which might 
 and would result to them from compelling them to disclose their 
 titles, by the production of their title-deeds or other private 
 documents (r). 
 
 a sheriff's bailiff for not producing a war- 
 rant under which he acted in obedience to 
 a writ of subpoena in a former action, in 
 consequence of whicli the plaintiff was 
 nonsuited ; and it was held that his ability 
 to produce the warrant, and his want of 
 just excuse for not producing it, are suffi- 
 ciently alleged by stating that he could 
 and might, in obedience to the said writ 
 of subpoena, have produced at the trial the 
 said warrant, and that he had no lawful 
 or reasonable excuse or impediment to the 
 contrary. An attorney in possession of 
 a deed to which he is an attesting witness, 
 and on which he has a lien, will not be 
 compelled by the Court to produce it ; the 
 mode of proceeding is by subpoena duces 
 tecum, as in any other case. Bushe v. 
 Leiois, 6 Mad. 29. 
 
 Where three of four defendants have 
 suffered judgment by default, one of the 
 three may be subpoenaed to produce a 
 deed. Colles v. Smith, 4 Bing. N. S. 285 ; 
 6 Dowl. 239. 
 
 {p) Amey v. Long, 9 East, 473. Field 
 V. Beaumont, 1 Swans. 209. 
 
 (</) See Whitaker v. Izod, 2 Taunt. 
 115. In the King v. Dixon (3 Burr. 
 1687), an attorney had been served with 
 a subpana duces tecum to produce certain 
 vouchers, which his client, Mr. Peach, had 
 produced and relied upon before a master 
 in Chancery, in order to found a prosecu- 
 tion for forgery against his client ; and it 
 was held that he was not bound to produce 
 them. 
 
 (y) In general, a plaintiff has no right 
 to the production of a deed not connected 
 with his own title, and which gives title to 
 the defendant (Sampson v. Sweetenham, 
 5 Madd. 16); and the Court will not 
 compel an inspection where the parties 
 have an adverse interest. Threlfal v. 
 Webster, 1 Bing. 161. 
 
 In Miles v. Daicson (1 Esp. C. 405), 
 which was an action of trespass for seizing 
 the plaintiff's ship, Lord Kenyon, in 
 analogy to the practice of the Court of 
 Chancery, would not compel a witness 
 (who was called to prove that he had 
 seized the ship under a written authority
 
 SUBPCENA DUCES TECUM. 
 
 80 
 
 The same principle applies where the document is in the Subpa>na 
 hands of an attorney ; he will not be compelled to produce ^^^^^^^ 
 it to be read where the disclosure would be prejudicial to his 
 client (s). 
 
 from tlie defendant) to produce the power 
 of attorney under which he had acted. 
 
 In Bnteson v. Hartsinhe (4 Esp. C. 43)> 
 in an action on a bill of exchange, where 
 one of the defendants pleaded his bank- 
 ruptcy and certificate, and the plaintiff 
 sought to impeach the certificate, Lord 
 Kenyon held that the solicitor under the 
 commission was not bound to produce the 
 proceedings ; they were not his papers, 
 but those of his clients. 
 
 In the case of James Laing v. Barclay 
 (3 Starkie's C. 38), Abbott, C. J. held that 
 the solicitor to the assignees under a com- 
 mission of bankruptcy against George 
 Laing, and who had been served with 
 a subpana duces tecum by the plaintiff to 
 produce the proceedings under the com-> 
 mission, was justified in refusing to pro- 
 duce them, an action being then pending 
 against the same defendants, in which his 
 clients were plaintiffs. 
 
 In the case of Hanis v. Hill (3 Starkie's 
 C. 140), his Lordship also ruled, that 
 a solicitor to the Manchester Waterworks 
 Company was not bound to produce a 
 deed of composition between the company 
 and their creditors, the production of which 
 would, he apprehended, be prejudicial to 
 his clients. 
 
 So where a witness was called to produce 
 a deed which he held as a security, ob- 
 jected to produce it, as affecting his 
 interest, Abbott, L. C. J. refused to compel 
 liim. Schlenlter v. Moxey, 3 B, &; C. 
 789 ; 5 D. & R. 747 ; and 1 Carr. 
 178. 
 
 Where a defendant had worked coal- 
 mines without interruption, under a special 
 agreement, and on an action on the agree- 
 ment the defendant called a trustee, who 
 had been served with a suhpcBua duces 
 tecum, to produce the deeds under which 
 he held the legal estate, in order to show 
 that the plaintiff had no longer any legal 
 title, Richards, C. B. held that he could 
 not be compelled to produce them. Ro- 
 berts V. Simpson, 2 Starkie's C. 203. 
 
 And in general the Court will not in any 
 
 case compel a party to produce his title- 
 deeds, where the production can occasion 
 any prejudice to him (Pickering v. Noyes, 
 
 1 B. & C. 26-2) ; and the Court will not 
 make an order for the production of deeds 
 but where they have been deposited with 
 the holder as a trustee for others only, or 
 as a trustee for others jointly with himself 
 (ibid.); where the Court observed, that 
 parties are never compelled to produce 
 their title-deeds ; that if a suhposna duces 
 tecum be served, the party must bring his 
 deeds ; but that if he state that they are 
 his title-deeds, no Judge will compel him 
 to ])roduce them. Where in an action of 
 covenant an attorney who held the deed 
 for a third person objected to produce it, 
 held that he was not compellable to do so 
 but that the party might give secondary 
 evidence of its contents, and the Court 
 would not presume that there was a coun- 
 terpart. Ditcher v. Kenrich, 1 Carr. 
 ICl. 
 
 A witness is compellable, on cross- 
 examination by interrogatories, to produce 
 letters relating to the subject interrogate, 
 and not stated by the witness (an attorney) 
 to be relative to confidential matters of 
 any other sort. Atkinson v. Atkinson, 
 
 2 Add. (Arches) 469. 
 
 («) Copeland v. Watts, 1 Starkie's C. 
 95. If, however, the client would have 
 been compelled to produce the document, 
 it seems that the agent would also be 
 compellable to do so, otherwise by parting 
 with the possession he might exclude the 
 party from the benefit of the evidence. 
 A lease, during a dispute between lessor 
 and lessee, is ordered by a Court of Equity 
 to be deposited with the attorney of the 
 lessor ; the attorney is bound to produce it 
 on the trial of an ejectment brought by the 
 lessee against the tenant in possession. 
 Doe v. Thomas, 9 B. & C. 288. See 
 further on this subject. Vol. ii. tit. Con- 
 fidential Communication; R. v. 
 Woodley, 1 M. & R. 390; R. v. Upper 
 Boddington, 8 D. & R. 726,
 
 90 
 
 WITNESS 
 
 Writings to 
 be pro- 
 duced 
 where the 
 production 
 will not 
 prejudice. 
 
 Notice to 
 produce 
 a deed. 
 
 Wlicro these objections do not apply, it seems that the writings 
 in a man's possession arc as much hable to the calls of justice as 
 the faculties of speech and memory are. There can be no dif- 
 ference in principle between obliging- a man to state his knowledge 
 of a fact, and compelling him to produce a written entry in his 
 possession which proves the same fact. Not only a man's estate, 
 but even his liberty or life, may depend upon written evidence, 
 which is the exclusive property of a stranger (0. 
 
 It is in all cases the duty of the witness to bring the document 
 with him, according to the exigency of the writ (m) ; and it is 
 a question of law for the Court, whether, upon principles of jus- 
 tice and equity, the production of the instrument ought to be 
 enforced (w). 
 
 Disobedience of the writ by the witness will not warrant the 
 reception of parol evidence; but where the witness, in fraud of 
 the suh2)cena, had transferred the document to the adverse party in 
 the cause, it was held that parol evidence was admissible (a:). 
 
 (t) As, for instance, where a mau's title 
 depends upon the precise time of his birth, 
 and the executor of an accoucheur is in 
 possession of an entry made by the latter, 
 which would be legal evidence to prove the 
 time of birth. In a criminal case proof 
 that the prisoner at a particular time and 
 place signed an instrument, may be de- 
 cisive as to his innocence. 
 
 (u) Aiiiey V. Lorifj, 9 East, 473. Cosen 
 V. Dubois, 1 Holt's C. 239. Field v. 
 Beaumont, 1 Swanst. 209. Reed v. 
 James, 1 Starkie's C. 132. 
 
 (w) In the case of Copeland v. Watts 
 (1 Starkie's C. 95), which was an action 
 by the lessor for breach of covenants in the 
 lease, the plaintiiF to prove the execution 
 of the counterpart, which was missing, 
 called upon the solicitor of a sub-lessee to 
 produce an under-lease by the lessee of the 
 same premises, in which the original lease 
 was recited. The solicitor demurred to 
 the production, conceiving it to be doulit- 
 ful whether the interest of his client might 
 not be prejudiced by the production of the 
 under-lease. But Gibbs, C. J., after in- 
 specting the under-lease, was of opinion 
 that the reading of it would not prejudice 
 the sub-lessee, and it was accordingly 
 read. 
 
 See also Corsen v. Dubois (1 Holt's C. 
 239), which was an action on a bill of 
 
 exchange, to which the defendant pleaded 
 his bankruptcy and certificate. In order 
 to defeat the certificate, the plaintiff 
 called on the defendant's solicitor to pro- 
 duce the proceedings under the first of 
 two commissions against the defendant, 
 which had been left in his custody by the 
 assignees under the first commission. The 
 solicitor demurred to the production ; and 
 Gibbs, C. J. said, that if the production 
 were likely to be prejudicial to the as- 
 signees, he would intercept them, but as 
 he could not see any prejudice to the per- 
 sons who had entrusted the solicitor with 
 the proceedings, he could not withhold 
 them, even although the documents might 
 have been procured by other means. (Ibid.) 
 In the case of Pearson v. Fletcher, (5 Esp. 
 C. 90), which was somewhat similar to that 
 of Corsen v. Dubois, Lord Ellenborough 
 ruled that the solicitor to the commission 
 was bound by public duty to produce the 
 proceedings. 
 
 In the case of Reed v. James, (1 Star- 
 kie's C. 132), Lord Ellenborough said that 
 the witness, who was the petitioning cre- 
 ditor, could not, in an action by the 
 assignees, with propriety refuse to produce 
 the promissory note on which the debt was 
 founded. 
 
 (.v) Leeds v. Cook &)• Ux., 4 Esp. C. 
 2oG.
 
 PROTECTION OP. 
 
 91 
 
 And although an agent may not be compellable to produce the 
 deeds of his principal (a party in the cause), yet he is liable, on 
 declining to produce them, to be examined as to their con- 
 tents (?/). 
 
 Where insufficient notice has been given to the attorney of a 
 party to produce the deed, the attorney is not bound to produce it, 
 although he has the deed in his pocket at the trial (z). 
 
 As a witness is bound to attend in court in obedience to the 
 writ, so is he under an obligation to be sworn and give evidence 
 on his appearance. 
 
 If a witness for the Crown refuse to be sworn, he is guilty of a 
 contempt of Court, and may be fined, and committed till he has 
 paid the fine (a). 
 
 A clerk to the commissioners of taxes is bound, when sub- 
 poenaed, to produce his books, and answer all questions relevant to 
 the issue, notwithstanding his oath of office (b). 
 
 The law protects a witness, as well as a party to the suit, from 
 arrest, eundo morando et redeundo (c). And it is not essential to 
 their protection that the witness should have been subpoenaed, if 
 he has consented to attend (c?). The Courts usually allow ample 
 time for this purpose (e). 
 
 Notice to 
 ])n)(luce a 
 tlced. 
 
 Witness 
 cannot re- 
 fuse to be 
 sworn and 
 give evi- 
 dence. 
 
 Protection 
 of witness. 
 
 (y) In covenant by a remainder-man for 
 not repairing, plea, tliat lessor was only- 
 tenant for life ; held, that after notice on 
 the plaintiff to produce a specific deed, the 
 steward might be called to prove the 
 existence and nature of it ; and although 
 the possession of the steward might be 
 considered as the possession of his prin- 
 cipal, so as to protect him from producing 
 it under a subpana duces tecum, his know- 
 ledge of the contents was not within the 
 principle of privileged communications, 
 which extends not beyond counsel and 
 attomies. Earl of Falmouth v. Moss, 
 11 Pri. 455. 
 
 {z) Doe d. Wartney v. Grey, 1 Starkie's 
 C. 283. 
 
 (a) Lord Preston's Case, Salk. 278; 
 Vin. Ab. Y. Lord Preston was committed 
 by the court of quarter sessions for refusing 
 to be sworn before the grand jury on an 
 indictment for high treason. But a wit- 
 ness may refuse to be sworn in a civil case, 
 if his expenses have not been paid. 
 
 (6) Lee v. Blrrell, 3 Camp. 337. 
 
 (c) Meekins v. Smith, 1 H. B. 036. 
 
 Lightfoot V. Camero7i,2 Bl. 1113. Ran- 
 dall V. Gurney, 3 B. & A. 352. 
 
 {d) Spence v. Stuart, 3 East, 89. Kin- 
 der V. Williams, 4 T. R. 377. Arding v. 
 Flower, 8 T. R. 534. Ex parte Byne, 
 1 Ves. & Beames, 316; 1 H. B= 636. 
 
 (e) 13 East, 16, n. (a). Willingham 
 V.Matthews, 2 Marshall, 57; 2 Bl. 1113. 
 Hatch V. Blisset, Gilb. Cas. 308 ; 2 Str. 
 986. Strong v. Diclienson, 1 M. & W. 
 490. In Randall v. Gurney, 3 B. & A. 
 252, where a party in London was required 
 to attend an arbitration at Exeter on a 
 given day, and three days before set off, 
 and went, accompanied by his attorney, to 
 Clifton, where his wife resided, and where 
 were certain papers necessary to be pro- 
 duced before the arbitrator, and was occu- 
 pied for a great part of two days in select- 
 ing and arranging the same, and in the 
 afternoon of the second day was arrested; 
 it was held, that he was not privileged 
 from arrest under these circumstances, 
 having been emj^loycd more than a rea- 
 sonable time for the above purpose, and it 
 not having been sworn that lie was occu-
 
 92 
 
 WITNESS — COMPETENCY. 
 
 Protection 
 of. 
 
 Objection 
 to com- 
 petency. 
 
 Time of 
 objecting. 
 
 The same indulgence Iiub been extended to a witness attending 
 an arbitrator under a rule of Nisi Prius(/); and to a petitioning 
 creditor (^), a bankrupt or witness attending a meeting of com- 
 missioners (h) ; to a witness attending on the execution of a writ 
 of inquiry {i) ; at the Insolvent Debtors' Court (j) ; attending a 
 court martial under the Mutiny Act. 
 
 But a witness is not protected from being taken by his bail (/{) ■ 
 for this is not an arrest (/), but a retaking. 
 
 It has already been seen that a witness may be incompetent, 
 because he is incapable of religious obligation from youth, mental 
 infirmity (m), ignorance or unbehef, or from infamy, or because he 
 is interested in the cause. The objection arising from the igno- 
 rance, or unbelief, or turpitude of the witness, ought in its 
 natural course to be taken before the witness is sworn, because it 
 assumes that he is incapable of being bound by an oath. 
 
 In general, an objection to competency ought to be taken in 
 the first instance, and before the witness has been examined in 
 chief ; for otherwise it would afford an unfair advantage to the 
 other party, who would avail himself of the testimony of the wit- 
 ness if it were favourable, but would get rid of it by raising the 
 
 pied during all tlie time that he was at 
 Clifton, in the object for which he went 
 thither. 
 
 But in the case of Rieketts v. Gurney, 
 (7 Price, 699), it having been sworn, on an 
 application arising out of the same tran- 
 saction, that a bail-bond should be given 
 up to be cancelled, that the party was 
 occupied during a part of the evening of 
 the day of liis arrival at Clifton, and the 
 whole of the next, in examining and ar- 
 ranging the necessary papers, and that 
 before he had finished he was arrested; the 
 Court of Exchequer (the Chief Baron being 
 absent, and Garrow, B. dissentient e), held 
 that the defendant was privileged. 
 
 In an anonymous case (Smith's N. P. 
 Eep. 355), it is stated to have been held, 
 that a witness who lived twelve miles from 
 the place of trial was not protected by his 
 subpoena till twelve the next day. 
 
 A witness resident in London is not pro- 
 tected from arrest between the time of the 
 service of the subpoena and the day ap- 
 pointed for his examination ; but a witness 
 coming to toAvn to be examined is protected 
 during the whole time which he remains ui 
 town bona fide for the purpose of giving his 
 
 testimony. Held also, that a witness is not 
 protected in going to the solicitor's office to 
 look at the interrogatories, as preparatory 
 to his examination. Gibbs v. Philipson, 
 1 Russ. & M. (CH.) 19. 
 
 (/) Spence v. Steuart, 3 East, 89. 
 Moon V. Booth, 3 Ves. 350. Bandall v. 
 Gurneij, 3 B. & Aid. 252. 
 
 (g) Selby v. Hills, 6 M. & P. 255. 
 
 (/«) Spence v. Stuart, 3 East, 89. Ar- 
 ding v. Flower, 8 T. R. 534. Render v. 
 Williams, 4 T. R. 377. Ex parte Byne, 
 1 Ves. & B. 316; 5 G. 2, c. 30, s. G; 
 6G. 4, c. 16,8.117. 
 
 (i) Walters v. Bees, 4 Moore, 34. 
 
 {j) 6 Taunt. 356. 
 
 (A) Ex parte Lyne, 3 Starkie's C. 132. 
 
 (/) Per Richards, C. B. Horn v. Sicin- 
 ford, 1 D. & R. 20. 
 
 (/«) One wlio is bom deaf and dumb 
 may, if he have sufficient understanding, 
 give evidence by means of an interpreter. 
 R. V. Ruston, Leach, C. C. L. 455 ; or by 
 writing if able. Morrison v. Lennard, 
 3 C. & P. 127. Lunatics are competent 
 during lucid intervals. Com. Dig. tit. 
 Testmoigne.
 
 OBJECTION TO COMPETENCY OF. 93 
 
 objection if it turned out to be adverse. And therefore, where Time of 
 upon a trial for high treason it appeared, after a witness had been " ^-^^^ '"^'* 
 examined without objection on the part of the prisoner, that he 
 had been misdescribed in the Hst of witnesses, which is required 
 by the statute to be given to the prisoner previous to his trial, 
 the Court would not permit the evidence of that witness to be 
 struck out(?0' It has, however, even been held, that if it be dis- 
 covered at any stage of the trial that a witness is interested, his 
 evidence may be struck out {o) ; but this, it seems, is to be un- 
 derstood of those cases only where the objection could not have 
 been taken in the first instance (j))- Where the incompetency of 
 a witness appeared on the face of his answers to interrogatories, it 
 was held that the objection was waived by putting cross-interroga- 
 tories, and could not be insisted on at the trial (q). It was formerly 
 the practice, when an objection was made to the competency of a 
 witness, to make it before he was sworn in chief, and to swear and 
 examine him, where his incompetency was supposed to arise from 
 interest, on the voire dire ; and after a witness had been examined 
 in chief, the objection could no longer be taken (?•). But the 
 same strictness is not observed in modern practice : where the 
 incompetency arises from interest, the objection may be taken 
 after the witness has been examined in chief, if in the course of 
 the cause it appear that he is interested (s) ; but if the objection 
 on the score of interest be not taken previously to the examination 
 in chief, the witness cannot be cross-examined as to the contents 
 of a written document not produced, which might have been done 
 had the objection been taken in the first instance (^). 
 
 Before a witness takes the oath, he may be asked whether he Examina- 
 believes in the existence of a God, in the obligation of an oath, |;g°"gfoyg'* 
 and in a future state of rewards and punishments : and if he does, belief, 
 he may be admitted to give evidence (u). And it seems that he 
 ought to be admitted if he believes in the existence of a God who 
 will reward or punish him in this world, although he does not believe 
 in a future state (x). But it is not sufficient that he believes himself 
 to be bound to speak the truth, merely from a regard to character, 
 
 (n) E. V. Watso7i, 2 Starkie's C. 158. (r) Lord Lovat's Case, 9 State Tr. G39. 
 
 (o) Turner v. Pearte, 1 T. R. 720. 646. 704. 
 Hmvell V. Lock, 2 Camp. 14. Perigal v. («) ^erigal v. Nicholson, 1 Wiglitwick, 
 
 Nicholson, I Wight^vick, 64. Becchivy v. 64. Turner v. Fearte, 1 T. R. 717. 
 
 Gower, Holt's C. 313. Stone v. Black- Stone v. Blackburn, 1 Esp. R. 37. 
 bum. 1 Esp. C. 37. 3Ioorish v. Foote, (0 Horvellv. Lock, 2 Camp. 14. 
 
 2 Moore, 500. («) ^- ^- ^«^^«'-' ^^^^ke's N. P. R. 11. 
 
 (x) See the judgment of Willes, C. J. in 
 
 (p) Moorish V. Foote, 2 Moore, 508. Omichvncl v. Barker, Willes, 560 ; 1 Atk, 
 
 {q) Ogle v. Paleski, Holt's C. 485. 21 ; 1 Wils. 84.
 
 94 
 
 WITNESS 
 
 Want of 
 religious 
 belief. 
 
 or tlie interests of society, or fear of punishment by the temporal 
 law iy). 
 
 The most correct and proper time for asking a witness whether 
 the form in which the outh is about to be administered to him is 
 one that will be binding on his conscience, is before that oath is 
 administered. But although a witness shall have taken the oath 
 in the usual form without making any objection, he may neverthe- 
 less be afterwards asked whether he considers the oath he has 
 taken to be binding on his conscience. But if the witness answer 
 in the affirmative, that he does consider the oath which he has 
 taken to be binding upon his conscience, he cannot then be further 
 asked whether there be any other mode of swearing that would 
 be more binding upon his conscience than that which has been 
 used (z). 
 
 A Jew who has never formally renounced the religion of his 
 ancestors, but considers himself to be a member of the established 
 church, may be sworn on the Gospels (a). 
 
 In criminal cases, where a person of tender years is a material 
 witness, it is usual for the Court to examine the witness as to his 
 competency to take an oath, before he goes before the grand jury. 
 And if such a witness be found incompetent for want of proper 
 instruction, the Court will, in its discretion, put off the trial, in 
 order that the party may in the mean time receive such instruction 
 as will qualify him to take an oath. Neither the testimony of the 
 child without oath, nor evidence of any statement which he has 
 made to any other person, is admissible (6). 
 Incompe- In considering the nature and extent of the objection to com- 
 
 tiir^Itu™r petency, arising from the alleged turpitude of the witness, it will 
 be proper to inquire, 1st. What crimes or punishment incapacitate 
 
 Infant. 
 
 (?/) R. V. Ruston, Leach, C. C. L. 455. 
 
 (;:) The Queen's Case, 2 B. & B. 284. 
 According to the opinion of the Judges, as 
 delivered by Abbott, C. J., in answer to 
 questions proposed by the Lords. Abbott, 
 C. J., after delivering this opinion, added, 
 " Speakuig for myself (not meaning thereby 
 to pledge the other Judges, though I be- 
 lieve their sentiments concur with my own), 
 I conceive, that if a witness says he consi- 
 ders the oath as binding upon his conscience, 
 he does in effect affirm, that in taking that 
 oath he has called God to witness that 
 what he shall say will be the truth, and 
 that he has imprecated the Divine ven- 
 geance upon his head if what he shall 
 afterwards say is false ; and having done 
 
 that, it is perfectly unnecessary and irre- 
 levant to ask any further questions." And 
 see Sells v. Hoare, 7 Moore, 36. 
 
 {a) R. v. Gilliam, 1 Esp. C. 285. A 
 member of a religious sect which objects 
 to the ceremony of kissing the book, may 
 be sworn without it. Mee v. Reid, Peake's 
 C. 23. MUdrone's Case, Leach's C. C. L. 
 459. Colt V. Button, 2 Sid. 6. 
 
 A witness, being of the Methodist per- 
 suasion, refusing to be sworn on the New 
 TL'stament, was permitted to be sworn on 
 the Old, stating he considered it binding to 
 his conscience. Edmonds v. Rowe, 1 Ry. & 
 M.C.77. 
 
 (b) Brazier's Case, Leach's C. C. L. 237. 
 R. V. Tucker, Phill. on Ev. I'J.
 
 INCOMPETENCY FROM INFANCY. 
 
 95 
 
 a witness; 2dly. How the guilt is to be proved; 3dly. How the 
 objection is answered ; 4thly. The effect of incompetency. 
 
 I. Where a man is convicted of an offence which is inconsistent 
 with the common principles of honesty and humanity, the law con- 
 siders his oath to be of no weight, and excludes his testimony as 
 of too doubtful and suspicious a nature to be admitted in a court 
 of justice to affect the property or liberty of others (c). Formerly, 
 the infamy of the punishment, as being characteristic of the crime, 
 and not the nature of the crime itself, was the test of incompe- 
 tency (d) ; but in modern times, immediate reference has been 
 made to the offence itself, since it is the crime, and not the punish- 
 ment, which renders the offender unworthy of belief (e). By the 
 common law, the punishment of the pillory indicated the crimen 
 falsi, and, consequently, no one who had stood in the pillory could 
 afterwards be a witness (/); but now a person is competent, 
 although he has undergone that punishment for a libel, trespass, 
 or riot (g) ; and on the other hand, when convicted of an infamous 
 crime, he is incompetent, although his punishment may have been 
 a mere fine (A). 
 
 The crimes whicli render a person incompetent are treason (i), 
 felony (k), all offences founded in fraud, and which come within 
 the general notion of the crimen falsi (I) of the Roman law, as 
 
 (c) Gilb. L. E. 256; 2 Bulst. 154 ; Brae, 
 b. 4, c. 19 ; Fie. b. 4, c. 8. 
 
 {(I) 2 Haw. c. 4G, s. 102. Pendoclt v. 
 Mackmder,2Wi\B. 18; Fort. 209; 2 Hale, 
 277; Co.Litt. 6. 
 
 (e) Pendockv. Macliender, 2Wils. 18; 
 Willes, 666; Fortes. 209; 3 Lev. 426, 
 427 ; B. 2V. P. 292. B. v. Davis, 5 Mod. 
 75. B. V. Ford, 2 Salk. 690. Priddle's 
 Case, 2 Leacli, 496. 
 
 (/) Gil. Ev. 257. 
 
 (g) Ibid; Fort. 209. B. v. Ford, 2 Salk. 
 690; B. N. P. 292. B. v. Croshj, 10 St. 
 Tr. A pp. 
 
 (/<) The maxim is ex delicto non ex 
 supplicio mergit Infamia. The rules 
 founded on this principle of exclusion are 
 not, however, by any means satisfactory. 
 A formal conviction is usually essential to 
 the exclusion, yet a confession of turpitude 
 on the part of a witness may just as rea- 
 sonably excite doubts of the witness's ve- 
 racity as a recorded conviction can do, 
 which may have been founded merely on 
 
 the party's confession. Outlawry for any 
 felony is sufficient to exclude a witness; 
 yet outlawry, even for perjury, has no such 
 effect : not to say that the distinction be- 
 tween felonies and misdemeanors affords a 
 very fallible test of delinquency. And 
 again, the making the restoration to com- 
 petency to depend on the fact of the indi- 
 vidual's having paid or suffered the penalty 
 of Ills crime, does not seem to stand on 
 any sound principle, and is in part, per- 
 haps, attributable to the old doctrine of 
 purgation. 
 
 (0 5Mod. 16. 74; Kel. 33. 
 
 {k) 2 Buls. 154; Co. Litt 6; Ray. 369. 
 Walker v. Kearney, 2 Str. 1 ] 48. Jones v. 
 Mason, 2 Str. 843. Before the distinction 
 between grand and petit larceny was abo- 
 lished by the stat. 7 & 8 G. 4,c. 29, s. 2, a 
 party convicted of the latter offence was 
 competent, by the stat. 31 G. 3, c. 35. 
 
 (l)B.y. Priddle, Leach, 496. Co. Litt . 
 6, b; B.JV. P. 291; Gil. Ev. 141.
 
 96 
 
 WITNESS : 
 
 Nature of perjury, subornation of perjury, and forgery (m), piracy (n), svvind- 
 the crime, jj^^^^ cheating (o). So also barretry (p), conspiracy, at the suit of 
 the King {q), praemunire (r), the bribing a witness to absent himself 
 from a trial, in order to get rid of his evidence (s), conspiracy to 
 procure the absence of a witness (0 ; so also the judgment on an 
 attaint for a false verdict (u) will render the party so convicted 
 incompetent ; so also, as it seems, one who has been convicted of 
 winning money by fraud, or ill practice at certain games, would 
 be disabled by the stat. 9 Anne, c. 14, s. 6, from being a witness, 
 since that statute not only imposes a penalty, but directs that the 
 party shall be deemed infamous (x). But a conviction for keeping 
 a gambling-house does not disquahfy the defendant (y). The 
 stat. 58 Geo. 3, c. 127, s. 2, 3, which enacts that persons excom- 
 municated shall in no case incur any civil penalty or disability, has 
 removed any objection to competency on the ground of excom- 
 munication, an objection which seems formerly to have been 
 available (s"). 
 Proof of ^^- ^^ order to incapacitate the party, the judgment must be 
 
 the convic- proved (a) as pronounced by a court possessing competent juris- 
 diction (5). Proof of the verdict or conviction without the judg- 
 ment is insufficient, since it may have been quashed on motion in 
 
 tion. 
 
 (m) Co. Litt. 6 ; Fort. 209 ; and see 5 
 Eliz. c. 14 J 2 Haw. c. 23, e. 43, s. 25; 
 33 H. 6, 55 ; 2 Hale, 277 ; Sumin. 2G3. 
 Jones V. Mason, Str. 833. Walker v. 
 Kearney, Str. 1148. 
 
 (n) 2 Roll. Ab. 886. 
 
 (o) Fort. 209. 
 
 (p) R. V. Ford, 2 Salk. 690. B. N. P. 
 292. 
 
 {q) Rex V. Crosley, Leach, 349; 33 
 Hen, 6, 55; 24 Ed. 3, 34; 1 Hale, 306; 
 2 Haw. c. 43, s. 25; 1 Haw. c. 72, s. 9; 
 2 Hale, 277; Co. Litt. 6; Sumni. 263. 
 But tliis, it has been said, is to be under- 
 stood of a conspiracy to charge a person 
 with a capital offence ; in which case, upon 
 conviction, he is liable to the villanous 
 judgment, and to lose the freedom of the 
 law. In a late case, it was held in the 
 Ecclesiastical Court, by Sir W. Scott, that 
 a conviction upon an indictment for a con- 
 spiracy to commit a fraud, by raising the 
 price of the public funds by means of false 
 rumours, did not render the affidavit of the 
 party inadmissible. Case of tke Ville tie 
 Varsovle, 2 Dods. Adm. R. 174. And in 
 
 the case of Crowther v. Hopioood, 3 
 Starkie's C. 21, it was held that such a 
 conviction did not render a witness incom- 
 petent in a court of law ; but in the case 
 of Bmlicl V. Barrett, Ry. & M, 434, 
 it was held by Gaselee, after consultation 
 with Littledale J., that judgment for a 
 conspiracy to prevent a witness from ap- 
 pearing to give evidence on an information 
 under the revenue laws, took away com- 
 petency. 
 
 (r) Co. Litt. 6 
 
 (s) Clnncey's Case, Fort. 208. 
 
 (t) Bushell V. Barrett, Ry. & M. 
 434. 
 
 {u) Co. Litt. 6; 2 Roll. 684. 
 
 (a-) Fort. 208. Co. Litt. 6, b. 
 
 {y) B. V. Grant, 1 Ry. & M. 270. 
 
 (?) See as to the latter point, Gilb. Ev. 
 146, 2d edit. ; 2 Buls, 155; B. N. P. 292. 
 
 (a) Lee v. Gansel, Cowp. 1 ; 2 Salk. 
 688 ; 2 Ins. 219. 
 
 {b) 1 Sid. 51 ; Ray. 52. It must appear 
 from the caption, that the court and jurors 
 had jurisdiction. Coolie v. Maxwell, 2 
 Starkie's C. 183.
 
 INCOMPETENCY FROM INFAMY. 97 
 
 arrest of judgment (c). And the judgment must be proved by the Proof of 
 record in the usual way {d) ; but it is not material to show that ^jq„^° ^ 
 judgment has been executed (e) ; so it may be shown that the party 
 has been outlawed for treason or felony, since the effect of outlawry 
 in such case is the same with judgment upon a verdict, or by con- 
 fession {f). An admission by the witness himself that he is still 
 confined in prison under a judgment for felony, or that he has 
 committed perjury, or any other offence, will not incapacitate him, 
 although it may discredit him {g). 
 
 It seems to be a general rule, that a witness is in no case legally 
 incompetent to allege his own turpitude, or to give evidence which 
 involves his own infamy {li), or impeaches his most solemn acts (i), 
 unless he be rendered incompetent by a legal interest in the event 
 of the cause, or in the record. 
 
 A witness for the Crown, on a charge of conspiracy, who admits 
 that she has on a former occasion, at the instance of the defendant, 
 sworn falsely to the fact which she is called to prove, is still com- 
 petent (Ji). 
 
 III. The objection to competency on the ground of infamy may Compe- 
 be answered, 1st, By proof that the party has been admitted to restored. 
 his clergy, and undergone such punishment as is equivalent to 
 clerical purgation at the common law, or that he has undergone 
 the sentence according to the late statutes ; 2dly, By proof of 
 pardon ; 3dly, By proof of the reversal of the judgment. 
 
 1st. In order to illustrate this doctrine, a few previous observa- By proof of 
 tions will be necessary. Formerly the benefit of clergy was granted to clergy. 
 indiscriminately to the clergy, and to such laymen as could read ; 
 but by the stat. 4 H. 7, c. 13, clergy was to be allowed but once, 
 without the actual production of letters of orders, and all laymen 
 
 (c) Hex V. Crosby, 2 Salk. 688 ; 2 the party as a witness, although it dis- 
 
 Inst. 219. Lee v. Gansel, Cowp. 1 ; Str. qualifies him as a juror. Withersiol's 
 
 1148. Sutton V. Bishop, 4 Burr. 2283. Case, Cro. Car. 144. 147 ; W. Jones, 198 ; 
 
 {d) 2 Haw. c. 46, s. 104 j 1 St. Tr. 1 Hale, 305. Co. Litt.6, b. 
 
 208; 2 St. Tr. 307. 436. 455; 3 St. Tr. {g) R. v. Watson, 2 Starkie's C. 116. 
 
 425; 4 St. Tr. 130; 1 Cowp. 1. Lifra, Rex v. Castel Careinian, % East, 78. R. 
 
 tit. Judgment. v. Teale, 11 East, 307. Randsv. Thomas, 
 
 (e) 2 Salk. 689; 3 Inst. 219; 3 Lev. 5 M. & S. 244. 
 
 426. But see Co. Litt. 6; Kel. 37; (h) Burrovgh ■^ . Martin, 'i Ca,m^. Wi. 
 
 Summ. 263; 2 Hale, 277; 5 Mod. 75, And see Doe v. Perkins, 3 T. B. 750; 
 
 76. Tanner v. Taylor, 3 T. R. 754. 
 
 (/) 2 Haw. c. 48, s. 22; 3 Inst. 212. (^) Vaughan v. Martin, 1 Esp. C. 440. 
 
 Collier's Case, Sir T. Ray. 369. But See -C»oe v. Perkins, 3 T. R. 749. 
 
 outlawry in trespass does not disqualify (k) Catt v. Hoimrd, 3 Starkie's C. 3. 
 
 VOL. I. H
 
 99 WITNESS : 
 
 c'lt'ricai were to be burnt in the hand(Z). Until the stat. 18 Ehz, c. 7, 
 ^ *°°* a felon who was entitled to the benefit of clergy was delivered over 
 to the ordinary to make purgation, that is, to be purged of his 
 offence upon oath, a proceeding which, after a solemn conviction 
 in a court of law, could seldom be accomplished without the aid 
 of deliberate perjury (m); and after he had been thus purged or 
 acquitted, the party was in all respects a competent witness (n). 
 The stat. 18 Eliz. c. 7, abolished the practice of delivering the con- 
 victed clerk to the ordinary, but enacted, that upon the allowance 
 of clergy and burning in the hand, he should be enlarged and 
 delivered out of prison, enabling the Judge in his discretion to 
 imprison him for a year. As, after this statute, competency could 
 no longer be restored by purgation, it was held that the disabilities 
 consequent on conviction were removed by burning in the hand, 
 and deliveiy out of prison (o). 
 
 And as peers and real clerks had before the statute been entitled 
 to the benefit of purgation, without any burning in the hand, under 
 the stat. 4 H. 7, they were held to be competent after the Act of 
 the 18 Eliz. without burning in the hand; peers, after the first 
 conviction, and clerks toties quoties (p). With respect to laymen, 
 the burning in the hand operated as a statute pardon (q). By the 
 stat. 4 Geo. 1, c. 11, in the case of grand or petit larceny, where 
 the convict is entitled to benefit of clergy, and liable only to the 
 penalties of burning in the hand or of whipping, the Court before 
 whom the prisoner is convicted, instead of ordering the offender to 
 be burned in the hand or whipped, may direct that he shall be 
 transported to America for the space of seven years. And on the 
 conviction of an oflfender for a crime for which he would be excluded 
 from the benefit of clergy, but to whom mercy is extended on con- 
 dition of transportation, the Court may allow him the benefit of 
 a pardon under the great seal. And it is prescribed by the same 
 
 (Z) This distinction was abolislied for a (o) R. v. Ld. Warimci, 5 St. Tr. 172; 
 
 time by the stat. 28 Hen. 8, e. 1, and 32 Hob. 252; B. N. P. 292; Kel. 37, 38; 
 
 Hen. 8, c. 3, but was restored virtually by Bulst. 155; 2 Haw. c. 33; Sty. 388; 
 
 the stat. 1 Edw. 6, c. 12. As to peers and Godb. 288 ; R. v. Ld. Castlemaine, 2 St. 
 
 women, vid. infra. Tr. 46. 
 
 (y/t) See remarks on this complication / n , tr , Kon t? * o-o o tt t 
 
 - . , , TT u r.r., o ^ T,T „ (JJ) 1 Hale, 529; Fost. 3o6; 2 Hale, 
 
 of wickedness, Hob. 291 ; 3 P. Wms. 448. ooo o t> w„,„ ^o- r t>„_ n^ c „ , 
 
 (n) The convicted clerk was sometimes 
 delivered over absque pur gatione faciendA, 
 
 on which he was to remain in prison all (q) 2 Haw. c. 46; B. N. P. 292. Searle 
 
 his life, without the power of acquiring any v, Williams, Hob. 294 ; Ld. Raym. 370. 
 
 personal property, or receiving the profits 380; Godb. 288; Sty. 388; Kel. 38; 
 
 of lands; and to remedy this abuse the Vent. 349; Skin. 578; 5 Mod. 13; 2 Sid. 
 
 statute 18 Eliz. c. 7, was passed. 5] ; Hob. 81. 
 
 388 ; 3 P. Wms. 487 ; 5 Rep. 1 10. Searle 
 V. Williams, Hob. 288.
 
 INTOMPETENCY FROM INFAMY. 'JD 
 
 Act, s. 2, that where any such offenders shall be transported, and Clerical 
 shall have served their respective terms, according to the order of 
 such Court, such services shall, to all intents and purposes, have 
 the effect of a pardon as for the crime for which they were so 
 transported. 
 
 By the stat. 19 Geo. 3, c. 74, s. 3, it is directed that fine or Effect of 
 whipping may be imposed and inflicted, instead of burning in the jil^stead^of 
 hand, in all clergyable felonies except manslaughter ; and that such burning iu 
 punishment when imposed or inflicted instead of burning, shall 
 have the like effect and consequences to the party, as to capacities 
 and credits, as if he had been burned. The effect, therefore, of 
 these statutes on the common-law doctrine (r) of purgation, seems 
 to have been this : If a layman were convicted of a clergyable 
 felony, and were burned in the hand, or suffered any punishment 
 inflicted by the above statutes in lieu of it, his competency was 
 restored by the execution of the sentence. If a peer were convicted 
 of such felony, or indeed of some felonies which were not clergy- 
 able (s), he w^s entitled to be discharged for the first offence, and 
 retained his competency ; and a real clerk remained competent, 
 although he had committed several clergyable felonies. The mere 
 admission to clergy, where the felon was liable to be burned in the 
 hand, did not restore competency (<) ; and therefore it was not 
 sufficient to produce the record whereby clergy was granted, 
 without proof of burning in the hand (u), except in the case of 
 a peer or a clerk ; but it was further to be proved that the witness 
 had been burned in the hand, or that some other punishment 
 authorized by one of the above statutes had been awarded by the 
 Court in lieu of such burning in the hand, and had been executed. 
 But the King's pardon for burning in the hand had the same effect 
 as burning in the hand would have had(j;). With respect to petit 
 larciny, as the offender was not obliged to pray his clergy, it 
 followed that his competency could not be restored by clerical 
 purgation, or by the burning in the hand, or other punishment 
 
 (r) By the stat. 3 & 4 Will. & Mary, c. liighway robbery, borse-stealing, and rob- 
 
 9, s. 5, women are entitled to the benefit bing churches. 2 Hale, 372 ; Hob. 294. 
 
 of the statute, as men are to the benefit of R. v. Duchess of Kingston, 11 St. Tr. 
 
 the clergy. By the stat. 5 Ann. c. 6, the 198. 
 necessity of reading was abolished. ((>) Pcr Curiam, T. Ray. 380. Ld. 
 
 (s) By the stat. 1 Edw. 6, c. 12, a peer Warwick's Case, 5 St. Tr. 168. 
 is to have the benefit of clergy in the same («) Ld. Warwick's Case, T. Ray. 380; 
 
 manner as a layman for the first offence, 5 St. Tr. 168. Burridge's Case,SP.Wms. 
 
 although he cannot read, and without 485. 490. Searle v. Williams, Hob. 288. 
 
 burning, for all offences then clergyable to Armsti-ong v. Lisle, Kel. 93. 
 commoners, and also for housebreaking, (x) 4 Comm. 395. 
 
 H 2
 
 100 
 
 WITNESS — INFAMOUS : 
 
 Effect of 
 line, &c. 
 
 Pardon. 
 
 Compe- 
 tency — res- 
 toration of. 
 
 substituted for it ; and tlie inconvenience of this being felt (y), 
 the Stat. 31 Geo. 3, c. 35 (z), enacted, that no witness should be 
 deemed to be incompetent by reason of his conviction of petit 
 larceny. By the stat. 9 Geo. 4, c. 32, s. 3, 4 (a), the endurance of 
 the punishment, in all cases of misdemeanor except perjury or 
 subornation of perjury, restores the competency of the offender. 
 
 2dly. Next it may be shown that the proposed witness has 
 received a pardon for his offence ; either, 1st, from the King, 
 under the great seal; or, 2dly, under an act of parliament. 
 It was long since held, notwithstanding doubts upon the sub- 
 jected*), that a pardon, whether by the King, under the great 
 seal, or by act of parliament, removed not only the punishment, 
 but also all disabilities consequent upon conviction, and restored 
 the competency of the party as a witness (c). And it is reason- 
 able that it should, for otherwise a person might for one fault be 
 for ever excluded as a witness, even after he had, by a long course 
 of good conduct, in some measure regained the character which he 
 had lost. And although a pardon cannot convert a wicked man 
 into an honest one, and confer credibility upon one who through 
 the infamy of his conduct is not credible, yet such a pardon must 
 be presumed to have been conferred, after inquiry, upon good and 
 sufficient grounds, on an object worthy of the indulgence, and 
 therefore worthy of being heard, but the degree of credit is still to 
 be left to the jury (d). 
 
 A pardon will restore competency in all cases where the dis- 
 ability is a consequence of the judgment, and not a part of the 
 judgment (e). But neither the King's pardon, nor any thing tanta- 
 mount to it, will, it is said, restore competency where the disability 
 
 (y) See Pendock v. Mackender, 2 Wils. 
 18. 
 
 (z) The distinction between grand and 
 petit larceny is now abolislied by tlie stat. 
 7 & 8 Geo. 4, c. 28, s. 13; 9 Geo. 4, c. 32, 
 s. 3. 
 
 (a) See also the st. 7 & 8 G. 4, c 28, 
 8. 13; 9 G. 4, c. 32, s. 3; infra, 100, as 
 to felonies. 
 
 (6) Palm. 412; Latch. 81; 2 Bulst. 
 114. Brown v. Crashaiv, 2 Bulst. 154; 
 4 St. Tr. 269. Ld. Castlemaine's Case, 3 
 St. Tr. 36; 2 Bro. 17. 
 
 (c) Gilb. Ev. 26. R. v. CeJUer, T. 
 Ray. 369. Cuddington v. Wilkins, Hob. 
 67. 81. R. V. Crosby, Ld. Raym. 39. 
 B. V. Ld. Castlemaine, T. Ray. 379. 
 Reilly's Case, Leach, 510; 2 Hale, 278; 
 
 Brownl. 47 ; Bulst. 154-156. A pardon 
 may also be granted on the ground of some 
 error in the proceedings. See 2 Hargr. 
 Jur. Arg. Crosby's Case, 5 Mod. 15 ; 2 
 Hale, 278. It is the ordinary practice at 
 the present day, where a prisoner has been 
 improperly convicted, and tliis appears 
 to the Judges, on a case reserved, to apply 
 for a pardon. 
 
 (d) 2 Hale, 278. R. v. Crosby, 5 Mod. 
 15; and see 2 Hargr. Jur. Arg. 
 
 (e) Per Holt, C. J., 2 Salk. 689 ; 1 Ld. 
 Ray. 256; 12 Mod. 139; Comb. 459; 2 
 Salk. 512; Carth. 421; Holt, 535; 5 
 Mod. 345; 3 Mod. 342; Gilb. Ev. 260. 
 But this was formerly doubted. Brownl. 
 47 ; 2 Bulst. 154 ; 2 Sid. 221 ; 2 Danv. 
 Ab. 163 ; Cro. Jac. 662.
 
 COMPETENCY, HOW RESTORED. 101 
 
 is part of the judgment, and not a consequence of it (/). Sub- Pardon, 
 ject to this hmitation, a pardon will restore competency in all 
 cases and at all times, as in cases of conspiracy, perjury and 
 forgery (<7), although the party has undergone an infamous 
 punishment, as by standing in the pillory for cheating (A), and 
 after attainder for treason or felony (i). So where he has been 
 convicted of felony in taking a false oath to obtain probate of a 
 will under the stat. 31 Geo. 2, c. 10; so where the pardon is 
 received after conviction, but before judgment (k). 
 
 It has been held that a general pardon, after a conviction for 
 felony, or after an outlawry for felony, will not restore com- 
 petency (l) ; but it seems that the burning in the hand may be 
 discharged by the King's pardon (in). The pardon must be pro- 
 duced under the great seal(w). A pardon under the King's 
 sign manual, or privy seal, was formerly insufficient, smce the 
 warrant was countermandable (o) ; but it is now provided by the 
 stat. 7 & 8 Geo. 4, c. 28, s. 13, that where the King shall extend 
 his mercy to any offender convicted of any felony, and by war- 
 rant under his sign manual, countersigned by one of his principal 
 secretaries of state, shall grant to such offender either a free or 
 conditional pardon, the discharge of such offender out of custody, 
 in the case of a free pardon, and the performance of the condition, 
 in case of a conditional pardon, shall have the effect of a pardon 
 under the great seal, as to the felony in respect of which such 
 pardon was granted. The stat. 9 Geo. 4, c. 32, s.'3, enacts, that 
 where any offender hath been or shall be convicted of any felony 
 not punishable with death, and hath endured or shall endure the 
 punishment to which such offender hath been or shall be adjudged 
 for the same, the punishment so endured hath and shall have 
 the like effects and consequences as a pardon under the great 
 seal, as to the felony whereof the offender was so convicted : 
 provided that nothing therein contained, nor the enduring such 
 
 (/) Per Holt, C. J., Holt's R. 689. {k) R. v. BeiUy, Leach, 512, 
 
 691. Hawk. b. 2, c. 46, s. 112. R. v. (I) R, y. Lord Castlemaine,S St.Tr. 46, 
 
 Greepe, 2 Salk. 514. Crosby's Case, 2 47. j;, y. Xovrf WarwicJi, 5 St. Tr. 166. 
 
 Salk. 689. R. v. Warden of the Fleet, B^it see R. v. Rookwood, 4 St. Tr. 642; 3 
 
 R. T. Holt, 135. Lev. 426. 
 
 (g) 1 Hale, 306. (,„) 3 Lev. 426. 
 
 (7i) R. V. Lord Castlemaine, T. Ray. „ , . „, 
 
 ^„\ c, . ., .' . ,. (n) 2 Haw. c. 37. R. v. Lord Wancick, 
 
 370. bo where a witness, after conviction ^ „ „ ,„., ,,„ 
 
 » . , ^ 1 • ^l, n *i 5 St. Tr. 166; Fost. 62; 1 Wils. 217. 
 
 tor a crime, has stood m the pillory, the y~, , m 
 
 ..... , , 1 i i- Murphy's Case, Leach, 117. 
 
 objection is removed by a general act 01 -^ "^ ' ' 
 
 pardon. J?, v. Croshy, Lord Ray. 39. (0) R. v. Lord Warwick, 5 St. Tr. 166. 
 
 (J) 2 Haw. c. 46, s. 110; c. 37, s. 48, R. v. Miller, 2 Bl. R. 797. Gtdly's Case, 
 
 49, 50. Leach, 116. 
 
 H 3
 
 judgment. 
 
 102 WITNESS — infamous: 
 
 Par.loii. punishment, sliall prevent or mitigate any punishment to which 
 the offender niiglit otherwise be lawfully sentenced, on a subse- 
 quent conviction for any other felony. Sec. 4, reciting that there 
 are certain misdemeanors which render the parties convicted 
 thereof incompetent witnesses, and that it is expedient to restore 
 the competency of such parties after they have undergone their 
 punishment, enacts that where any offender hath been or shall be 
 convicted of any such misdemeanor, except perjury or subornation 
 of perjury, and hath endured or shall endure the punishment to 
 which such offender hath been or shall be adjudged for the same, 
 such offender shall not after the punishment so endured be deemed 
 to be, by reason of such misdemeanor, an incompetent witness. 
 In case of a conditional pardon, proof must be given that the 
 condition has been performed {p). 
 Reversal of 3dly. By proof of a reversal of the judgment or outlawry by 
 writ of error, which must be proved by the production of the 
 record. Where it was objected that the witness had been attainted 
 by virtue of an act of parliament, for not having surrendered him- 
 self before a particular day, it was answered that the witness had 
 surrendered within the limited time ; and the record of the pro- 
 ceeding on the part of the Crown against the witness on that 
 statute, and of the plea on the part of the witness in his defence, 
 that he did surrender within the time, which plea was admitted 
 by the Attorney-general to be true, was held to be conclusive 
 evidence of the surrender within the time (^q). 
 Effect of IV. The judgment for an infamous crime, even for perjury, 
 
 does not preclude the party from making an affidavit with a view 
 to his own defence (r). He may, for instance, make an affidavit 
 in relation to the irregularity of a judgment in a cause to which 
 he is a party (s), for otherwise he would be without remedy. 
 But the rule is confined to defence, he cannot be heard upon oath 
 as a complainant (0. Where a witness becomes incompetent 
 from infamy of character, the effect is the same as if he were 
 dead ; and if he has attested any instrument as a witness, pre- 
 vious to his conviction, evidence may be given of his hand- 
 writing (m). 
 
 (;j) Gilb. Ev. 259. Hawk. P. C. c 37, {q) Lard Lovat's Case, 9 St. Tr. 652. 
 
 s. 45. Burridge's Case, 3 P. Wms. 485. 6G5. 
 
 But where a party had been sentenced to (,.) Davis v. Carter, 2 Salk. 461 ; 2 Str. 
 
 transportation, and confined to the hulks 1148. 
 
 disability. 
 
 for a term, and discharged at the end of tlie ^ ■. -.■,., 
 
 term, it was held that his having twice 
 
 escaped, for a few hours eacli time, did not 
 
 destroy the effect of a pardon. R. v. Bad- (") Jones v. 3Iaso7i, Str. 833. 
 
 eocJf, lluss. & Rv. C. C. L. 248. 
 
 (t) Salk. 461 J Str. 1148.
 
 INTEREST. 
 
 luc 
 
 The general principle which operates to the exclusion of an 
 interested witness has already been noticed ; its application in 
 practice will now be more fully adverted to. It is proposed to 
 consider (v). 
 
 I. The nature and extent of the disqualifying interest, the 
 time and manner of acquiring it, and exceptions from 
 necessity ; 
 II. Its effect upon secondary evidence; and, 
 
 III. The mode of enforcing or removing the objection. 
 
 IV. The practical effect of the rules on this subject. 
 
 I. The interest, to disqualify, must be some legal, certain and Nature of 
 immediate interest, however minute, in the result of the cause, of Hfying in- 
 in the record, as an instrument of evidence, acquired without t^'^'^st. 
 fraud. 
 
 In the first place, it must be a legal interest in the event of the Must bs 
 suit, or in the record, as contradistinguished from mere prejudice » legal 
 or bias(i/;), arising from the circumstance of relationship, friendship. 
 
 (v) A party to a suit is of course usually 
 disqualified on tlie ground of interest ; but 
 as the exclusion is by no means wholly 
 founded on a consideration of the party's 
 interest, it may be more convenient to dis- 
 cuss this subject separately. See Vol. II. 
 tit. Parties. 
 
 (w) Two actions are brought against two 
 persons for the same assault, each defend- 
 ant is a competent witness for the otlier. 
 Per Abbott, L.C.J., 5,B. & C. 387; and 
 per Ashurst, J., 1 T. R. 301. And in 
 general similarity of situation is no ob- 
 jection, if the witness would not either 
 gain or lose by the particular event. See 
 Bent V. Baker, 3 T. R. 27. An attorney 
 who has prepared a deed, the validity of 
 which is questioned, is a competent wit- 
 ness, although an action is pending against 
 himself, in wlilch he must fail if the deed 
 be invalid. See also Bath v. Montague, 
 cited Fortes. 247. Vol. II. tit. Accom- 
 plice. R. V. Graij, 2 Selw. N. P. 1148, 
 ix. 12. 22 edit. It was formerly held that 
 the possibility that the verdict might, in 
 another proceeding in which the witness 
 was interested, influence the jury, was suf- 
 ficient to disqualify the witness. R. v. 
 Whiting, 1 Salk. 283. Lord Holt there 
 ruled, on the trial of an indictment for a 
 cheat, in obtaining a person's subscription 
 
 to a note for 100 1, instead of a note for 5 1., 
 that the maker was not a competent wit- 
 ness. See also R. v. Mmcz, 2 Str. 1043. 
 But it has long been settled that such an 
 objection affects the credit only, not the 
 competency of a witness. R. v. Boston, 
 4 East, 572 ; R. T. Hardwicke, 572. See 
 below, tit. Competency of Prosecu- 
 tors; Vol. II. tit. Usury. 
 
 In an action by a bankrupt against his 
 assignee, tlie official assignee is a compe- 
 tent witness to support the bankruptcy, 
 his allowance being uncertain, and de- 
 pendent on the discretion of the commis- 
 sioners. Giles V. Smith, 1 Mood. & R. 
 443. In an action for mismanaging a 
 farm, the sub-lessee is, it has been held, 
 competent to prove proper cultivation. 
 Wishaw v. Barnes, 6 Camp. 341. In 
 an action for falsely representing the cir- 
 cumstances of a third person, the latter is 
 competent to prove his insolvency. Smith 
 V. Harris, 2 Starkie's C. 47. In an action 
 for loss alleged to have been occasioned by 
 the defendant's breach of contract, in 
 neglecting to insure copies of a work from 
 fire, one who has purchased a number of 
 the copies from the plaintiff is competent 
 to prove the contract. Mawman v. Gil- 
 lett, 2 Taunt. 325, n. In case for iu- 
 frhiging a patent, the purchaser of a 
 II 4
 
 104 
 
 WITNESS — INTEREST 
 
 lej^al in- 
 terest. 
 
 Apprehen- 
 sion of 
 Interest. 
 
 or any other of the numerous motives by which a witness may be 
 supposed to be influenced. 
 
 Thus in a criminal case a witness is competent, although she 
 believes that the conviction of" the prisoner will be the means of 
 saving her husband's life (w). So an accomplice is competent to 
 give evidence against his confederates, notwithstanding his own 
 expectation of pardon in case of their conviction. So, although 
 the witness has derived his maintenance from the party. And in 
 general the witness is competent, although he wishes that the 
 party may succeed in whose favour he bears testimony. 
 
 A witness is competent notwithstanding an illegal agreement, 
 the effect of which, if legal, would be to render him incompetent (x). 
 
 If a party be really interested in the event of a cause he is not 
 competent, although he does not apprehend that his interest is 
 a legal one (?/), for it would be exceedingly dangerous to violate 
 a general rule because the witness does not understand his legal 
 responsibility. If a witness suppose that he is under an honorary 
 though not a legal engagement, as to indemnify the bail, he is 
 still competent, for he is und^r no binding engagement, and it 
 would be highly inconvenient to make competency in such cases 
 to depend on the witness's notions of propriety, and would 
 savour of inconsistency to found a suspicion of his veracity upon 
 a just and honourable feeling {z)> It has indeed been said that 
 a witness who conceives himself to be under a legal engagement 
 is incompetent, although he is mistaken (a). It would, however* 
 
 licence to use tlie patent is a competent 
 witness for tlic plaintiff. De Rose v. Fair- 
 lie, 1 Mood. & R. 457. 
 
 A.) on becoming partner with B., bor- 
 rows a sum of money from C, to whom he 
 gives his note ; after the dissolution C. in- 
 dorses the note to B., who sets off the 
 amount in an action by A.^ founded on a 
 partnership claim ; C. is competent to prove 
 the loan and transfer. Halsten v. Seaton, 
 
 2 M. & W. 47. And see lit. Bill of 
 Exchange — Partnership. The lessee 
 claims as heir of T. B., the son of an elder 
 brother of T. B. is competent. Doe v. 
 Clarhe, 3 Bing. N. S. 429. A rate-payer, 
 though interested in the borough fund, is 
 competent in a suit by the assignee of a 
 corporation lease against. Doe v. Maple, 
 
 3 Bing. N. C. 83'i. For further illustrations 
 of the general principle, see tit. Surety — 
 Trustee — Executor — Legatee — 
 Creditor — Reversioner — Co-tres« 
 passer. 
 
 {ic) R. V. i?M(Z«Z, Leach, 154; but it has 
 been held that a witness who conceives 
 himself to be interested, although he be 
 not so, is incompetent. Fothei-ingham v. 
 Greemcood, Str. 129; 1 T, R. 296. Chap' 
 mail's Case, Str. 129 ; tarn qu. et vid. infra, 
 105. 
 
 {x) Humphrey v. 3Iiller, 4 Carr. & P. 
 C. 7. As where in an action against the 
 secretary of a society for a libel, it was 
 held that a member was competent, al- 
 though he had agreed to contribute towards 
 all law expenses, for an agreement to in- 
 demnify against doing wrong is void. 
 
 (l/) R. v. Walker, 1 Ford. MSS. 145. 
 Parker v. Whithj, 1 Turn, k R. 372. 
 
 (2) Pederson v. Stoffles, 1 Camp. 145 ; 
 1 Str. 129. 
 
 (a) Chapman^ s Case, cited Str. 129. 
 Fotherlngham v. Greenwood, Str. 129. 
 R. v. Walker, 1 Ford. 145. By Lord 
 Loughborough, C. J., and Gould, J., in 
 Trelawney v. Thomas, 1 II. B. 307 j
 
 sion of in- 
 terest. 
 
 NATURE OF THE INTEREST. 105 
 
 be productive of great inconvenience to substitute a witness's mis- Approhen- 
 taken opinion of his legal liability for the more plain and simple 
 test of actual liability ; it might be impossible to render him com- 
 petent, even by means of a release, for he might be sceptical as 
 to the operation of a release, and the practice might open a door 
 to fraud. The party w^ho calls the witness has an interest in his 
 testimony, which ought not to be defeated by any thing short of 
 a legal interest in the event; and if the objection were allowed 
 to prevail in this instance, the principle would extend to the recep- 
 tion of a witness who has a legal interest in the event, but who 
 fancies that he has not. 
 
 The interest must be a present, certain, vested interest (Z>), Must be 
 and not uncertain or contingent (c). And therefore the heir certain, and 
 apparent to an estate is competent to give evidence in support "Jjjj.^^°*^°* 
 of the claim of the ancestor, although one who has a vested doubtful, 
 interest as a remainder-man is incompetent {d). So it was held 
 that a steward Avas competent to prove that a fine was payable 
 on the death of the lord, although the establishment of the 
 affirmative might render a re-admission necessary, and entitle him 
 to a fee (e). 
 
 So in an action for acting as an assistant, the clerk of the 
 company of v/ire-drawers was held to be a competent witness, 
 although he was entitled to a crown for swearing in an assistant ; 
 for although the suit might cause the defendant to be sworn, that 
 was not the direct object of the suit, nor a necessary consequence 
 of a verdict for the plaintiffs (/). So it was held that one who 
 
 RucM's Case, Leach, C. C. J. 154. In Or lias made an agreement with the plain- 
 
 the case of the A tnitie Villeneuve, 5 Ro- tiff, that lie shall have a lease of the lands 
 
 binson's A dm. R. 344, Sir W. Scott re- recovered. Gilb. Ev. 122. Or is bound to 
 
 jeeted the evidence of a witness who stated pay a sum of money in case the plaintiff 
 
 that he conceived that he would be entitled fails. Forrester v. Pigou, 1 M. & S. 9. 
 
 to share in case his vessel should be deemed Fotlieringham v. Greemvood, 1 Str. 129. 
 joint-captor, although he had signed a re- Wliere a witness who, if the bishop 
 
 lease ; and the learned Judge decided tins failed to present to a benefice on a lapse, 
 
 on the distinction which he had always would as tenant by the curtesy, be entitled 
 
 understood to prevail between a witness to present, it was held that he was not a 
 
 who says only that he 'expects to share competent witness for the defendant in a 
 
 from the bounty of the captors, and one quare iinpedit. Gully v. Bishop of Exeter, 
 
 who thinks himself actually entitled in 5 Bing. 171, and 2 M. & P. 2GG. 
 law. See also the case of The Galen, (c) Doug. 134; 1 T. R. 103; 1 P. W. 
 
 2 Dodson's Adm. R. 20. 287. 
 
 (6) B. V. Cole, 1 Esp. C. 98. As where (rf) Salk. 283; Lord Raym. 724. 
 
 a witness has a power of attorney from (e) Champion \. Atkinson, 3 Keb. 90 
 
 the plaintiff to receive the sum recovered, {/) Comjmny of Gold and Silver Wire- 
 
 and pay himself the amount of a debt due drawers v. Hanunond, Ford's MSS. 
 to him. Potcel v. Gordon, 2 Esp. C. 73t>.
 
 106 
 
 WITNESS : 
 
 Doubtful 
 interest. 
 
 had lands in the parish, but wlio was not actually rated to the 
 poor, was competent in a case of settlement {(j). 
 
 Where the interest is of a doubtful nature, the objection goes 
 to the credit, not the competency of the witness {h). The pos- 
 sibility of an action being brought against the witness, in case 
 his testimony shall not prevail, and the tendency of his testi- 
 mony to render his liability less probable, will not exclude him. 
 One who has given bond for an administrator's due administra- 
 tion of the intestate's effects, is competent, in an action against 
 the administrator, to prove a tender (i). So one who has filled 
 a corporate office is a competent witness for the defendant 
 to prove a custom, which, if established, would be material to 
 show that the witness had exercised a corporate office legally (J ). 
 
 {g) R. V. Prosser, 4 T. K. 17. B. v. 
 Gisburn, 15 East, 67. R. v. Killerhy, 
 10 East, 293. R. v. Terrington, 15 East, 
 471. R. V, South Lynn, 5 T. R. 664. 
 B. V. Kirdford, 2 East, 559. Deacon v. 
 Cock, Taunt. Spring Assizes, 1789; cor. 
 Buller, J., cited Nolan's P. L. vol. 1, p. 
 378. But see the forcible observations 
 made upon these cases by Sir D. Evans, in 
 his edition of Pothier, vol. 2, p. 306. See 
 Rhodes v. Ainsworth, 2 Starkie's C. 215. 
 Whether the principle laid down in the 
 case of the King v. Kirdford, and the 
 previous decisions, was properly applied or 
 not, is a question which the stat. 54 G. 3, 
 c. 170, s. 9, has rendered immaterial; the 
 "cases themselves are still of importance, to 
 show the reliance which the Court placed 
 on the general principle. 
 
 (/t) The old cases (observes Lord Hard- 
 wicke) on the competency of witnesses 
 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 than the competency of the 
 witness. See R. v. Bray, R. T. Hardw. 
 360 ; 1 T. R. 300 ; 3 T. R. 32 ; Co. Litt. 6 ; 
 1 Keb. 836. Bent v. Baker, 3 T. R. 27. 
 Smith V. Prayer, 7 T. R. 60 ; Gil. Ev. 
 232. Abrahams v. Bunn, 4 Burr. 2251 ; 
 and see Masters v. Drayton, 2 T. R. 496. 
 Where the deposition of a witness in a 
 suit for praedial tithes described him as of 
 the parisli in which the tithes accrued, and 
 were sought to be covered by a township 
 
 modus, held that it was admissible, for the 
 deponent might be an inhabitant merely, 
 and not an owner, or the owner of lands 
 not covered by the modus. Jackson v. 
 Benson, 2Y. &J.49. 
 
 (i) Carter v. Pearce, 1 T. R. 163. So 
 an unsatisfied creditor is a competent wit- 
 ness for the administrator under the plea 
 of j^lene administravit. Per Parke, J., 
 notwithstanding the dictum of Lord Ellen- 
 borough, in Craig v. Cundell, 1 Camp. 
 381, to the contrary; and see Paull v. 
 Brown, 6 Esp. C. 34. If the intestate 
 were living, such evidence would be admis- 
 sible, and it is difficult to see how his death 
 can make any difference as to the compe- 
 tency of the witness. 
 
 U) R. V. Bray, C. T. H. 358. See also 
 R. V. Boston, 4 East, 574, where it was 
 held that a witness was competent on a 
 trial for perjury, although a civil action 
 was pending between himself and the de- 
 fendant, involving the same question, and 
 to be tried at the same assizes. Tlie deci- 
 sions in the case of R. v. Whiting, 1 Salk. 
 283, and R. v. Nunez, 2 Str. 1043, were 
 overruled, C. T. H. 572; and again, in the 
 above case of R. v. Boston. So a witness 
 is competent to prove a codicil made sub- 
 sequently to a second will, and reciting a 
 prior will, although he has acted under 
 the first, and may be liable as executor de 
 son tort in case it should be set aside. 
 Baillie v. Wilson, cited 4 Burr. 2254. See 
 also Goodtitle v. Wilso7i, 1 Doug. 140.
 
 INTEREST IN THE RESULT. 107 
 
 A considerable change has been made as to the competency of 
 witnesses objected to on the score of interest by the late statute 
 3 & 4 Will, 4, c. 42 ; and as doubts have been entertained upon 
 the construction and operation of this statute, which does not 
 absolutely extinguish the objections to which it applies, but only 
 removes them conditionally on a proper indorsement being made 
 upon the record, it is proposed to consider the effect given to such 
 objections independently of the statute, and afterwards to cite the 
 statute itself and the decisions upon it, with a few remarks. 
 
 The predicaments in which a witness may be incompetent in Interest in 
 respect of the result admit of three varieties (k) : ^^^ remit. 
 
 1st. Where actual gain or loss would result simply and imme- 
 diately from .the verdict and judgment. 
 
 2dly. Where the witness is so situated that a legal right or 
 liability, or discharge from liability, would immediately result 
 from the verdict and judgment. 
 
 3dly. Where the witness would be liable over to the party 
 calling him in respect of some breach of contract or duty on the 
 part of the witness involved in the issue. 
 
 1st. Where actual gain or loss would result simply and imme- Intheim- 
 diately from the verdict and judgment : ^^d le^^al 
 
 Qi) It seems to be convenient to retain classes: 1st, Where the benefit of which '"^sult. 
 the threefold division adopted in the last the witness may avail himself in a future 
 edition of this work, particularly with a action will be the immediate result of the 
 view to the consideration of the effect first trial, as where the witness would ac- 
 of the late stat. 3 & 4 Will. 4, c. 42. quire an immediate title to contribution ; 
 Tindal, C. J. in Doe v. Tyler, 6 Bingh. or 2dly, where the witness would neither 
 394, divides the benefits by which a wit- acquire a right nor repel a right of action 
 Dcss may be disqualified into two classes; by the result, but has an interest in repel- 
 first, where the witness has a direct and ling a claim to consequential damages, 
 immediate benefit from the event of the depending on the result of the action. It 
 suit itself ; and secondly, where he may may be advisable to retain this distinction, 
 avail himself of the benefitof the verdict in which exists in principle, and serves to il- 
 support of his own claims in a future action. lustrate the operation of the late statute. 
 The first of the three classes above mentioned It is observable that in cases which fall 
 corresponds with the first of the two noticed within the second as well as the third of 
 by C. J. Tindal ; this class is distinguished those classes, the witness is but indirectly 
 from the rest by a definite limit,very useful interested; the distinction between them 
 to be observed with reference to the late is that in the second a right or obligation 
 statute, which does not, as will be seen, immediately results ; the benefit may con- 
 affect direct interests resulting immediately sist either in the acquisition of a right or 
 from the executed judgment, independ- the discharging an antecedent obligation : 
 ently of any collateral use of the record. in the third the obligation or liability is 
 The second of the classes referred to by antecedent to the action, and the benefit 
 C. J. Tindal contains (independently of does not in any instance consist in the ac- 
 those cases where the witness is interested quisition of a right, but only in protection 
 in the record, as evidence to prove a cus- from consequential damage, 
 torn or other matter of fact) two sub-
 
 108 
 
 WITNESS 
 
 In the im- 
 mediate 
 and legal 
 result. 
 
 As where the proposed witness is a party, though but a nomi- 
 nal party, to the suit (/) ; or is a party in beneficial interest (m) ; 
 or is quad a party, from having entered into a rule of court or 
 contract that another cause to which he is a party shall abide 
 the same result with that in which he proposes to give evidence (n); 
 or where the immediate effect of the verdict will be to increase or 
 diminish a fund in which he has a joint interest; as where 
 the bankrupt, or a creditor on a bankrupt's estate, seeks to in- 
 crease the fund(o); or a residuary legatee to increase the estate (p); 
 or a co-partner to increase the joint funds; or one jointly inte- 
 rested in the subject of the suit is called as a witness for. that 
 party (a) ; or where the effect would be to deprive the witness of 
 
 (?) As in tlie case of guardian of a minor, 
 or governor of the poor, who is in the first 
 instance liable to costs. R. v. St. Mary 
 Maijdalen, 3 East, 7. Trustees empowered 
 as a public body to sue and be sued in the 
 name of their treasurer, but to be deemed 
 the plaintiffs, are not, it seems, competent 
 witnesses for the plaintiff in an action so 
 brought. Whitmore v. Wilks, 1 M. & M. 
 214, and 3 C.& P. 364. 
 
 (m) It will be presumed that the action 
 is brought by the direction of the party 
 beneficially interested. In an action on a 
 policy of insurance, brought in the names 
 of the brokers, it appeared that^., one of 
 the parties for whose benefit the policy was 
 effected, had before the action released to 
 the plaintiffs all actions which he might 
 have under the policy, and also that since 
 the action two persons, to whom the whole 
 interest on the policy had been assigned, 
 had, under an order of the Court of C. P., 
 indemnified the plaintiff against all costs, 
 and A . was tendered and examined as a 
 witness for the plaintiffs on the trial ; held, 
 on error, that as the action had been brouglit 
 in the names of the brokers for ^.'s bene- 
 fit, it must, until the contrary shown, be 
 presumed that it was brought by him and 
 by his authority, and if so, he became and 
 remained still liable to the attorney em- 
 ployed to bring it, nothing having been 
 done to deprive the attorney of his rights 
 to recover costs from him ; he was there- 
 fore improperly admitted to give evidence, 
 and a ve7iire de novo was awarded. Bell 
 V. S/m^//, 5B. &C. 188. 
 
 (n) Forrester v. Pigou, 1 M. & S. 9. 
 
 (o) See tit. Bankrupt, Competency. 
 In an action for taking usurious interest 
 on a loan to a bankrupt, it was held that he 
 was not a competent witness for the plain- 
 tiff, not having obtained his certificate; 
 although the defendant had proved the loan 
 under the commission, and although the 
 bankrupt offered to release his claims under 
 the bankruptcy. Masters v. Drayton, 2 
 T. R. 496. See tit. Witness, Creditor. 
 Where the plaintiff sued two on a joint- 
 contract, and one pleaded his bankruptcy 
 and certificate, it was held, that by suing 
 both, the plaintiff had elected not to prove 
 the debt under the separate commission, 
 and that a verdict in that action could not 
 affect the interest of the bankrupt's credi- 
 tors, one of whom was therefore a compe- 
 tent witness to prove the joint contract. 
 Blanyiin v. Taylor, 1 Gow, 199. 
 
 {p) See tit. Legatee. 
 
 {q) A co-partner or party jointly inte- 
 rested in the subject of the suit has usually 
 a direct interest in the particular subject, 
 as contradistinguished from a mere liability 
 to contribution. This seems to be generally 
 true wJiere he is jointly interested with the 
 plaintiff in the subject of the suit; for he 
 would be jointly entitled to the fruit of 
 the proceeding when reduced into posses- 
 sion, whether it were money or goods. 
 And so it seems he has where jointly inte- 
 rested with the defendant in any specific 
 property sought to be recovered. In an 
 action on a contract, a general partner, 
 liable as such, would also have such a 
 direct interest ; for the effect of a judg- 
 ment and execution for the plaintiff would
 
 INTEREST IN THE RESULT. 
 
 109 
 
 the enjoyment of an interest in possession (r) ; or place him in tlie 
 immediate possession of a right (s) ; or increase the vahie of his 
 property by getting rid of an incumbrance (t) ; or, in short, where- 
 ever the direct effect of the executed judgment, as contradistin- 
 guished from its efficacy in estabhshing or evidencing any other 
 right or claim, or for any other collateral purpose, would be to pro- 
 duce some benefit, or work some prejudice to the proposed 
 witness. 
 
 2dly. Where the witness is so situated that a legal right or lia- 
 bility, or discharge from liability (u), would immediately result (x) : 
 
 be to diminish the partnership funds. In 
 the case of a joint interest with the defend- 
 ant merely in tlie particular contract sued 
 upon, the joint contractor would be inte- 
 rested by reason of liability to contribute 
 to the damages and costs. In this case, 
 the late statute would, as it seems, restore 
 competency. One interested in enlarging 
 the funds of a building society, in which 
 lie was originally a shareholder, and after- 
 wards secretary, is not a competent wit- 
 ness to enlarge the funds of the society. 
 Rigbi/ V. Walthew, 5 Dowl. P. C. 527. 
 Where by agreement sums recovered are 
 to go to the common funds of a society, no 
 member is a competent witness for any 
 other, altholigh the action be brought on 
 the party's own behalf, and he alone is 
 liable to the attorney for costs. PlancM 
 V. Braham, 8 Carr. & P. 68. 
 
 (r) A tenant in possession is incompe- 
 tent to support his landlord's, title. Doe 
 (1. Foster V. Williairis, Cowp. 621 ; Doe v. 
 TFiMe, 5 Taunt. 183; Doe v. Bingham, 
 4 B. & Aid. 672 ; 6 Bing. 304. But in an 
 action by landlord and tenant, the lessor 
 paramount may prove whether the pre- 
 mises were first demised to the landlord or 
 another. Bell v. Harioood, 3 T. R. 308. 
 For his possession is not affected by the 
 result. Where the issue in trespass to 
 land was wlietlier the plaintiff, or a party 
 under whom the defendant claimed, was 
 entitled, it was held that such party was a 
 competent witness for the defendant, for 
 the verdict would not change the posses- 
 sion. Bees V. Walters, 2 M. & W. 527. 
 
 {s) On an indictment on the stat. 21 
 
 J. 1, c. 15, or 8 H. 6, c. 9, which autho- 
 rizes justices to give possession of lands 
 entered by force, or held by force, to tlie 
 tenant; a tenant whose land has been for- 
 cibly entered is not a competent witness. 
 R. V, Williams, 9 B. & C. 549. Eject- 
 ment by tenant in tail to try the validity 
 of a common recovery, the remainder-man 
 after the tenant in tail is incompetent to 
 give evidence for him ; the effect of the ex- 
 ecuted judgment on a verdict for the te- 
 nant in tail would be to put him in posses- 
 sion as of his former right, and to give the 
 witness a vested interest in the remainder. 
 Doe V. Tyler, 6 Bing. 390. See also Gully 
 V. Tlie Bishop of Exeter, 5 Bing. 171. 
 
 (t) See Rhodes v. Aiiisworth, 2 Starkie's 
 C. 215; 1 B.& Aid. 87 ; where it was held 
 that the witness, being the owner of land, 
 was incompetent to disprove the liability to 
 pay in respect of that land to the repairs 
 of a cliapel, although the land was in the 
 possession of a lessee, who was bound to pay 
 his rent without deduction, and althougli 
 he neither resided nor was rated in the 
 district, for he had an immediate interest 
 in removing a permanent charge. See 
 below as to the cases decided under the 
 St. 54 G. 3, c. 170. 
 
 (?<) Bland v. Ansleij, 2 N. R. 331; 
 where it was held, that in an action against 
 the sheriff for seizing the goods of A. under 
 an execution against B., the latter was 
 not a competent witness to show that the 
 goods were not A.'s under an assignment 
 from him ; for the effect of his testimony 
 would be to pay his own debt with the 
 plaintifTs goods. Note, that the witness 
 
 had 
 
 Right to 
 share, or 
 liability to 
 contribute. 
 
 (x) As to this class, see the late st. 3 & 4 W. 4, c. 42, s. 26.
 
 110 
 
 WITNESS : 
 
 Right to As where the witness has indemnified a party against the result 
 
 ihSty'to generally fy), or being called for the defendant in ejectment, 
 contribute, would be liable to an action for mesne profits (z), in case the 
 plaintiff' succeeded ; or be bail for the defendant (a) ; or has de- 
 posited in the hands of the sheriff" a sum of money in lieu of 
 bail {b) ; or be surety in a replevin bond (c) ; or has entered into 
 any contract, by which a benefit is to accrue if the result be in 
 favour of his party (d) ; or a loss if he fail. So where the witness 
 is a co-partner with the defendant in the subject-matter of the 
 suit, and would be liable to contribution in case the defendant failed 
 in his defence (e). And as a co-partner, by reason of his liabihty 
 
 had sold the plaintiff a house in which the 
 goods were, and whether the goods were 
 sold or not was in dispute. In replevin by 
 an under-tenant against a landlord, who, 
 towards discharging the rent due from his 
 tenant, distrained as bailiff of his tenant for 
 the amount of rent due from the undei'- 
 tenant to the tenant ; it was held, that the 
 tenant was not a competent witness to 
 prove the amount of the rent due from the 
 under-tenant. Upton v. Curtis, 1 Bing. 
 210. 
 
 {y) See note (n), p. 113. 
 
 {z) The witness, a tenant in possession 
 of the land, who had been served with a 
 copy of the declaration, is incompetent to 
 be a witness for the defendant in ejectment. 
 Doe V. Preeee, 1 Tyr. 410; Doe v. Wil- 
 liams, Cowp. 621 ; Bourne v. Turner, 
 1 Str. 632. 
 
 {a) 1 T. R. 164, Bayley v. Hole, 3 Carr. 
 & P. 500. Piesly v. Von Esch, 2 Esp. 
 C. 605. Pearcy v. Fleming, 5 Carr. & 
 P. C. 503. 
 
 (ft) Lacon v. Higgin,^ Starkie's C. 182. 
 The same objection applies to the wife of 
 the bail. Comishy. Pugh, 8 D. & Ry. 65. 
 Mood. & M. C. 289. 
 
 (c) Baily v. Baily, 1 Bing. 92. 
 
 (rf) As if a plaintiff agree that if he 
 recover the lands, the witness shall have a 
 lease ; Gilb. Ev. 108. So where the wit- 
 ness, in case the plaintifffailed, was to pay 
 a sum of money, but if he succeeded was 
 to retain it. Fotheringham v. Greenwood, 
 1 Stra. 129. 
 
 (e) See the cases which fall within this 
 class, below, tit. Joint Intkrest. One 
 
 who admits himself to be a contractor is 
 not a competent witness for the defendant; 
 for although it might be against his inte- 
 rest to admit such liability in respect of 
 contribution, yet he has a more immediate 
 interest to defeat the action or reduce the 
 damages. Hall v. Rex, 6 Bing. 181, and 
 3 M. & P. 273 ; and see Simons v. Smith, 
 1 Ry. & M. 29 ; Cheyne v. Koo2y, 4 Esp. 
 C. 112. 
 
 In an action for goods sold, the defence 
 was, that they were sold to the defendant 
 and another, his partner, in part payment 
 of a debt due from the plaintiff to the part- 
 nership ; held, that such partner was an 
 incompetent witness, as being liable to 
 contribution in respect of plaintiff's de- 
 maud. Evans v. Yeatherd, 2 Bing. 133. 
 
 So where a co-defendant in assumpsit 
 has let judgment go by default. Brown 
 V. Fox, cited by Dallas, J., 8 Taunt. 141 ; 
 and see the observations in Mant v. 
 Mainwaring, 8 Taunt. 139; infra. Vol. 
 II. tit. Parties. 
 
 Where two partners being sued on a 
 bill as indorsees, one pleaded his discharge 
 by bankruptcy and certificate, and a non- 
 pros, was entered as to him ; it was held, 
 that as since the 49 Geo. 3, c. 121, s. 8, 
 the solvent partner, after payment of the 
 partnership debt, might prove against his 
 insolvent partner's estate, and that the 
 certificate, therefore, would be a bar to 
 any action for contribution, the bankrupt 
 having released his surplus effects, was an 
 admissible witness for him. Afflalo \. 
 Fourdriniei', 6 Bing. 306. And see 
 Moody V. King k Porter, 2 B. & C. 558.
 
 INTEREST IN THE RESULT. 
 
 Ill 
 
 to contribution, would not be a competent witness for the dc- Right to 
 fendant, to whom, on a verdict ac;ainst him, he would be liable iiabiii'ty to 
 to contribute, he is, on the other hand, a competent witness for *;*^"t''i^"te. 
 the plaintiff in an action against the co-partner. 
 
 A co-partner in a company, whether proved to be such by- 
 examination on the voire dire (d) or by independent evidence (e), 
 is a competent witness in an action of assumpsit to prove the 
 liability of the defendant as a co-partner ; for being a co-partner 
 he is liable for his contributory share of the damages and costs ; 
 and if the defendant were not in fact a partner, he would be 
 entitled to recover from the firm the sum recovered from him, as 
 money paid to their use ( /). Yet if the witness, being a co-partner, 
 
 (d) BlacTiett v. Weir, 5 B. & C. 385 ; 
 Yorhe v. Blott, 5 M. & S. 71 ; Hall v. 
 Curzon, 9 B. & C. 64G ; Fawcctt v. Weat- 
 hnU, 2 C. & P. 305, Where creditors of 
 a bankrupt agreed to contribute to the 
 expense of watching a commission of bank- 
 rupt, in order to prevent fraudulent proofs, 
 rateably in proportion to tlieir respective 
 claims ; it was held that one of the con- 
 tributors, who had paid his own proportion 
 to the solicitor retained, was a competent 
 witness for the latter, in a suit to recover 
 his quota of the expense from another 
 creditor. Taylor v. Cohen, 12 Moore, 
 219. 
 
 (e) Hall V. Curzon, 9 B. & C. 646. 
 Lord Tenterden, C. J., in giving judgment, 
 assimilated the case to that of a co- 
 trespasser. 
 
 (/') Per Holroyd, J., in Blacliett v. 
 Weir, 5 B. & C. 386. A creditor of the 
 firm of A. §' Co. sues B., supposing 
 him to be one of the firm. Having proved 
 the debt as against A. §• Co., he adduces 
 evidence to show that B. is a member of 
 the firm, and has a verdict, judgment, and 
 execution against B. It is assumed in the 
 foregoing decision, that B., not being in fact 
 amember of the firm oiA. §• Co., can recover 
 over against the firm, and if so, one of the 
 firm would, of course, gain nothing in ob- 
 taining a verdict against B., for he would 
 ultimately be liable to his share of the debt 
 and costs in the action against B., and 
 could not by his testimony reduce his con- 
 tributory share by enlarging the number 
 of contributors. It may perhaps be open 
 todoubt whether i?, a stranger to ^1. ^- Co., 
 
 could recover against them the amount 
 recovered from him, including costs as 
 well as damages. The costs may in fact 
 be attributable to the mistake of the cre- 
 ditor in suing the wrong party, and there 
 seems to be some difficulty in holding that 
 A. §• Co., who might, if sued, have paid 
 the amount, should be liable to the costs 
 of an action against a stranger. It is true 
 that in the principal case, the witness 
 being one of the firm of.4.§- Co., swears 
 that B., the defendant, is a member ; but 
 this ought not to afiect his partners, unless 
 privy to the fraud. Assuming the action 
 to be maintainable, it may be questionable 
 whether the same principle would not 
 extend to cases where the witness having 
 bought goods in his own name, is called 
 to prove that the defendant is either 
 solely or jointly liable. See 3Iacbrain 
 V. Fortune, 3 Camp. 317. Ripley v. 
 Thovipson, 12 Moore, 55, for there also it 
 might be urged that the party wrongfully 
 charged would have his remedy over 
 against the witness. Another question is 
 as to tlie effect of the late stat. 3 & 4 W. 4, 
 c. 42. See below, tit. Joint Interest. 
 The interest of a witness who admits his 
 own liability to a portion, e. g. one half, 
 but who insists that the defendant is liable 
 jointly with him, depends, so far as the 
 amount is concerned, on the difference be- 
 tween the amount of the costs and the 
 debt claimed ; in respect of costs, admit- 
 ting as he does his own liability, he is in- 
 terested in defeating the plaintiff"; he is 
 interested, on the other liand, in causing 
 the defendant to contribute to the debt ;
 
 112 witness: 
 
 Right to has let judgment go by default, he would not be a competent wit- 
 liability to J^<2ss for the plaintiff; for, being himself liable, he is interested in 
 contribute, rendering the co-defendants liable to contribution, of which liability 
 the record would be evidence {fj). Here, however, the record 
 would be evidence for him to prove a fact, that is, the joint 
 liabihty of the defendants (A). 
 
 In cases falling within this description, it is not sufficient that 
 the party objecting to the testimony should suggest that the witness 
 is interested by reason of his privity with the party ; the fact, if 
 not admitted by the party who calls the witness, must be proved 
 either by the examination of the witness on the voire dire, or by 
 independent evidence (i). 
 
 It seems that in general, where a witness is prima facie liable to 
 the plaintiff in respect of the cause of action for which he sues, he 
 is not a competent witness for the plaintiff to prove the defendant's 
 liability. For his evidence tends to produce payment or satisfac- 
 tion to the plaintiff at another's expense ; and the proceeding and 
 recoveriup; against another would afford strono; if not conclusive 
 evidence against the plaintiff in an action against the witness. 
 
 Thus it has been held that where the witness is prima facie liable 
 to the vendor of goods which he has purchased in his own name, he 
 is not a competent witness for the vendor against a third person to 
 prove that the defendant is either solely (A) or jointly (Z) hable for 
 
 and if the debt were less than the costs, he (i) Birt v. Hood, 2 Esp. C. 20; where, 
 
 would still be interested in favour of the in an action for goods sold and delivered, 
 
 defendant. a witness being called to prove that the 
 
 ((/) Brown v. Broion, 4 Taunt. 752. trade in respect of which the goods were 
 
 See the case of Taj/Zorv.Co/ien, 12 Moore, supplied was carried on not by the de- 
 
 219; where Best, C. J., distinguished the fendant but by the witness, the plaintiff 
 
 case of Brown v. Brown from that of admitted that the witness carried on the 
 
 Hudson V. Robinson, on the ground that business, but insisted that the defendant 
 
 in the latter case the witness could in no was partner with him: but Eyre, C.J., 
 
 event be interested in the result of the overruled the objection, saying, that as the 
 
 suit. And it may be observed, that in the plaintiff had chosen to proceed against the 
 
 former case the witness admits liis own defendant solely, he should not be allowed, 
 
 liability, and consequently admits an in- by merely suggesting the existence of a 
 
 terest to make another contribute : the partnership between the defendant and the 
 
 defendant is either jointly liable with him witness, to deprive the former of the 
 
 or he is not; if he be jointly liable, then benefit of his testimony, 
 the witness has an interest in defeating the (k) Macbrain v. Fortune, 3 Camp. 317, 
 
 action to get rid of his share of the costs ; Vol. II. tit. Vendor & Vendee, 895. 
 but if the defendant be not jointly liable, (l) Where G., a party to whom goods 
 
 the witness has an interest in causing the were originally sold in his own name, 
 
 defendant to contribute to the debt. having become insolvent, the action was 
 
 (/*) Abbott, C. J., in thecaseof J?Zac^e<# brought against the defendants, who were 
 
 V. Weir, 5 B. & C. 287, observes that this in partnership with G., it was held that 
 
 is founded on the rule that no party to the he was an incompetent witness on the part 
 
 record can be examined. of the plaintiff, to sliow the liability of
 
 INTEREST IN THE UESUl.T, 
 
 li:{ 
 
 the goods ; for in such case tiic witness luis a direct interest in Ri^iit to 
 causino- another either to pay or contribute to the pavmcnt of the f.'","!*'.' "■" 
 
 o . ' -^ liability to 
 
 debt(w«)- So where a witness called by tlie defendant has under- coniriUitfi. 
 taken to indemnify him against the whole or part of the damages 
 or costs (n). It is immaterial whether the obligation to indemnify 
 be express or be implied from the circumstances (o). Thus a prin- 
 cipal is not a competent witness for his surety {p). 
 
 tlie defendants, without a release, for lie 
 liad a direet interest to render others liable 
 as well as himself. Iti})lcij v. Thu/iipson, 
 12 Moore, 55. 
 
 (»i) So in an action for use and occupation, 
 where a witness was called who stated 
 that he had not been released from his 
 tenancy, being asked whether he had not 
 given up the premises to the defendant, it 
 was objected that he was interested in fixing 
 the defendant, and it was held that he was 
 incompetent, for if the plaintiff succeeded 
 in getting the amount he claimed from the 
 defendant, that would put an end to the 
 plaintiff's claim for rent for the time for 
 which he sought to recover it in that 
 action. Hoclson v. Marshall, 7 C. & P. 
 16, cor. Lord Denman, C. J. Note that 
 this was subsequent to the stat. 3 & 4 
 W. 4, c. 42. 
 
 (n) Where several parishioners at a 
 vestry signed a resolution, approving of 
 law proceedings against surveyors of the 
 highways, and guaranteeing to the plaintiff 
 the legal expenses, held that it was a per- 
 sonal liability, and rendered them incom- 
 petent. Hendehoicrak v. Lnngley, 3 C. & P. 
 571. One who has jointly with the de- 
 fendant and by his authority done the act 
 for which or its consequences damages are 
 claimed, is not an incompetent witness for 
 the defendant, in the absence of an agree- 
 ment to indemnify. Where, in trespass 
 for taking marl, &c. the defendants justi- 
 fied as under a license from the plaintiff to 
 B., one of the defendants, and J. F. ; in 
 support of which an agreement was proved 
 between the plaintiff and the first defend- 
 ant, and one J. F., for a surrender to them 
 of" all those brickworks at S." then in the 
 possession of the said plaintiff; upon which 
 the question arose, whether the locus in quo 
 were parcel of such brick-works ; it was 
 held that, in the absence of any engage- 
 VOL. I. 
 
 ment on the part of J. F. to indemnify B., 
 he was a competent witness, and that he 
 might be called to explain the agreement 
 by parol evidence, it being ambiguous as 
 to the identity of the brick grounds. 
 Faddock v. Fradleij, IJ. & C. 00. 
 
 (o) \\'liere, in an action by the indorsee 
 against the drawer of a bill, it was at- 
 tempted to be proved by the acceptor that 
 the bill was accepted in discharge in part 
 of a bill due from him to the drawer, and 
 was indorsed by the latter that he might 
 get it discounted ; and that he delivered 
 it to the plaintiff, and told him that if ho 
 would get cash for it he might retain out 
 of it the sum which the acceptor owed him, 
 but that he never did get cash for it ; it was 
 held that the acceptor was an incompetent 
 witness, because although not interested in 
 the amount of the bill, yet, as to the costs, 
 he would be bound to indemnify the de- 
 fendant if the plaintiff obtained a verdict. 
 Edmonds v. Lotve, 8 B. & C. 407. See 
 below, tit. Interest.— Costs; and Vol. 
 II. tit. Bills of Exchange. 
 
 {})) Seciis where the principal is dis- 
 charged by his bankruptcy and certificate. 
 A. and B. having been in partnership, 
 dissolved it on the 14th of July; the dis- 
 solution was advertised on the 17th; on 
 the 16th a bill was drawn in the names of 
 
 A. and B., which was accepted and paid 
 by C. without consideration ; C. after- 
 wards sued A. and B. for money lent; A. 
 pleaded his bankruptcy and certificate ; 
 
 B. non assn.mj)sit ; a noL pros, was en- 
 tered as to A.: held that he was a com- 
 petent witness for B. to prove that C. ac- 
 cepted the bill for his (J .'s) accommodation, 
 and not for that of £.,for that B. was only 
 a surety,and might have proved under A .'s 
 commission. Moody v. King, 2 B. & C 
 559 ; supra, 107. See Townrtid v. Down- 
 ing, 14 East, 5G5.
 
 over. 
 
 114 WITNESS — interest: 
 
 Liability Stly. Where the issue involves any breach of duty, or default, 
 
 in respect of which the witness would be liable over to the party 
 calling him. 
 
 Such a witness, for which ever party called, is interested in pro- 
 tecting himself against the consequences of failure, by procuring 
 a verdict to pass for the party who calls him. Although guilty of 
 misconduct, the record would conclusirely show that the party 
 calling him had received no prejudice, so far as that cause was 
 concerned (q). If called for the defendant, he would also be in- 
 terested in obtaining a verdict for him, and to exclude a record 
 which would be evidence against himself as to the amount of con- 
 sequential damage in an action afterwards brought against him by 
 his party (r). 
 
 This principle comprehends all cases of warranty express or 
 implied. If, on a title turning out to be defective, the witness be 
 bound to indemnify the purchaser against consequences, he is not 
 competent to prove the title in an action against the purchaser 
 under a similar warranty where the issue is upon the title; for 
 the agreement to indemnify against a defect in title, is, so far as 
 the result is concerned, an agreement to indemnify in the particular 
 cause. The witness, although liable for breach of warranty inde- 
 pendently of the record, would, if the plaintiif succeeded, be liable 
 to the defendant to the extent of the damages recovered, of which 
 the verdict and judgment would be evidence (s). 
 
 (q) It is to be borne in mind that in all fee, and the defendant covenanted with the 
 cases within this class, where an agent or plaintiff for quiet enjoyment, it was held, 
 other party is liable over in respect of some that in an action on the latter covenant, 
 breach of duty, the action is founded on C. was not competent to negative a prior 
 the breach of duty, the failure in the feoffment to another person, for the effect 
 
 former action is material only as showing would be to save him from an action for 
 
 consequential damage. Where, therefore, breach of his own covenant. Serle v. Serle, 
 
 an action is brought by a former plaintiff on a trial at a bar, 2 Roll. Ab. 685. But 
 
 against one as liable over to him, although it is otherwise where a vendor has sold the 
 
 he need not prove failure in a former inheritance without any covenant for good 
 
 action, it might be material to the de- title or warranty. Busby v. Greenslade, 
 
 fendant to prove that the plaintiff actually 1 Str. 445. In general the law Implies no 
 
 succeeded. warranty in the case of a real estate. 
 
 (»•) If called for the plaintiff, although Infra, Vol. II. tit. Warranty. It is 
 
 a verdict for the defendant would not show otherwise in the case of a sale of personal 
 
 to what extent the plaintiff had been property, in which case any affirmation at 
 
 damnified by a failure attributable to the the time of sale amounts to a warranty. 
 
 witness's breach of duty, the record might. Infra, Vol. II. tit. Warranty. And it 
 
 perhaps, still be evidence to show that the seems that in general a witness who would 
 
 plaintiff's claim against the defendant was be answerable to a vendee, in case the 
 
 barred. title turned out to be defective, is not a 
 
 («) Where C. had enfeoffed the defend- competent witness to prove the title. See 
 
 ant with a covenant that he was seised in tit. Vendor and Vendee, Vol II.
 
 LIABILITY OVKR. 
 
 n:. 
 
 Numerous authorities (previous to tlie late statute,) show that Liahility 
 in an action against a principal, founded on the negligence of his '^'''"' 
 agent, the latter is not a competent witness for the defendant (^). I n 
 
 and tit. Deceit, 267 ; and Rohinsoii v. 
 Anderton, Peake's C. 94. In the two 
 following cases it was held that a witness 
 was competent to prove title in himself to 
 the property in dispute, although he had 
 sold it to tlie defendant. Trover for a horse, 
 the defendant proposed to prove that tlie 
 horse was delivered to E. F.hj the plaintiff, 
 to secure a debt wiiich he owed to E. F., 
 with authority to sell the horse to pay the 
 debt, and that under this authority E. F. 
 sold the horse to the defendant. E. F. 
 was called to prove tliis case, and having 
 been admitted as a witness for the defend- 
 ant, notwithstanding an objection taken on 
 the ground that he was incompetent to 
 prove his title to sell, the plaintiff obtained 
 a verdict. The objection having been re- 
 newed on a motion for a new trial, tlie 
 Court ofC. P. held that the witness was 
 competent, because the record would not 
 be admissible in any other action either for 
 or against E. F. Nix v. Cutting, 4 Taunt. 
 18. But although the record would not, 
 in the event of a verdict against the de- 
 fendant, be evidence to show the fact of 
 title, yet in an action by the defendant 
 against E. F. for selling the goods without 
 authority of the owner, it would, it seems, 
 be evidence to prove the measure of damage 
 sustained by the defendant in the former 
 action. 
 
 In the case of Larbalnstier v. Clarke, 
 1 B. & Ad. 899, the action was for goods 
 sold. The plaintiff proved that one Fair- 
 cloth and the defendant's son came to the 
 London Docks, and said tliatthe defendant 
 wished to purchase a cask of champagne ; 
 the price agreed on was 10 1., tlie wine 
 was afterwards delivered to the defendant. 
 A month afterwards the plaintiffs called 
 on the defendant for payment, when he 
 alleged that he had previously paid Fair- 
 cloth the money. The proposed defence 
 was, that Faircloth, who was a wine-raer- 
 chant, had purchased the wine of the 
 plaintiffs, and sold it on his own ac- 
 count to the defendant, and had been 
 paid by the latter ; and Faircloth was ten- 
 dered as a witness to prove these facts. 
 
 Lord Tenterden was of opinion, that as 
 Faircloth, in order lo induce the defendant 
 to pay him, must have falsely represented 
 himself to that party as the owner of the 
 wine, he was guilty of fraud, and would 
 be answerable to the defendant, not only 
 for the price of the wine, but for the costs 
 accrued in the action. A verdict liaving 
 been found for the plaintiffs, the Court of 
 King's Bencli held that the circumstances 
 di'l not warrant the assumpticui that Fair- 
 cloth had been guilty of fraud or misre- 
 presentation, and that he was therefore a 
 competent witness. The Court, in the 
 above case, considered it to be essential 
 for the purpose of excluding the testimony 
 of the witness, to prove fraud. 
 
 In the case of Baldwin v. Dixon, 2 Mo. 
 & Mai. C. 69, the defendant, in an action 
 on a warranty of a horse, called the party 
 from whom he liad bought him under a 
 similar warranty ; and on the objectinn to 
 his competency, but no authority being 
 cited. Lord Tenterden, C. J., said that it 
 would be safer to admit the witness, givhig 
 the plaintiff leave to enter a verdict in case 
 the Court should think that he was incom- 
 petent. Btit in the later case of Siss 
 V. Mountain, 1 Mood. & R. 69, it was 
 held (by Alderson, B.) in conformity with 
 Briggs v. Cnich, 6 Esp. C. 99, tliat the 
 witness in such a case was incompetent. 
 
 (t) In the case of Green v. The New 
 River Company, 4 T. R. 689, it was held 
 that the turncnck in the employment of the 
 defendants was incompetent to negative a 
 a charge of negligence on which the action 
 was founded. The Court in giving judg- 
 ment decided on the ground that the ver- 
 dict would, in a subsequent action by the 
 defendants against the witness, be evidence 
 to prove the amount of the damages. 
 Where a pilot was on board who had the 
 control of the ship, it was held that he was 
 not a witness for the owners, in an action 
 on the case against them for an injury by 
 running foul of another vessel, without a 
 release. Hawkins v. Flnlayson, .3 C. & P. 
 SO."*. In an action on the case for negli- 
 gence, in running against the plaintiff's 
 
 1 2
 
 116 
 
 WITNESS — INTEREST : 
 
 Liability. 
 
 sucli a case, tlie witness is usually liable not only for the damages, 
 but also for the costs of the action (m). 
 
 So also it has frequently been held that where negligence is 
 imputed to the plaintiff's agent, such as if proved would preclude 
 the plaintiff from recovering, such agent is an incompetent witness 
 for the plaintiff. 
 
 In Morish v. Foote (x), which was an action for negligently 
 driving a mail-coach against the plaintiff's waggon, his waggoner 
 was held to be incompetent without a release, although he swore 
 
 cart with a dray, the servant who drove 
 the cart was held to be incompetent. Mil- 
 ler V. Falconer, 1 Camp. 251. In an 
 action against a sheriff for a false return, 
 his officer, being liable to his principal for 
 tlie consequences of his misconduct, is not 
 a competent witness to show the correct- 
 ness of the return. Powell v. Hard, 2 Lord 
 Ray. 1411 J 1 Str. 650. Even although the 
 officer has received an indemnity from the 
 execution creditor, or had not employed 
 the attorney for the defence, for his liability 
 to the sheriff is certain, and he may not 
 get paid on his indemnity. Per Lord Ten- 
 terden, in Whitehoiise v. Atkinson, 3 Carr. 
 & P. 344. The same learned Judge is re- 
 ported to liave held that the rule did not 
 extend to a witness not immediately liable 
 to the sheriff, but liable to his officer, and 
 that the interest was too remote. Clarlie 
 V. Lucas, Ry. & M. 32. The case, how- 
 ever, seems to fall directly within the 
 excluding principle. It seems that in such 
 a case the witness, if otherwise incompe- 
 tent, would not be made competent by the 
 late statute. The sheriff would be able to 
 produce the record against his officer, for 
 being indorsed with the witness's name, it 
 would still be evidence against the officer; 
 and in an action by the officer against the 
 witness, the former, it seems, would be able 
 to recover the damages occasioned by the 
 defendant's misconduct, without resorting 
 to the first record. See Gevers v. Main- 
 warinij, Holt's C. 139; Whitehouse v. 
 Atkinson, 3 C. & P. 344; Field v. 
 Mitchell, 6 Esp. C. 73. Clarke v. Lucas, 
 1 Ry. & M. C. 32. Kerrisoji v. Coats- 
 tt-orth, 1 Carr. & P. C. 645, and the cases 
 cited below. 
 
 (?<) See Ncale v. Wylie, 3 B, & C 533. 
 
 Lewis V. Peake, 7 Taunt. 153. Note, that 
 in the latter case the purchaser of a horse 
 on a warranty, resold him on a similar 
 warranty, and having offered the defence 
 to his warrantor, who did not interfere, 
 was held to be entitled to costs. The rule 
 seems to be different wliere the plaintiff 
 Ijrings an unfounded action, and is defeated 
 by reason of misconduct on the part of his 
 agent. See 1 Bing. 688. 
 
 (.t) 2 Moore, 508. In the case of Cuth- 
 bert V. Gostling, 3 Camp. 518, issue was 
 taken on a replication of excess, to a plea 
 of licence in trespass for breaking a wall 
 of the plaintiff's house. Tlie trespasses 
 complained of had been committed in re- 
 pairing the defendant's house. The defence 
 was, that the plaintiff having given leave 
 to do what was necessary for repairing, 
 nothing more than was necessary had been 
 done ; and to prove this, the evidence of 
 the workmen employed was admitted on 
 behalf of the defendant ; Lord Ellenbo- 
 rough observing, that it by no means fol- 
 lowed tliat the witnesses would l)e liable to 
 the defendant if the plaintiff had a verdict; 
 and that the case was very different from 
 an action for negligence in driving against 
 carriages or running down ships ; for there, 
 if the master be liable to the plaintiff, the 
 servants are necessarily liable to the mas- 
 ter, and they have a direct interest to de- 
 feat the action. Here it is to be remarked 
 that there was no evidence to show that 
 the agents had done anything beyond the 
 scope of the master's direction, and conse- 
 quently it did not appear that in the event 
 of a recovery against him he would be en- 
 titled to recover over from them. See also 
 Green v. The New River Company.
 
 LIAllILny OVER. J 1 7 
 
 that he left sallicient room for the defendant's mail, and although Liability 
 the jury found by their verdict that he v\^as not to blame. °^'''^r 
 
 In the case of Mot hero v. Elton {y), in an action on a policy of 
 insurance on goods on board a ship, the question was, whether the 
 ship was seaworthy ; and it was held that the owner of the vessel 
 was not a competent witness for the plaintiff to prove the affirmative, 
 because he was interested in the event of the cause ; for, if the 
 plaintiff failed, he would have been entitled to recover against the 
 witness, on an implied warranty that the ship was staunch. 
 Again, in an action on a policy of insurance on goods, the captain 
 of the vessel has not in the abstract any interest either in the 
 immediate result of the cause or in the record ; and if the question 
 merely be, what was the original destination of the ship, he would 
 be a competent witness for the plaintiff, to show that he acted 
 under his direction. But if the question turned upon a deviation, 
 he would have been incompetent to prove that he had not been 
 guilty of a deviation ; for if the plaintiff had failed, the witness 
 would have been responsible to him for the consequences of such 
 deviation, and he would then have laboured under an interest in 
 the event of the suit {z). 
 
 The decision in Morislt v. Foote has been recognised in several 
 later cases («)• 
 
 In all cases within this general class, in order to incapacitate the 
 witness, the interest under which he labours must be established by 
 evidence; no presumption will be made that he has acted dishonestly 
 or improperly for the purpose of founding an objection to his com- 
 petency (5). But if the witness be shown to have acted under any 
 duty to the defendant, and the question is, whether he performed that 
 duty, or was guilty of a breach of duty, he is not competent. As 
 where a witness is called for the defendant, the drawer of a bill, to 
 prove that he having received the bill from the defendant, to get it 
 discounted, had delivered it to the plaintiff for that purpose, the 
 question being whether he had so delivered it, or in payment for 
 goods bought by him of the plaintiff (c). So where in an action by 
 
 (y) Peake's C. 84, cor. Lord Kenyon. fendant to a plaintiff is not a competent 
 
 (s) De Syinonds v. De la Cow, 2 N. R. witness for the defendant to prove that lie 
 
 374; and see the cases above cited. received the money as agent of the plain- 
 
 (a) Wake v. Locke, 5 C. & P. by tiff, or in his own right, if his conduct has 
 
 Lord Denman, C. J. Shcirman v. Barnes, been such that he would be liable, in the 
 
 1 Mood. & R. 69. event of a verdict for the plaintiff, to pay 
 
 (6) Larbalestier v. Clarke, 1 B. & Ad. the defendant not only the money received, 
 
 899, siq)7-a. but also the costs of the action, in case the 
 
 (c) Harnian v. Loshrey, Holt's C. 390. plaintiff recovered. Per Littlcdale, J., in 
 
 It is now well established that a person the case of Larbalestier v. Clarke. That 
 
 who has received money due from a de- learned Judge said also tliat he regretted 
 
 I 3
 
 118 witness: 
 
 Liability an indorsee aoainst the drawer of a bill, a witness having been called 
 over. ]3y tiie defendant to prove that the bill had been accepted by him for 
 
 a debt due from him to the defendant, and had been delivered to him 
 by the defendant to get it discounted, and by the witness to the plain- 
 tifi'to get cash for it, and the question being whether the witness had 
 so delivered the bill to the plaintiff, or had delivered it in discharge 
 of his own debt to the plaintiff (<i), he was held to be incompetent. 
 
 In those cases it appeared, and in cases falling within the same 
 principle it is necessary, for the purpose of excluding the witness, 
 that it should appear, by admission or otherwise, that the proposed 
 witness had some contract or duty to perform, in respect of which, 
 in case of misconduct or default, he would be liable over for 
 damages or costs, if his party failed ; for then he has such an in- 
 terest in representing the fact one way rather than the other, as on 
 the general principle excludes his testimony. 
 
 A witness is, it seems, in general competent to defeat an action 
 by proof of title or interest in himself, or of his situation or circum- 
 stances, provided he be not subject to any contract or obligation 
 which would make him liable over in case such title or interest 
 were disproved (e). 
 
 Where the party employed was the actual agent who transacted 
 the business of the principal, he is, as will be seen, competent on 
 the score of necessity (/) ; but although an agent who actually 
 
 that such a rule had been established, be- goods. Adams v. Davis, 3 Esp. C. 48. So 
 cause in many cases it was extremely where a clerk or servant has received 
 difficult to ascertain whether a party so money, he is a competent witness for the 
 situated would be liable to costs. In party who paid it. Mattheios v. Haydon, 
 order, however, to incapacitate a witness 2 Esp. C. 509. And per Lord Kenyon 
 in such a case, it is not necessary to prove (Ibid.), it is the constant course at Nisi 
 what his conduct has in fact been, for that Prius, ex necessitate rei, to admit the evi- 
 ls the question to be tried ; it is sufficient dence of clerks and porters who were alone 
 to establish the fact that he had a duty to privy to the receipt of money or the deli- 
 discharge, having received money for a very of goods. And see Theobald v. Treg- 
 particular purpose; and then, if the ques- gott, 11 Mod. 2G1. So a bookkeeper is a 
 tion be whether he so applied, or on the con- good witness without a release. Spencer 
 trary misapplied it, and in the latter case v. Goulding, Peake's C. 129. And where 
 would be liable to the defendant's costs, he a carrier who was directed to deliver 
 is incompetent. It is now well established, money to ^., delivered it by mistake to 
 that a liability to costs simply, constitutes B., it was held, that in an action by the 
 a preponderating interest sufficient to ex- employer against B. to recover the money, 
 elude testimony. Toionend v. Dowjiing, he was competent without a release. Bar- 
 14 East, 565; and see Index, tit. Costs. Ttei- v. Macrae, 8 Camp. 144; B. N. P. 
 
 {d) Edmonds v. Loice, 8 B. & C. 409. 289. And see Jlderton v. Atkinson, 7 T. 
 
 (e) Nix v. Cutting, 4 Taunt. 18. Ward R. 480; Evans v. Williams, 7 T. R. 481, 
 
 V. TFiZ/cimoM, 4 B. & Aid. 410. n.; Vol. II. 894. But a debtor to the 
 
 (/) Vide w/ra, tit. Agent. Ajouniey- plaintiff is not (it has been held) competent 
 
 man is competent to prove the delivery of to prove that lie paid the debt to the de-
 
 INTEREST IN TME REfORD. 
 
 119 
 
 executed the business of the principal is, it seems, in all cases com- Liability 
 petent to prove that he acted according- to the directions of his °^^'"' 
 principal {g), on the ground of necessity, and because the principal 
 can never maintain an action against his agent for acting accord- 
 ing to his own directions, whatever may be the result of the 
 cause (Ji), yet if the cause depend upon the question whether the 
 agent has been guilty of some tortious act, or some negligence in 
 the course of executing the orders of the principal, and in respect 
 of which he would be liable over to the [principal if he failed in 
 the action, the agent is not competent without a release (z), or an 
 indorsement according to the statute. 
 
 The objection ceases to operate where the party who would 
 otherwise have been entitled to recover over against the witness, 
 has by any act precluded himself from recovering {k). 
 
 4thly. A witness is incompetent where the record would, if his interest in 
 party succeeded, be evidence of some matter of fact to entitle him *^^ record. 
 to a legal advantage, or repel a legal liability (Z). It is observable 
 
 fendant, the servant of the plaintiff, for his 
 master. Theobald v. Treggott, 11 Mod. 
 261, cor. Holt, C. J.; for he swears in his 
 own discharge. 
 
 {g) See note (/). 
 
 (/i) Morish v. Foote. See the obser^-a- 
 tions of Mansfield, C. J. in De Symonds v. 
 Z>e la Cour, 2 N. R. 374. 
 
 (i) Infra, Interest — Agent. See 
 Eothero v. Elton, Peake'sC. 84. Miller 
 V. Falcone?; 1 Camp. 251. 
 
 (k) In an action against a sheriif for a 
 false return of 7itdla bona, after he has 
 taken goods in execution, which have been 
 forcibly taken out of his possession, and 
 carried away by a person claiming pro- 
 perty in them, such person is admissible to 
 prove that they were not the property of 
 the debtor against whom the execution had 
 issued ; because the sheriff cannot maintain 
 an action against him (the witness) for the 
 rescue, after having made such a return ; 
 and as to all other persons claiming the 
 goods, the verdict would be res inter alios 
 acta ; and therefore could not be used to 
 affect their rights in any proceeding 
 against the witness. Thomas v. Pearce, 
 6 Price, 547. 
 
 (0 See Bent v. Baker, 3 T. R. 27. 
 Smith V. Prager, 7 T. R. 60. Abraham v. 
 Bunn, 4 Burr. 2251. A copyholder is in- 
 competent to prove a customary right in 
 
 the manor for copyholders to take timber 
 for repairs without assignment of the lord. 
 Lady de Fleming v. Simpson, 2 M. & R. 
 164. One who has acted in violation of a 
 custom is incompetent to disprove it. Car- 
 penters' Company v. Hay ward, DougL 
 374. On an action on a custom to have 
 the second-best fish in every boat landed 
 out of S. Cove, a party representing him- 
 self to be a fisherman frequenting the 
 coast, was before the late statute held to 
 be incompetent. Lord Falmouth v. George, 
 5 Bing. 286. Where the defendant claimed 
 to be entitled as heir-at-law of his father, 
 and called his mother to prove a seisin in 
 his father, it was held that her being enti- 
 tled to dower if the seisin were established 
 did not render her incompetent, as the 
 judgment in the action would be no evi- 
 dence of the saisin, and she would be 
 equally entitled to dower whether the 
 lands were in the hands of the defendant 
 or of the lessor of plaintiff. Doe d. Niglit- 
 ingale v. Maisey, 1 B. & Ad. 439. In 
 trespass for cutting down furze the de- 
 fendant claimed an exclusive right of pori- 
 session; held that the issue between the 
 plaintiff and defendant being confined as to 
 the right of possession of the locus in quo, 
 and the record not being evidence to affect 
 the rights of parties claiming rights of 
 common over it, they were competent wit- 
 I 4
 
 120 witness: 
 
 Interest in that ill most if" not ull the cases ah'eady adverted to, where the 
 tiic record, .^yitness is excluded by reason of his interest in the result, the record 
 would he evidence, where such evidence was necessary, to prove 
 the mere fact that such a verdict had been obtained, or to show 
 the measure of damages, but not to prove the truth of any fact 
 disputed in the cause, Tlius the verdict and judgment in an action 
 against a principal for the negligence of his agent, would be admis- 
 sible in an action by the principal after a verdict against him, to 
 prove the measure of damages, though not to prove the fact of 
 neghgence. It is proposed within the present division to consider 
 those cases where the record would be evidence for or against the 
 former witness to prove a matter of fact, in order to acquire a 
 benefit or repel a loss. 
 
 The operation of this rule necessarily and obviously depends 
 upon another very important question, namely, in what cases the 
 record in a former proceeding is admissible in evidence (m). In 
 general, in all cases depending on the existence of a particular 
 custom, a record establishing that custom is evidence, although 
 the parties are different. Hence it follows that no one is competent 
 to support a custom who would be benefited by the establishment 
 of it, because the record would be evidence for him in case his own 
 right should subsequently be disputed. Accordingly, upon a trial 
 at bar of an issue, whetlier by the custom of certain manors in 
 Cumberland the lord was entitled, under particular circumstances, 
 to a fine from his tenant-right tenants, the Court would not permit 
 lords of other tenant-right manors in Cumberland, Westmorland or 
 Northumberland, to give evidence of the right {n), nor the tenants 
 of other tenant-right estates there to give evidence against it (o). 
 
 So where the issue is, whether a custom exists that all the inha- 
 bitants of ^., or all the tenants of a particular manor, shall have com- 
 mon of pasture in a particular spot, no inhabitant in the one case, 
 or tenant in the other, is competent (p) to establish the custom. 
 
 Where the question is as to a prescription for a right of common, 
 as appurtenant to the house of A., JB., who has a similar house, 
 
 nesses for the defendant. Pcarce v. Lodge, Wood \. Teage, 5 B. & C. 335 3 and 8 D. 
 
 12 Moore, 50. Where the verdict in eject- & Ry. G3. 
 
 ment, by an heir-at-law, would only tend (/«) See tit. Judgment. 
 
 to establish the will as to the real property, («) Duke of Somerset v. France, Str, 
 
 and would be no evidence in the Ecelesias- 654. 
 
 tical Court upon a question whether it (o) S. C. Fort. 41. 
 
 were a good will as to personalty, held that {p) Hockley v. Lambe, Lord Raym. 
 
 upon the issue of the testator's sanity, the 731 ; per Buller, J. 1 T. R. 302 ; Per Ld. 
 
 rxocutor (although a creditor of the tes- Ken. C. J. 3 T. R. 33 j B. N. P. 283; 
 
 tutor) was a competent witness. Doc d. Anscoinbe v. Shore, 1 Tauut. 20; and
 
 INTEREST IN THE UECOUl). 121 
 
 is a competent witness, since the record would be no evidence in interest in 
 support of his prescriptive claim ; but if the right in the common '^ ^^'^'^^ 
 were to be claimed as appurtenant by custom to all houses similar 
 to that of J.., -B. would not be a competent witness, because the 
 record would be evidence of his own right (q). 
 
 A member of a corporation is not competent to prove a custom 
 to exclude strangers from trading, part of the penalty imposed by 
 a bye-law made to enforce the custom being due to the corpora- 
 tion (r). 
 
 It has been held that where the question is, whether several 
 requisites in the aggregate will not confer particular advantages, 
 one who possesses part only of those requisites is still competent, 
 since the decision would not entitle him to a participation in those 
 advantages (s). And therefore upon a question, whether to qualify 
 one as a common-council man, it was requisite that he should both 
 be an inhabitant, and also possess a burgage tenure, it was held 
 that one who was an inhabitant, but who had no burgage tenure, 
 was competent to narrow the right, and to confine it to such as had 
 both qualifications (t). 
 
 Where a witness would by the conviction or acquittal of another Veniict in 
 discharge himself, he is in general incompetent (m). But it seems proceed- 
 to be a general rule, that no verdict founded either wholly or par- i"g- 
 tially on the testimony of any witness in a criminal proceeding, 
 can be made use of either for or against him in any other proceed- 
 
 Vol. II. tit. Common. It seems, that in a parisli, or to exempt certain articles from 
 
 order to exclude a witness, where the ver- the payment of tithes, where he himself 
 
 diet depends on a custom which he is iute- would be liable were the claim to prevail, 
 
 rested to support, it is not necessary that {Lord Clanricarde v. Lady Denton, 1 
 
 the custom should be stated on the record. Gwill. 360. Anscomhe v. Shore, I Taunt. 
 
 Lord Falmouth v. George, 5 Bing. 286; 261.) So a witness is not competent to 
 
 and see App. Vol. 1. 115. A case oc- prove a custom in a parish to an away- 
 
 curred on the Northern Circuit, where the going crop, where he, as tenant of lands 
 
 verdict in an action of trover turned en- within the parish, would be entitled to the 
 
 tirely on an alleged custom within a same privilege. 
 
 manor for the tenants to cut down wood, (,.) jya^is v. Morgan, 1 Tyrw. 457 ; 
 
 and a witness interested in supporting the and see Burton v. Hinde, 5 T. R. 174, 
 
 custom was rejected, although it was insist- m^i Vol. II. tit. Corporation. 
 
 ed that the verdict would not be afterwards 
 
 . , J- 1 ■ i X. .1 4. (s) Stevenson v. JVevinsoJi, Str. 583. 
 
 evidence lor him to support the custom ; ^ ' 
 
 o .. 1 J iT, /-I i j^ The Court relied also on the ground of 
 
 lor it was answered, and the Court oi ° 
 
 ir. , ,, , n^ J T 1 I 1 necessity, and said, that he was in effect a 
 
 King s Bench aiterwards, as I have heard, •" ' , 
 
 , » . , , . . ^1 i ii iP ^ V witness against himself, by showing that 
 approved oi the decision, that the etiect ot " _ ' •' =" 
 
 the verdict to support the custom might ° 
 
 be aided by evidence. (0 I^- For other illustrations of this 
 
 (q) B. N. P. 283. John v. FothergW , n^le see Knight v. Birch, 3 Camp. 521 ; 
 
 Peake's Ev. Append. 1 T. R. 302. Harvey Vol. II. tit. Common.— Corporation.— 
 
 v. CoUison, 1 Sel. N. P. 449. So a witness Custom. 
 
 is not competent to estiiblisli a modus in (u) B. N. P. 288, 0. Gil. Ev. 223.
 
 122 
 
 WITNESS : 
 
 Verdict in 
 
 criminal 
 
 proceeding 
 
 In trover. 
 
 ing(a-); and consequently no objection on that ground can be 
 made to his testimony. Accordingly, upon the trial of" an inquisi- 
 tion against the warden of the Fleet, for the escape of A., who was 
 in custody along with B. on a joint judgment and execution, issue 
 having been joined on the question whether the defendant had 
 voluntarily permitted the escape, it was held that JB. was a com- 
 petent witness for the Crown ; for although it was urged that the 
 fact, if true, would entitle B. to his discharge, it was answered, 
 that the record in that proceeding would be no evidence for B. in 
 any action brought by him for false imprisonment ( i/). So upon 
 the trial on an information against the warden for five escapes, one 
 of the prisoners, whose escape had been permitted, but who had 
 returned, was held to be competent, although he had given a bond 
 to the warden to be a true prisoner (2). 
 
 A verdict, unless it operate in rem, is not admissible against 
 a stranger (a), and consequently the probability of a verdict either 
 way does not in other cases exclude his testimony. 
 
 In an action of trover a third person is a competent witness to 
 defeat the action, by proving property in himself; for the verdict 
 neither alters his right nor would be evidence for or against 
 him in an action to recover against either of the parties to 
 the suit (b). The consideration that the record might, under 
 circumstances not proved but only suggested, show the measure 
 of the witness's liability, if liable at all, does not render him 
 incompetent (c). 
 
 It remains to consider in what cases witnesses otherwise in- 
 competent are restored to competency by the st. 3 & 4 Will. 4, c. 42. 
 
 This Stat. (s. 26) in order to render the rejection of witnesses on 
 the ground of interest less frequent, enacts, that if any witness 
 shall be objected to as incompetent on the ground that the verdict 
 
 (x) See the cases, tit. Judgment. 
 
 (y) R. V. Hvggins, Fitzg, 80; 1 Bar- 
 nard, 350. 
 
 {z) B. V. Ford, 2 Salk. 690. But note, 
 the reason given in Salkeld is, that it was 
 a private matter, of which there could be 
 no other evidence. In another report of 
 this case the witness is stated to have been 
 a bailiff, who had given a bond to the 
 warden for the safe custody of the pri- 
 soner. 
 
 (a) See tit. Judgment. In the case 
 of The King v. Horton, 4 Price, 150, it is 
 said to have been ruled at nisi priiis by 
 tlie Lord Chief Baron, that a person having 
 entered into a bond with sureties to the 
 <>own, is not an admissible witness in a 
 
 scire facias against the surety, to prove 
 that he had not broken the condition, 
 although he had been released by the 
 surety ; on the ground that the verdict 
 against the defendant would be evidence 
 against the principal, in a similar pro- 
 ceeding against him. But qiiazre, and see 
 tit. Judgment ; and Hart v. Macnamara 
 4 Price, 154. 
 
 (6) Ward v. WilMnson, 4 B. & B. 410. 
 Per Abbott, C. J. : If a verdict one way 
 could not be given in evidence against a 
 witness, a verdict the other way would 
 not be evidence for him. See also Nix v. 
 Cutting, 4 Taunt. 18. 
 
 (c) JBunter v. Wane, 1 B. k C. 689.
 
 RESTORATION OF COMPETENCY. l'2o 
 
 or judgment in the action in which it shall be proposed to examine stat. 3&4 
 him would be admissible in evidence for or against him, such W. 4,c.4 . 
 witness shall nevertheless be examined ; but in that case a verdict 
 or judc;ment in that action in favour of the party on whose behalf 
 he shall have been examined shall not be admissible in evidence 
 for him or any one claiming under him, nor shall a verdict or 
 judoment against the party on whose behalf he shall have been 
 examined, be admissible in evidence against him or any one 
 claiming under him. 
 
 Sec. 27, further enacts, that at the time of every witness objected 
 to as incompetent on the ground that such verdict or judgment 
 would be admissible in evidence for or against him, shall at the 
 trial be indorsed on the record or document on which the trial 
 shall be had, together with the name of the party on whose behalf 
 he was examined, by some officer of the Court at the request of 
 either party, and shall be afterwards entered on the record of 
 the judgment, and such indorsement or entry shall be sufficient 
 evidence that such witness was examined, in any subsequent pro- 
 ceeding in which the verdict and judgment shall be offered in 
 evidence. 
 
 The application of these clauses has been attended with con- 
 siderable difficulty. The tendency of the earlier decisions has 
 been to confine their operation to a small class of cases ; the 
 later decisions are founded on a much larger construction of the 
 statute, and tend to a very wide and extensive operation. These 
 enactments appear to have been founded mainly on the principle 
 of restoring competency by actually removing the interest which 
 would otherwise disqualify the proposed witness. It does not seem 
 to have been meant in any case to admit the testimony of an inter- 
 ested witness in violation of the ordinary principle of exclusion from 
 interest, but, preserving that principle as it stood before, to have 
 been intended to enlarge the limits of available evidence by the actual 
 removal of interests which previously impeded its reception. This 
 is proposed to be done by silencing the record in certain cases, 
 and so removing any interest under which the witness might 
 otherwise labour either to procure a verdict and judgment, which 
 would be evidence for him, or to exclude a verdict and judgment, 
 which would be evidence against him. Consistently with this 
 principle, it seems that it was not intended to restore competency 
 in any case where, although the record were silenced, the witness 
 would still have an interest independently of the use of the record 
 as evidence in some other proceeding resulting as a consequence 
 from the verdict and judgment.
 
 124 witness: 
 
 Stat. 3 & 4 There are, however, two modes in which a record may be used 
 W. 4, c. 42. {qj. or against a witness, according to the nature of the proceeding. 
 A record may either be usable, as estabhshing a right or habihty 
 by virtue of its legal operation, or may operate simply as evidence 
 of some matter of fact. And the interest of the witness may 
 depend as much, and indeed more frequently depends on the 
 former than on the latter effect. Are these enactments then to be 
 considered as extending indifferently to both cases ? The terms 
 used, " would be admissihle in evidence, for or against him," in 
 their natural sense, would seem to indicate the intention to limit 
 tlie enactments to cases where the record could be used simply as 
 evidence ; but the principle on which they are founded tends to 
 a larger construction, and it will be seen that such a construction 
 has in a late case been adopted {d). Whilst an advantage may be 
 supposed to be gained by the less frequent exclusion of evidence 
 by the adoption of the larger construction, there is nothing unjust 
 or unreasonable in obliging the party who wishes to avail himself 
 of the testimony of a witness, who would otherwise be excluded by 
 interest to devest him of that interest, although at some sacrifice 
 to himself. It is observable that if these late provisions were to be 
 construed to extend to those cases only where the record could be 
 used as mere evidence, their operation would be limited principally 
 to cases within the third and fourth of the above-mentioned classes, 
 but that according to the larger construction they would embrace, 
 if not the whole, the greater part of those within the second class. 
 
 The decisions upon the late enactments will now be referred to. 
 It seems to have been considered from the first that the statute 
 always restores competency in cases where the record would be 
 evidence as to a matter of fact, e. g. a custom (e), in which the 
 witness has an interest (/). But although the interest in such 
 cases has been usually regarded as an interest in the record, it is 
 to be recollected that before the late statute it was not necessary 
 to distinguish between an interest in the record and an interest in its 
 effect. And it may be questionable whether in many of those cases 
 the witness has not an interest in the effect of the record independ- 
 ently of any use to be made of it by the witness as evidence. For 
 although the witness interested in the establishment of the custom 
 could not use the record as evidence, the indorsement would not 
 prevent another party interested in the same custom from using it 
 in evidence, and the record would be equally available to establish 
 
 {d) Faith v. M'Intyre, 7 C. &P. 44; (e) Wilson v. Fryer, and Sttiart v. 
 
 cor. Parke B. Barnes, cited below. 
 
 {f) These cases constitute the fourth class.
 
 RESTORATION OF COMPETENCY. 125 
 
 a general custom, whether it were used by the witness or any other Shit. 3 & 4 
 person. It may also be observed, that the natural eftect of a verdict ' '^' "' 
 and judgment in favour of the custom, would be to continue the 
 uses according to the custom, which would, independently of the 
 record, be evidence afterwards to support the custom. 
 
 Upon the question whether the landowners in Wharton had a 
 right of cutting wood in Scart Wood, it was ruled that a witness 
 was competent to support the custom by his evidence, although he 
 had land in the township of Wharton (g). 
 
 The statute does not apply where the issue is directed by a court 
 of equity, tor in such a case the witness, notwithstanding the statute, 
 would be able to take advantage of a decree founded on the verdict, 
 which would not bear the indorsement required by the statute. 
 
 In the case of Stuart v. Barnes (A), an issue had been directed 
 by a court of equity to try whether the sum of \l. 19 s. 11 d. was 
 payable for tithe, in respect of a district alleged to be the district of 
 St. Nicholas. For the plaintiifs, who had to prove the affirmative, 
 Bowes was called, who admitted on the voire dire that he had lands 
 within the district. It was objected that he was incompetent? 
 first, because the statute did not apply to a case where an issue 
 was directed by a court of equity, and where a decree might be 
 made of which he might avail himself; secondly, that the objec- 
 tion was not merely that he was interested in the record, but in the 
 fact, for the destruction of the modus would be followed by pay- 
 ment of tithe in kind, by which the witness would be prevented 
 from setting up the modus. Alderson, B., said that he had con- 
 sidered the first point, and consulted some of the Judges on the 
 subject, who were of opinion that the witness was incompetent ; 
 he said that he was also of opinion that the second objection was 
 a valid one, and that the witness had a direct interest, indepen- 
 dently of the decree, in procuring a verdict for the plaintiffs. 
 
 Although an objection that the witness is interested in the record 
 be capable of removal by an indorsement made pursuant to the 
 27th clause, the witness is still incompetent, if he labours under 
 any interest independently of the record (^). 
 
 A difference of opinion has prevailed upon the question whether 
 the statute restores competency in some cases which fall within the 
 third predicament above mentioned. In an action for damage to the 
 plaintiffs house by so improperly digging a cellar that the plaintiff's 
 wall sunk, a very learned Judge is reported to have held (k), that the 
 
 (gr) Wilson v. Fryer, Lancaster Summer (i) Stuart v. Barnes, M. S. 
 
 Assizes, 1834, cor. Gurney, B., and see the 
 case of S'^war^ V. £artt£?s, cited below. (^) Mitchell v. Hunt, 6 C. & P. 351, 
 
 ih) York Spring Assizes, 1835, cor. cor. Patteson. J. 
 Alderson B.j M. S. and 1 M. & R. 472.
 
 126 witness: 
 
 Stat. 3 & 4 agent employed by the defendant was not rendered a competent 
 witness for the defendant by the statute, and tliat the statute was 
 not mtended to apply to such cases. The same learned Judge is 
 also stated to have held (Z), that a carrier's servant was not a com- 
 petent witness for his master, without a release, to disprove negli- 
 gence. A contrary doctrine has, however, been frequently laid 
 down, particularly by Mr. Baron Parke (m), and has been con- 
 firmed by the late decision in the case of Yeomans v. Legh{n). 
 
 It has been i)itimated that, although in action against a defend- 
 ant for the alleged negligence of his agent, the agent would be 
 restored to competency by an indorsement on the record, it would 
 be otherwise where negligence was imputed to an agent called by 
 the plaintiff. For it is said, although the plaintiff failed, he might 
 still recover against the witness, independently of the record. But 
 it is to be observed, that the defendant also may maintain a 
 similar action independently of the record, for the cause of action 
 is completed by the witness's breach of contract or duty; the 
 liability to an action which could not otherwise have been main- 
 tained, or the inability to recover from another that which the prin- 
 cipal would have been entitled to recover, is but consequential 
 damage. In either case, the witness is interested in protecting 
 himself against his own liability to such consequential damage. 
 In the case of such a witness called for a defendant, he may effect 
 this object by excluding a verdict against the defendant, which 
 would afford a measure of consequential damage against himself; 
 and further than this, he has an interest in procuring a verdict for 
 
 ij) Harrington v. Caswell, 6 C. & P. In an action against a surety for non- 
 352. The same point was also ruled in performance of an agreement with a money- 
 
 V. Taplin, K. B., first sitting after club to pay subscriptions, the principal it 
 
 Easter Term, 1834; Leg. Ex. Vol. III. 244. was held was not a competent witness for 
 
 In trespass for taking goods, plea pro- the defendant; for if the defendant failed, 
 
 perty in M. N., by whose command de- witness would be liable to defendant's own 
 
 fendant took the goods, ilf. iV. was offered costs, and these are independent of the 
 
 as a witness to prove property his own, but record, 
 was held to be incompetent, because he 
 
 would be liable to defendant in case plain- ("0 Pickles v. Hollings, 1 Mood. & 
 
 tiff succeeded for damages and costs; and R- 4G8, and Creevey v. Bowman, ibid, 
 
 an indorsement would make no difference, 496. In the former of these that learned 
 
 because defendant would still be entitled Judge observed, when the contradictory 
 
 to recover his own costs. Cor. Patteson, J. opinions were cited, that he had always 
 
 Green v, Warburton, 2 Mood. & R. 105 ; ruled differently, and that his ruling liad 
 
 see also Stanley v. Jobson, lb. 103. But never been questioned, and that the statute 
 
 in the case of Creevey v. Bowman, 1 would be frittered away by a contrary 
 
 Mood. & R. 468, it was held that a party construction, 
 under whom the defendant justified in an 
 
 action of trespass, was a competent wit- (w) 2 M, & W. 419. See Appendix, 
 ness for the defendant since the statute.
 
 RESTORED TO COMPETENCY. 127 
 
 the defendant, which would exclude him from alleging that the stat.3&4 
 agent's negligence had rendered him hable to any claim on the ^' *' ^' '*^' 
 part of the plaintiff. He thus excludes that which would have 
 been evidence against him, and procures that vi^hich protects him. 
 When the agent is called for the plaintiff, he also is interested in 
 protecting himself against his liability to consequential damage. 
 He may effect this by procuring a verdict for the plaintiff, which 
 would preclude him from attributing to the witness his own inabi- 
 lity to recover what he otherwise might have recovered from ano- 
 ther in consequence of the witness's breach of duty. He is also 
 interested in excluding a verdict against the plaintiff, which the 
 latter might use in conjunction with other evidence to show that 
 his failure was attributable to tlie witness's breach of duty. It 
 seems, therefore, that in the one case as well as the other such a 
 witness has an interest in the record. The witness's interest in 
 such a case consists in obtaining protection against a claim to con- 
 sequential damages : the result of the plaintiff's action is either 
 material to the witness's protection, or it is not ; if immaterial, it 
 cannot exclude the witness ; if material, it can only be made so by 
 means of the record (o). 
 
 A further and very important operation has been given to this 
 statute by construing it to extend to instances where the evidence 
 tends not merely to procure or exclude a verdict which would be 
 evidence for or against the witness, but would actually create or 
 exclude a legal liability. This seems to be contrary to the construc- 
 tion of the Act first adopted. In an early case it was held, that in an 
 action on a guaranty the party guaranteed was not a competent wit- 
 ness for the party who gave the guaranty, in an action upon it, be- 
 cause he would be liable to the defendant for the costs (p). And in 
 action on a bill of exchange accepted for the accommodation of the 
 drawer, it was held also that the witness was not made competent 
 by the statute (q). But in a later case (r), Mr. Baron Parke ruled 
 that the drawer of a bill accepted for his (the drawer's) accommo- 
 dation, was a competent witness for the acceptor in an action 
 
 (o) But in the case of Harden v. Cobley, (p) BraUhioaite v. Coleman, Hertf. 
 
 6 Carr. & P. C. 664, on an action by the Spring Assizes, 1834. Cor. Lord Ljnd- 
 
 plaintiff'for an injury to his horse by the hurst, 2 Harr. Ind. 1047. 
 
 negligent driving ofthe defendant's servant, {q) Burgess v. Cuthill, 1 Mood. & R. 
 
 the plaintiff called the servant who had 315; 6 C. & P. 282. 
 
 the care of his horse at the time of the (r) Faith v. M'Intyre, 7 Carr. k, P. 
 
 accident. Lord Denman seems to have 44. See as to accommodation bills, tit. 
 
 doubted whether the witness would be Bills op Exchange. Lewis v. Peake, 
 
 made competent by the statute without a 7 Taunt. 153. Neale v. WjjUe, 3 B. &: C. 
 
 release. 533.
 
 128 WITNESS: 
 
 Stat. 3&4 ao-ainst the latter. The case o^ Braitkwaite v. Colman was cited, 
 W. 4,c.42. 1^^^^ ^j^g learned Judge said he thouglit that by an indorsement of 
 the witness's name on the postea, he would be rendered competent, 
 for he could not be made liable to the costs of that action but by 
 means of the verdict and judgment, which could not, in conse- 
 quence, of the indorsement, be used against him, and to the amount 
 of the bill he was liable at all events. The testimony was accord- 
 ingly received, and the defendant had a verdict. This au- 
 thority, expressly over-ruling a former one, at a time when 
 the construction of the statute had undergone much discus- 
 sion, is of great importance. The decision is expressly founded 
 on reasons which show that the operation of the statute is not 
 limited to cases where the record might be regarded as mere evi- 
 dence, but extends to those where an actual right would be created, 
 or (by parity of reason) defeated by the verdict and judgment. 
 
 The same principle which would restore the competency of a 
 witness who would be liable over to the party calling him, on proof 
 of a breach of duty involved in the issue, would, it seems, also 
 operate in the case of any other direct or implied indemnity as to 
 damages or costs ; for the interest of the witness in the former case 
 is founded wholly on an implied engagement to indemnify the 
 party calling him ; and it can make no difference in principle or 
 according to the authorities, whether the obligation to indemnify 
 be direct or indirect, express or implied. 
 
 The operation of the statute, according to the later construction 
 given to it, seems to embrace all cases where the verdict and judg- 
 ment could be used by or against the witness, either as evidence or 
 to establish any right, or to discharge him from any liability ; and 
 where it would be necessary to use the record for that purpose ; 
 for in all such cases the record would be effectually silenced by an 
 indorsement ; and as neither the existence of the action nor the 
 result could be proved but by the record, the witness's interest 
 would be as much extinguished as if no such proceeding had taken 
 place (s). 
 
 (s) It maybe proper,however, to suggest fact, that there is no record of a verdict 
 
 whether, to warrant this large construction, and judgment, which does, in fact, exist, 
 
 it would not be necessary to construe the Should the construction which seems to be 
 
 words " shall not be admissible in evidence," warranted by tlie latest authority be 
 
 as extending to the production of the record adopted, the proper course might be to 
 
 in court upon a plea of nul tlel record. allege, in answer to the allegation of a 
 
 These new provisions may be attended record, that the witness was called l)y the 
 
 with this singular effect, that a party, party, and that the names of the Avitness 
 
 in order to avail himself of them, may and party were endorsed on tlie record 
 
 be obliged to plead directly contrary to the according to the statute.
 
 RESTORED TO COMPETENCY. 129 
 
 In a case, decided since the statute, it was lield that a witness 
 prima facie hable to the plaintiff's claim, was not a competent wit- 
 ness for the plaintiff to prove that the defendant was liable, because 
 lie had a direct interest in causing another to pay the debt {t). It is 
 observable, that in such a case the witness's interest either depends 
 on the consideration that the debt will be satisfied by an executed 
 judgment, or that the record will operate against the plaintiff by 
 way of evidence to show that the defendant in the former action, 
 and not the witness, was the real debtor ; in either case, however, 
 the record would be essential to the defence, and would, it seems, 
 be excluded by an indorsement according to the statute. 
 
 Where the incompetency of a party jointly liable with the de- 
 fendant is founded on a liability to contribute to the debt and costs 
 in the particular transaction, it should seem that the statute would 
 restore competency ; such contribution could not be compelled, 
 except through the record, which would be silenced by the indorse- 
 ment. 
 
 If the interest be of the nature above described, its magnitude Magnitude 
 is not material, and the objection must prevail, however minute the terest/"' 
 interest may be (zO- The reason seems to be this; a plain and 
 simple rule is absolutely necessary, and if a small degree of inte- 
 rest did not disqualify the witness, it would be impossible to draw 
 a practicable line of distinction. 
 
 A witness cannot, by the subsequent voluntary creation of an Time and 
 interest, without the concurrence or assent of the party, deprive him acquiring 
 of the benefit of his testimony in any proceeding, whether civil or the interest, 
 criminal ; for the party had a legal interest in the testimony, of 
 
 (J) Hodson V. Marshall, 7 C. & P. 16. however, is a test applicable in those casrs 
 
 But note that the learned Judge gave no only where the witness himself is capable 
 
 opinion on the operation of the statute, and of releasing the interest; it frequently 
 
 the plaintiff elected to be nonsuited. happens that a release from the party who 
 
 (m) Burton v. Hlnde, 5 T. R. 174; 2 calls the witness is necessary, and then 
 Vern. 317. But see the observations of this test would be inapplicable. The re- 
 Best, C. J., Doe V. Tooth, 3 Y. & J. 19 ; leasing him would not depend on the 
 Hovill V. Stephenson, 5 Bing. 497. Tliat witness's view of the magnitude of the 
 learned Judge, to whose opinion the greatest interest, but on the question whether it 
 deference is due, especially upon questions was beneficial to the party to purchase liis 
 connected with evidence, intimated that the testimony at the expense of releasing the 
 exclusion of the testimony of the witness, witness ; and this would depend wholly on 
 where the amount of interest is minute, is tlie nature and circumstances of tJie par- 
 founded on the consideration, that if the ticular case. Where the party expected 
 interest be insufficient to influence the to recover 1 0,000 Z., it might be expedient 
 testimony of the witness, he will release it, to release a witness from a debt of 1,U00/., 
 and therefore that the releasing it or not in order to obtain the benefit of his tes- 
 is the true test for determining whether it timony. 
 ought to exclude the evidence. This, 
 
 VOL. I. K
 
 130 
 
 WITNESS — INTEREST 
 
 Time and 
 manner of 
 acquiring 
 tlie inter- 
 est. 
 
 Neutral 
 witness. 
 
 which he ought not to be deprived by the mere wanton act of the 
 witness. Accordingly, one who has been witness to a wager, and 
 who afterwards bets on the same point, is a competent witness for 
 the party for whom he is called (.r). So where a witness of an 
 assault lays a wager that he will convict the defendant, he is still 
 a competent witness for the Crown. And this seems now to be 
 fully established, although it was once held that the witness was 
 disqualified by a voluntary creation of an interest in the event, pro- 
 vided the party interested in his silence did not collude with 
 him (3/). 
 
 But the above decisions are founded on fraud on the part of the 
 witness. If a person who is under no legal obligation to become 
 a witness for either party to a suit, engage bond fide to pay a debt 
 beforehand upon a condition to be determined by the event of that 
 suit, he becomes interested, and therefore incompetent (2). 
 
 Where the witness is reduced to a state of neutrality by an 
 equipoise of interest, the objection to his testimony ceases. Where, 
 however, the witness is subject to two conflicting interests, one of 
 which preponderates over the other, the difference is to be consi- 
 dered as an absolute interest which is not countervailed (a). Ac- 
 cordingly, in an action for money had and received, a witness is • 
 competent to prove that it was paid to him as agent for the plain- 
 tiff, since he admits that he owes it to one of the parties, and it is 
 indifferent to him which of them is his creditor (6). 
 
 So the payee of an accommodation promissory note is competent 
 to show that he indorsed it to the plaintiff before it became due, in 
 payment for goods, for he is liable either to the plaintiff for the 
 goods or to the defendant for the amount of the note(c). 
 
 (x) Barlozo v. Vowell, Skinn. 586; 
 B. N. P. 190. George v. Pearce, cited 
 by Buller, J., 3 T. R. 37. Be7it v. Baker, 
 3 T. R. 27; Cowp. 736. R. v. Fox, Str. 
 652. 
 
 (y) Hescous v. Williams, 3 Lev. 152, 
 Baro7i V. Burij, 12 Vin. 24 ; 2 Vern. 699 ; 
 Ab. Eq. 224. 
 
 {z) Foi-rester v. Pigou, 1 M. & S. 9 
 3 Camp. 380. Where a witness for tlie 
 plaintiff married the defendant after the 
 service of the subpoena, it was held that 
 she could not be examined by the plaintiff 
 without the defendant's consent. Pedley 
 V. Wellesley, 3 C. & P. 558. See also 
 Townend v. Doioning, 14 East, 565. 
 Where the party himself creates the in- 
 capacity, the witness is not competent to 
 
 prove even an instrument wliich he has 
 attested, and proof of his hand-writing is 
 inadmissible. Where after the execution 
 of a charter-party, by agreement between 
 tlie plaintiff and the attesting witness, the 
 latter was admitted to a share of the 
 profits under the instrument, which he re- 
 fused to release, it was lield, that having 
 become an incompetent witness subsequent 
 to the execution of it by the act of the 
 plaintiff, proof of his hand-writing was in- 
 admissible. Hovlll v. Stephenson, 5 Bing. 
 493 ; and see Forrester v. Pigou, 1 M. 
 &S. 9. 
 
 (a) See Evans's Pothier, tit. Evidence. 
 
 (b) Ilderton v. Atkinson, 7 T. R. 480. 
 
 (c) Shuttlewortli v. Stephens, 1 Camp. 
 408. See Banks v. Kain, 2 C. & P. 597.
 
 NEUTRALITY. 
 
 131 
 
 In an action against the owner of a ship for money lent, the Neutral 
 captain is a competent witness to prove that it was advanced to 
 him on account of the ship (d). 
 
 A pauper in a settlement case is a competent witness ; for he 
 musi be maintained at all events (e), and any local prejudice by 
 which he may be influenced does not constitute a legal disqualify- 
 ing interest. 
 
 In an action of trover for goods, a party who sold them to the 
 plaintiff" is a competent witness for him to prove the sale, although 
 he sold them under an agreement that if not paid for they were 
 to be returned ; for he is either entitled to the goods or the price (y*). 
 
 Where the opposite interests are unequal, the witness has an inte- 
 rest on one side, measured by the excess of the one interest over 
 the other. And therefore where the interest is equiponderant in 
 other respects, yet if the witness would be liable to costs in one 
 event but not in the other, it seems that he is incompetent to give 
 evidence tending to discharge him from such further liability. Thus 
 the drawer of a bill of exchange which has been accepted for his 
 accommodation, is not a competent witness for the acceptor in an 
 action against the latter by an indorsee, for if the plaintiff" suc- 
 ceeded he would be liable to the defendant for the costs (^). 
 
 For further illustrations of this prin- 
 ciple, see Ridley v. Taylor, 13 East, 175. 
 Dickinson v. Prentice, 4 Esp. C. 32. 
 Humphrey v. Moxon, Peake's C. 52. 
 Rich V. Topping, ib. 224. Beard v. 
 Ackemian, 5 Esp. C. 119. Pool v. Bous- 
 Jield, 4 Camp. C. 55. Maimcaring v. 
 Mytton, 1 Starkie's C. 83. Vol. II. tit. 
 Bill op Exchange — Competency. 
 
 In an action against the drawer of a bill, 
 the acceptor was held to be incompetent to 
 prove a set-off for the drawer on a bill 
 accepted by the plaintiff and indorsed by 
 the witness to the defendant, on the ground 
 that the witness would be answerable to 
 the drawer to the amount only recovered 
 by the plaintiff. Mainioaring v. Mytton, 
 1 Starkie's C,83. But it seems that the 
 drawer would be entitled to recover the 
 whole from the acceptor, the set-off 
 operating as a payment to the plaintiff 
 pro tanto. See Bayley on Bills, 540, 4th 
 ed. Whether the plaintiff succeeded or 
 the defendant, the witness would be liable 
 to the amount of his own acceptance to the 
 one or the other, and to no more. So al- 
 though the witness had indorsed to the 
 
 plaintiff the defendant's acceptance, as a col- 
 lateral security the result of the plaintiff's 
 action would be immaterial to the witness ; 
 he would be liable to the amount of his ac- 
 ceptance, and be entitled as the holder of the 
 plaintiff's acceptance, either to recover upon 
 it,or set off the amount against the defendant. 
 (d) Evans V. Willia7ns,TJ'. R. 481, n. 
 Rocher v. Busher, 1 Starkie's C. 27. 
 {e) 2 T. R. 267. 
 
 (/) Bankes v. Kain, 2 C. & P. 597 ; 
 and see Radburn v. Morris, 4 Bing. 
 649. 
 
 {g) Jones v. Brookes, 4 Taunt, 4G4. 
 Hardiciclie v. Blanchard, Gow. 113. 
 Bottomley v. Wilson, 3 Starkie's C. 138. 
 The competency of the witness in such a 
 case is restored by his bankruptcy and cer- 
 tificate. Bassett v. Dodgin, 9 Bing. 653. 
 Ashton V. Longes, 1 Mood. & M. C. 127. 
 Vol. II. tit. Bankruptcy. See also the 
 case oi Matmdrellv ■ Kennett,\ Camp. 408. 
 In the case of Ildcrton \. Atkinson, 5T. R. 
 480, it was held, that a witness to whom 
 the defendant had paid 200^. on account 
 of the plaintiff, was a competent witness 
 for the defendant, to prove that he was the 
 K 2
 
 132 
 
 WITNESS — INTEREST : 
 
 Neutral 
 witness. 
 
 Admission, 
 — ex ne- 
 cessitate. 
 
 The preponderance must, however, in order to disqualify the 
 witness, be certain and definite ; for although it has been held that 
 a witness was incompetent because it would in one event be more 
 difficult for him to recover the same sum of money than in the 
 other (h), yet the principle of this decision is very dubious, and 
 probably would not now be supported (i). 
 
 In some instances the law admits the testimony of one interested, 
 from the extreme necessity of the case ; such a necessity arises 
 from the particular nature of the subject of inquiry, which renders 
 it exceedingly improbable that any person who is not interested 
 should possess any knowledge of the facts, whether that improba- 
 bility arise from the confined nature of the transaction, which 
 makes it likely that no one is privy to it except the interested wit- 
 ness, or from the generality of the interest, which is equally likely 
 to affect all other witnesses (7i)- But it is to be particularly ob- 
 
 agent of the plaintiff when he received the 
 money, although it was objected, that if 
 the plaintiff succeeded he would be liable 
 to the defendant for the costs of the action. 
 But in this case the Court seems to have 
 relied principally on the ground that the 
 witness was competent as an agent to 
 prove a fact done in the course of his 
 agency ; for they observed, that if such an 
 objection were to prevail, it would exclude 
 brokers who had effected policies of in- 
 surance. The decision in the case oi Birt 
 V. Kershaw, 2 East, 458, seems to rest 
 upon the same principle; and see Lord 
 Ellenborough's observations in Hudson v. 
 Bobinson, 4 M. & S. 480; Vol. II. tit. 
 Abatement. 
 
 {h) Buckland v. Tankard, 5 T. R. 
 678. 
 
 (i) See the observations made in Birt 
 V. Kershaw, 2 East, 458. The mere pre- 
 ponderance of difficulties is of too uncer- 
 tain and contingent a nature to afford a 
 practical rule in such cases. 
 
 (k) 3 Mod. 114; 6 Mod. 211; 1 Salk. 
 286; Holt, 300; 2 Lord Raym. 1179; 1 
 Sid. 211. 237. 431; 2 Keb. 384; 572. 
 1 Vent. 49. R. \. Moise, Str. 595. See tit. 
 Inhabitant. In an action against a 
 surety for the collector of rates, held that 
 an inhabitant was a competent witness to 
 prove payments to the collector ex necessi- 
 tate. Middleton v. Frost, 4 C. & P. 16. 
 
 In the late case of Lancum v. Lovell, 9 
 Bing. 465, in an action for toll claimed for 
 
 passage on a public road, it was held that 
 persons who had used the road, refusing to 
 pay toll, were ex necessitate competent 
 witnesses. This was decided on the ground 
 that it is a public right in which all man- 
 kind are interested; and if such an objec- 
 tion were to prevail, a man would have 
 only to set up a toll or any other claim as 
 against all the world, and no man who had 
 used the way could be called to controvert 
 or contradict the claim, although he had 
 uniformly resisted the yielding to such a 
 demand. 
 
 It was held to fall within the second 
 rule laid down, B. N. P. 289 ; that a party 
 who has an interest will be admitted, 
 when no other evidence can reasonably be 
 obtained. 
 
 It was observed that it was unnecessary 
 to consider whether the case of Lord 
 Falmouth v. George, savoured more of 
 a public or private right, because the pre- 
 sent was clearly a case of public right; 
 and that the case of The Carpenters' Com- 
 pany V. Hayward, Doug. 373, affected 
 only a particular class of tradesmen, not 
 the King's subjects in general. 
 
 In a case of collision, where the interest 
 of witnesses (part of the crew of the ship 
 in default) was doubtful, and the acts and 
 words of the crew were brought forward to 
 support the charge of misconduct, and 
 there was no other evidence which could 
 be produced, the Court, on the ground of 
 necessity, and for the purposes of justice
 
 ADMISSION EX NECESSITATE. 133 
 
 served, that this necessity must result not from the accidental Admission, 
 failure of evidence in a particular and isolated case, for it would be —^^^^^^>'- 
 
 . . . . . sitatc. 
 
 highly impolitic to sacrifice a general rule in order to alleviate a 
 particular hardship, but it must be general in its nature, embracing 
 a large and definite class of cases, and it must arise in the usual 
 and natural course of human affairs (1). And it is to be remarked, 
 that the law has justly been jealous of any extension of this rule, 
 and that its operation has consequently been very limited in prac- 
 tice (m). 
 
 Upon this ground it is the constant course to admit the servant Agent. 
 of a tradesman to prove the delivery of goods, and the payment 
 of money, without any release from the master (/i), because it is 
 in the usual course of affairs that a servant should transact sucli 
 business for his master ; and it often happens that no other 
 person can prove such transactions, and therefore to exclude 
 his testimony would frequently be to deprive the master of all 
 evidence whatsoever (o). 
 
 So it has been held that an apprentice is a competent witness 
 to prove that money has been overpaid by his mistake (p). So it 
 was held that a broker, although he was also a joint insurer, was 
 a competent witness for the plaintiff, in an action on a policy of 
 insurance, as to a representation made by him to the defendant 
 when he subscribed the policy, because it was not likely that 
 any other person could prove it(q). So in an action against a 
 
 admitted them as witnesses for the owners ; J., such evidence is admissible " for the 
 
 and upon the evidence, tlie loss being found sake of trade, and the common usage of 
 
 to have been occasioned by accident, im- business;" B N. P. 289. According to 
 
 putable chiefly to an improper movement Eyre, C. J., the exception is not confined 
 
 on the part of the injured vessel, and not to mere agents and brokers, but every man 
 
 to any misconduct of the other, the Court who makes a contract for another comes 
 
 dismissed the latter with costs. Catherine within the description; 2 H. B. 591. But 
 
 qf Dover, 2 Hagg. 145. See also the cases Lord Tunterden seems to have considered 
 
 of The Pitt and San Bamardina, ib. n. that the principle did not apply where the 
 
 149. 151, where interested witnesses were only agency arose out of the particular 
 
 admitted ex necessitate rei. transaction. Edmonds v. Loice, 8 B. & 
 
 {I) See Mr. Evans's observations; C. 408. All agree in this, that the testi- 
 
 Evans's Pothier, 208. mony of agents employed in the ordinary 
 
 (?«) See Green v. The New River Com- transactions of commerce is admissible 
 
 pany, 4 T. R. 590; and Lord Kenyon's ex necessitate. See the observations of 
 
 observations, in Evans v. Williams, 7 T. Parke, J., 10 B. &:C. 864. 
 R. 481, in the note, where he says, that (o) Except indeed through the medium 
 
 originally the plea of necessity was admit- of a release. 
 
 ted in cases on the statute of Hue and Cry {p) Martin v. Horrell, Str. 647. 
 
 only. (q) Per Buller, J. Bent v. BaJter, 3 T. 
 
 (n) 4 T. R. 590. According to Buller, R. 27. Vide Joint Interest. 
 
 K 3
 
 134 
 
 WITNESS — INTEREST : 
 
 Agent. 
 
 Party in- 
 jured. 
 
 Effect of 
 the objec- 
 tion with 
 respect to 
 secondary 
 evidence. 
 
 carrier for not delivering a parcel, his servant was held to be 
 competent to prove the delivery («). 
 
 So in an action by the party robbed, against the hundred, he is 
 a competent witness as to the fact of robbery, although he is not 
 only interested, but the plaintiff in the suit {b). So interest is no 
 objection to competency, if all persons who are likely to know 
 the fact are equally interested (c). And therefore the loser of 
 more than lOZ. at a sitting is a competent witness upon an infor- 
 mation under the statute 5 Ann. c. 14, s. 5, which subjects the 
 winner to the forfeiture of five times the money won, upon con- 
 viction, and authorizes ani/ person to sue for it, and therefore any 
 person is as much entitled to sue for it as the witness (d). So 
 in the case of extortion by duress, and in other similar cases, 
 which from their very nature admit of no proof but by the testi- 
 mony of the party injured, he is, according to Lord Holt, a com- 
 petent witness from necessity (e) ; but in such case, where the 
 proceeding is of a criminal nature, the application of this rule 
 is unnecessary, since the party defrauded is not disqualified as 
 a witness (/). 
 
 II. Where the witness from interest becomes incapable of 
 giving his testimony, the effect with respect to evidence seems to 
 be the same as if he were naturally dead, since his lips are 
 effectually closed. Accordingly, where a witness to a bond is 
 interested at the time of the execution of the deed, and continues 
 to be so at the time of the trial, the instrument cannot be proved 
 by evidence of his hand-writing, since his attestation, when he 
 was interested, was a mere nullity and of no more effect than 
 if he had not existed (^). 
 
 In such case, as in the event of the natural death of the wit- 
 ness, the deed may be established by proof of the hand-writing 
 of the obligor (A). So in chancery, where a witness becomes 
 
 («) Ross V. Eo7ve, 3 Ford's MSS. 98. 
 Vide siqn-a, tit. Agent. The rule does 
 not extend to cases where actions are 
 brought against principals for the negli- 
 gence of their agents; vide supra, 115; 
 infra, 148. 
 
 (b) See Vol. II. tit. Hundred. 
 
 (c) Lock V. Hayton, Fort. 246. 
 
 {(l) R. V. Luckup, 1 Ford's MSS. 542. 
 Willes, 425 (c). 
 
 (c) 7 Mod. 119,120. 
 
 (/) Vide i7>fra, Accomplice— CRI- 
 MINAL Proceedings. 
 
 (O) Swire v. BeU, 3 T. R. 371. 1 Burr. 
 414. 423. Doe v. Kersey, 4 Bum's E. L. 
 97. Anstey v. Dowsing, 2 Str. 1253. 
 Infra, 139 (0- Vol. II. tit. Will. 
 
 (A) Godfrey v. Narris, Str. 34. Goss 
 V. Tracy, 1 P. W. 280. So where he be- 
 comes infamous. Jones v. Mason, 2 Str. 
 833. Infra, tit. Instrument, proof 
 
 OP.
 
 OBJECTION, HOW SUPPORTED. 
 
 185 
 
 interested, his deposition made while he was disinterested, may 
 still be read (i). 
 
 But it has been held, that where a disinterested witness makes 
 a deposition and afterwards becomes interested, his deposition 
 cannot be read upon a trial at common law (k). 
 
 III. The objection to competency ought properly to be taken in Examina- 
 
 the first instance, previous to an examination in chief, for otherwise *'"." "? 
 , , , . . . . Ill- ^"'""^ '^"^• 
 
 the party objectmg- might suspend the objection for the purpose 
 
 of obtaining an unfair advantage (l). Unless the interest of the 
 witness be apparent from the record itself or from the admis- 
 sion of the adversary, it lies with the party who makes the 
 objection to support it(m) either by the examination of the witness 
 on the i;oire dire or by independent evidence (w). 
 
 Notwithstanding the prima facie appearance of interest on the 
 part of the witness on the face of the record, yet it seems that 
 
 (z) 2 Vera. 699; 1 P. W. 187 ; Ab. Eq. 
 224 ; 2 Atk. 665 ; 2 Ves. 42 ; 2 Ld. Raym. 
 1008 ; 1 Salk. 286. 
 
 (k) 2 Vera. 699; Ab. Eq. 324; vide 
 infra, tit. Deposition. 
 
 (I) R. V. Muscat, 10 Mod. 192. 
 
 (m) It is not sufficient to suggest, or 
 even to show a probability, or excite a 
 suspicion, that the witness stands under 
 circumstances which tempt him to repre- 
 sent the fact one way rather than the 
 other; it is incumbent on the party object- 
 ing to show it with certainty. 
 
 Declaration in replevin for taking the 
 growing corn of the plaintiff. Avowry, 
 that plaintiff and one J. B. held the locus 
 in quo, as tenants to the defendant, at 
 a money-rent, and because it was in arrear 
 defendant took the corn as a distress. Plea 
 in bar, denying the tenancy modo et forma, 
 and issue joined thereon. At the trial 
 some evidence was given by the defendant 
 that the plaintiff and J. B. were in pos- 
 session of the premises in question ; that a 
 lease had been executed to them by the 
 defendant's ancestor, which plaintiff and 
 J. B. had paid for, but which they had 
 refused to execute. It was not proved 
 that J. B. was so connected with the 
 plaintiff, as to the premises in question, as 
 to be jointly liable for the rent, nor was it 
 shown that the corn was the joint pro- 
 erty of the plaintiff and J. B. The plain- 
 
 tiff gave evidence to show that the holding 
 was under an agreement for a corn-rent, 
 and in support of that case he tendered 
 J. B. as witness. He was rejected with- 
 out being examined on the voi7-e dire as to 
 his liability to the rent or not. Held that 
 he was not an incompetent witness until 
 that fact was established, and therefore 
 that he was improperly rejected. Bunter 
 V. Warre, 1 B. & C. 689. It will be pre- 
 sumed that the action is brought by the 
 authority of the party beneficially inte- 
 rested. Bell V. Smith, 5 B. & C. 188. 
 
 {n) Formerly it was necessary to have 
 the witness sworn on the voire dire, and to 
 take the objection before he was sworn in 
 chief, but the rule has been relaxed for 
 the sake of convenience ; see 1 T. R. 717. 
 The witness may be examined on the voire 
 dire in criminal as well as civil cases. 
 R. V. Muscot, 10 Mod. 192. See Ld. 
 Lovafs Case. In R. v. Wakefield and 
 others, Lancaster Spring Assizes, 1827, on 
 an indictment for a conspiracy to carry 
 away Miss Turner and marry her to one of 
 the defendants, on an objection taken by 
 the defendants to the competency of Miss 
 T. on the ground that she was married to 
 one of the defendants, Hullock, B. held, 
 that the proper course was first to examine 
 Miss T. on the vol7-e dire, and afterwards 
 to adduce collateral evidence. 
 
 k4
 
 136 
 
 WITNESS — INTEREST : 
 
 Proof of, 
 by evi- 
 dence. 
 
 his evidence ought not to be rejected without examining him on 
 the voire dire as to his real situation (o). The witness may- 
 be examined generally as to his situation, and even as to the 
 contents of written documents whicli are not produced (p); for 
 the party objecting could not know previously that the witness 
 would be called, and consequently might not be prepared with 
 the best evidence to establish his objection ; and in like manner 
 his competency may be restored by his parol evidence on the 
 voire dire (q). If the witness discharge himself on the voire dire, 
 the party who objects may still afterwards support his objec- 
 tion by evidence (r) ; but in so doing the objecting party is 
 bound by the usual rules of evidence, and cannot inquire as to 
 the contents of a written instrument without producing it, or 
 proving the usual preparatory steps (s). Neither in such case, 
 as it seems, can the objection be removed by the examination 
 
 (o) Banter v. Warre, 1 B. & C. 689. 
 Supra, 135, note (m). But see the case 
 of GoodJuiy V. Hendry, 1 Moody & M. 
 319; where Best, C. J. held, that in 
 an action by the assignee of a bank- 
 rupt, the competency of tlie bankrupt 
 could not be restored by his examination 
 on the voire dire, and without pro- 
 ducing the release and certificate. And 
 see 1 Moody & M. 321, where Tindal, 
 Ld. C. J. observed, that the difficulty was, 
 the objection did not arise on the voire 
 dire, but appeared from the pleadings 
 tlieraselves. But in the case of Wandless 
 V. Cawthorne, Guildh. Dec. 3, 1829. 
 1 Moody & M. C. 321, Parke, J. said that 
 he should overrule the objection, which 
 had been taken in a similar case. The 
 same point was also ruled by Parke, J. 
 Carlile v. Eady, 1 C. & P. 234. 
 
 {p\ R.v. Gisburn, IbBsist, 57. Howel 
 V. LocJie, 2 Camp. 14. But where the 
 witness, on examination on the voire dire 
 produced the contract which, as was con- 
 tended, rendered him incompetent, it was 
 held that the contract ought to be read. 
 Butler v. Carver, 2 Starkie's C. 433, cor. 
 Abbott, C. J. 
 
 (q) It. V. Gisburn, 15 East, 57. And 
 therefore, where a witness on an appeal 
 against a removal order, stated on examin- 
 ation on the voire dire, that he occupied a 
 house in the appellant's township, but paid 
 no rates, it was held that he was compe- 
 
 tent. And see Bothain v. Swingler, 1 Esp. 
 C. 104; Biitchers' Company w. Jones, ib. 
 160. Ingram v. Dade, London Sitt. after 
 Mich. 1817. It is not sufficient that a 
 second witness should state that the first 
 witness has been released, without pro- 
 ducing the release. Corking v. Jarrard, 
 1 Camp. 37. And it is not sufficient that 
 the witness, liable under an instrument not 
 produced, should state his belief that he 
 had been released by an instrument not 
 produced. Woolleyv.Bro7vnhill,l Maclell. 
 & Y. 324. 
 
 (r) In the case of Hie Queen v. Muscot, 
 10 Mod. 192, Parker, C. J. is reported to 
 have stated, that a party has his election 
 to prove tlie interest of the witness, either 
 by examination on the voire dire, or by 
 evidence, but that he could not do both. 
 And see Lord Lovat's Case, 9 St. Tr. 647. 
 But it would manifestly be unjust to pre- 
 clude the party from impeaching the com- 
 petency of a witness by satisfactory evi- 
 dence merely because he had taken the 
 objection in the first instance in the proper 
 mode, and the witness had been hardy 
 enough to misrepresent his situation. And 
 see li. V. Wakefield and Others, supra, 
 135, note (?i). 
 
 (s) Hoivell V. Locke, 2 Camp. 14, where 
 the witness for the plaintiff was asked 
 on cross-examination what interest he took 
 under a will which was not produced, and 
 the question was overruled.
 
 OBJECTION, HOW SUPPORTED. 137 
 
 of the witness. Where it is discovered incidentally in the Timoof 
 course of the cause that the witness is interested, his evidence "''J*^^"^"'S- 
 will be struck out, although no objection has been made to 
 him on the voire dire {t)- Yet it seems that a party who is 
 cognizant of the interest of the witness at the time when he is 
 called, is bound to make his objection in the first instance, accord- 
 ing to the general principle (m), for otherwise he might obtain an 
 unfair advantage, by having it in his power to establish or to 
 destroy the evidence, just as was most beneficial to himself. This 
 seems to be a matter entirely within the discretion of the Court* 
 Where the witness, having been examined, had left the box, but on 
 being recalled answered a question put by the Court, from which 
 it appeared that he was interested, it was held that his compe- 
 tency could not then be disputed (x). And where a witness had 
 been examined and cross-examined or interrogated without objec- 
 tion, it was held that the objection to competency could not be 
 taken at the trial (y). The Courts will not, it seems, grant a 
 new trial on the mere ground that it has been discovered, subse- 
 quently to the trial, that some of the witnesses were interested (z). 
 And it has been held that where a witness had been improperly re- 
 ceived, yet if the Court see clearly that there was sufficient evidence 
 to warrant the verdict without his testimony, a new trial will not 
 be granted (a). So, also, that the improper rejection of the witness 
 as incompetent, is no ground for granting a new trial, where it ap- 
 pears that such rejection could have made no difference in the 
 result ; as where another witness was called by the plaintiff, who 
 established the same fact, and the defence and verdict for the 
 defendant turned wholly on a collateral point. 
 
 {t) Per Lord Ellenborough, Howell v. examination; and Grose, J. laid great 
 
 Loch, '2, Camp. 14; Perigal v. Nicholson, stress upon the circumstance, that it did 
 
 1 Wightw. G4. not clearly appear that the party was 
 
 (m) The ancient doctrine on this head ignorant of the objection at tlie time of 
 was so strict, tliat if a witness were once trial. Such a circumstance might how- 
 examined in cliief, or even sworn in chief, ever, as it seems, operate as an induce- 
 he could not afterwards be objected to on ment to grant such a motion, where it 
 the ground of interest. The rule has been clearly appeared that the party was ig- 
 relaxed for the sake of convenience. In norant of the objection at the time of trial, 
 the case of Turner v. Pearte, 1 T. R. 717, and where he had merits. Ibid, 
 where a new trial was moved for on the {x) Beeching v. Gorcer, Holt's C. 313. 
 ground that it had been discovered since (y) Ogle v. Faleski, Holt's C. 485. 
 the trial that the witnesses were incorape- (z) Turner v. Pearte, 1 T. R. 717 ; see 
 tent, the motion was refused, and it was note (?/). 
 
 said by Buller, J. that there was no in- (a) Nathaji v. Buckland, 2 Moore, 156. 
 
 stance in which a party had been allowed, And see Horford v. Wilson, 1 Taunt. 12; 
 
 after the trial, to avail liimself of an ohjec- and Edicards v. Evans, 3 East, 451. But 
 
 tion which was not made at the time of see tit. New Trial.
 
 138 
 
 WITNESS — INTEREST : 
 
 Time of 
 objecting. 
 
 Removal of 
 interest. 
 
 Eelease. 
 
 Although it lies on the objecting party to prove incompetency, 
 yet after incompetency has once been shown, its continuance will 
 be presumed till the contrary be proved (Z>). 
 
 The objection to competency on the ground of interest is 
 removed by an extinguishment of that interest, by means of a 
 release, executed either by the witness himself, or by those who 
 would have a claim upon him, or by payment (c). Where, how- 
 ever, from the special nature of the case the interest cannot be 
 released, the witness will not be competent quasi ex necessitate ; 
 and therefore no release will enable a bankrupt to prove his 
 bankruptcy (c?). 
 
 A general release of all causes of action to that time will dis- 
 charge the witness from liability dependent on the existing suit, 
 for the foundation of that liability being laid at the time, the 
 release will embrace that liability. In an action against the 
 acceptor of a bill for the drawer's accommodation, the latter 
 having become bankrupt, was held to [be a competent witness 
 for the defendant, on a release to him, without releasing the 
 assignees ; for the release comprehending all future claims in 
 respect of any cause of action then existing, would bar the claim 
 of the defendant as surety, and exclude proof of the debt under 
 the commission (e). 
 
 Where the claim from which the witness is to be discharged has 
 not yet arisen, a general release from all claims up to the date of 
 the release will not be sufficient (/). 
 
 (6) As where the proposed witness 
 stated on the voire dire that he was bail to 
 the sheriff, and had not justified, or done 
 anything to relieve him from liability. 
 Hawkins v. Tmoood, 4 C. & P. 148. See 
 also the cases where a witness is in- 
 competent by reason of prima facie liabi- 
 lity to pay for goods in an action for the 
 price. Piesly v. Von Esch, 2 Esp. C. 
 G05. 
 
 (c) As to the form and effect of a release, 
 see Vol. II. tit. Release. 
 
 (rZ) Field v. Curtis, Str. 829. In an 
 action on the 9 Ann. c. 14, brought by the 
 assignee of a bankrupt to recover money 
 lost by the bankrupt at play, the bankrupt, 
 who had obtained his certificate, was called 
 as a witness to prove the loss. Held, that 
 he was incom])etent, but that his com- 
 petency was restored by three releases ; 
 
 first, by the bankrupt to the assignee ; se- 
 cond, by all the creditors to the bankrupt : 
 third, by the assignee (who was not a cre- 
 ditor) to the bankrupt; held, secondly, 
 that a year after the commission issued, it 
 might be presumed, that all the creditors 
 had proved, and that a release, signed by 
 all those who had proved, might therefore 
 be considered as a release by all the credi- 
 tors : thirdly, that such a release did not 
 destroy the assignee's right of action. Car- 
 ter V. Abbott, 1 B. & C. 444. 
 
 (c) Cartwriglit v. Williams, 2 Starkie's 
 C. .342. And see Scott v. Lifford, 1 Camp. 
 C. 249. 
 
 (/) Where the witness was entitled to 
 a distributive share of the intestate's 
 effects, of which the sum to be recovered 
 in the action by the plaintiff, as a surviving 
 partner (being also administrator), would 
 form part : held, that a general release at
 
 OBJECTION, now REMOVED. 139 
 
 It has been held, that in an action aji^ainst one of several Release, 
 partners in trade, the defendant could not by a release make 
 a co-partner competent to defeat the action (g). In the case of an 
 existing co-partnership, the interest of the witness seems to be 
 immediate and direct, for the consequence of a verdict and 
 judgment for the plaintiff would not merely be to subject the 
 witness to an action for contribution, as in the case of a mere 
 isolated joint contract, but to diminish the partnership pro- 
 perty (h), which might be taken in execution. The case is, 
 it seems, distinguishable from that of a mere joint contract 
 entered into by persons not partners, and also from cases where 
 the co-partnership has ceased to exist, and consequently where 
 the partner sued must seek his legal remedy by action, for 
 there all interest would be discharged by a release. In an 
 action against a part-owner for work done to a vessel, another 
 part-owner, being released by the defendant, is a competent 
 witness (i). 
 
 Where in an action against two partners to recover the balance 
 of a banking account of many years, a witness called for the 
 defendants, admitted that he had been a co-partner with them 
 during a part of that time; it was held that he was rendered 
 competent by general releases from the witness to the defendants, 
 and from the defendants to the witness ; for it was considered that 
 the future right released had a foundation and inception at the 
 time of the release {k). 
 
 A legatee who releases a legacy, becomes, it seems, a good 
 witness to prove the will (I). 
 
 A general release by a creditor to a bankrupt is not sufficient to 
 render the bankrupt a competent witness for the creditor, where 
 
 the trial of all claims, &c. up to the date of (i) Jones v. Prltchard, 2 M. & W. 
 
 the release, would not render the party 199. 
 
 a competent witness, such share arising, (k) Wilsoti v. Hirst, 4 B. & Ad. 460. 
 
 if at all, after the release. Mattheios t. See Lampefs Case, 10 Rep. 506. 
 
 Smith, 2 Y. Sc J. 426. (l) Said to have been solemnly agreed 
 
 by the Judges; Vin. Ab. Incidence, 14, n. 
 
 (g) Per Lord Tenterden, in Simons v. ^g g^^ Wyndham v. Chetwynd, 1 Burr. 
 
 Smith, Ry. & M. C. 129. 4^^. ^^^ ^^^ ^_ ^-^^.^^^^ ^ ^^^.^ -g^^_ j^ 
 
 {h) Lord Alvanley, in the caseot Cheyne 97, (by three of the Judges), to show that 
 
 V. Koops, 4 Esp. C. 162, also ruled that a a subscribing witness is restored to compe- 
 
 co-partner with the defendant could not tency if all interest be extinguished at the 
 
 be made competent by means of arelease, time of his examination. Lee, L. C. J., in 
 
 because if the defendant died, or became Anstey v. Dowsing, 2 Str. 1253 ; and 
 
 insolvent, the plaintiff would have a right Lord Camden, C. J., in Doe v. Kersey, 
 
 in equity to compel the partners to con- was of a contrary opinion. See Vol. II. 
 
 tribute. tit. Will.
 
 140 
 
 WITNESS — INTEREST : 
 
 Kelease, the result of his testimony would give the creditor a right to prove 
 under the commission. The creditor ought also to give a release 
 to the assignee of all claims on the bankrupt's estate, and the 
 bankrupt ought to release his claim to a surplus (m). 
 
 On an ejectment brought by a corporation to recover land, it 
 was held that a mere release by a corporator is insufficient to restore 
 his competency, although he released his interest in the premises 
 for which the action was brought (n). Where the witness is liable, 
 not to the party in the suit, but to an intermediate person, a release 
 by the latter is sufficient (o). 
 
 A guardian cannot release a claim by his ward (p). 
 
 Where an interested witness has made a deposition, and being 
 afterwards released, is again examined, his evidence is admissible, 
 although the second deposition be the same with the first (q). 
 
 A party cannot, by refusing his assent to a release or sur- 
 render, tendered by a witness on the other side, exclude his 
 testimony (r). 
 
 The witness and the defendant having, with other underwriters, 
 filed a bill in equity against the plaintiff for relief, the plaintiff 
 on this ground objected to the witness as being interested ; the wit- 
 ness and the defendant offered to pay the costs of the bill, and 
 to procure it to be dismissed, and the witness was held to be 
 competent, although the plaintiff still objected that there were 
 other plaintiffs in equity (s). 
 Surrender. So where the lessor, in an ejectment, refused to accept a sur- 
 render of an estate devised to the witness, who was called by 
 the defendant, who claimed as devisee, to prove the testator's 
 sanity {t). 
 
 So a witness cannot, by perversely refusing to accept a release, 
 deprive a litigant party of the benefit of his testimony (m). 
 
 (wi) Ferryman v. Steggall, 8 Bing. 
 369. Vide supra, 138, note {d). 
 
 (71) Doe V. Tooth, 3 Y. & J. 19. As to 
 to the mode of rendering a corporator 
 competent, see Vol. II. tit. Corpoka- 
 
 TION. 
 
 (o) In trover for a barge by a purchaser 
 from one B., the defendants claiming it 
 under W., who was alleged also to have 
 purchased it from B. ; held, that B. having 
 been released by W., was a competent wit- 
 ness for the defendant, wlio could never 
 have sued liim, and semhle no release was 
 
 necessary. Radbum v. Mon-is, 4 Bing. 
 649. 
 
 (p) Frasery. Marsh, 2 Starkie's C.41. 
 
 {q) Callmv v. Mire, 2 Vern. 472. The 
 bias on his mind to adhere to his former 
 testimony goes to his credit. 
 
 (r) Per Lord Kenyon, C. J., and Buller, 
 J., 3 T. R. 27. 
 
 (s) Beiit v. Baher, 3 T. R. 27. 
 
 (0 Goodtitle v. Welford, Doug. 134. 
 
 (u) Doug. 134. In Anstey v. Dowsing, 
 2 Str. 1253, Lee, J. was of opinion that a 
 legatee was not competent to prove a will, 
 although the amount had been tendered to
 
 OBJECTION, now REMOVED. 141 
 
 A legatee whose legacy has been paid, or any other person Payment. 
 whose interest is founded upon a claim which has been satisfied, is 
 a competent witness {x). 
 
 So although in prosecutions for forgery it was formerly a general 
 rule that the party whose name was forged, and who would have 
 been liable upon the instrument, supposing it to be genuine, 
 was not a competent witness, yet where a bill of exchange was 
 forged, purporting to be drawn hy A. on B., payable at CVs bank- 
 ing-house, which C. had paid, supposing the acceptance to be 
 genuine, but afterwards had given credit to B. for the amount, it 
 was held that B. was a competent witness (y). 
 
 So where the party whose receipt had been forged had previously 
 recovered the money from the prisoner (z). 
 
 So where the party whose name had been forged to a receipt, 
 for the amount of articles supplied by him, had been paid the 
 amount of his bill (a). 
 
 So in the case of the forgery of a bill of exchange, purporting 
 to have been drawn by the witness, if he were released by the 
 holder, and there were no other party whose name was on the note 
 to whom the drawer was liable, he became competent (6). 
 
 So if the supposed obligor of a bond was released by the sup- 
 posed obligee, the former was competent (c). 
 
 In order to render a witness competent by a release, it is not Proof of re- 
 sufficient that another witness should swear that a release has been ^^'^ ^' ^* 
 executed (e). And such an instrument, when produced and proved, 
 is, it seems, evidence as a document in the cause for all pur- 
 poses (/). 
 
 the witness, and refused. But this was on dence, and his legal situation would not 
 
 the ground that had the witness accepted have been altered. See below, tit. Inte- 
 
 the legacy, he would still have been incom- rest — Legatee. 
 
 petent, as having been interested at the (y) R. v. Usher, Leach, C. C. L. 57, 
 
 time of attestation. But as to this point 3d edit. ; East's P. C. 999. R, v. Testick, 
 
 see Vol. IL tit. Will. East's P. C. 1000; 12 Mod. 338. 
 
 {x) See Kingston v. Gray, Lord Raym. (r) R. v. Wells, B. N. P. 289. R. v. 
 
 745 ; where, upon issue taken on the plea Dean, 12 Vin. Ab. 23. 
 
 oi plene administravit, it was held that a (a) R. v. Smith, East's P. C. 1000. 
 
 bond-creditor who had been paid was com- {b) R. v. Akehurst, Leach, 178. 
 
 petent to prove the debt and payment, al- (c) R. v. Dodd, Leach, C. C. L. 87. 
 
 though, if the bond was not authentic, or East's P. C. 1003. 
 
 the debt not due, he would be liable to re- (rf) As to the stamp, see Vol. II, tit. 
 
 fund. But (semWe) the liability to refund Stamp. 
 
 ■was no objection to liis testimony, since in (e) CorTdngY.Jarrard,\Ca.va^. 17. 
 
 an action to recover the money, the verdict (y) Gibbons v. Wilcox, 2 Starkie's C. 
 
 in that cause would not have been evi- 43, per Holroyd, J.
 
 142 
 
 WITNESS — INTEREST 
 
 Releaso, 
 effoct of. 
 
 Bail. 
 
 Indemnity. 
 
 A release by one of several plaintiffs (^) or defendants {h) is suffi- 
 cient. 
 
 Where several parties entered into a joint undertaking, and an 
 action was brought against one ; held that a joint contractor, being 
 released by him, was a competent witness, although the rest did 
 not join in it, as the defendant could only recover against him his 
 rateable share, and each would be liable for no more (?!). 
 
 Where an interested party is released by the plaintiff to make 
 him a competent witness, the defendant cannot take advantage of 
 the release by a plea puis darrein cojttinuance (j). 
 
 The failure to execute a release according to an undertaking is 
 not a ground for a new trial (k). 
 
 Where the witness was objected to as being one of the defend- 
 ant's bail, the Court, upon depositing the sum sworn to, and a 
 further sum for costs, made an order for striking out the witness's 
 name from the bail-piece (Z). 
 
 If a witness be called for the plaintiff, who is liable to the de- 
 fendant on a bond for the costs of an action, he will be allowed to 
 give evidence on depositing the amount of the penalty of the bond 
 with the officer of the Court (m). 
 
 It is not sufficient that a witness, liable in event of a verdict 
 against his party, should have been merely indemnified by a third 
 party. 
 
 A sheriff"s officer who made the levy is not a competent witness 
 to prove the fairness of the sale of goods taken in execution, al- 
 though indemnified by the execution creditor, for it is his interest 
 to defeat the action, as he might never get repaid on his indem- 
 nity (w). 
 
 Some cases will now be cited to show how parties standing 
 in particular relations stand affected in point of competency by 
 
 (g) Hockkss v. Mitchell, 4 Esp. C. 86. 
 
 {h) Whit more v. Waterhouse, 4 C. & 
 P. 383. Where one of several coach- 
 owners being sued for negligence, released 
 the coachman. A release of a bond-debt 
 by one of several obligees operates as the 
 release of all. Bayley v. Lloyd, 7 Mod. 
 250. A release to one of several obligors 
 discharges all, whether the bond be joint 
 or joint and several. 1 B. & P. 630 j Co. 
 Litt. 232. 
 
 (i) Duke v. Pow7ial, 1 Mood. & M. 430. 
 And see above, 138, note {d). 
 
 (j) In an action against the sheriff for 
 removing goods under an execution, with- 
 
 out first satisfying a year's rent, it was 
 held that tlie tenant being released, was a 
 competent witness for the landlord, and 
 that the defendant could not avad himself 
 of such release by plea puis daiTein conti- 
 nuance, nor limit the verdict to nondnal 
 damages only. Thurgood v. Richardson, 
 4 C. & P. 481. 
 
 C*) Heining v. English, 5 Tyr. 185 ; 
 1 C. M. & R. 568. 
 
 (Z) Baily v. Hole, 3 C. & P. 560. 
 Pearcy v. Heming, 5 C. & P. 503. 
 
 (;«) Leesv. Smith, 1 Mood. & R. C. 329. 
 
 (»t) Whitehouse v. Atkinson, 3 Carr. & 
 P. C. 345.
 
 ACCOMPLICE — CO-DEFENDANT. 143 
 
 the application of the above principles and rules. Some remarks 
 will also be made as to the operation of" the late stat. 2 & .3 Will. 4, c. 
 42 : but as the effect and meaning of this statute are by no means 
 yet determined, it would be presumptuous to do more than offer a 
 few suggestions on the subject, which may appear to be warranted 
 by such decisions as have already been pronounced. 
 
 The general competency of an accomplice will be afterwards Accom- 
 considered (o). Some observations will now be made as to the si- pectationof 
 tuation of accomplices and joint wrong-doers in general, as to their pardoa. 
 competency in respect of interest. In criminal proceedings, the 
 motive which usually operates upon the mind of an accomplice as 
 a witness for the Crown, is the expectation of personal security (p). 
 This(<7) does not disqualify the witness; it was formerly held, 
 that even an express promise of pardon would not render him in- 
 competent (r). According to the present practice, an accomplice 
 has nothing more than an equitable title to pardon in case he gives 
 his testimony fairly and openly. And although in certain cases 
 an accomplice who discovers other offenders is by the statute law 
 entitled to a pardon (s), he is still considered to be a competent 
 witness upon a consideration of the intention and construction of 
 those statutes. 
 
 The same principle applies to the case of bribery under the stat. 
 2 Geo. 2, c. 24 ; for although the statute enacts, that the disco- 
 verer of any other offender shall be indemnified from all the penal- 
 ties of the Act, it was held that a witness in an action under the 
 statute was competent, although he claimed to be the first disco- 
 verer of the defendant's bribery, and although he meant to avail 
 himself of such discovery in an action already brought against him- 
 self (^ ; for upon a consideration of the statute the Court held that 
 the Legislature intended to render the discoverer a competent wit- 
 ness, although he would have been incompetent at common law, 
 his own indemnity being the natural and immediate effect of a 
 conviction. 
 
 Where an accomplice is to be used as a witness, the usual course, Compe- 
 as will be seen, is to leave him out of the indictment (m), or for the ^^^^yj^^f 
 
 ' _ \ /7 co-aeiend- 
 
 attorney-general to enter a woZZe j9ro5e(7Mi (x). But yet, although ant. 
 
 (o) Vol. II. tit. Accomplice. (m) Vol. II. tit. Accomplice. Where 
 
 ( p) As to the expectation of a reward, an accomplice has been inadvertently in- 
 
 vide M(/"/-a, 1 54. eluded in the indictment, if it should be 
 
 {q) Vol. II, tit. Accomplice. deemed necessary, an acquittal might be 
 
 (r) Ibid. taken as to him. 
 
 (s) Ibid. {x) Ward v. Man, 2 Atk. 229, by Lord 
 (0 Heivard v. Shipley, 4 East, 180. Hardwicke, who said, that in Crown prose- 
 
 And Vol. II. tit. Bribery. cations no defendant can be examined on
 
 144 
 
 WITNESS — INTEREST : 
 
 Com po- 
 tency of a 
 co-(iefen(i- 
 aut. 
 
 he be jointly indicted for an offence wliicli is several in its nature, 
 it may be doubted whether he be not still competent, provided he 
 be not put upon his trial at the same time; for though several be 
 indicted jointly for the same offence, yet the indictment, where the 
 nature of the offence is several, is also several as to each, and the 
 case seems to be just the same as if each had been severally in- 
 dicted, when they would have been witnesses for each other (?/); 
 they must therefore, as it seems, be also equally competent as wit- 
 nesses aoainst each other (z.) 
 
 behalf even of the King ; but the attoniey- 
 general enters a nolle prosequi against 
 tliat particular defendant before he can be 
 admitted as a witness ; and that this was 
 done in a case by Trevor, when attorney- 
 general. See also the case of The King 
 V. Ellis, Blalte and others, Sitt. after 
 Trin. 1802, Macnally, 55; where on an in- 
 formation by the attorney-general ( Law) 
 against several for a conspiracy, he en- 
 tered a nolle prosequi against two, who 
 were examined as witnesses against the 
 others. 
 
 (y) 2 Hale, 280; 2 Rol. Ab. G85, 
 pi. 3. 
 
 (2) See Vol. II. tit. Accomplice. But 
 see B. N. P. 285, where it is said, that the 
 Court would not allow the attorney-gene- 
 ral, on the trial of an information for a 
 misdemeanor, to examine a defendant for 
 the King, without entering a nolle prosequi 
 as to him. But qu. whether in that case 
 the witness had not been put upon his trial 
 at the same time. See Ward v. Maii, 2 
 Atk. 229; Macnally, 53. In the case of R. 
 V. Lafojie, 5 Esp. C.154, on an indictment 
 for obstructing excise officers, Lord Ellen- 
 borough would not permit co-defendants 
 who had suffered judgment by default, to 
 be examined as witnesses for the defend- 
 ant who was tried ; saying, that he had 
 never known such evidence admitted on 
 an indictment for a joint offence. The 
 cases on the subject were not, it seems, 
 adverted to on that occasion. In R. v, 
 Fletcher, Str. 633, one who had suffered 
 judgnifint by default on a joint indictment 
 for an assault, and had been fined, and had 
 paid a shilling, was admitted as a witness 
 for the other defendant. There indeed the 
 witness had been fined; but it is difficult 
 to say how the circumstance, that the 
 
 judgment has been pronounced and exe- 
 cuted on the witness, can make any dif- 
 ference as to his competency, or how his 
 giving evidence can at all alter or affect 
 his legal situation. It has been held, that 
 upon several indictments against three for 
 perjury in proving a bond, eacli was a wit- 
 ness for the others. R. v. Bilmore, Gray 
 and Harbin, 2 Hale, 280. And see also 
 Gunston v. Downs, ib. & 2 Rol. Abr. 685, 
 pi. 3. According to the same principle, 
 if each had been separately indicted for a 
 battery or larciny, the others would have 
 been competent witnesses ; for the same 
 reason applies which is given by Lord 
 Hale, viz. that they are not immediately 
 concerned in the trial against the third, 
 and therefore they would, it should seem, 
 be also competent, although they were all 
 to be included in one indictment, which in 
 legal effect operates as a several indict- 
 ment as to each. See R. v. Frederick and 
 Tract/, Str. 1095, where, upon an indict- 
 ment against several for an assault, the 
 reason for refusing to admit the wife of 
 one as a witness for another defendant, 
 was, that it was impossible to separate the 
 case of the two defendants. R. v. Sher- 
 maji, C. T. H. 303. It has indeed been 
 suggested, that if one who suffered judg- 
 ment by default were a competent witness, 
 one defendant by so doing, might protect 
 the rest, (5 Esp. C. 155) ; assuming it to be 
 probable that one of several delinquents 
 would sacrifice himself for the salvation of 
 the rest, it would by no means be a neces- 
 sary consequence that he would be able to 
 screen them ; his credit would be open to 
 the observation of the jury, and be subject 
 to much suspicion. It is also to be ob- 
 served, that the prosecutor may in general 
 avail himself, if he chooses, of the testi-
 
 ACCOMPLICE — CO-TRESPASSER. 145 
 
 An accomplice is also a competent witness for his associates Accom- 
 where he is not indicted at all, or where he is separately indicted (a) ; ^' '"'^' 
 perhaps also where he is jointly indicted, as where he has let judg- 
 ment go by default (Z>). Where, however, the offence is of such a 
 nature that an acqiiittal of his associates would enure to his own 
 acquittal, he is incompetent. Thus an accessory before or after 
 the fact would be incompetent as a witness for the principal, and a 
 co-conspirator would be incompetent to discharge his associates (c). 
 
 In civil cases it seems that an accomplice, or joint wrong-doer, 
 who is not a party to the record, is a competent witness on either 
 side, unless he be in some way answerable over to the defendant 
 for the consequence of his conduct, as an agent is, where the action 
 is brought against the principal in respect of the negligence of the 
 agent (d). 
 
 It seems to be now held that a joint trespasser is a competent co-tres- 
 witness for the plaintiff, although a recovery against the defendant Passer, 
 would discharge the action against himself (e). This, however, is 
 at all events a fact which tends to lessen his credit (/). This rule, 
 which seems to be commonly acted on in the case of a joint tres- 
 passer, seems also to extend generally to all cases where a joint 
 tort feasor is called as a witness by the plaintiff (^). 
 
 A co-trespasser, or other joint wrong-doer, who is not a party to 
 the record (A), is in general a competent witness for the defendant ; 
 for the record would not be evidence for him in another action, and 
 
 mony of a particeps ci'iminis, even where this evidence, afterwards doubted as to 
 
 the latter has a bias on his mind in favour the propriety of the decision. See Leth- 
 
 of conviction ; and therefore there seems bridge v. Phillips, 2 Starkie's C. 544. 
 
 to be no sufficient reason why a defendant In the case of Chapman v. Graves, above 
 
 should not avail himself of similar testi- cited, Le Blanc, J., held that a joint- 
 
 mony. trespasser who had let judgment go by 
 
 (a) Vol. II. tit. Accomplice. default, was not a competent witness for 
 
 (6) Supra, 144, note (2). So if there the plaintiff. And see Broicn v. Broicn, 
 
 be no evidence against one. See the caae 4 Taunt. 752. In the case of Hall v. 
 
 of the ship Bounty, 1 East, 313, n. Curzon and others, 9 B. & C. 646, Lord 
 
 (c) Vol. II. tit. Conspiracy. Tenterden said, " In practice the co- 
 
 (d) Infra, 148. trespasser is constantly called to prove 
 
 (e) B. N. P. 286. In the case of Bar- that he did the act by the command of the 
 nard v. Dawson, Guildhall, Sitt. after defendant." 
 
 Mich. Term, 1796, Lord Kenyon rejected (/) B. N. P. 286. 
 the testimony of a co-trespasser when {g) See Lethbridge v. Phillips, 2 Star- 
 called as a witness for the plaintiff. But kie's C. 544. 
 
 in the case of Chapman v. Greaves and (h) As to the competency of parties 
 
 others, 2 Camp. 333. n. Le Blanc, J. ad- which rests upon other considerations, as 
 
 mitted a co-trespasser as a witness for the well as that of an interest in the event, sen 
 
 plaintiff. But it has been said that the tit. Parties. 
 learned Judge (Le Blanc) who admitte 
 
 VOL. I. L
 
 14G WITNESS — interest: 
 
 Co-tres- his interest is rather on the other side ; since, if" the plaintiff failed 
 passer. .^ obtaining compensation against the present defendant, he might 
 afterwards attempt to recover it from the witness, and if the plain- 
 tiff recovered, the witness would not be liable to the defendant 
 for contribution (h). The defendant, in an action of trespass, 
 pleaded that R. Mawson, who was named in the si7)iul cum, had 
 paid the plaintiff a guinea in satisfaction. It was held by Eyre, 
 C. J., that Mawson was a competent witness for the defendant ; 
 for what he had to prove could not be given in evidence in another 
 action, and he admitted himself to be a trespasser (i). 
 
 It has been said, that if the plaintiff can prove the persons named 
 in the simul cum in trespass guilty, and parties to the suit, by pro- 
 ducing the process, and prove also an ineffectual endeavour to 
 arrest them, or that the process was lost, the defendant shall not 
 have the benefit of their testimony (J). The grounds of this deci- 
 sion are not very obvious ; a co-defendant under such circum- 
 stances is neither immediately interested in the event of the suit, 
 nor in the record, for the purposes of evidence (k), and he is no 
 party to the trial of the issue. In Gilbert's Law of Evidence (Z), 
 this case is propounded : Trespass against A. and -B. for two 
 horses, evidence against A. as to one; and the question is, if he 
 may be a witness for J3., in relation to the other ; and the learned 
 writer observes thus : It seems that if it were the same fact, and 
 the trespass committed at the same time and place, he may not 
 be a witness, because he swears to discharge himself; but if it 
 were not a single fact, but two distinct trespasses at different times 
 and places, but arbitrarily joined in the same declaration, then they 
 may be witnesses, one for the other, because the oath of one of 
 
 (7i) Trespass and plea of liberum tene- ter desired to look at it, and would keep it 
 
 mentum in a third person, that person is a if approved of: the chattel was in conse- 
 
 competent witness to prove that after quence delivered to the servant ; held that 
 
 having conveyed the land to the plaintiff the master was a competent witness to 
 
 he subsequently conveyed it without war- prove in defence that the message had 
 
 ranty to the defendant, and took a mort- been delivered by his authority, and the 
 
 gage from him, for he had no legal interest chattel received and kept by him. Grylls 
 
 in the event ; and his coming to impeach a v. Davles, 2 B. & Ad. 514. 
 
 former conveyance to the plaintiff affects (i) Poplet v. James, Trin. 5 Geo. 2; 
 
 not his competency, but only his credit. B. N. P. 286. 
 
 Siinpson v. Pickering, 5 Tyr. 143. (j) Reason v. Eivhanlt, Hil. 1 Geo. 1, 
 
 Trover by A. for goods fraudulently ob- ;;er onmes Just. ; B. N. P. 286. Lloyd v. 
 
 tained from him by B., the latter is a Williams, Rep. T. H. 123. Hill v. Fle- 
 
 competent witness. Triebner v. Soddy, ming, ibid. 264. 
 
 7 C. & P. 718. {k) His interest is rather the other 
 
 The servant of a party who had been way. 
 
 bargaining for the purchase of a chattel, {I) 135, 2d ed. 
 came to the owner, and said that his mas-
 
 CO-TRESPASSER. 147 
 
 them has no influence on the crime laid to his charge, but merely Co-tres- 
 goes in discharge of the other. A qucBre is however added to this l"^^^^'* 
 case, which certainly goes to a great extent. According to modern 
 practice, however, there would be little difficulty in the solution. 
 If the plaintiff could not affect A. and Jb'. jointly with respect to 
 either of the horses, he would be put to his election against which 
 of them he would proceed, for he could not recover jointly against 
 both for the separate trespass of either. Having made his election 
 to proceed against one, the other would be entitled to his acquittal, 
 and would then be a competent witness for the former. 
 
 Where, however, a co-trespasser is made a defendant, he is not 
 in general competent as a witness on either side {m) ; but if he has 
 been made a co-defendant by mistake, the Court will, on motion, 
 give leave to strike his name out of the record, even after issue 
 joined in) ; for it seems to be a general rule that a plaintiff can in 
 no case examine a defendant, although nothing be proved against 
 him (o). But if there be no evidence to charge one co-defendant, 
 he may, after the plaintiff's case has been closed, be acquitted (p), 
 and examined as a witness for the rest {q) ; for otherwise the plain- 
 tiff might exclude all the defendant's witnesses, by making them 
 co-defendants. 
 
 Where a co-trespasser lets judgment go by default, he is a com- 
 petent witness for a co-defendant (r), but he is not a competent 
 
 (;«) Per Le Blanc, J. 2 Camp. 333 («,) may be called as witnesses for the other 
 
 (n) B. N. P. 285; 1 Sid. 441. defendants. Einmett v. Butlei; 7 Taunt. 
 
 (o) B.N. P. 285. 599; and see 1 Moore, 332. Currie v. 
 
 (jj) In Huxly Y. Berg, 1 Starkie's C. C/tiW, 3 Camp. 283. Wymie v. Andersoji, 
 98, Lord Ellenborough held, that no evi- 3 C. & P. 596. Wright v. Paulin, Ry. 
 dence having been given to afiect Jones, & M. C. 128. Especially if the other de- 
 one of the several defendants in trespass, fendants call witnesses ; ib. But in the 
 the latter ought not to be acquitted until case of Kendall v. Kilshmc, Lancaster 
 the lohole case was ready for the jury ; Spring Ass. 1834, Alderson, J. held that a 
 but that, after evidence brought by tlie co-defendant, against whom there was no 
 other defendants, the plaintiff could not, evidence, ought to be acquitted at the end 
 in adducing evidence in reply, give fresh of the plaintiff's case. He said that this 
 evidence to implicate Jones. — Where three had been so held by all the Judges on 
 of five joint-contractors had pleaded that consultation ; and that were it otherwise, 
 after the promises and cause of action the party against whom no evidence was 
 they became bankrupts, and the plaintiffs offered would be entitled to cross-examine 
 proved their debt under the commission, all the witnesses for the defendant. The 
 and elected to take the benefit thereof, and same was held by Parke, J., in Child 
 issue joined on the proof under the com- v. Chamberlain, 6 C. & P. 416 ; and 
 mission; a question arising whether the see Bate v. Russell, 1 Mood. &; M. C. 
 other two defendants had continued part- 382. 
 
 ners to the time of the contract, though (q) Gilb. L. Ev. 131, 2d ed.; 1 Hale, 
 
 tlie evidence on the issue on the bankrupt's 307 ; 1 East, 313. 
 
 plea is for them, they are not entitled to a (r) Ward v. Haydon and Ventom, 
 
 verdict in the midst of the cause, that they 2 Esp. C. 552. And the same point was 
 
 L 2
 
 148 
 
 WITNESS — INTEREST : 
 
 Afiont. 
 
 FriCtoi". 
 
 witness for the plaintiff(s). So a co-defendant in ejectment, who 
 lets judgment go by default, is a competent witness for another 
 defendant {t). 
 
 Agents. — Where a servant acts for his master in the common 
 course of business, he is, as has ah'eady been seen, competent 
 from the necessity of the case (u) ; such testimony has been 
 deemed to be admissible upon a penal action against the master 
 for selling coals without a bushel (x). Where money has been 
 paid by the servant for his master (y) ; where the son has received 
 money for his father, and paid it over to the defendant (z) ; where 
 an apprentice has paid his master's money by mistake (a) ; where 
 a porter has delivered goods for his employer (Z») ; where a carrier 
 has been employed to convey goods, although he was responsible 
 to the consignor (c). In an action against a captain for deserting 
 the vessel, a mariner who was on board was held to be a competent 
 witness to prove that there was a necessity for leaving the ship, 
 although he had given a bond to the captain not to desert (d). 
 
 In proof of the sale of goods, the factor is competent (e) to 
 prove the contract, even where he is to receive a per-centage for 
 his own commission (/), or although he is to receive the excess of 
 the price beyond a specified sum, for his own use (g), or has a 
 
 ruled by Wood, B., Lancaster Spring Ass. 
 1809, cited 2 Camp. 334, in note. And 
 see Chapman v. Greaves, ibid. 
 
 (s) Per Le Blanc, J., Chapma^i v. 
 Greaves, 2 Camp. 334 ; who said, that tlie 
 general rule was, that no person who was 
 a party to the record was admissible as a 
 witness; and he distinguished between that 
 case, where the witness was called to in- 
 culpate the defendants, and those (cited 
 in the last note) where he is called to ex- 
 culpate them ; and said, that where there 
 was an innovation he was not disposed to 
 extend it. 
 
 (t) Dormer \. Fortescue, Mich., 9 Geo. 2; 
 B. N. P. 285. But if he plead, and by that 
 means admit himself to be a tenant in pos- 
 session, the Court will not upon motion 
 strike out his name; but semble, if he con- 
 sent to let a verdict pass against him for 
 as much as he is proved to be in possession 
 of, he ouglit to be admitted as a witness 
 for a co-defendant. B. N. P. 286. 
 
 (m) Supra, 133. Spencer v. Goulding, 
 Peake, 129. Duel v. Harding, 1 Str. 595. 
 Lewis V. ro(jg, 2 Str. 944. Cock v. 
 
 Wharton, 2 Str. 1054. Tullidge v. Wade, 
 3 Wils. 18. Green v. New River Com- 
 2Mny, 4 T. R. 590 ; contra, Dunsley v. 
 Westbrowne, 1 Str. 414. 
 
 {x) Per Lee, C. J., East India Com- 
 pany v. Gosling, B. N. P. 289. 
 
 (?/) Theobald V. Treggot, 11 Mod. 262. 
 
 {z) 1 Salk. 289 ; B. N. P. 289. 
 
 (a) Martin v. Horrell, 1 Str. 647. 
 
 (6) B. N. P. 289. 
 
 (c) Fort. 247. Boss v. Rowe, 3 Ford's 
 MSS. 
 
 {d) East India Company v. Gostling, 
 
 B. N. P. 289 ; 3 F. 89. But [semble) this 
 would be evidence without resorting to 
 the excejjtion from necessity. 
 
 (e) 1 P. W^ms. 429. Bent v. Baker, 
 3T. R. 27; Pr. in Ch. 207. 
 
 (/) Dixon v. Cowper, 3 "W'ils. 307. 
 And see Lloyd v. Archbowle, 2 Taunt. 
 324. Where the party employed to do 
 work agrees to give half the commission 
 to a third person, it is a mere sub-contract. 
 Gibbons v. Wilcox and others, 2 Starkie's 
 
 C. 45. 
 
 (jr) Bcnjaminw Porteus, 2 H. B. 590.
 
 AGENT. 149 
 
 lien on the policy on which he has effected an insurance (h). So Agent. 
 where the payee of a bill of exchange indorsed it in blank, and 
 delivered it to an agent to procure acceptance, in an action of 
 trover by the payee against the drawee, the agent is a competent 
 witness to prove that he left the bill with him for acceptance {i). 
 The rule seems to extend to all acts done by the agent, as far as 
 he acts according to the direction of his principal in the usual 
 course of business. But where an action is brought against the 
 principal for the negligence of his agent, and evidence has been 
 given of such negligence, the agent is in general incompetent 
 without a release, for there the verdict against the principal would 
 be evidence in an action brought by him against the agent {k), and 
 the exception from necessity does not apply, because culpable acts 
 of negligence and misconduct are not to be considered as arising 
 in the common and ordinary course of dealing ; they are not so 
 usually confined as matters of trade and contract are, to the know- 
 ledge of the agent alone ; and the agent himself stands in a very 
 different situation; where the subject-matter of his testimony 
 arises in the course of his ordinary employment, there is not so 
 strono; a reason to discredit him as there is where his misconduct 
 is made the very ground of the proceeding, and where he would 
 ultimately be responsible for the whole of the damages recovered. 
 Accordingly in an action against the owner of a coach or vessel, 
 for the negligence of the coachman or sailor, the latter are not 
 competent for the defendant (/). In an action against the master 
 of a ship for running down another, the pilot is not competent (m) 
 without a release (n). So in action against the sheriff for the mis- 
 conduct of the officer, the latter is not competent (o). So in an 
 
 (k) Hunter v. Leathley, 10 B. & C. chased goods of the best quality. Gevers 
 
 858. V. Mainwarwg, 1 Holt's C. 139. In ge- 
 
 (i) Lucas V. Haynes, Lord Raym. 871. neral the principle is inapplicable, where 
 
 Where the plaintiff sent goods to the de- the agent or servant has acted beyond the 
 
 fendant to sell on commission abroad, for ordinary scope of his employment. It has 
 
 which his agent in London had accepted been seen that previous to the late statute, 
 
 a bill, and which was then lying dis- one who had purchased goods in his own 
 
 honoured in the hands of plaintiff; held, name was not a competent witness for the 
 
 that such agent was a competent witness plaintiff (the vendor) to prove a sale to 
 
 to prove the sale of the goods. Martineau another. Macbrain v. Fortune, 3 Camp. 
 
 V. Woodland, 2 C, & P. 65. 317. Supra, 112. 
 
 (ft) Vide supra, 115; and see 4 T. R. {m) Martin v. Henrickson, Ld. Raym. 
 
 590. 1007 ; Salk. 287. Green v. Ne^v Biver 
 
 (0 4 T.R. 690. In an action against Company, 4 T. R. 589. 
 
 an agent for purchasing goods of an infe- (n) Jarvisv.Hayes, Str. 1803; supy-a, 
 
 rior quality, Gibbs, L. C. J. rejected the 115. 
 
 testimony of the broker of the defendant, (o) Powell v. Hart, Ld. Raym. 1411. 
 
 who was called to prove that he had pur- The reason given in the report is, that the 
 
 L 3
 
 1 50 WITNESS — INTEREST : 
 
 Agent. action against the New River Company, to recover for rlamages 
 done to a liorse by the bursting of a pipe, after evidence that infor- 
 mation had been given to a turncock, an agent of the defendant, 
 as to the dangerous state of the pipe, which, had it been attended 
 to, would have prevented the mischief, it was held that the agent 
 was incompetent as a witness to disprove the negligence (p). 
 
 The rule in favour of admitting the testimony of an agent does 
 not extend to one who is an agent merely in the particular trans- 
 action ((7). It seems that, in general, where a proposed witness 
 would otiierwise be incompetent by reason of liability over to the 
 party calling him for the amount recovered, competency is restored 
 by an indorsement on the record, according to the late statute (r). 
 One who has undertaken to execute particular work at a fixed 
 price, and who in turn employs sub-agents to do the work, on an 
 action brought by one of the latter against his principal, is a com- 
 petent witness to prove that he, and not the defendant, employed 
 the plaintiff (5\ although he has been paid, 
 B«tii. Bail. — Neither the bail {t) nor the wife of one who is bail (u) 
 
 nor one who has deposited money with the sheriff on the defend- 
 ant's behalf in lieu of bail(:r), is a competent witness for the 
 defendant. Where one who is bail is a material witness for the 
 defendant, the proper course is to apply to the Court to justify and 
 substitute another bail {y). 
 
 Where the witness for the defendant on the voire dire admitted 
 he was bail to the sheriff, but did not justify nor do anything to 
 get his own recognizance discharged, but had heard that bail had 
 justified ; it was held that an examination on the voire dire did not 
 let him in to give evidence of what he had heard, and that the ex- 
 planation being insufficient, he was incompetent {z)> 
 
 Corporator. -See Vol. II. tit. Corporation. 
 
 A\itiuss Costs. — Any engagement to pay the costs, or any portion of 
 
 lial)le to 
 
 costs. 
 
 officer has given a bond to the slieriff for 467. Note, that the witness had become 
 
 his proper conduGt ; but he would be in- bankrupt, and had not obtained his certi- 
 
 competent on the general principle, al- ficate, and the money had been paid to his 
 
 though uo bond had been given. assignees. 
 
 (p) Greeny. The New River Company, (t) Carter v. Pearce, 1 T. R. 164, 
 
 4 T. R. 589. See 3Iellor v. Falconer, Hawkins v. hnoood, 4 Carr. & P. 148. 
 
 1 Camp. 251 ; 15 East, 474 ; 3 Camp. 516; (m) Cornish v. Pvrjh, 8 D. & R. 65. 
 
 2 Lord Raym. 1007. {x) Lacon v. Hitjf/ms, 3 Starkie's C. 
 (q) Edmonds v. Lowe, 8 B. & C, 408. 184. 
 
 (/•) And, semhle, the same principle {y) See Tidd's Practice, 282, 7th ed. 
 
 applies where the plaintiff calls his own Whateley v. Fearnley, 2 Chitty's R. 103. 
 
 agent. ( ~) Hawkins v. Inwood, 4 Carr. & P. 
 
 (*) Wilson v. Gdlatly, 2 Carr. & P. C. 148
 
 CREDITOR. 151 
 
 them, on either side, creates an obvious interest on that side, and Witness 
 TIT Tr> 1 • 1 1 liable to 
 
 accordingly disqualines the witness, but he may be rendered com- costa. 
 
 petent by a release by the attorney, or other person to whom he 
 has engaged to pay the costs. And on this ground executors and 
 trustees are in many instances excluded from giving testimony, 
 although they have no private interest in the subject-matter of" the 
 suit, for they are still incompetent if they are legally liable to the 
 costs of the suit (a). So one who has advanced money in support 
 of a suit, for which security is given, partly on the thing demanded, 
 is not competent, although the remaining security be sufficient to 
 cover his demand (b). The prosecutor of an indictment wliich the 
 defendant has removed by certiorari is competent, although entitled 
 to costs, if the verdict be found in his favour ; for otherwise a de- 
 fendant might, by such a removal, exclude the prosecutor's testi- 
 mony (c). Upon an indictment for non-repair of a road, the pro- . 
 secutor is competent, although the Court has power to award costs 
 in case the prosecution appear to be vexatious ; for vexation will 
 not be presumed, and the awarding costs is merely discretionary(c?). 
 
 Although the contrary was once held(e), it is now fully settled 
 that where a witness stands indifferent as to the sum claimed in a 
 cause, his liability to one party for the costs by way of special 
 damages renders him incompetent (f). One who has received 
 money due from a defendant to a plaintiff is not a competent wit- 
 ness for the defendant to prove that he received the money as agent 
 for the plaintiff or in his own right, if he has so conducted himself 
 that he would in the event of a verdict for the plaintiff be liable 
 over to the defendant, not only for the money received, but the 
 costs of the action (g). 
 
 Creditor. — A creditor is a competent witness for an executor, to Creditor, 
 recover a debt due to the estate. The interest which he may have 
 in increasing the estate is too uncertain to exclude his testimony (A). 
 
 (a) Infra, tit. Interest — Trustee. (g) Per Littledale, J. in Larhalastier 
 
 (6) Per Holt, C. J., Norris v. Najyper, v. Clarle, 1 B. & Ad. 899. Note, that he 
 
 Ld. Raym. 1007, 8. regretted that such a rule had been esta- 
 
 (c) R. V. Muscott, 10 Mod. 193. Wished, because in many cases it is difficult 
 
 (rf) R.y. Hammersmith, 1 Starkie's C. to ascertain whether a party so situated 
 
 357. R. V. Cole, 1 Esp. C. 169. will be liable to answer for the costs, 
 
 (e) Ilderton v. AtMmon, 7 T. R. 480. {h) Noicell v. Bacies, 5 B. & Ad. 3G8. 
 
 Birt V. Kershaxo, 2 East, 458, but ques- Davies v. Davies, Mood. & M. C. 345. 
 
 tioned in Toionend v. Downing, 14 East, Paull v. Brown, 6 Esp. C. 34. And per 
 
 665. M'Donald, C. B. the creditor may give 
 
 (y) Jones V. BrooTi, 4 Taunt. 464. evidence for his debtor in his life-time, 
 
 Harman v. Lasbrey, Holt's C. 390. Ed- and is equally competent after his death. 
 
 icards v. Loice, 8 B. & C. 407. Larbcdas- Ld. Ellenborough, in Craig v. Cundell, 
 
 tier V. Clarke, 1 B. & Ad. 902. 1 Camp. C. 381, held that a creditor was 
 
 L 4
 
 152 
 
 WITNESS — INTEREST : 
 
 Creditor. 
 
 In criminal 
 proceed- 
 ings. 
 
 The party 
 injured 
 
 A creditor of a bankrupt is not competent to increase the divisible 
 fund {/{). Here the funds are held by a trustee for the use of the 
 creditors, to be divided rateably in proportion to their debts; they 
 are, ni effect, the creditors' own funds awaiting; such division. 
 But a creditor who has assigned his debt, though but by parol, is 
 a competent witness to increase the fund out of which the debt is 
 to be paid {I). Several creditors agree to contribute in the usual 
 way to the expense of collecting the proceeds under a commission 
 of bankrupt, that is, to contribute in proportion to their respective 
 claims; an attorney employed by all having sued one, another who 
 has paid his siiareis competent to prove the defendant's promise (m). 
 Criminal Proceedings. — It seems to be now settled that the 
 party injured is a competent witness for the prosecution in all 
 cases {n)y unless some private compensation is given by a statute to 
 the party injured, in the nature of the damages (o) ; for it is not to 
 be presumed that a witness in a pubUc prosecution is actuated by 
 revengeful or improper motives, and he has in general no legal in- 
 terest in the conviction beyond that of any other witness. It was 
 formerly held, very generally, that the party defrauded was not a 
 competent witness upon an indictment for the fraud, except in some 
 instances ex necessitate (j)) ; and, therefore, that the plaintiff was not 
 competent to prove the perj ury of the defendant in his answer (q) 
 to a bill of the witness in equity. 
 
 not a competent witness for an executor, 
 if it appeared that the estate was insolvent, 
 although, as was urged, the interest was 
 uncertain, and the executor might give a 
 preference ; but in the case of Davies v. 
 Davies, Parke, B. ruled that an unsatis- 
 fied creditor was a competent witness for 
 an administrator, under the plea of plene 
 admhiutravit ; and the ruling in Paull v. 
 Brown was confirmed by the Court in 
 Nowell V. Davies. Qiicere, whether in 
 such a case the question of tlie solvency 
 or insolvency of the estate be material ? 
 According to the principle suggested by 
 Macdonald, B. it seems not to be so, for in 
 the case of a living debtor, the competency 
 of the creditor would not be affected by the 
 insolvency of the debtor. See the obser- 
 vations of Parke, J., 3 B. & Ad. 370. 
 
 (/e) 2 Camp. 301. And Shuttleworth 
 V. Bravo, Str. 507. Where the plaintiff 
 sued two on a joint contract, and one 
 pleaded his bankruptcy and certificate, 
 held that by suing both, the plaintiff had 
 
 elected not to prove the debt under the 
 separate commission, and that a verdict in 
 that action could not affect the interests of 
 the bankrupt's creditors, one of whom was 
 therefore a competent witness to prove 
 the joint contract. Blannin v. Taylor, 
 1 Gow's C. 199. A creditor is not a com- 
 petent witness to deprive the bankrupt of 
 his allowance. lb. See Vol. II. tit. 
 Bankrupt. 
 
 {I) Heath v. Hall, 4 Taunt. 326. 
 Granger v. Furlong, 2 Black. 1273. 
 
 (m) Taylor v. Cohen, 4 Bing. 53. 
 
 (n) An exception, which till lately ex- 
 isted, in the case of forgery, is removed by 
 the Stat. 9 Geo. 4, c. 32, s. 2. See Vol. II. 
 
 tit. FORGEKY. 
 
 (o) jR. V. Boston, 4 East, 572 ; and see 
 4 East, 182. Glib. L. Ev. by Loft, 221. 
 
 O) Per Holt, C. J., R. v. Macartney 
 Sf others, Salk. 286. Per Twisden, J., 
 R. V. Paris, 1 Vent. 49. 1 Sid. 431. 
 
 (q) R. V. Nunez, 2 Str. 1043.
 
 CRIMINAL PROSECUTION. 
 
 163 
 
 Such decisions seem to have been founded on the supposition 
 that the verdict would be admissible evidence for the witness in 
 a subsequent proceeding, so as to entitle him to a remedy for the 
 injury, or to protect him against the effects of the fraud. But this 
 doctrine has long been exploded (r) ; and it seems now to be per- 
 fectly settled that the record of conviction would not be admissible 
 evidence in any civil proceeding. In the case of the King v. 
 Broughton{s), which was a prosecution for perjury, founded on 
 the defendant's answer to a bill in equity, Lee, C. J., notwith- 
 standing the previous decisions {t), admitted the testimony of the 
 plaintiff in equity; there, however, it appeared that the equity suit 
 was at an end. But in the case of the King v. Boston (m), where 
 perjury had been assigned on the defendant's answer, the plaintiff 
 was held to be competent, although the equity suit was still 
 pending. And this, on the ground that a court of equity would 
 not look at a conviction founded on the testimony of the plaintiff, 
 although it was also founded on other circumstances confirmatory 
 of his testimony. Accordingly, the witness is competent upon an 
 indictment for tearing a promissory note, payable to him {x), or 
 for extorting a bond from him ( y) : upon an indictment for usury, 
 although he was borrower of the money (z), and has not repaid it. 
 So where money has been extorted from him under threat of im- 
 prisonment, or corporal injury (a) ; for cheating him of money by 
 false pretences (h) ; so upon an information for fraudulently pro- 
 curing the witness to execute a cognovit {c). 
 
 A witness is competent notwithstanding an expectation that he 
 shall in the event of conviction obtain a return of his goods, by 
 virtue of a statute {d). And so he was in the case of an appeal of 
 
 Compe- 
 toncy of 
 prosucu- 
 tora. 
 
 Prosecutor 
 in criminal 
 proceed- 
 ing. 
 
 Expecta- 
 tion of re- 
 ward. 
 
 (r) See Ld. Mansfield's observations in 
 Abraham v. Bunn, 4 Burr. 1229. And 
 Ld. Hardwicke's in R. v. Bray, C. T. 
 Hard. 359. 
 
 (s) 2Str. 1229. 
 
 (0 R. V. Whiting, 1 Salk. 283. 1 Ld. 
 Baym. 396. See Cas. Temp. Hardw. 359. 
 R. V. Nunez, Str. 1 043. R. v. Ellis, Mac- 
 nally, 55. R. v. Watt, Hard. 331. 
 
 (u) 4 East, 572. And see the case of 
 Bartlett v. Picliersgill, there cited, where 
 the Ld. Keeper dismissed a petition for 
 leave to file a supplemental bill in nature 
 of a bill of review, the defendant having 
 been convicted of peijury, committed in 
 his former answer, on the evidence of the 
 plaintiff. 
 
 (x) R. V. Moise, Str. 595. 1 Sid. 431. 
 1 Vent, 49, contrary to the opinion of 
 Twisden. 
 
 (y) R.v. Brent, cited Ann. 268. 
 
 (z) R. V. Sewell, 7 Mod. 118. 
 
 (a) Ibid. 
 
 (6) R. V. Macartney §• others, Salk. 
 280. 
 
 (c) R. V. Paris, 1 Sid. 431. 1 Vent. 
 49. 
 
 {d) At common law the owner was en- 
 titled to retake the goods, unless the pro- 
 perty had been changed by waver, seizure 
 by the King, or sale in market overt. 
 East's P. C. 759; Glib. Ev. 222. By the 
 Stat. 21 Hen. 8, c. 1 1, the owner prosecuting
 
 154 
 
 WITNESS — INTEREST : 
 
 Reward. 
 
 robbery, altliough the object is in part the recovery of his pro- 
 perty. 
 
 The stat. 21 Hen. 8, c. 11, expressly directs restitution in cases 
 where the felon shall be attainted by reason of evidence given by 
 the party robbed, &;c., or by any other by his procurement. The 
 late stat. 7 & 8 Geo. 4, c. 29, s. 57, does not contain words which 
 expressly recognize the competency of the party robbed to give 
 evidence, but the object of the enactment is stated to be in order 
 to encourage the prosecution of offenders ; and it is manifest that 
 to exclude the testimony of owners in such cases would have a 
 contrary and prejudicial effect (e). 
 
 So a witness is competent although he expects a reward in case 
 of conviction, by virtue of particular statutes {f), by proclamation, 
 or in consequence of the voluntary offer of a reward which has 
 been held out in order to ensure the apprehension and conviction 
 of offenders {g) ; for these statutes were enacted for the express 
 purpose of stimulating activity and diligence in the prosecution of 
 offenders, and of rendering their conviction more certain ; but the 
 very opposite effect would take place if prosecutors and others were, 
 in consequence of their expectation of such rewards, to be dis- 
 qualified as witnesses; whence, it seems, the intention of the 
 
 the stealer of a horse to conviction is en- 
 titled to restitution, notwithstanding a sale 
 in market overt. By the stat. 7 & 8 Geo. 4, 
 c. 29, s. 57, if one be indicted for stealing, 
 taking, obtaining, converting, or know- 
 ingly receiving any property by or on be- 
 half of the owner of the property, or his 
 executor, shall be convicted, the property 
 shall be restored to the owner or his repre- 
 sentative ; and a summary power is given 
 to the Court to award restitution. See 
 further, Vol. II. tit. Accomplice — Bri- 
 bery. 
 
 (e) See the observations of Bayley and 
 Parke, Js. in the case of R. v. Williams, 
 9 B. & C. 560. It was held in that case 
 that on an indictment for a forcible entry, 
 the tenant was not competent, for he would 
 be entitled to a writ of restitution. The 
 case was distinguished from that of a pro- 
 secutoi in felony, who would be entitled to 
 restitution of goods on two grounds. The 
 absence of provisions recognising expressly 
 or by implication the competency of the 
 owner in the former case, and less urgent 
 necessity. The former seems to be the 
 
 better reason : for, as was observed by 
 Ld. EUenborough, in considering the effect 
 of the Bribery Act, (which gives indemnity 
 to a discoverer,) the statute give a Par- 
 liamentary capacitation to the witness, 
 notwithstanding his interest in the result 
 of the cause ; for it is not probable that 
 the Legislature would intend to discharge 
 an offender upon his discovering another, 
 so that the latter might be convicted, with- 
 out intending that the discoverer should be 
 a competent witness. 4 East, 183. And 
 see Vol. II. tit. Bribery. The making 
 competency to depend in such a case on 
 the greater or less degree of urgency, af- 
 fords no definite limit ; it is rather for the 
 Legislature than the Judge to draw a pe- 
 remptory line. 
 
 (/) R. V. Rudd, Leach's C. C. L. 157. 
 Haw. P. C. b.2, c,46, s. 135. Vol. II. 
 tit. Accomplice. See also Vol. II. tit. 
 Bribery. 
 
 {g) R V. Ld. G. Gordon, Leach, 353. 
 R. V. Dijlone, 0ns. N. P. 257. Esp. N. P. 
 713. Rookwood's Case, 4 St. Tr. 684.
 
 CRIMINAL PROSECUTION. 155 
 
 Legislature may be inferred that sueh witnesses should still be Reward, 
 deemed competent. In the case of appeals, the objection was never 
 allowed to operate. At all events the admission of such testimony 
 may be referred to the principle of necessity, which does not operate 
 so powerfully in any other class of cases (A). 
 
 Where a reward is offered by any private person or body of 
 persons, the witness would nevertheless be competent on another 
 ground, since the public had an interest in his testimony previous 
 to the offer of the reward, which could not be defeated by the 
 voluntary act of any individual. 
 
 The principle lately adverted to applies also to cases where an 
 indictment has been removed by certiorari • for if the prosecutor's 
 claim to costs took away his competency, the act of parliament (i), 
 which was intended to discountenance the removal of suits by 
 certiorari, would give the greatest encouragement to such re- 
 movals ik) ; besides, it seems to be clear that a defendant cannot 
 by his own act cast an interest on the prosecutor so as to disqualify 
 him {I). It seems also that the prosecutor of an indictment for not 
 repairing a highway is competent, although he may in the result 
 be liable to costs (m). 
 
 But in all cases the motive which may influence the mind of the 
 witness is a matter for the consideration of the jury; and if they 
 can infer from his situation or conduct that such motive is an im- 
 proper one, they are at liberty to make deductions from the credit 
 which they give to his testimony accordingly. 
 
 Where a statute gives a specific remedy to the party injured, he 
 is as much disqualified as a witness in a criminal prosecution as if 
 he sought the remedy by a civil action ; and therefore, upon an 
 indictment for perjury upon the statute, the party injured is not 
 a competent witness, since the statute gives him 10 Z., although he 
 would have been a good witness upon an indictment for perjury at 
 common law (w). 
 
 The former rule still prevailed with respect to indictments for the 
 forgery of negotiable instruments, although it had been relaxed in 
 other cases ; and it was held (until the late statute) (o) that no one 
 
 (/i) See the observations of Parker, C.J. had been removed into the K, B. hyce)-tio' 
 
 ill The Queen \. Muscat, 10 Mod. W3. rari, was examined without objection. 
 
 (i) 5 & 6 Will. & Mary, c. 11. See tit. Highway. 
 
 (A) Per Parker, C. J. 10 Mod. 194. (m) See R. v. Inhabitants of Hammer- 
 
 (I) \id. supra, 129. At the York «mi/j, 1 St irkie's C. 357. 
 
 Spring Ass. 18-21, the prosecutor of an in- {?i) B. N. P. 289. 2 Haw. c.46. 
 
 dictment for not repairing a road, which (o) See Forgery.
 
 156 
 
 WITNESS — INTEREST 
 
 could prove the forgery upon whom the instrument, supposing it 
 to be genuine, would have been binding (p). 
 
 Devisee. It has been held that a devisee who takes a vested interest under 
 
 a will, of land, is not a competent witness in an action of ejectment 
 brought by another devisee against the heir(|/). As the judgment 
 however would not be evidence either for or against the witness in 
 a suit with the heir, this position seems to be untenable (r). 
 
 Executor. An acting executor is competent to support the will by proof of 
 the sanity of the testator, although he may become liable as an 
 executor de son tortus). So one who has acted under the first will 
 is competent to prove a codicil setting up the first (0- And it 
 seems that executors and trustees in general may be witnesses as 
 to the trust estate, provided they take no beneficial interest (m); it 
 has been decided so long ago as the time of Lord Hale, that an 
 executor having no interest in the surplus is a good witness to 
 prove the will in a cause relating to the estate {x), and this has been 
 followed by many other decisions to the same effect. 
 
 In an action against an administrator, one of his sureties for the 
 due administration of the effects is a competent witness to defeat 
 the action (y); for the bare possibility that an action will be 
 brought is no objection to competency, and in order to disqualify 
 a witness it is necessary to show that he will derive a certain 
 benefit from the result, one way or other (^); even a creditor of 
 
 (p) B. V. Dodd, Leach, 184, Sd edit. 
 Hard. 332, pi. 7. 3 Salk. 172, pi. 4. Co. 
 Litt. 352. 2 Ins. 39. B. v. Bussell, 
 Leach, 8. B. v. Bhodes, Str. 728. Salk. 
 283. Sha7ik v. Payne, Str. 633. Caffy's 
 Case, East's P. C. 995. Hard. 351. 
 Vol. II. tit. Forgery. 
 
 (q) Pyke v. Crouch, 1 Lord Rayin. 730 ; 
 in Helliard v. Jennings, on an issue of 
 devisavit vel non, it was assumed that a 
 devisee was incompetent. 
 
 (r) An executor who takes a pecuniary 
 interest under a will is a competent witness 
 to support the will in an ejectment brought 
 by the heir-at-law. Doe v. Teage, 5 B. & 
 C. 335. So in Doe v. Maisey, 1 B. & Ad. 
 439, it was held that the mother of the 
 defendant in ejectment, who claimed as 
 heir-at-law of his father, was competent 
 for the defendant, for the record would be 
 DO evidence of the father's seisin to entitle 
 the widow to dower ; and that if he was 
 
 seised, she would be entitled, whether the 
 lands were in the possession of the lessor 
 of the plaintiff or the defendant. 
 
 {s) Goodtitle V. Welford, Doug. 134. 
 See 1 P. Wms. 287. 1 Bl. Rep. 365. 
 Mod. 107. 3 Will. Rep. 181. 1 Barnard, 
 12. 
 
 {t) Baylis\. W^iZsow, cited Burr. 2254. 
 
 (m) 1 Mod. 107. 1 P. Wms. 290. 
 Goodtitle V. Welford, Doug. 134. Heath 
 V. Hall, 4 Taunt. 328. Phipp v Pitcher, 
 6 Taunt. 220. Bettison v. Bromley, 12 
 East, 250. 
 
 {x) Per Lord Ellenborough in Bettison 
 V. Bromley, 12 East, 253. In that case 
 it was held, that the wife of an executor 
 who took no beneficial interest under the 
 will, was a credible witness to the will 
 under the statute. See tit. Will. 
 
 {y) Carter v. Pearce, 1 T. R. 163. 
 
 (z) Per Duller, J. ibid.
 
 HEIR AT LAW — INFORMER — INHABITANT. 157 
 
 the administrator's, which is a stronger case, would be a competent 
 witness (a). 
 
 A creditor is a competent witness for an administrator to prove 
 due administration, by payment of a debt to himself (6). 
 
 The heir apparent is a competent witness as to the estate, for iinir at 
 he has no present legal interest ; but a remainder-man is incom- ^^^^' 
 petent (c). 
 
 Where an informer, upon the conviction of the offender under a informer, 
 penal statute, is entitled to the whole or to any part of the penalty, 
 he is obviously interested, and therefore incompetent {d). 
 
 Where the statute gave one half of the penalty to the informer, 
 and the first witness proved the commission of the offence, and 
 also that no other person had given information, he was held to be 
 incompetent (e). 
 
 The objection does not apply where the penalty can be recovered 
 only by a distinct proceeding, in which the conviction would not 
 be evidence (/). 
 
 An inhabitant of a county or other district upon which any duty Inhabitant, 
 is thrown, to which the witness is bound to contribute, is not com- 
 petent to give evidence in discharge or alleviation of the burthen. 
 Accordingly it was held, that a party who was liable to a county- 
 tax for the support of the suit was incompetent (g). 
 
 By the stat. 1 Ann. c. 18, s. 13, inhabitants are competent wit- 
 nesses upon indictments against private persons for the non-repair 
 of a bridge (A). 
 
 In an action against the hundred (i), an inhabitant was made 
 competent (/t) by the stat. 8 Geo. 2, c. 10, s. 15. 
 
 (a) Per Buller, J., Carter v. Pearce, 1 (e) R. v. Blachnan, 1 Esp. C. 96. 
 
 T. R. 163. And see Vol. II. tit. Executor. ' (/) As in a prosecution under the stat. 
 
 (ft) Vol. II. tit. Executor. 9 Ann, c. 14 s. 5, by the loser of money 
 
 (c) Smith V. BJacliham, 1 Salk. 283. at cards. R. v. Luckup, Willes, 425, 
 
 {d) B. V. Tilley, Str. 316. B. v. Stone, n. (e) ; or on an indictment (st. 23 Geo. 2, 
 
 2 Lord Raym. 154.5. B. v. Piercy, Andr. c. 13, s. 1), for seducing artificers. B. v. 
 
 18. B V. Blaney, Andr. 240. B. v. Cob- Johnsmi, Willes, 425, n. (e). And see the 
 
 bold, Gilb. 111. B. v. Shipley, Gilb. 113. observations of Bayley, J., 9 B. &; C. 
 
 Portman v. Oahden, Say. 179. In the 557. 
 
 case o{ The King y. Teasdale, 3 Esp. C. (gr) County of Salop v. County of Staf- 
 
 68, upon an indictment under the st. 21 ford, 1 Sid. 192; 2 Lev. 231. 
 
 Geo. 3, c. 37, s. 31, an informer was held (A) "Vol. II. tit. Bridge. Before the 
 
 to be competent on a presumption, as it statute such evidence seems to have been 
 
 seems, that the Legislature, in imposing admitted on a principle of necessity. GIL 
 
 penalties, meant to admit the testimony of Ev. 113 ; 2 Show. 47 • 1 Vent. 351. 
 
 informers, as being essential to effectuate (i) Onstat, of Winton. 13 Edw. l,st. 2, 
 
 the provisions of the statute. The prin- c. 1. See Vol. II. tit. Hundred. 
 
 ciple is not satisfactory, and occasions {k) He was before the statute held to 
 
 difficulties, which might easily be avoided be incompetent, even although he paid no 
 
 by an ex^iress provision. taxes or parish duties, because be might
 
 158 WITNESS — interest: 
 
 Iniiaiiitant. So in settlement cases, a rated inhabitant formerly was incom- 
 petent to give evidence for his own parish (/) as to the pauper's 
 place of settlement ; neither could he give evidence to extend the 
 boundaries of his parish (m) ; so before the stat. 27 Geo. 3, c. 29, 
 a rated parishioner was incom])etent to give evidence in any pro- 
 ceeding for a penalty given by any statute to the poor of the 
 parish {n). For although, in the case of Townsend v. Row (o), it 
 was held that a parishioner was competent to support the title to 
 an estate, where the remainder, after an estate for life, was limited 
 to the minister and churchwardens for the use of the poor of the 
 parish, yet this was decided upon the untenable ground that the 
 interest was too minute to disqualify the witness {p). But by 
 the statute above referred to, it is enacted, that an inhabitant of 
 any place or parish shall be a good witness, although a penalty 
 accrue to the poor, provided such penalty do not exceed 20 /. {q). 
 
 By the stat. 7 & 8 Geo. 4, c. 29, s. 64, and 7 & 8 Geo. 4, c. 29, 
 s. 29, upon summary convictions, the evidence of the party grieved 
 is to be admitted in proof of the ofience ; so also is the testimony 
 of any inhabitant of the county, riding, or division in which the 
 offence shall be committed, notwithstanding any penalty or for- 
 feiture in respect of the offence may be payable to the general rate 
 of such county, riding, or division. But in the case of the party 
 grieved giving such evidence, he is not to receive any portion of 
 the penalty. 
 
 By the stat. 3 & 4 Will. & Mary, c. 11, in all actions brought, 
 either in the Courts at Westminster or at the assizes, for money 
 mis-spent by the churchwardens, the evidence of the parishioners, 
 with the exception of those who receive alms, shall be admissible. 
 
 And by the stat. 54 Geo. 3, c. 170, s. 9, it is enacted, that no 
 person rated or liable to be rated to any rates or cesses of any dis- 
 trict, parish, township or hamlet, or wholly or in part maintained 
 or supported thereby, or executing or holding any office thereof or 
 therein, shall, before any court or person or persons whatsoever, be 
 
 be liable when the tax came to be levied. vis v. Hay, 3 F. 182, 10 Geo. 2, where, in 
 2 Keb. 73. Mod. 73. But see the cases an action under the game laws, a pa- 
 cited below. And now see the late stat. rishioner was held to be competent. There 
 7 & 8 Geo. 4, c. 31, s. 5. Lee, C. J., cited Phillips v. Scallard, G 
 
 (Z> R. V. Prosser, 4 T. R. 17. B. v. Geo. 2, in C. B., where in a similar case a 
 
 South Lynn, 5 T. R. 664. R. v. Little new trial was moved for, and the Court 
 
 iwrnZey, 6 T. R. 157. were of opinion that the witness ought 
 
 (m) Deacon v. Cooke, cited 2 East, to have been admitted. But see 1 Barnes, 
 
 559. 435, where it appears that the new trial 
 
 (ji) 1 Sess. Cases, 874, cited Say. 180. was moved for on a different ground. 
 
 (o) 2 Sid, 109. {q) B. v. Davis, 6 T. R. 177. 
 
 ( })) But see 2 Vern. 217. See also Jer-
 
 INHABITANT, &C. 159 
 
 deemed and taken to be by reason thereof an incompetent witness inluibitant. 
 for or against such district, &;c. in any matter relating to such 
 rates{r) or cesses, or to the boundary between such district, &c. and 
 any adjoining district, &c. ; or to any order of removal to or from 
 such district, &c. ; or the settlement of any pauper in such district, 
 &c. ; or touching any bastards chargeable, or likely to become 
 chargeable to such district, &c. ; or the recovery of any sura or 
 sums for the charges or maintenance of such bastards ; or the 
 election or appointment of any officer or officers ; or the allowance 
 of the accounts of any officer or officers of any such district, &c. 
 
 Before this statute a rated parishioner was incompetent in settle- 
 ment cases, but a non-rated inhabitant was competent, although 
 he had been left out of the rate for the express purpose of making 
 him a witness (s) ; and it was competent to him to discharge him- 
 self on the voire dire without producing the rate-book (0- But 
 both before and after the declaratory statute 46 Geo. 3, c 37 {t), 
 a rated inhabitant was considered to be a party to the suit, and 
 
 (?•) It has been held that a rated inha- 
 bitant is a competent witness for the de- 
 fendants in an action of trespass brought 
 against them as overseers, in respect of 
 land claimed by them as trustees for the 
 benefit of the parish in aid of poor's rates, 
 the pleas being the general issue, and libe- 
 rum tcnementum : for the intention of the 
 Legislature was to make rated parishioners 
 competent in all matters relating to rates. 
 Meredith v. GUpln §• others, G Price, 146. 
 And one who occupies rateable property 
 within a chapelry, is a competent witness 
 to prove that a certain messuage is situated 
 within the chapelry. Marsden v. Stans- 
 feld, 7 B. & C. 815. So an inhabitant is 
 competent in an action by the surveyor of 
 the highways against his predecessor for 
 penalties. Hendebourch v. Lanrjston, 1 
 Mood. & M. C. 402. The statute, it has 
 been said, extends to render inhabitants 
 competent witnesses in questions as to the 
 repair of highways. R. v. Hayman, 1 
 Mood. & M. C. 401. But this case -was 
 expressly overruled by BoUand, B., on the 
 Northern Summer Circuit, 1833, and since 
 by the Court of King's Bench, in B. v. 
 Bishop AucMand, 1 Ad. & Ell. 744. In 
 the case of Oxenden v. Palmer, 2 B. & Ad. 
 236, the Court of King's Bench doubted 
 as to the corrcctu(.ss of the deciaiou iu 
 
 VOL. I. 
 
 3Ieredith v. Gilpiti ; and it was held tliat 
 a question as to the existence of a custom 
 to take shingle from the sea-beach for the 
 purpose of repairing highways within the 
 parish, was one which did not properly 
 and strictly relate to rates or cesses of the 
 parish, within the meaning of the Act. In 
 Tot hill V. Hooper, 1 Mood. & R. C. 392, 
 Lord Denman, C. J., ruled in an action 
 against an overseer (who defended under 
 an order of vestry), for medical attendance 
 on a pauper, that a rated inhabitant who 
 had signed the order was not competent. 
 But an occupier of rato^fc/e property was 
 held to be a competent witness for parish 
 officers, in an ejectment brought by them 
 to recover a parish house. Doe v. Cock- 
 erill, 6 C. & P. 525 ; 4 Ad. & Ell. 478. 
 And iu the later cases of Doe d. Boxdtbee 
 v. Adderley, and Doe v. Bowles, 8 Ad. & 
 Ell. 502, the case of Oxenden v. Palmer 
 was overruled, and that of Mereditli v. 
 Gilpin supported. And now see the sta- 
 tute 3 & 4 Vict. c. 26, infra, 161. 
 
 (5) R. v. Kirdford, 2 East, 559. But 
 see Rhodes v. Ainsivorth, 6 B. & A. 87 ; 
 2 Starkie's C. 215. 
 
 {t) See the Act below. R. v. Prosscr, 
 4 T. R. 17. R. V. Little Ltimloj, 6 T. U. 
 157. 
 
 L 8 -t-
 
 IGO 
 
 WITNESS liNTEllliST 
 
 liili.thituiif.. 
 
 iouer. 
 
 consequently he could not be examined by the adverse party with- 
 out his cunsent(M). But being so tar a party, it followed that his 
 declarations were admissible in evidence (a;), although he had not 
 refused to be examined (y). 
 
 The statute 54 Geo. 3, c. 170, having rendered a rated inhabitant 
 a competent witness for his own parish, it becomes a question 
 whether his declarations can be proved by the adverse parish, 
 without calling him as a witness (s'). 
 
 The rated inhabitants of a parish are in general incompetent 
 witnesses to discharge the parish from the burthen of repairing 
 a highway (a); and it is said to have been held by Lord Kenyon, 
 that a mere inhabitant, although he occupied no land within the 
 parish, was incompetent on the trial of an issue, on a plea by the 
 inhabitants that one Robinson was bound to repair the road in 
 question ratione tenure ; because if there should be a verdict 
 against the defendants the witness would be hable to the payment 
 of the fine, and also because every inhabitant is liable to do statute 
 duty {b). 
 
 (m) R. v. Wobitrn, 10 East, 894, R. v. 
 Inhahitants of Hardioiclie, 11 East, 579. 
 Note, in R. v. Kirdford, Lord Kenyon 
 distinguished the ease of a non-rated inlia- 
 bitunt in a settlement case from tliat of a 
 hundredor under the statute of Hue and 
 Cry, on the ground that the latter was a 
 party. 
 
 (x) R. V. Inhahitants of Hardioiclie, 11 
 East, 679. 
 
 {y) R. V. Whitley Loicer, 1 M. & S. 
 636. In R. V. Inhabitants of Hardwiche 
 the rated inliabitant refused to be exa- 
 mined, but the refusal does not appear to 
 constitute a material ingredient in the 
 case ; for where in general the declaration 
 of a party is evidence by way of admis- 
 sion, it is unnecessary, as a preparatory 
 step, to call the party as a witness. 
 
 (z) Doubts have been entertained on the 
 question, and I am not aware that the 
 point has been decided. Before the stat. 
 64 Geo. 3, c. 170, such a declaration was 
 admissible, on theground that the declarant 
 was a party to the suit ; and the effect of 
 that statute seems to be merely that of 
 conferring competency, notwithstanding 
 interest, without further interfering with 
 the rules of evidence on the particular 
 subject. And it seems to be going a great 
 length to contend, that, because a party 
 
 may be a witness in his own cause, not- 
 withstanding his interest, that therefore 
 the adversary shall be deprived of the be- 
 nefit of his declarations. The main argu- 
 ment which was urged against the recep- 
 tion of the evidence, viz. that it was not 
 the best evidence, appears to be a very fal- 
 lacious one, for the whole doctrine of re- 
 ceiving admissions of parties in evidence, 
 is built on the ground that such admis- 
 sions and declarations are better evidence 
 of the truth than the testimony of the 
 party himself, examined upon oath. The 
 case most analogous to the present is that 
 of a plaintiff in an action against the hun- 
 dred, on the statute of Winton; he is a 
 competent witness notwithstanding his in- 
 terest, and yet his declaration would surely 
 be admissible in evidence for the hundred. 
 
 (a) 4 Mod. 48, 49 ; vide sujira, 169 (?•). 
 15 East, 474. 1 B. & Aid. 66. Statute 
 duty is repealed, and now see the pro- 
 visions of the late stat. 3 Geo. 4, c. 126, s. 
 137, as to turnpike roads, and 5 & 6 Will. 4, 
 c. 60, s. 100, as to highways not turnpike. 
 Vol. II. tit. Highways. An inhabitant 
 being a defendant, is not a witness, on 
 indictment for non-repair of road. R. v. 
 Shoreditch, Vin. Ab. Cheinin, 50S, pi. 16. 
 
 (b) R. V . Inhabitants of Wheaton Aston, 
 cor. Lord Kenyon, Stafford Summer Ass.
 
 JOINT INTEREST. 101 
 
 So the owner of an estate within a chapelry in lease to a tenant joint inte- 
 who was rated for the repairs of the chapel, and bound to pay tlie ''^^'• 
 rates without deduction, was held to be incompetent to negative 
 the liability of the inhabitants (c). 
 
 But now by the late stat. 3 & 4 Vict. c. 20 (<Z), s. 1, it is 
 enacted, sec. 1, that no person called as a witness on any trial 
 shall be disabled from giving evidence by reason only of such 
 person being the inhabitant of any parish or township rated or 
 assessed, or liable to be rated or assessed to the relief of the poor, 
 or for or towards the maintenance of church, chapel, or highway, 
 or for any other purpose whatever. And by sec. 2, no church- 
 warden, overseer, or other officer in, and for any parish, township, 
 or union, or any person rated or assessed, or liable to be rated or 
 assessed as aforesaid, shall be disabled from giving evidence on any 
 trial, appeal, or other proceeding, by reason only of his being a party 
 thereto, or liable to costs in respect thereof, where he shall be only 
 a nominal party to such trial, &c., and shall only be liable to con- 
 tribute to such costs in common with other rate-payers. 
 
 Insolvent. — See Vol. II. tit. Insolvent. 
 
 Joint Interest. — In general, a witness is not incompetent merely joint inte- 
 in respect of any interest he may have in the subject-matter of the '"'^t*. ^"l 
 suit, being a stranger to the parties. For whatever be the result, matter, 
 he will not be liable to costs or damages, and the verdict and 
 judgment would not be admissible either for or against him in any 
 other proceedings to affect his own title (e). 
 
 Previously to the application of the principles above announced 
 to cases where the witness is affected, or supposed to be affected, 
 by some joint interest with a party to the suit, or in the subject- 
 matter of tiie suit, it will be convenient to premise a few general 
 observations, recapitulating briefly some of the rules already 
 obtained, and which are more particularly connected with the large 
 class of cases now under consideration. A witness is to be ex- 
 cluded when he stands in such a situation that it would be more 
 
 1797, cited as from the MSS. of Serj. Wil- very purpose. B. v. Inli. of Kirdford, 
 
 liaras, in Cht twynd's Burn's J. tit. Evi- 2 East, 559; and see 4 T. R. 36. 
 DEMCE,792.S.C.notS.P.2SauDd. 159(r0. (d) This statute has rendered many of 
 
 (c) Rhodes v. Ainsioorth, 1 B. & A. 17; the preceding observations (written before 
 
 2 Starkie, C. 215. But mere liability to be it was passed) unnecessary, 
 rated lias been deemed to be insufficient to (e) For illustrations of this principle, 
 
 disqualify. R. v. Prosser, 4 T. R. 17. R. see above, 118 ; and the cases Nix v. Cut- 
 
 V. South Lijnn, 5 T. R. G64. Although ting, 4 Taunt. 18. Ward v. Wilkinson, 
 
 the name of the party was omitted for the 4 B. & Aid. 410. 
 VOL. I. M "}-
 
 rest. 
 
 102 WITNESS— interest: 
 
 Joint into- to his interest to give his evidence one way llian the other, f'oi' he 
 then labours under a temptation to conceal the truth or state 
 what IS false. But to warrant the exclusion, it is not sufficient 
 merely to suggest that a proposed witness is so situated ; the fact 
 must be estabhshed either by admission or by proof (i). Here a 
 distinction arises as to such admission or proof. 
 
 Where the situation of the witness, so far as regards the question 
 of interest, is completely established, there can seldom be any 
 doubt on the question of competency or incompetency; but it often 
 happens that the situation of the witness is the material question 
 in the cause ; to assume the fact either way would be to assume 
 the whole question in dispute ; to exclude the witness till the fact 
 were determined by evidence, would in effect be to reject his tes- 
 timony, although in fact he might be disinterested ; to admit his 
 testimony either on the voire dire or in chief would frequently be 
 to admit the testimony of an interested party. In such cases, the 
 same principle is applicable as in other cases. To warrant the 
 rejection of the witness, his situation must be so far established as 
 to show that he would be benefited by representing what was dis- 
 puted in one way rather than another. This happens particularly 
 in respect of cases of frequent occurrence, where a material ques- 
 tion in dispute is whether the proposed witness is himself liable to 
 the plaintiff's demand, or being liable to a part at least, whether 
 some other is not jointly liable. If in the former case it be made 
 to appear, by examination of the witness on the voire dire or other- 
 wise, that he was prima facie liable to the plaintiff's demand, 
 his interest at that point in procuring the plaintiff to recover from 
 another a demand which he was under a prima facie liability to 
 satisfy, would be manifest; he would labour under a temptation 
 to acquit himself of his j^rma ybcie responsibility. A similar ob- 
 jection would apply where the witness's liability to the demand 
 in part being admitted, and the question being whether the de- 
 fendant was or was not jointly liable, the witness would have an 
 interest in increasing the number of those liable to contribute. 
 
 Formerly the distinction between an interest in a particular yac^ 
 or question abstractedly, and an interest in the event of the parti- 
 cular cause then pending, was not sufficiently attended to ; wit- 
 
 (i) In an action for goods sold and de- mitted by Eyre, C. J. to prove this, not- 
 livered, the general issue being pleaded, a withstanding the suggestion by tlie plain- 
 witness was admitted to prove that credit tiff that the defendant and the witness 
 was given to her alone ; and she was ad- were partners.
 
 JOINT INTEREST. 163 
 
 nesses who were interested in the transaction or question abstract- Joint inte- 
 edly, but who had no interest in the immediate event of the action, '^^^^' 
 were held to be incompetent. Thus it was hekl, that the master 
 of a vessel, who had insured goods on board, was not competent 
 for the plaintitt" in an action by the owner of other goods on a 
 policy effected on them (k) ; that is, he was held to be incompetent 
 as a witness for the plaintiff, because he had an interest in the 
 question whether an insurance on goods could under the circum- 
 stances be enforced, although he had no interest in the particular 
 goods insured in that action, and although the result of that action 
 would be in point of law perfectly irrelevant in a proceeding to re- 
 cover on his own insurance. Such a decision would no longer be 
 supported, the proper test of competency being the interest which 
 the witness has in the immediate event of the particular suit, or in 
 the record, for the purposes of evidence (/), and any collateral or 
 incidental connection of the witness with the transaction, although 
 it might tend to influence or prejudice his mind, is immaterial. 
 Consequently, a co-underwriter is a competent witness for the 
 defendant in an action upon the policy (?w). So one mariner may 
 prove wages to be due to another for the same voyage in respect 
 of which he himself has a claim (n). 
 
 A joint purchaser of an annuity, as tenant in common with the 
 plaintiff, is competent in an action against a conveyancer for negli- 
 gence and fraud in the negotiation of the annuity (o). So it seems 
 to be clear, that any person who has received any distinct injury 
 from the act of the defendant complained of in the action, is a 
 competent witness to prove the plaintiff's case, since the recovery 
 by the plaintiff would not tend to establish his own case. 
 
 So one who has purchased a number of copies of the plaintiff's 
 work, which he is printing, is competent to prove a contract by the 
 defendant to insure it from fire (p). 
 
 In an action of covenant against Backhouse, the part owner of 
 a ship, jointly with Foulstone, to reimburse the ship's husband for 
 sums paid for insurance, the plaintiff having brought a similar 
 action against Foulstone, the plaintiff adduced evidence to show 
 
 (k) Rock V. Layton, Fort. 246. And (/«) Bent v. Baker,ZT. R.27. 
 see Skinner, 174, where, in an action 
 
 brought by a master of a ship against ^^^> Skinner, 174. 
 
 custom-house officers for refusing to clear ^^^ ^^^^^^^ ^_ Hoicard, 2 Starkie's C. 
 
 the ship, it was held that the owner of ^q 
 goods on board was not competent. 
 
 (0 Bent V. Baker, ^H. R. 27. Ridout (p) Mawman v. Gillett, 2 Taunt. 325. 
 
 V. Joh7ison,B. N. P. 283. Lloyd v. Archbowle, lb, 324. 
 
 M 2
 
 1G4 
 
 WITNESS — INTEREST : 
 
 Joint intc- that Foulstoiie ordered the insurance, and that tlie defendant ap- 
 ^^^ ' proved of it; the Court held that Foulstone was incompetent to 
 
 prove that the defendant never knevi^ of the insurance, because on 
 the phiintifF recovering against tlie defendant, Foulstone would be 
 liable for half the sum recovered (r). The ground of decision there 
 was, that had the plaintiff recovered, the witness would have been 
 liable to half the damages. This, however, would not, it seems, 
 liave been the consequence ; in the subsequent case of Walton v. 
 Shelley (s), it was observed by Mr, Justice Buller, that the witness, 
 in the event of a recovery by the plaintiff, would have been liable 
 to no part of the damages. 
 
 In general where it is admitted or proved that the proposed wit- 
 ness has a joint interest with the party who calls him, either in the 
 subject-matter to be recovered, or in the contract as a general partner, 
 joint or part owner, or joint contractor, by which he has an interest in 
 ' the very thing claimed, or in the money to be recovered {t), or in the 
 costs incidental to the suit, he is incompetent to give evidence for 
 that party {u). Upon issue taken on a plea in abatement, that an 
 alleged co-contractor ought to have been joined, the latter is 
 incompetent to give evidence for the defendant {x). 
 
 (r) French v. Baclthouse, Burr. 2727. 
 
 {s) 1 T. R. 296. 303. 
 
 {t) On an information in the Exchequer 
 upon a seizure of goods by a custom-house 
 officer, another officer was held to be incom- 
 petent, because he had made an agreement 
 with the former to share in all seizures, 
 although he conceived the agreement to be 
 illegal, and did not expect any benefit from 
 the seizure in question. It. v. Walker, 1 
 Ford's MSS. 145. 
 
 (m) This rule, includes all general part- 
 ners, jciint contractors, corporators who are 
 certified to any private interest. See tit. 
 Corporation. Commoners in a question 
 as to a right of common. See tit. Com- 
 mon. 
 
 (a;) Hare v. Munn, 1 Mood. & M. C. 
 241, note (a) ; and see Robinson v. Hud- 
 son, 4 M. & S. 475. And Young v. 
 Bairner, 1 Esp. C. 103, where, in an action 
 against a part owner of a ship, for work 
 done to the ship, and issue taken, on a 
 replication to a plea in abatement, that 
 the defendant had undertaken solely to 
 pay, Lord Kenyon held that Whytock, a 
 joint-owner, was not a competent witness 
 to prove that he gave the order, because he 
 
 would be liable in contribution to the de- 
 fendant in case the plaintiff recovered. As 
 a partner, however, it seems that he stood 
 indifferent, since according to the principle 
 laid down in Hudson v. Robinson, 4 M. & 
 S. 475, he would ultimately be liable to his 
 own share only. The question seems to 
 have been whether he would not by his tes- 
 timony get rid of a share of the costs. 
 The Court of King's Bench held that he 
 was at all events rendered competent by a 
 release. 
 
 In Goodacre v. Breamc, Peake's C. 174, 
 the plaintiff having proved tlie sale of the 
 goods to the defendant, and to J. S. his 
 partner in trade, Lord Kenyon held that 
 J. S. was not competent to defeat the ac- 
 tion, by evidence that the goods were sold 
 to himself, and that the defendant was 
 merely his servant, since he would by his 
 evidence discharge himself from a moiety 
 of the costs. See also Balwr v. Tynohitt, 
 4 Camp. 47. Hall v. Rex, G Bing. 181. 
 Svans V. Yeatherd, 2 Bing. 133. Simons 
 V. Smith, 1 Ry. & M. C. 29. Cheyne v. 
 Coops, 4 Esp. C. 112. Supra, 111. 
 And tit. Partners, and Vendor and 
 Vendee.
 
 rest. 
 
 JOINT INTEREST. IfJS 
 
 Although in all such cases tiie party so interested is nicompe- Joint inte- 
 tent, a distinction arises on the question of" restoration to compe- 
 tency, by an indorsement on the record, according- to tlic lute 
 statute. Wherever the proposed witness has such an interest as a 
 general partner, or as a joint-owner of specific property, that he would 
 be immediately benefited by a verdict and judgment (y) in favour 
 of his party, such an indorsement would be unavailable to restore 
 competency, for the benefit would be immediate, and not dependent 
 on any use to be made of the record. But where the benefit would 
 not be immediate, and could not be attained without making use 
 of the record, it seems that an indorsement would restore compe- 
 tency, for the record being silenced, which was essential to the 
 witness's gain or loss, his interest would cease. 
 
 The class of cases where the liability of the witness is a ma- 
 terial fact in dispute will now be adverted to. 
 
 Where the question is whether a proposed witness has or has 
 not any joint interest, and the matter rests merely in assertion on 
 the one side or other, without proof that he stands in an inte- 
 rested position, he seems to be competent. 
 
 Where a defendant in assumpsit pleads the non-joinder of 
 another, w^hom he alleges to be a co-contractor, in abatement, on 
 issue taken on the fact, the alleged co-contractor is a competent 
 witness for the plaintiff {z). A witness is not to be excluded by a 
 mere suggestion, without proof that he stands in an interested 
 position ; and even assuming him to be a pai'tner, he has no interest 
 in favour of the plaintiff as regards costs. He has indeed an interest 
 in procuring a verdict for the defendant, to whom he would other- 
 wise be liable for his share ; and as regards the joint claim, he 
 would stand indifferent; for if jointly liable with the defendant, 
 he is liable, at all events, to his own share and no more. 
 
 Where the proposed witness's joint liability is admitted, and 
 the question is whether the defendant be or be not jointly liable 
 with him, he is interested as a witness for the plaintiff in procuring 
 a verdict for the latter, and so to make the defendant contribute. 
 
 It has accordingly been held that a co-defendant in assumpsit 
 who has let judgment go by default, is not a competent witness 
 for the plaintiff to prove the liability of the other defendants ; for 
 beino; himself liable he is interested in rendering the defendants 
 liable to contribution {a). It has however been held that a co- 
 partner is a competent witness in an action of assumpsit to prove 
 
 (»/) This is, of course, to be understood (c) Rohbison v. Hudsoii, 4 M. & S. 475. 
 
 of an execM^erf judgment, by which the pro- (a) Broiim v. Brown, 4 Taunt. 752. 
 
 posed witness would gain or lose. Note, tliat in this case the record would be 
 
 M 3
 
 166 WITNESS — interest: 
 
 Joint intc- the liability of the defendant as a co-partner (Z»), principally, as it 
 ''^''*' seems, on the ground that even in case the defendant were not 
 
 jointly liable the witness would gain nothing by his perjury, be- 
 cause the defendant would recover against the firm the whole 
 amount of the debt and costs, as for money paid to their use. If 
 this were otherwise, competency would, it seems, be restored by 
 a release from the plaintiff to the witness; for in that case the 
 witness, if he were in fact solely liable, would be rather interested 
 in procuring a verdict for the defendant than for the plaintiff; if 
 the plaintiff succeeded, the witness might possibly be liable over 
 to the defendant, but if the defendant succeeded the witness would 
 be liable to neither. It seems that an indorsement on the record 
 would not protect the witness against an action by the plaintiff to re- 
 cover the whole amount, in case he failed to recover from the defen- 
 dant, for the plaintiff would recover independently of the records. 
 
 Where the proposed witness is under a prima facie Hability to 
 the demand, and is called as a witness on the part of the plaintiff 
 to charge the defendant with it, he is, as has been seen, incompe- 
 tent (c). He procures a debt to be paid by another to which he 
 is jjrima facie liable ; and in case the plaintiff afterwards sought to 
 recover the same demand against the witness the record would 
 be evidence in defence (d). A party so situated would also be 
 incompetent to prove that the defendant was jointly liable to a 
 part of the demand (e). 
 
 It seems that in general a release by the party to a witness 
 whom he calls to charge another with an obligation, to which the 
 witness is prima facie liable, would restore competency, for on 
 such release given the witness would be more benefited by the 
 defeat than the success of his party. For, in the former event 
 neither the plaintiff nor defendant could have any claim against 
 him ; but in the latter, although he could no longer be liable to 
 the plaintiff, by reason of the release, he might possibly be liable 
 to the defendant for money paid to his the witness's use. And it 
 seems that an indorsement on the record would have the same 
 effect. The interest of a witness so situated does not consist 
 simply in the moral probability that a plaintiff who has recovered 
 the amount of his demand from tlie defendant will not afterwards 
 
 evidence ; and Abbott, C. J., in Blachett v. to prove the execution of the bond. Lock- 
 Weir, 5 B. & C. 287, attributed the exclu- hart v. Graliam, Str. 35. And see the 
 sion to the technical rule that the plaintiff cases supra, 110, 111. 
 could not call a co-defendant on the record. (c) Supra, 112. 
 
 (6) Blackett v. Weir, 5 B. & C. 385. (rf) M' Brain v. Fortune, tiCamj). 317. 
 
 go one of three joint obligors is competent (e) Ripl>/ v. Thompson, 13 Moore, 5i.
 
 JOINT INTEREST. 167 
 
 proceed against tlie witness ; for thut is but conjectural. The qiies- Joint inte 
 tion is, whether a legal advantage is gained ; and that can only be 
 by means of the verdict and judgment, as having a legal operation, 
 or as evidence; and they can have neither but by the record, 
 which is silenced by the indorsement. 
 
 An interest arising out of an illegal agreement, will not render 
 the witness incompetent, for it is void (/). 
 
 As to the interest of landlords and tenants, see tit. Ejectment. 
 
 A residuary legatee is not a competent witness for the executor Legatee. 
 in an action by the latter to increase the estate {g), nor in one 
 against the executor, for the judgment would afterwards be evi- 
 dence against him {h). So one entitled to a distributive share 
 of an estate is not a competent witness in an action by {i) or 
 against (Ji) the administrator, to benefit the estate. A legatee of a 
 specific legacy who has been paid the amount of his legacy before 
 the trial, is a competent witness to increase the estate (Z), and so, 
 as it seems, he is although the legacy has not been paid {m). In 
 an action by the executor, it is not sufficient that the residuary 
 legatee should release the debt in question ; for the plaintiff, 
 though not liable to pay the defendant's costs in case of failure, 
 is liable to pay costs to his own attorney, the effect of which would 
 be to diminish the residue {n). An executor and residuary legatee 
 is competent in an action against the legatee of a specific chattel 
 by one claiming, as owner, to prove the property to be the tes- 
 
 {f) A member of a society undertaking covered had not been paid, it was not to 
 
 to contribute towards all law expenses re- be assumed that there was not some other 
 
 specting it, was held a competent witness sufficient estate. 
 
 in an action brought against the secretary (in) See the last note. In the case of 
 
 for a libel : if the agreement were to con- Nowell v. Davies, 5 B. & Ad. 368, it was 
 
 tribute towards bearing each other harm- held that an annuitant under a will was a 
 
 less in doing wrong, it would be void; competent witness for the executors in an 
 
 Humphrey v. Miller, 4 C. & P. 7. action for a debt due from the testator. 
 
 ((/) Bakery. Tyrwhitt, 4 Camp. 27; In Johnson v. Baiter, 2 C. & P. 209, a 
 
 and per Tindal, L. C. J., 6 Bing. 394. Legatee who had not been paid was ad- 
 
 (li) See 2 Starkie's C. 546. mitted as a witness for the executor in an 
 
 (i) MatJiews v. Smith,2Y.Sc J. 42(j, action against the latter; but there the 
 
 (k) Allington v. Bearcroft, Peake's debt was not recoverable out of the estate. 
 
 Add. C. 212. (n) Baker v. Tyrwhitt, 4 Camp. C. 27. 
 
 (Z) Clarke v. Gannon, 1 Ry. & M. C. The executor would be entitled to the costs 
 
 31. Seioell v. Stuhhs, 1 Carr. & P. C.73. out of the estate, the action being brought 
 
 Tlie objection was that the witness would bond fide. Tlie witness therefore cannot 
 
 be obliged to refund in case the estate be made competent but by releasing the 
 
 should prove deficient ; but Lord Tenterden residue, or by a release of the costs by the 
 
 observed, that there was nothing to show plaintiif 's attorney to the witness. And 
 
 tliat the funds were insufficient, and tliat, see Ferryman v. Steggel, 8 Bing. 369^ 
 
 although the debt sought to have been re- Carter v. Abbott, 1 B. & C. 144. 
 
 M 4
 
 168 
 
 WITNESS — INTEREST : 
 
 Tuity. 
 rrochein 
 
 illlli. 
 
 Surety. 
 
 Trustee. 
 
 tator's at the time of his death (o). With respect to the compe- 
 tency of a legatee, as an attesting witness to a will, see tit. Will. 
 
 Parties (p). — Partners. — Policy of Insurance. See those titles. 
 
 Prochein ami, — A father or guardian who supports the expense 
 of an action by his infant son, for an assault, is not competent, 
 because he is liable to costs (^); and for the same reason, any 
 other who sues as prochein ami is incompetent (r). 
 
 Prosecutor. — See tit. Criminal Proceedings, supra, 152. 
 
 Sheriff. — See tit. Sheriff. 
 
 Surety. — Where a surety would be immediately liable in case 
 of a verdict against the principal, his interest is obvious, and 
 therefore one who is bail is incompetent in an action against his 
 principal (s). So where A. gave a bond to indemnify £., a candi- 
 date, against the expenses of an election, to a certain extent, and 
 C. brought an action against D. for money expended at the elec- 
 tion on i?.'s account, it was held that A. was not competent to 
 defeat the action by showing that the defendant was an agent only ; 
 since if the defence failed, the defendant would recover against the 
 candidate, and the candidate against ^.j and it was held to be 
 no answer, that in case the defendant succeeded the witness 
 would still be liable to the candidate, because in that event he 
 would be hable for a portion of the bill only, and not for the costs 
 of the action (t). But the co-obligor of a bond to the ordinary, 
 under the stat. 22 &: 23 Ch. 2, is competent to prove a tender by 
 the administrator, because there is but a bare possibility that an 
 action will be brought against the witness, and therefore the 
 case of the witness differs from that of bail, who are directly and 
 immediately interested (u). 
 
 Trustee. — A mere trustee is competent without a release, and 
 it is no objection that he may be sued as an executor de son 
 tort{x). 
 
 (o) Bownmn v. Willis, 3 Bing. N. C. 
 
 669. 
 
 (p) Their competency will be separately 
 considered, since it depends upon other 
 considerations besides that of interest. 
 
 {q) Hopkins v. Ncale, Ann. 202. 2 Str. 
 1026. James v. Hatfield, 1 Str. 548. 
 1 Cox's Cases in Chan. 286. Head v. 
 Head, 3 Atk. 611-547. 
 
 (r) Ibid. Clutterhuck v. Lord Hun- 
 tingtmcer, 1 Str. 506. 
 
 (*•) See Goss v. Tracij, P. Wms. 288. 
 Supra, tit. Bail. 
 
 (/) Trcluwncy\. 2'homas, 1 H. B. 303. 
 
 (m) Carter v. Pearce, 1 T. R. 163. 
 
 (,r) Holt V. Tyrrell, 1 Bl. 365 ; 1 Bar- 
 nard, 12; 1 Mad. R. 107; Gilb. Ev. 123. 
 Goodtitle v. Welford, Doug. 139 ; 4 Burr. 
 2254 ; 1 P. Wms. 287. Lojve v. JoWffe, 
 1 Bl. 366. An executor is competent to 
 support a will where he takes nothing, 
 nor is interested in the surplus. Betteson 
 V. Bromley, 12 East, 250. Phipps v. 
 Pitcher, 2 Mars. 20 ; 6 Taunt. 220. Lotce 
 V. Jolliffe, 1 Blk. 365. Goodtitle d. 
 Fowler v. Welford, Dougl. 139; 1 Ball 
 & Bcatty, 100. 414. An executor of the 
 grantor of a term is a competent wituess
 
 LEADING QUESTIONS. 169 
 
 Where trustees are empowered as a pul)lic body to sue, and are Trustee. 
 liable to be sued in the name of their treasurer, but are to be 
 deemed the plaintiffs, it seems that they are not competent wit- 
 nesses for the plaintiff in an action so brought Cy)- 
 
 Vendor and Vendee. — The vendor of an estate has no interest Vendor. 
 in the title of the vendee, unless he covenanted for or warranted the 
 title (xr). 
 
 Upon the examination of a witness in chief, the principal rule Examina- 
 to be observed is, that leading questions are not to be asked; Leading 
 that is, questions which suggest to a witness the answer which he questions. 
 is to make. Where a witness is too ready to serve the cause of 
 his party, and willing to adopt and assert what may be suggested 
 for his benefit, objections to questions of this nature are of the 
 highest importance ; but where the matter to which the witness is 
 examined is merely introductory of that which is material, it is 
 frequently desirable to lead the mind of the witness directly to the 
 subject ; and where the witness is examined as to material facts, it 
 is in general necessary, to some extent, to lead his mind to the 
 subject of inquiry. Questions to which the answer yes or no would 
 be conclusive, would certainly be objectionable ; and so would any 
 question which plainly suggested to the witness the answer which 
 the party, or his counsel, hoped to extract («). Where a witness 
 betrays a foi'wardness to serve the party for whom he is called, but 
 does not know how best to effect his object, it is most essential to 
 justice that he should not be prompted. And it is to be observed, 
 that answers extracted by such improper means are of little advan- 
 tage in general to the party in whose favour they are given, since 
 evidence obtained from a partial witness by unfair means must 
 necessarily be viewed with the utmost jealousy. 
 
 On the other hand, objections of this nature ought not to be When ne- 
 wantonly or captiously made (b), since it is, to some extent, *^es8ary. 
 
 to prove the trust of the term. Cook v. diately concluding the merits of the case, 
 
 Fountain, 3 Swanst. 585; App. So an and indicating to the witness an answer 
 
 executor without assets ; for although which will best accord with the interests 
 
 liable to be sued, he is not to pay. lb. of the party. See 2 Pothier by Evans, 
 
 The personal representative of a partner is 2G5. 
 
 a competent witness against the survivor. (6) Nichollsv. Doweling, 1 Starkie's C. 
 
 Burton V. Burchell, 1 Smith, 197. 81. In order to prove that Dowding and 
 
 (?/) Whitmore v. Wilkes, 1 Mood. & Kemp were partners, the witness was- 
 
 M. C. 214; and 3 C. & P. 364. asked whether Kemp had interfered in 
 
 (z) Bushy v.Greemlate,Str. 4:4:5. See the business of Dowding; and upon the 
 
 tit. Vendok and Vendee. objection being taken that this was a 
 
 (a) The objection in principle applies leading question. Lord Ellenborough, C. J. 
 
 to those cases only where the question held that it was a proper question, and in- 
 
 propomided involves an answer imme- tunated that objectioug of this nature
 
 170 
 
 WITNESS — EXAMINATION : 
 
 When al- 
 lowed. 
 
 always necessary to lead tlie mind of tlie witness to the subject of 
 inquiry. In some instances the Court will allow leading questions 
 to be put upon an examination in chief, as where it evidently 
 appears that the witness wishes to conceal the truth, or to favour 
 the opposite party (c). Where an issue has been directed, with 
 
 were frequently made without considera- tion to directing the mind of the witness 
 tion. It is not a very easy tiling to lay fully to the subject, by asking him whe- 
 down any precise general rule as to lead- tlier he was present wlien any conversation 
 
 ing questions : on the one liand, it is clear 
 that the mind of the witness must be 
 brought into contact with the sulyect of 
 inquiry ; and, on tlie other, that he ought 
 not to be prompted to give a particular 
 answer, or to be asked any question to 
 which the answer yes or no would be con- 
 clusive. But how far it may be necessary 
 to particularise in framing the question, 
 must depend upon the circumstances of 
 each individual case. Upon the trial of 
 De Berenger and others, before Lord Ellen- 
 borough, at Guildhall, for a conspiracy, it 
 became necessary for a witness (a post- 
 boy, who had been employed to drive one 
 of the actors in the fraud) to identify De 
 Berenger with that person: and Lord 
 Ellenborough held that, for this purpose, 
 the counsel for the ' prosecution might 
 point out De Berenger to the witness, and 
 ask him whether he was the person. The 
 same was done in Watson's case, upon a 
 trial at bar, 2 Starkie's C. 128. In these 
 cases, the question was as to a mere fact 
 to be determined by inspection; and in all 
 such cases, it seems that the mind of tlie 
 witness may be led directly to the very 
 point, although a more general question 
 might have been proposed, as, whether the 
 witness saw the person, whom he had de- 
 scribed, in court. So where a witness is 
 called to prove the handwriting of another, 
 it is the common practice to show him the 
 document, and to ask, directly, whether 
 that is the handwriting of ^. J3. But 
 where a witness is examined as to any 
 conversation, admission, or agreement, 
 where the particular terms of the admis- 
 sion or contract are important, this objec- 
 tion chiefly becomes material, since there 
 is danger lest the witness should by design 
 or mistake be guilty of some variance, and 
 give a false colouring to the transaction. 
 In such cases there seems to be no objcc- 
 
 took place between the parties, or relating 
 to the particular subject; and when the 
 mind of the witness has been thus directed 
 to the subject-matter, to request him to 
 state what passed. It is obvious that ob- 
 servations like these are intended for the 
 use of mere students ; to such it may not 
 be improper to suggest, that when the time 
 and place of the scene of action have once 
 been fixed, it is generally the easiest 
 course to desire the witness to give his 
 own account of the matter; making him 
 omit, as he goes along, an account of what 
 he has heard from others, which he always 
 supposes to be quite as material as that 
 which he himself has seen. If a vulgar 
 ignorant witness be not allowed to tell his 
 story in his own way, he becomes embar- 
 rassed and confused, and mixes up distinct 
 branches of his testimony. He always 
 takes it for granted that the Court and 
 jury know as much of the matter as he 
 does himself, because it has been the com- 
 mon topic of conversation in his own neigh- 
 bourhood ; and therefore his attention can- 
 not easily be drawn so as to answer par- 
 ticular questions, without putting them in 
 the most direct form. It is difficult, 
 therefore, to extract the important parts 
 of his evidence piecemeal ; but if his at- 
 tention be first drawn to the transaction 
 by asking him when and where it hap- 
 pened, and he be told to describe it from 
 the beginning, he will generally proceed 
 in his own way to detail all the facts in the 
 order of time. 
 
 (c) It seems that in each particular case 
 it is in the discretion of the Court to regu- 
 late the mode in which a witness in chief 
 shall be examined in order best to answer 
 the purpose of justice, and there is no 
 fixed rule which binds counsel to a par- 
 ticular mode of examining him : if a wit- 
 ness by his conduct shows himself de-
 
 LEADING QUESTIONS. 
 
 171 
 
 power to examine a party, the counsel of the opposite party may Leading 
 cross-examine him, being a party he is presumed to be an adverse qii^^stioiis, 
 witness {d). So where, from the nature of the case, the mind of the allowed. 
 witness cannot be directed to the subject of inquiry without 
 a particular specification of it, as where he is called to contradict 
 another as to the contents of a particular letter which is lost, and 
 cannot, without suggestion, recollect the contents, the particular 
 passage may be suggested to him (e). So where a witness is called 
 in order to contradict the testimony of a former witness, who has 
 stated that such and such expressions were used, or such and such 
 things were said, it is the usual practice to ask whether those parti- 
 cular expressions were used, or those things were said, without 
 putting the question in a general form by inquiring what was 
 said. If this were not to be allowed, it is obvious that much 
 irrelevant and even inadmissible matter would frequently be de- 
 tailed by the witness. 
 
 The negative if not allowed to be directly proved, could only be 
 proved indirectly, by calling on the witness to detail the whole 
 of what was said on the particular occasion, if any such were 
 singled out by the evidence, or to detail the whole of several such 
 conversations, where the use of the alleged expressions or words 
 
 cidedly adverse, it is in the discretion of 
 the Court to allow cross-examination. The 
 situation of the witness, and the induce- 
 ments under which he may labour to give 
 an unfair account, are material considera- 
 tions in this respect. A son will not be 
 very forward, in stating the misconduct of 
 his father, of which he has been the only 
 witness. A servant will not, in an action 
 against the master, readily admit his own 
 negligence. See 2 Evans's Pothier, 267. 
 If a witness called stands in a situation 
 which of necessity makes him adverse to 
 the party calling him^ counsel may as 
 matter of right cross-examine him. Per 
 Best, C. J., Clarke v. Saffery, ] Ry. k. 
 M. C 126. 
 
 (rf) Clarke v. Sajfer^j, 1 Ry. & M. C. 
 126. And see Bastin v. Careiv, 1 Ry. & 
 M. 127. Where the same point was ruled 
 by Abbott, L. C. J., observing, that in each 
 particular case there must be some discre- 
 tion in the presiding judge as to the mode 
 in which the examination shall be con- 
 ducted in order best to answer the pur- 
 poses of justice. 
 
 (e) Courteen v. Touse, 1 Camp. 43. 
 The plaintiff's son, in an action on a policy 
 on goods, being asked whether the plaintiff 
 had not written a letter to him saying, " that 
 he had disposed of all his goods at a profit," 
 swore that he did not, but only said that 
 " he might have disposed of the goods at 
 a great profit, as he had been offered 8 cf . a 
 pair," &c. To contradict this a witness 
 was called by the defendant, and after 
 having stated all he recollected about the 
 letter,he was asked if it contained anything 
 about the plaintiff having been offered 8 d, 
 a pair, &c. Lord Ellenborough held that 
 after exhausting the witness's memory as 
 to the contents of the letter, he might be 
 asked if it contained the passage recited ; 
 for otherwise it would be impossible to 
 come to a direct contradiction. Where a 
 witness was called to contradict a former 
 witness, as to a conversation which he had 
 denied, it was held that the terms might 
 be suggested to him in the first instance. 
 Edmonds v. Walker, cor. Abbott, C. J., 
 Westm. Sitt. after Mich. Term, 1820. 
 3 Starkie's C. 8.
 
 172 WITNESS — examination: 
 
 Leading y^^^ ^qj; Hi^iited to anv conversation in particular ; and, after all, 
 wiien al- the evidence would not be complete and satisfactory to establish 
 lowed. ^j-jg iiegative, unless sooner or later the question as to the use of the 
 particular expressions were to be directly put, for till then the evi- 
 dence would show only that the witness did not remember their 
 use ; but the direct negative, after the attention of the witness had 
 been excited by the suggestion of the very expressions, would 
 go much further. It may frequently happen that a witness unable 
 to detail even the substance of a particular conversation, may yet 
 be able to negative with confidence proposals, offers, statements, or 
 other matters, sworn to have been made in the course of a conver- 
 sation. In such cases, therefore, this form of inquiry is absolutely 
 necessary for the obtaining complete information on the subject. 
 So where a witness is called to prove affirmatively what a witness on 
 the other side has denied, as for instance, to prove that on some 
 former occasion that witness gave a different account of the trans- 
 action, a difficulty may frequently arise in proving affirmatively 
 that the first witness did make such other statement, without 
 a direct question to that effect. 
 
 But although the practice above stated is, to a certain extent, 
 sanctioned by a principle of convenience, and although after other 
 attempts have failed, it becomes a matter not of mere convenience 
 but of absolute necessity so to put the question to a witness called 
 to contradict a former one, it is plain that the convenience so 
 attained to is purchased at the expense of some departure from a 
 general principle, and that it would usually be more satisfactory, 
 where that is practicable, that the desired answer should be obtained 
 without a direct suggestion, by which a fraudulent witness might 
 be greatly aided. And it seems that the consideration of mere con- 
 venience ought not to operate at all where the contents of a par- 
 ticular document, or the details of a particular conversation, are 
 material to the issue. As where the question in an action of 
 assumpsit turns upon the terms of a lost written agreement, or on 
 an alleged oral contract, e. g. the warranty of a horse. In such cases 
 each is interested in showing what the terms of the lost writing or 
 conversation alleged to amount to a warranty really were, and as the 
 attention of both parties would be previously drawn to this subject, 
 there would be but little inconvenience in adhering to the ordinary 
 course of examination, reserving the power to deviate where the 
 necessity for deviation arose. And it is further observable that 
 in the case of Courteen v. Touse {k), where Lord Ellenborough 
 
 (7j) 1 Camp. C. 43, supra.
 
 exaniin- 
 abk 
 
 MEANS OF KNOWLEDGE. 173 
 
 ruled that the witness might be asked whether a particular letter Loa<iiiiK 
 contained a passage sworn to by another witness, this was to be wh«i'"°^' 
 done after exhausting the witness's memory as to the contents allowed, 
 of the letter. This decision therefore turned not upon a principle 
 of convenience, but of necessity. 
 
 Another illustration of the general principle occurs where details 
 are to be made of such length or difficulty that the memory of the 
 witness will not enable him to give his testimony without assistance. 
 Thus where a witness is called to prove a co-partnership between 
 a number of persons whose names he cannot recollect, the list of 
 names may be read to him, and he may be asked whether those 
 persons are members of the firm (i). 
 
 A witness is examined either as to facts, simply, which he As to what 
 himself knows, or in some instances as to his own inferences from 
 facts, or as to facts which he has heard from others. In ordinary 
 cases the witness ought to be examined as to facts only, and not as 
 to any opinion or conclusion which he may have drawn from facts, 
 for those are to be formed by a jury, except indeed where the con- 
 clusion is an inference of skill and judgment (^). 
 
 A witness examined as to facts ought to state those only of Examina- 
 which he has had personal knowledge ; and such knowledge is „ess as to 
 
 supposed, if not expressly stated upon the examination in chief : li's actual 
 , ^ . . , . „ , , - ' knowledge. 
 
 and upon cross-exammation, his means oi knowledge may be 
 fully investigated, and if he has not had sufficient and adequate 
 means of knowledge, his evidence will be struck out. It has 
 been said, that a witness must not be examined in chief as to his 
 belief or persuasion, but only as to his knowledge of the fact, 
 since judgment must be given secundum allegata et 'probata ; and a 
 man cannot be indicted for perjury who falsely swears as to his 
 persuasion or belief (Z). As far as regards mere belief or per- His belief, 
 suasion, which does not rest upon a sufficient and legal founda- 
 tion, this position is correct ; as where a man believes a fact to be 
 true merely because he has heard it said to be so ; but with respect 
 to persuasion or belief, as founded on facts within the actual 
 knowledge of the witness, the position is not true. On questions 
 of identity of persons, and of handwriting, it is every day's practice 
 for witnesses to swear that they believe the person to be the same, 
 or the handwriting to be that of a particular individual, although 
 
 (0 Acerro v. Petroni, 1 Starkie's C. (T) Adams v. Canon, Dyer, 53; Note 
 
 100. to Bolfe V. Hampden, 2 Haw. c. 46, 
 
 (A) 4 T. R. 497. s. 167.
 
 174 
 
 WITNESS — EXAMINATIOK : 
 
 Ilia belief. 
 
 Questions 
 cf skill. 
 
 they will not swear positively; and the degree of credit to be 
 attached to the evidence is a question for the jury. 
 
 With regard to the second objection, it has been decided that 
 a man who falsely swears that he thinks or believes, may be in- 
 dicted for perjury (m). So where professional men and others give 
 evidence on matters of skill and judgment, their evidence frequently 
 does not, and often cannot, from the nature of the case, extend 
 beyond opinion and belief. 
 
 The opinion of a witness as to the effect of a clause in a policy 
 is not admissible (n) ; neither, it has been held, is the opinion of a 
 broker, whether particular facts ought to have been disclosed to 
 the underwriter, admissible (o). 
 
 And where an alleged libel imputed, inter alia, that a physician 
 in refusing to act with the plaintiff as a physician, had well and 
 faithfully discharged his duty to his medical brethren, the defendant 
 cannot in support of a plea in justification, examine a medical wit- 
 ness as to his opinion on the subject (p). 
 
 But in general, wherever the inference is one of skill and judg- 
 ment, the opinion of experienced persons is admissible, for by 
 such means only can the jury be enabled to form a correct conclu- 
 sion. 
 
 The general distinction is this, that the jury must judge of the 
 facts for themselves, but that wherever the question depends on 
 the exercise of peculiar skill and knowledge that may be made 
 available, it is not a decision by the witness on a fact to the exclu- 
 sion of the jury, but the establishment of a new fact, relation, or 
 connexion, which would otherwise remain unproved. 
 
 Not to admit such evidence, would be to reject what was essen- 
 tial to the investigation of truth. 
 
 An engineer may be examined as to his judgment on the effect 
 of an embankment on a harbour, as collected from experiment ( 5'). 
 
 Upon the question whether a seal has been forged, the testimony 
 of a seal-engraver as to the difference between the impression in 
 question and a genuine one, is also admissible (r). 
 
 (m) Millar's Case, 3 Wils. 427 ; 2 Bl. 
 881 ; Pedley's Case, Leaeli, 270. 
 
 (n) Syers v. Bridge, Dougl. 509. But 
 the practice under similar circumstances 
 would be legal evidence. Ibid. 
 
 (o) Carter v. Boehm, Burr. 1905. But 
 see Vol. II. 648. 
 
 {p) Ramadge v. Ryan, 9 Bing. 333. 
 
 (2) Folkes V. Chad, Mich. 23 G. 3, cited 
 
 in Goodtitle v. Graham, 4 T. R. 498. 
 Vol. II. tit. Handwriting. 
 
 (r) By Lord Mansfield, in Folkes v. 
 Chad, cited 4 T. R. 498. Such evidence 
 is also admissible to show whether particu- 
 lar handwriting is natural and genuine, or 
 forged and imitated, Cary v. Pitt, Peake's 
 Ev. Ixxxvj R. V. Cohen, 4 Esp. C. 117. 
 But in Gurney v. Langlands, 5 B. & A. 
 330, the Court held, that the opinion of
 
 RErRESHING MEMORY. 175 
 
 A ship-builder may be examined to state his opinion as to the Questions 
 sea-worthiness of a ship, from a survey made by others (s). "* **'^'''' 
 
 So the testimony of medical men is constantly admitted with 
 respect to the cause of disease, or of death, in order to connect 
 them with particular acts, and as to the general sane or insane 
 state of the mind of the patient, as collected from a number of 
 circumstances. Such opinions are admissible in evidence, althou«>h 
 the professional witnesses found them entirely on the facts, circum- 
 stances, and symptoms established in evidence by others, and with- 
 out being personally acquainted with the facts {t). But in such a 
 case evidence is not admissible that a particular act for which a 
 prisoner is tried was an act of insanity (u). 
 
 Books of science cannot be received in evidence, yet a witness 
 may be asked as to his judgment, although his means of judging 
 may be derived partly from books (x). 
 
 In general, scientific men ought to be examined only as to their 
 opinions on the facts proved, and not as to the merits of the 
 case (y). 
 
 Although a witness cannot be examined as to the contents of a General 
 written document not produced, yet he may, in some instances, be result, 
 examined as to the general result from a great number of documents 
 too voluminous to be read in court (z). 
 
 Although in general leading questions are not to be put to a May re- 
 witness, yet, where his memory has failed, he may, even during ^'''^sii his 
 examination, read, or, if necessary, hear the contents of a docu- ^^ 
 ment read, for the purpose of reviving his former recollection. 
 And if by that means he obtains a recollection of the facts them- 
 selves as distinct from the memorandum, his statement is admis- 
 sible in evidence. A witness is of course competent to testify 
 as to his actual present recollection of a fact, although in the in- 
 terval his memory may have failed, and although such defect, and 
 the means of restoration may be the subject of comment in cases 
 to which any suspicion is attached. The law goes further, and in 
 some instances, permits a witness to give evidence as to a fact, 
 
 an inspector of franks, whether a particu- (t) Wright's Case, Russ. & Ry. C. C. L. 
 
 lar writing was in a forged or imitated 456. R. v. Searle, 2 Mood. & M. C. 75. 
 
 hand was of little weight. The opinion of (m) Ibid. 
 
 a person in the habit of receiving letters is (x) Collier v. Simpsoji, 5 C. & P. 73 • 
 
 it seems evidence of the genuineness of a which was an action for imputino- want of 
 
 post-mark. Abbey v. Lill, 5 Bing. 299. skill to a medical man. 
 
 (s) 71wr7itoJiv. Royal Exchange As- (y) Jewso/iv. Drinkald,l2 Moore, 148. 
 
 surance Company, Peake's C. 25. Char- (z) Meyer's Assignees y. Sefton, 2 
 
 rand v. Angersteln, lb. Beckwith v. Starkie's C. 276. Roberts v. JJixon, 
 
 Syclebothani, 1 Camp. 117. Peake's C. 83.
 
 inomory. 
 
 170 witness: 
 
 Way rp- although hc has no present recollection of the fact itself. This 
 *"'■'■''' '"^ luip])ens in the first place where the witness having no longer any 
 recollection of the fact itself, is yet enabled to state that at some 
 former time, and whilst he liad a perfect recollection of a fact he 
 committed it to writing. If the witness be correct in that which 
 he positively states from present recollection, viz. that at a prior 
 time he had a perfect recollection, and having that recollection, 
 truly stated it in the document produced, the writing, though its 
 contents are thus but mediately proved, must be true. Such evi- 
 dence, though its reception be warranted by sound principles, is not 
 in ordinary cases {a) as strong and satisfactory as immediate testi- 
 mony, for in such cases, the v,'itness professing to have no recollection 
 left as to the facts themselves, there is less opportunity for cross-ex- 
 amination, and fraud is more easily practised. There is also a class 
 of cases where the testimony of a witness is admissible to prove a 
 fact, although he has neither any recollection of the fact itself, nor 
 mediate knowledge of the fact, by means of a memorial of the 
 truth of which he has a present recollection. This happens 
 where the memorandum is such as to enable the witness to state 
 with certainty that it would not have been made had not the fact 
 in question been true. Here the truth of the evidence does not 
 wholly depend on the contents of the document itself, or on any 
 recollection of the witness of the document itself, or of the circum- 
 stances under which it was made, but upon a conviction arising 
 from the knowledge of his own habits and conduct sufficiently 
 strong to make the existence of the document wholly irreconcil- 
 able with the non-existence of the fact, and so to convince him of 
 the affirmative. Thus, in proving the execution of a deed, or other 
 instrument (one of the most ordinary and cogent cases within this 
 class,) where a witness called to prove the execution of a deed 
 sees his signature to the attestation, and says he is thereby sure 
 that he saw the party execute the deed, that is a sufficient proof 
 of the execution of the deed, although the witness should add that 
 he has no recollection of the fact of the execution of the deed (6). 
 The admission of such evidence is not confined to attestations of 
 the execution of written instruments (c). A plaintiff called a 
 bankrupt in an action against his assignees to prove the receipt of 
 
 (a) See R. v. St. Martin's, Leicester, been constructed from materials which he 
 
 2 Ad. & Ell. 210. In many cases, such as knew at the time to be true, 
 
 where an agent has been employed to make (b) Per Bayley J. in Blaiigham v. 
 
 a plan or map, and has lost the items of Hubbard, 8 B. & C. 14. 
 
 actual admeasurement, all he can state is, (c) Maugham v. Hubbard and others, 
 
 that the plan or map is correct, and has Assignees of Lancaster,^ B. & C. 14,
 
 MAY REFRESH HIS MEMORY. 177 
 
 20 Z. by him from the plaintiff; the witness stated that 20 Z. had May re- 
 been received from the plaintiff, and not carried to account. A memory, 
 roug^h cash-book of the plaintiff's was then put into the witness's 
 hands, containing the entry, " 4th Nov. 1822, Debtor R. Lan- 
 caster, check. 20 1. R.L.;' the witness then said, "The entry of 
 20 L in the plaintiff's book has my initials, written at the time. 
 I have no recollection that I received the money ; I know nothino- 
 but by the book, but seeing my initials, I have no doubt that I 
 received the money." An objection made to the reading of the 
 paper without a stamp was overruled, Lord Tenterden being of 
 opinion that though it was not in itself admissible evidence to 
 prove the payment of the money, the witness might use it to 
 refresh his memory, and that his saying he had no doubt that he 
 had received the money, was sufficient evidence of the fact. On 
 a motion for a new trial. Lord Tenterden said, " Here the witness, 
 on seeing the entry signed by himself, said he had no doubt that 
 he had received the money. The paper itself was not used as 
 evidence of the .receipt of the money, but only to enable the witness 
 to refresh his memory, and when he had said that he had no 
 doubt that he had received the money, there was sufficient parol 
 evidence to prove the payment." 
 
 It is of course essential that the witness should be enabled, 
 upon seeing the memorandum, or other entry, to swear positively 
 to the truth of the fact, although he has no present independent 
 recollection of it (d). 
 
 It is not essential that the memorandum should have been con- 
 temporary with the fact ; it seems to be sufficient if it has been 
 made by the witness, or by another with his privity, at a time (e) 
 when the facts were fresh in the recollection of the witness, and 
 that the reading such memorandum restores the recollection of the 
 fact which had faded in the memory (f), or enables him to swear 
 to the truth of the fact. 
 
 (d) R. V. St. Martin's, Leicester, 2 Ad. Hardy v. Lee, 2 Chitt. 124. So a person 
 & E. 210. Maugham v. Hubbard, 8 B. who has from time to time examined en- 
 & C. 14. tries in a log-book whilst the events were 
 
 (e) In the case of Sandwell v. Sand- fresh in his recollection, may refer to the 
 tvell, Comb. 445, Lord Holt is reported book to refresh his memory when exa- 
 to have said, that the memorandum must mined as to a fact recorded there, and 
 have been made presently. which he remembers to have seen there 
 
 (/) Tanner v. Taylor, 3 T. R. 754 ; 8 when he had a clear recollection of the 
 
 East, 284. Doe v. Perkins, .3 T. R. 752. circumstances. Burrougk v. Martin, 
 
 Sandivell v. Sandivell, Comb. 445; Ram- 2 Camp. 112. 
 
 bertv. Cohen, 4 Esp. C. 213. Duchess A witness is not allowed to refresh his 
 
 of Kingston's Case,\\ Harg. St. Tr. 255. memory by a copy taken from a shop^" 
 VOL. I, N
 
 memory. 
 
 178 AVITNESS EXAMINATION : 
 
 May re- It is iiot necessarv that the paper should liave been written by 
 
 fresh his ^^^ witness himself, provided that he recollects having seen it 
 when his memory, as to the facts, was still fresh, and that he 
 remembers that he then knew the statement to be correct (^r). 
 
 A deposition fornicrly made by an aged witness was allowed to 
 be read to him at the trial, in order to refresh his memory(A). 
 And where a witness who had received money, and given a receipt 
 for it, which could not be read in evidence for want of a proper 
 stamp, had become bhnd, the receipt was read to him in court for 
 a similar purpose (i). 
 
 And where the plaintiff had entered an account in writing of 
 goods and money from time to time forwarded to the defendant, 
 and the defendant had, by his signature at the foot of each page, 
 admitted the truth of the items, but the writing itself could not be 
 given in evidence for want of receipt-stamps, as the cash items in 
 each page exceeded 40 s., yet it was held that the plaintiff might 
 prove, that upon calling over each article to the defendant, he 
 admitted the receipt, and that the witness who heard him might 
 refresh his memory by referring to the account (A). 
 
 Whether the writing be used merely as an instrument for re- 
 storing the recollection of a fact, or be offered to be read as con- 
 taining a true account of particulars entirely forgotten, it must, in 
 conformity with the general principle of evidence, be the best for 
 the purpose that the case admits of. For although it be plain 
 that if the recollection of a forgotten fact be completely restored, 
 the means of restoration are immaterial, yet, where the questions 
 are, whether knowledge of the fact once existed, and whether it will 
 be restored by the means proposed, it is obvious that such restoration 
 is more likely to be accomplished by a genuine than by a false, or 
 even imperfect memorandum, and that a false suggestion made by 
 such means is more likely to create an erroneous, than to restore a 
 correct impression. The general principle, therefore, operates to 
 the exclusion of the inferior evidence. Where the object is not to 
 
 book, neither of the entries having been money, after having denied all recollection 
 
 written by himself. SoIo>no7is v. Camp- of it, was shown a written entry with his 
 
 hell, cor. Abbott, J. sitt. after Mich. initials, and then said he had no doubt of 
 
 1822. his having received the money ; held that 
 
 {g) Burton v. Plummer, 2 Ad. & Ell. it was not necessary such paper should be 
 
 341. Borough v. Martin, 2 Camp. C. stamped, after being looked at to refresh 
 
 112. t7aco6 V. iwi (feel/, 1 East, 460. his memory; the parol evidence to prove 
 
 (Ji) Faughan v. Martin, 1 Esp. C. 440. the payment was sufficient. Mangham 
 
 See Doe v. Perkins, 3 T. R. 749. v. Hubbard, 8 B. & C. 14 j 2 M. & Ry. 5. 
 
 (i) Catt v. Howard, 3 Starkie's C. 3. {k) Jacob v. Lindsey, 1 East, 460. 
 
 Where a witness to prove the receipt of Sujn-a, tit. Stamp.
 
 MAY REFRESH HIS MEMORY. 
 
 179 
 
 memory. 
 
 restore recollection, but to cet at the contents of a writing;, on the ^-ly '■e- 
 ground that the witness knows those contents to be true, it is in 
 effect to give the writing in evidence, and consequently to give 
 force to the objection that it is not the best evidence the case 
 admits of. Two steps are essential in such a case to the truth of 
 the conclusion; first, that tlie witness knows that the fact was 
 truly stated on a former occasion in some particular document ; 
 secondly, that the document produced contains that statement ; 
 and the best evidence of this is by the production of the original 
 document. In conformity with this principle, it has been held 
 that a mere copy of a writing (/), although made by the witness 
 himself, cannot be used for these purposes (m). 
 
 In analogy to the ordinary rules of documentary evidence, a 
 copy may be used to refresh the memory, on proof that the original 
 has been lost. Yet, in one instance, it was held (w) that a copy 
 made by the witness himself six months after the fact, from his 
 own memorandum made at the time of the fact, could not be 
 used, although the witness swore that the original was lost, 
 
 (Z) The rule does not extend to the ex- 
 clusion of a duplicate original, and in 
 practice a witness is admitted to refresh 
 his memory, as to items of goods delivered, 
 by a copy recently taken by him from 
 a shop-book, or other document of his 
 own writing, or written with his know- 
 ledge. 
 
 (j?i) In the case of Burton v. Pluin- 
 mer, 2 Ad. & Ell. 343, Patterson, J., ob- 
 served : " The copy of an entry not made 
 by the witness contemporaneously, does 
 not seem to me to be admissible for the 
 purpose of refreshing a witness's memory. 
 The rule is, that the best evidence must be 
 produced, and that rule appears to me to 
 be applicable whether a paper be produced 
 as evidence in itself, or be used merely to 
 refresh the memory." In the case of Doe 
 V. Perkins, 3 T. R. 752, Lord Kenyon 
 cited a case in Chancery, where a motion 
 was made to suppress a deposition on a 
 certificate from the commissioners that 
 the witness refreshed her memory by mi- 
 nutes, consisting of six sheets of paper of 
 her own handwriting, the substance of 
 which she declared she had set down from 
 time to time as the facts occurred to her 
 memory ; that five of the six sheets were 
 drawn tip in the form of a deposition by 
 
 the plaintiflf's solicitor, whom she had re- 
 quested to digest her notes, and reduce 
 them to some order; and that, after he 
 had done so, she transcribed and altered 
 them wherever it was necessary to make 
 them consistent with her meaning, and 
 tliat the Lord Chancellor, in giving judg- 
 ment, said : " Should the Court connive at 
 proceedings like these, depositions would 
 really be no better than affidavits, for 
 should a witness be permitted to use a 
 paper, especially one drawn up by the attor- 
 ney of one of the parties, though from me- 
 moranda furnished by the witness, I might 
 as well let the attorney draw an affidavit 
 for her, and use that instead of a deposi- 
 tion. To be sure, in some cases, a man 
 may use papers at law, but I have known 
 some Judges (and, I think, I adhered 
 chiefly to that rule myself) let them use 
 only papers drawn up as the facts hap- 
 pened, and all other papers I have bid 
 them put in their pockets; and if any had 
 been oifered which had been drawn by the 
 attorney, I should have reprimanded liim 
 severely. As to dates and names, which 
 are merely technical, it is quite another 
 thing." 
 
 (m) Jones v. Stroud, 2 C. & P. 19G. 
 
 N 2
 
 180 
 
 WITNESS EXAMINATION 
 
 May re- 
 fresh liis 
 memory. 
 
 and was at tlie time of the loss illegible, beinp; covered with 
 figures. 
 
 Where a witness refreshes his memoiy from memorandums, it 
 is usual and reasonable that the adverse counsel should have an 
 opportunity of inspecting them (o) for the purpose of cross-examining 
 the witness (p) ; and the witness may be cross-examined as to other 
 parts of the entry (g). 
 
 Where the memory of a witness has been refreshed previous to the 
 trial, it is not necess'ary that the writing by means of which this was 
 done should be produced at the trial (r), the omission to produce it 
 would of course afford matter for observation. If the document 
 be produced, the opposite counsel is entitled to cross-examine 
 from it (s). Where the witness has no distinct recollection of a 
 fact independently of the writing, the writing itself must be pro- 
 duced (#). 
 
 (o) Where a party possessed the means, 
 tlie recollection of the witness would of 
 course be refreshed before the trial, and 
 then if he testified as to his having an ac- 
 tual present recollection of the fact, it 
 would of course be unnecessary, as regards 
 his testimony in chief, to refer to the 
 means by which his recollection was re- 
 stored after it had once been lost. Where 
 such means were wanting, or the defect 
 was not anticipated, the attempt may be 
 made, as above stated, at the trial ; but as 
 the license miglit be used for the purpose 
 of putting leading questions or suggestions 
 in the most objectionable form, and facility- 
 might, by such means, be given to fraudu- 
 lent testimony, it is expedient that oppor- 
 tunity should be afforded for the preven- 
 tion of abuse. 
 
 (p) Per Eyre, C. J. Hardt/s Case, 24 
 Howell's St. Tr. 824. In R. v. Rams- 
 den, 2 C. & P. 603, and Sinclair v. Steven- 
 son, 1 C. & P. 582, it was held that the 
 opposite counsel had in such a case a right 
 to see the memorandum and examine upon 
 it. See Howard v. Cavfield, 6 Dowl. 
 P. C, 417. 
 
 (5') Lloyd V. Freshfeld, 2 C. & P. 
 335. 
 
 (r) See Kensington v. Inglis, 8 East, 
 273. Burton v. Plummer, 2 Ad. & Ell. 
 341. 
 
 (s) Sinclair v. Stevenson, 1 Carr. & P. C. 
 582. R. V. Ramsden, 2 Carr. & P. C. 
 603. 
 
 (0 Doe V. Perkins, 3 T. R. 749. The 
 question was, at what time the annual 
 holdings of several tenants expired. Ald- 
 ridge had gone round with the receiver of 
 the rents to the different tenants, whose 
 declarations as to their times of entry were 
 noted down in a book, some by Aldridge 
 and some by the receiver. Aldridge was 
 examined as to these declarations, the 
 original book not being in court ; he ad- 
 mitted that he had no recollection on the 
 subject, except from extracts made by him 
 from the book ; and the evidence was after- 
 wards held by the Court of K. B. to have 
 been inadmissible. 
 
 In the above case, that of Tanner v. 
 Taylor was cited, which had been decided 
 by Legge, B., Hereford Spring Assizes, 
 1751; where in an action for goods sold 
 and delivered, the witness who proved the 
 delivery took it from an account which he 
 had in his hand ; being a copy, as he said, 
 of the day-book which he had left at home : 
 and Mr. Baron Legge held, that if he 
 could swear positively to the delivery from 
 recollection, and the paper was only to 
 refresh his memory, he might make oath 
 of it ; but if he could not from recollection
 
 AS TO UEPUTATION. 
 
 181 
 
 A witness may also in some instances, on principles which have Hearsay, 
 been already adverted to, be examined as to what he has heard 
 from others ; and evidence of this nature is either original evidence j 
 which is admissible without previous proof to warrant it, or is 
 merely secondary, and admissible only in failure of some other 
 and superior evidence, which is no longer attainable. Of the first 
 description is evidence of reputation, and of declarations which 
 accompany and explain material facts and declarations made by 
 the adverse party in the cause iii). 
 
 Evidence of reputation, subject to the limitations already Reputa- 
 stated {x), is admissible upon questions as to the boundaries of *'*'"• 
 parishes, manors, or other districts in which many persons possess 
 an interest (y); upon questions relating to rights of com- 
 
 swear to the deliveries any further than as 
 finding them entered in his book, then the 
 original should have been produced; and 
 the witness saying he could not swear 
 from recollection, the plaintiff was non- 
 suited. And see a case cited from Lord 
 Ashburton's notes, 3 T. R. 752. Rex v. 
 Duchess of Kingston, 11 St. Tr. 255; 8 
 East, 284. 289. And see Kensington v. 
 Inglis, 8 East, 273. Hodge's Cme, 28 
 Howell's St. Tr. 1367. It is not necessary 
 that the witness should have made the 
 entry himself. Burrough v. Martin, 2 
 Camp. 112. Howard v. Caujield, 5 Dowl. 
 P.C. 417. 
 
 (m) See tit. Admissions. 
 
 {x) It will be seen, from what has been 
 already observed on this subject, that 
 the term reputation, as denoting a class 
 of evidence, has acquired a technical sense, 
 which differs in some respects from the 
 ordinary sense of the term, and includes 
 all evidence, whether oral or written, 
 which on principles already adverted to 
 is admissible to prove matters of public 
 and general interest. 
 
 The cases on this subject will be ad- 
 verted to under the heads of Reputation 
 — Pedigree — Prescription — High- 
 way — Common — Manor, and other par- 
 ticular titles to which the decisions re- 
 late. 
 
 (y) See Vol. II. tit. Custom. Hearsay 
 evidence is admissible on a question of pa- 
 
 rochial or manorial boundary, although 
 the persons who have been heard to speak 
 of the boundary were parishioners, and 
 claimed rights of common on the very 
 wastes which their declarations have a 
 tendency to enlarge. Nichols v. Parker, 
 14 East, 331. 
 
 Where, in trespass for levying a distress 
 for rates claimed to be due on lands in the^ 
 parish A., the question was whether they> 
 were situate in that or the adjoining parish 
 B.; it was held, that being a question of 
 boundary, in which reputation was admis- 
 sible, leases granted by the deceased an- 
 cestors of the plaintiff's landlord, de- 
 scribing the land to be situated in B., were 
 properly received in evidence; held, also, 
 that the accounts of deceased overseers of 
 B., to which the tenants of the lands 
 were successively assessed, and against 
 whose names crosses were made, were ad- 
 missible in evidence of payment of such 
 rates by them, as a common mode of de- 
 noting payment. Plaxtonv. Dare, 10 B. 
 & C. 17. A book of leases of the Dean 
 and Chapter, kept in tlie chapter-house, is 
 evidence as reputation on a question of 
 boundary. Coombs v. Wethei; 1 M. & M. 
 398. Upon the question whether a parti- 
 cular place be parcel of a parish, old 
 entries made by a churchwarden, not 
 charging himself, relating to the repairs of 
 a chapel alleged to belong to the place in 
 question, are not admissible. Cooke v. 
 Bankes, 2 C. & P. 478, 
 N 3
 
 182 
 
 WITNESS — EXAMINATION : 
 
 mon (z), or other customary rights (a) or obhgations, of pubUc high- 
 
 (2) Sec Vol. II. tit. Common. A paper 
 signed by many deceased copylioldcrs 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 claim- 
 ing under those who signed it. Chapman 
 V. Coialand, 13 East, 10. In an action 
 for a trespass on a close, parcel of a com- 
 mon, the defendant justified for a prescrip- 
 tive right of common at all times over 
 the place in which, &c. and the plaintiff in 
 liis replication prescribed to use the place 
 for tillage, &c., qualifying the defendant's 
 general right : held, that reputation was 
 admissible to support such prescriptive 
 right of tillage, which affected a large 
 number of occupiers within the district. 
 Weeks V. Sparke, 1 M. & S. 679. 
 
 In Davies v. Lewis, 2 Chitty's C. 528, 
 hearsay evidence was admitted upon the 
 question whether a particular place was 
 parcel of a sheep-walk. As this, however, 
 was a question of mere private right, the 
 authority of this case seems to be very 
 doubtful. In Donnison v. Elsehj, 3 Eagle 
 & Y., Tithe Cases, 1396, the testimony of a 
 witness, derived from hearsay, as to the ex- 
 tent, boundaries, and parcels of an estate, 
 was rejected. AnA see Clothier \. Chapman, 
 14 East, 331, n. Where it was held that 
 such evidence was not admissible to prove 
 the boundary of a private estate. Orders of 
 j ustices at sessions are evidence to prove a 
 district to be parcel of a hundred, they 
 being resiants. Newcastle, Buke of, v. 
 Broxtoioe Hundred, 4 B. & Ad. 273. See, 
 iavther, Barnes V. Mawson, 1 M, &S.81. 
 Steele v. PricMt, 2 Starkic's C. 466, and 
 Appendix. 
 
 (a) Reputation is evidence on questions 
 respecting general customs concerning pa- 
 rislies or manors, or the inhabitants of 
 towns and other places. Moreicood v. 
 Wood, \ A: East, 327, n. 
 
 Where it is contended that, by the cus- 
 tom of a manor, land shall descend to the 
 eldest female heir, general reputation of 
 such custom, and instances of its having 
 so descended on some occasions, is evi- 
 dence proper to be left to a jury, though 
 the descent contended for in the particular 
 
 instance is not exactly similar to any of 
 those tliat are adduced in evidence; as 
 where the estate is claimed by the grand- 
 son of an eldest sister, and the instances 
 proved are only of descents to eldest daugh- 
 ters and eldest sisters. Doe, ex dem. 
 Foster v. Sisson, 12 East, 62. 
 
 In a suit between a copyholder and his 
 lord, the copyholder rested his case upon 
 an immemorial custom of the manor, the 
 existence of which the lord denied. At 
 the trial the lord produced the record of a 
 suit by bill in the Exchequer, 4 W. & M., 
 wherein the parties litigant were described 
 as lord and copyholder (of the same ma- 
 nor), and the parties deposing for the 
 copyholder were so described, that if the 
 description were true, they were legally 
 competent to give evidence touching the 
 customs of the manor. Their depositions 
 went to prove a custom inconsistent with 
 that relied upon by the now plaintiff; and 
 to disprove the existence of such last- 
 mentioned custom, the lord offered them 
 as evidence. It was objected: 1. That the 
 present parties were not privies to the 
 record of the former suit, and therefore 
 could not be affected by any matter therein 
 contained ; it was res inter alia acta. 2. 
 Or supposing that the depositions were ad- 
 missible as evidence of reputation, still 
 that it must be shown that the parties were 
 invested with the characters described in 
 the depositions, and not having which, 
 they were incompetent to depose. 3. Or 
 even waiving the two former objections, 
 that the depositions were inadmissible in 
 evidence, being declarations made post 
 litem motam. The objections were over- 
 ruled, because : 1 . The depositions were 
 not offered as a record estopping the plain- 
 tiff, but as declarations of deceased per- 
 sons, touching a reputation or received 
 opinion: their simple assertions would 
 have been evidence ; it fortiori those made 
 under the sanction of an oath. 2. That at 
 the distance of time, the fact that the wit- 
 nesses were clothed with the character in 
 which they deposed must be taken for 
 granted; else it would be requiring a 
 ])roof which, in all probability, it were im- 
 possible to adduce. 3. The two customs,
 
 REPUTATION. 
 
 183 
 
 ways(i) on question of pedigree (c), questions as to rights of KccepUon 
 toll(d), and some other questions of pubhc and general inter- ^* '^^''^*^"'='^- 
 est(e). 
 
 It is not essential to the reception of such evidence, where it is 
 adduced in proof of a right, that a foundation should previously 
 have been laid by evidence of enjoyment, but without such 
 proof, evidence of this kind is of little weight (/). It is usually 
 essential to the reception of evidence of any declaration or entry 
 falling within this description, that it should have been made ante 
 litem motam (g). 
 
 — the one litigated in the former, the other 
 in the present suit, — are different ; the de- 
 clarations, therefore, though made after 
 the first custom was questioned, were made 
 before the controversy touching the pre- 
 sent was raised. Freeman v. Phillips, 4 
 M. & S. 486. 
 
 Upon a question as to the custom of tith- 
 ing in the parish of A ., evidence that such 
 a custom exists in the adjacent parishes is 
 not admissible. Secus, if the custom be 
 laid as the general custom of the whole 
 country. Furneaux v. Hutchins, Cowp. 
 807. 
 
 Where a right is claimed by custom in 
 a particular manor or parish, proof of a 
 similar custom in an adjoining parish or 
 manor is not admissible evidence. Fur- 
 neaux v. Hutchins, Cowp. 807 ; Dougl. 
 512. Doe, d. Foster v. Sisson, 12 East, 
 63. Such evidence is admissible to prove a 
 custom of a corporation to exclude fo- 
 reigners from trading there. Davis v. 
 Morgan, 1 Cr. & J. 593. 
 
 (6) See tit. Highway. Reedv.Jacltson, 
 1 East, 356. Such evidence is admissible 
 upon an indictment for not repairing a 
 public bridge, to show that it is a public 
 bridge. B. v. Sutton, 8 A. & El. 516 ; 
 although, in one cas e, this seems to have 
 been doubted. It. v. Antrobus, 2 Ad. & 
 EU. 794. 
 
 In White v. Lisle, 4 Madd. 214, the 
 Vice-Chancellor observed, that in late times 
 evidence of reputation had not been ten- 
 dered in cases of reputation as to indivi- 
 dual rights, except as to rights of way. 
 
 (c) See Pedigree. 
 
 (d) A deed under the seal of the Uni- 
 versity of Cambridge, between them and 
 the town of Cambridge, relating to the tolls 
 
 in question, held admissible as evidence 
 of reputation respecting them. Brett v. 
 JBeales, 1 M. & M. 417. See vol. II. tit. 
 Pkescription. 
 
 (e) Such evidence has been received 
 concerning the jurisdiction of a court upon 
 a question whether it was or was not a 
 court of record. Rogers v. Wood, 2 B. & 
 Ad. 245. Braine v. Deto, 2 Peake's C. 
 204. But in R. v. Antrobus, 2 Ad. & Ell. 
 794, on the trial of an information against 
 the sheriff of a county for not executing a 
 convict under sentence of death, it was 
 held that a witness could not be examined 
 as to his having heard that it was the cus- 
 tom for the sheriff to be exempted from 
 performing, and for another to perform the 
 duty in that county, although proof had 
 been given that another had always per- 
 formed it within the time of living me- 
 mory, because, as was said, the public 
 were not interested in the question which 
 officer was to perform the duty. Lord 
 Holt, in Harcourfs Case, Comb. 902, ad- 
 mitted evidence of reputation to prove in 
 an action of ejectione firma for a rectory, 
 that the plaintiff was in holy orders, proof 
 having been previously given of presenta- 
 tion, admission, and institution, and of the 
 reading of the articles. Such a fact seems, 
 however, to be more properly the subject 
 of presumption than of proof by reputa- 
 tion. See The Bishop of Meath v. Lord 
 Belfield, B. N. P. 295. Evidence of repu- 
 tation that the land in question had be- 
 longed to a particular individual, and been 
 purchased of him by an alleged testator, 
 has been held to be clearly inadmissible. 
 Doe V. Thomas, 14 East, 323. 
 
 (/) Barrett v. Crease, 
 
 {g) But although this be generally 
 
 N 4
 
 184 
 
 WITNESS — EXAMINATION '. 
 
 Matters of 
 hearsay. 
 
 Matter of 
 confidence. 
 
 In other cases a witness may be examined as to matter of hear- 
 say, wliere the evidence is admissible as secondary evidence (/)• 
 Such evidence is in some instances admissible to prove the testi- 
 mony given by a witness in a former suit between the same parties, 
 who is since deceased (m) ; but in this, as well as in all other cases 
 where such secondary testimony is admitted, it is necessary to lay 
 the foundation, by previous proof, that the superior evidence, in 
 place of which the secondary evidence is offered, is no longer at- 
 tainable. In order to warrant the reception of evidence of what 
 a deceased witness swore on a former trial between the same 
 parties, it is necessary to prove, not only the death of that witness, 
 but also that the testimony was given in a cause legally depending 
 between the same parties (n). After such evidence has been given^ 
 parol evidence of what the deceased witness swore upon the former 
 trial is admissible (o). 
 
 Previous also to the admission of evidence of traditionary de- 
 clarations which the witness has heard made by others, it is neces- 
 sary to prove the deaths of the parties who made them. And 
 where the declarations of deceased persons are admissible on special 
 grounds, the circumstances which warrant the reception of the 
 evidence require collateral proof (p). 
 
 It has already been seen that the law, upon grounds of policy (q), 
 
 true as to mere traditionary declara- 
 tions, the rule is not, and indeed can- 
 not be applicable to verdicts and judg- 
 ments which fall within the general de- 
 scription of evidence by reputation. See 
 Beed v. Jackson, 1 East, 356. Cases of 
 this description stand, in fact, upon a 
 foundation somewhat different from ordi- 
 nary declarations or entries by private 
 persons. On this subject some observa- 
 tions will afterwards be made. 
 
 (/) Supra, 43. 
 
 (7w) Lord Palmerston's Case, cited 4 
 T. R. 290. Mayor of Doncaster v. Day, 
 3 Taunt. 2G2. 
 
 (n) See below, tit. Judicial Pro- 
 ceedings. — Deposition. 
 
 (o) Where a witness on a former trial 
 of an issue out of Chancery died, and a 
 new trial was granted, parol evidence of 
 what such witness had sworn held admis- 
 sible, notwithstanding an order for reading 
 the depositions of such witnesses as had 
 died since the first trial. Tod v. Win- 
 chelsea, Earl of, 3 C. & P..387. 
 
 {p) For instances where such evidence 
 is admissible, and the nature of the proof 
 previously requisite to warrant its admis- 
 sion, see below, tit. Entries by thiku 
 
 PERSONS. 
 
 {q) Where a commander-in-chief di- 
 rected the defendant (a major-general), 
 with six other officers, to inquire into the 
 conduct of the plaintiff, and to report the 
 opinion of those officers, which was done 
 accordingly, and the plaintiff brought an 
 action for an alleged libel contained in 
 that report, and the secretary of the 
 commander-in-chief attended with the mi- 
 nutes of the report, the Court refused to 
 allow it to be read (Home v. Bentinck 
 2 B. & B. 130). So official communica- 
 tions between the governor and law-officer 
 of a colony as to the state of the colony 
 ( Wyatt V. Gore, Holt's C. 299), or between 
 an agent of government and a secretary of 
 state {Anderson v. Sir W. Hamilton, 2 B. 
 & B. 156), are privileged.
 
 MAtTER OF CONFIDENCE. 185 
 
 in some instances precludes a witness from revealing matters of Matter of 
 political or professional confidence. And therefore, although upon 
 a trial for high treason, it was held that a witness who had made 
 communications in order to their transmission to the Government, 
 might be properly asked whether he had made such comnmnica- 
 tion to any magistrate, and that he could be further asked to whom 
 he made such communication (r) ; and a majority of the Judges (s) 
 were of opinion that on the witness having admitted that he had 
 communicated what he knew to a friend, which friend had advised 
 him to make the same communication to another ; and having 
 stated that such friend was not a maoistrate, he could not be asked 
 who that friend was, on the ground that the person by whose 
 advice the information was given to a person standing in the situa- 
 tion of a magistrate, was in effect the informer. So a witness who 
 has been employed by an officer to collect evidence as to the pro- 
 ceedings of suspected persons, is not allowed to disclose the name 
 of his employer, or the nature of the connexion that subsisted be- 
 tween them(0. 
 
 In some other instances also, witnesses, on grounds of general 
 policy, are not allowed to be examined. 
 
 A member of parliament cannot be cross-examined as to what 
 has passed in parliament (m). And upon the same principle it 
 would no doubt be held that a privy councillor could not be ex 
 amined as to disclosures made before the King in council (x). 
 
 Lord Kenyon is in one instance reported to have held that it was 
 competent to the plaintiff's counsel, in an action for a malicious 
 prosecution, to inquire of a grand juror whether the defendant was 
 prosecutor of an indictment (y), being of opinion that an answer 
 to such an inquiry would not infringe upon the witness's official 
 oath (z) ; but doubts have since been entertained by a high autho- 
 rity as to the propriety of admitting such evidence (a). 
 
 ()•) Hardy's Case, 24 Howell's St. Tr. (x) Plunkett v. Cohhett, 29 Howell's 
 
 808. St. Tr. 71. The action was for a libel; 
 
 (s) The Lord Chief Baron Macdonald and on the defendant's inquiring on cross- 
 
 and Buller, J., were of opinion that the examination as to expressions used by the 
 
 question was proper : Lord C. J. Eyre, plaintiff in parliament, Lord Ellenborougli 
 
 Mr. Baron Hotham, and Mr. J. Grose, were observed that it would be a breach of duty 
 
 of a different opinion. in the witness, as a member of the (Irish) 
 
 {t) 22.v.H^arrf?/,24 Howell's St. Tr. 753. parliament, and a breach of his oath, to 
 
 (m) Evidence was permitted to be reveal the councils of the nation, 
 
 given by a privy councillor against Lord («/) Sukes v. Dunbar, 2 Sel. N. P. 
 
 Strafford, of confidential advice given by (z) " The King's counsel, your own, and 
 
 the latter to the King at the council- your fellows', you shall keep secret." 
 
 table ; 4 Inst. 64 : a proceeding justly re- («) Lord Ellenborougli, in Watson's 
 
 probated by Lord Clarendon. Case, 24 Howell's St. Tr. 107, said that he
 
 18G 
 
 WITNESS EXAMINATION : 
 
 Miitter of 
 foulidcncc. 
 
 Cross-cxa- 
 niination. 
 
 Witness 
 called, but 
 not ex- 
 amined in 
 chief. 
 
 So it has been seen that tlie law, on grounds of extrinsic policy, 
 prohibits the disclosure of confidential communications between 
 a counsel or an attorney and his client (Z») ; and also usually pro- 
 hibits a husband or wife from giving testimony prejudicial to the 
 other (c). 
 
 When the witness has been examined in chief, the adverse party 
 is at liberty to cross-examine him. The power and opportunity to 
 cross-examine, it will be recollected, is one of the principal tests 
 which the law has devised for the ascertainment of truth, and this 
 is certainly a most efficacious test. By this mean the situation 
 of the witness with respect to the parties and the subject of litiga- 
 tion, his interest, his motives, his inclination and prejudices, his 
 means of obtaining a correct and certain knowledge of the facts 
 to which he bears testimony, the manner in which he has used 
 those means, his powers of discerning facts in the first instance, 
 and his capacity for retaining and describing them, are fully in- 
 vestigated and ascertained, and submitted to the consideration of 
 the jury, who have an opportunity of observing the manner and 
 demeanor of the witness ; circumstances which are often of as high 
 importance as the answers themselves {d). It is not easy for a 
 witness who is subjected to this test, to impose upon the Court; 
 for however artful the fabrication of the falsehood may be, it can- 
 not embrace all the circumstances to which the cross-examination 
 may be extended ; the fraud is therefore open to detection for want 
 of consistency between that which has been invented, and that 
 which the witness must either represent according to the truth, for 
 want of previous preparation, or misrepresent according to his own 
 immediate invention. In the latter case, the imposition must ob- 
 viously be very liable to detection ; so difficult is it to invent ex- 
 temporaneously, and with a rapidity equal to that with which a 
 series of questions is proposed, in the face of a court of justice, and 
 in the hearing of a listening and attentive multitude, a fiction con- 
 sistent with itself and the other evidence in the cause. 
 
 A witness when once called, sworn and examined, . although 
 merely as to the formal proof of a document, may be cross- 
 
 had doubts upon the point, and that many 
 very eminent men at the bar had enter- 
 tained doubts upon it. 
 
 {b) Stipra, and see Vol. II. tit. Confi- 
 dential Communications. In thecase 
 of Curry v. Walter, 1 Esp. C. 456, Eyre, 
 C. J., held that it is at the option of a bar- 
 rister, whether he will give evidence of what 
 
 he stated to the Court upon making a 
 motion. Qti. 
 
 (c) Supra, and see Vol. II. tit. Hus- 
 band AND Wife. 
 
 (d) Bac. Ab. Ev. E. Hob. 325; Hale, 
 P. C. 253. 259; Pref. to Fortes. Rep. 2 to 
 4 ; Vaugh. Rep. 143.
 
 CROSS-EXAMINATION. 187 
 
 examined, although lie be the real party in the cause (e). And it Witness 
 has been held, that if a witness has once been called into the box not ^.^'a- 
 and sworn, he may be cross-examined by the opposite side, ""°^*^ "^ 
 although he has not been examined in chief (/). But it has since 
 been ruled that where a witness, though sworn, is merely called to 
 produce a writing in his possession, and no question is asked, the 
 adverse party is not entitled to cross-examine (^). And where, in an 
 action by the assignees of a bankrupt, the petitioning creditor was 
 called, for the purpose of producing the bill of exchange on which 
 the debt was founded, the Court would not permit him to be 
 cross-examined by the defendant, since he could not have been 
 examined by the plaintiffs (h). If the witness be sworn, and 
 would be a competent witness for the party calling him, the 
 adversary will be entitled to cross-examine him, although he has 
 not been examined in chief (i), unless he was sworn by mis- 
 take (k). 
 
 It has been said, that where a witness has been examined by Practice 
 one party, he may afterwards be cross-examined as an adverse ^^*°5™_**' 
 witness, when he is called by the adversary as one of his own wit- tion. 
 nesses(/). Yet if a party omit, from prudential motives, to ex- 
 amine his adversary's witness as to any branch of his own case, 
 there seems to be no reason why, when he afterwards adopts him 
 as his own witness, he should not be so considered to all purposes, 
 and why the adversary should not then be entitled to cross- 
 examine him. The same witness may know distinct parts of the 
 transaction, one branch of which makes for the plaintiff, and the 
 other for the defendant ; and if each party call him as his own 
 witness, there seems to be no reason why each should not be in 
 turn bound by the same principle ; why each, in examining into 
 his own case, should not be precluded from putting leading ques- 
 tions, and be entitled to cross-examine as to his adversary's 
 case. 
 
 (e) Morgan v. Brydges, 2 Starkie's C. Davis v. Dale, 1 Mood. & M. 514 ; 4 C. 
 
 314. So in a criminal case. R. v. Brooke, «Sc P. 335. So in criminal cases. R. v. 
 
 2 Starkie's C. 473. Murlis, ib. n. See also Summers v. 
 
 (/) Phillips V. Earner, 1 Esp. C. 357 ; Moseley, 2 Cr. & M. 477. Rush v. Smith, 
 
 R. V. Brooke, 2 Starkie's C. 473. 1 Cr. M. & R. 94. Perrij v. Gibson, 1 Ad. 
 
 {g) Siinpson v. Smith, cor. Holroyd, & E. 48. 
 
 J., Nottingham Summer Ass. 1822. In (/t) Read v. James, 1 Starkie's C. 132. 
 
 an action for a malicious prosecution, the (i) Phillips v. Earner, 1 Esp, C. 357. 
 
 magistrate who committed the plaintiff R. v. Brooke, 2 Starkie's C. 473. 
 
 was called to produce the information, (k) 3 Carr. & P.C. 16. Rush \. Smith, 
 
 but was asked no question, and the leamed 1 Cr. M. & R. 94. 
 
 Judge held that the defendant's counsel {I) Dickinson v. Shee, i Esp. C. Gl. 
 were not entitled to cross-examine him.
 
 188 
 
 WITNESS EXAMINATION : 
 
 LcHiling 
 questions 
 
 The mode of examination is, in truth, regulated by the dis- 
 cretion of the Court, according to the disposition and temper 
 of the witnesses; the Court frequently permits an adverse witness 
 to be cross-examined by the party who calls him. 
 
 The Courts do not usually exclude a party on cross-examina- 
 tion of a witness, from putting leading questions, although the 
 witness betray an anxiety to serve that party ; it is however 
 obvious that evidence so obtained is very unsatisfactory, and is 
 open to much observation {m). 
 
 Although upon cross-examination a counsel may put leading 
 questions, those questions must not assume facts to have been 
 proved which have not been proved, or that particular answers 
 have been given contrary to the fact (n). The witness cannot be 
 cross-examined as to the contents of a written document which is 
 not produced (o) ; nor as to the contents of a written document 
 which is in the hands of the adversary, and which he has had 
 notice to produce ; for this is part of the case of the party who 
 cross-examines, which cannot be gone into until that of his adver- 
 sary has been concluded. 
 
 For the purpose of furthering the object of cross-examination, 
 may be ex- ^|jg QQyxYt will, in general, at the instance of either party (p), direct 
 apart from that the witnesses shall be examined each separately, apart from 
 the hearing of the rest {q) ; a strong test to try the consistency of 
 
 Witnesses 
 
 each other. 
 
 (m) I have heard Ld. Teuterden, C. J., 
 express himself to that effect more than 
 once. In Hardy's Case, 24 Howell's St. 
 Tr. 755, upon a trial for high treason, a 
 witness having been called for the prose- 
 cution who was favourable to the prisoner, 
 and who had been a member of the Cor- 
 responding Society, was asked whether 
 particular expressions, which were sug- 
 gested to him, had not been used by the 
 members of that society ; and L. C. Jus- 
 tice Eyre informed the counsel that he 
 could not put words into the mouth of the 
 witness, and that this was contrary to the 
 practice of the court, and to his opinion. 
 And Buller, J., upon the same trial, said, 
 " You may lead a witness, upon cross- 
 examination, to bring him directly to the 
 point as to the answer; but not go the 
 length, as was attempted yesterday, of 
 putting into the witness's mouth the very 
 words which he is to echo back again." 
 
 In the late case of PajJdn v. Moore, 
 
 7 C. & P. 408, Alderson, B., said: " I ap- 
 prehend you may put a leading question to 
 an unwilling witness on the examination 
 in chief, but you may always put a leading 
 question in cross-examination whether a 
 witness be willing or not." 
 
 (nj Hill V. Coombe, cor. Abbott, J. 
 Exeter Spring Assizes 1818; Handley \. 
 Ward, cor. Abbott, L. C. J., Lancaster 
 Spring Assizes 1818. 
 
 (o) Sainthill v. Bound, 4 Esp. C. 74. 
 
 {ji) The Court will order the witnesses 
 on the part of the defendant out of court, 
 even after the plaintiff's case is closed. 
 Taylor v. Lawson, 3 C. & P. 543. 
 
 {q) Attorney-General v. Buljnt, 9 
 Price, 4, This is a general rule by tlie 
 law of Scotland in all criminal prosecu- 
 tions. Hume's Comm, on Crim. Law of 
 Scotland, vol. 2, 365; Burnet's Treatise, 
 4G7 ; Phillips on Ev. vol. 1, 258. The 
 same rule prevails in the Exchequer in reve- 
 nue cases, as to witnesses for the defendant.
 
 CROf39-EXAMINATION. 189 
 
 their account (r); and the same indulgence may be granted to a Witnesses 
 prisoner, but not as a matter of right (s). ""*?' '^^ '^'^' 
 
 •^ ' » V / amiued 
 
 It has been held, that an order of exclusion does not extend to apart. 
 an attorney in the cause (0. 
 
 Where a witness remains in court after an order for their 
 exclusion, the rejection or admission of his testimony is a question- 
 for the discretion of the Judge under all the circumstances of 
 the case (u) ; but in the Court of Exchequer the rule for the 
 rejection of such witnesses, in revenue cases, is known, and 
 inflexible (x). 
 
 Where the witness remained from mistake, and from no undue 
 motive, his testimony was received (?/), 
 
 Where, after witnesses had been ordered out of court, one had 
 returned, and heard another give his evidence, the Judge allowed 
 him to be examined as to facts not sworn to^ by any previous 
 witness, but with liberty to move to enter a nonsuit (2^), 
 
 It is here to be observed, that a witness is not to be cross- Cross-exa- 
 
 examined as to any distinct collateral fact for the purpose of """ationas 
 
 p 1 . 1 • 1 • • T • 1 ■ **' collate- 
 
 afterwards impeachmg nis testmiony by contradicting him ; for this ral facts. 
 
 would render an inquiry, which ought to be simple, and confined to 
 
 the matter in issue, intolerably complicated and prolix, by causing 
 
 it to branch out into an indefinite number of collateral issues. In 
 
 the case of Spencely v. Willot{a), which was a penal action for 
 
 usury, the defendant's counsel were not permitted to cross-examine 
 
 as to other contracts made on the same days with other persons, in 
 
 order to show that the contracts in question were of the same 
 
 (r) No falsehoods are so difficult to be (s) 4 St. Tr. 9. 
 detected as those which are mixed up {t) Pomeroy v. Baddeley, 1 Ry. & M. 
 with a great portion of truth ; the greater C. 430 ; Everett v. Lowdham, 5 C. 8c 
 the proportion of true facts is which are P. 91. R. v. Webb, Sarum Summer Ass. 
 combined with the false ones, the less op- 1819, cor. Best, J. contra, 
 portunity will there be to detect the false (m) A new trial in one case was granted 
 by comparison with facts ascertained to be because a witness's testimony had been re- 
 true. An ingenious mode of proving an jected on that ground. Per Alderson, B. 
 alibi with consistency has long been in Cooke v. Nethercote, G C. & P. 741 ; 
 known and practised by roguish adepts. and the case reported in the note. See 
 The intended witnesses meet and pass the also 4 C. & P. 585. Thomas v. David, 
 afternoon or evening together in convivial 7 C. & P. 350. R. v. Colly, Mood. & M. 
 entertainment: when they are afterwards 329. 
 
 examined, they are all consistent as to the (x) Parker v. M' William, 6 Bing. 683. 
 
 circumstances which attended their meet- {y) R. v. Cully, 1 Mood. & M. C. 
 
 ing, for so far they relate nothing more 329. 
 
 than the truth ; they misrepresent nothing (2) Beanton v. Ellice, 4 C. & P. 585. 
 
 but the time when the transaction took (a) 7 East, 108. See Mr. J. Holroyd's 
 
 place, which, for the purpose of the alibi, observations on the case, 2 Starkie's C. 
 
 is of course represented to be that of the 156. Harris v. Tippett, 2 Camp. 638. 
 robbery.
 
 190 
 
 WITNESS — CnOSS-EXAMINATIOTV 
 
 Cross-exa- 
 inination as 
 to collate- 
 ral facts. 
 
 How far 
 the witness 
 is bound to 
 answer. 
 
 naturo, and not usurious, if" the witness answered one way, or to 
 contradict liini if" he answered the otlier way. And should such 
 questions be answered, evidence cannot afterwards be adduced 
 for the purpose of contradiction (Z>). The same rule obtains, if 
 a question as to a collateral fact be put to a witness for the purpose 
 of discrediting his testimony ; his answer must be taken as con- 
 clusive, and no evidence can be afterwards admitted to contradict 
 it (c). This rule does not exclude the contradiction of the witness 
 as to any facts immediately connected with the subject of inquiry, 
 A witness may be asked vv'hether, in consequence of liis having 
 been charged with robbing the prisoner, he has not said that he 
 would be revenged upon him ; and in case of denial, he may be 
 contradicted {d). In such a case the inquiry is not collateral, but 
 most important, in order to show the motives and temper of the 
 witness in the particular transaction. 
 
 It is now settled by the authority of the Legislature (e), that 
 a witness cannot refuse to answer questions because he may subject 
 
 (&) Harris v. Tippett, 2 Camp. 638. 
 R. V. Watson, 2 Starkie's C. 149. 
 
 (c) R. V. Watson, 2 Starkie's C. 149. R. 
 V. Tealeand Others, cor. Lawrence, J., at 
 York. It is said to have been held, that 
 the question, whether a witness for one 
 party had not attempted to deprive a wit- 
 ness for the adversary from attending to 
 give evidence at the trial, was so immate- 
 rial, that if the witness answered in the 
 negative, he could not be contradicted. 
 Harris v. Tippett, 2 Camp. 637, cor. 
 Lawrence, J. It cannot however be 
 doubted, that the fact, if proved, would 
 show a very strong and improper bias on 
 the mind of the witness, and in a doubtful 
 case afford a fair ground for suspecting his 
 sincerity. In Ld. Stafford's Case, 7 
 Howell's St. Tr. 1400, the prisoner was 
 allowed to prove that Dugdale, a witness 
 for the prosecution, had endeavoured to 
 suborn witnesses to give false evidence 
 against the prisoner. 
 
 Tlie late case of Thomas x. David, 7 C. 
 & P. 350, tends to overrule Harris v. Tip- 
 pett. In an action on a promissory note, a 
 servant of the plaintiff's (an attesting wit- 
 ness) called to prove the signature, was 
 asked, on cross-examination, whether she 
 did not sleep in the same^ bed with the 
 plaintiff. On its being objected that the 
 point of intended contradiction was merely 
 
 collateral, Coleridge, J,, overruling the ob- 
 jection, said: " Is it not material to the issue 
 whether the principal witness who comes 
 to support the plaintiff's case was his kept 
 mistress ? If the question had been whe- 
 ther the witness had walked the streets as a 
 common prostitute, I think that would 
 have been collateral to the issue, and that 
 if the witness had denied such a charge, 
 she could not have been contradicted ; but 
 here the question is, whether the witness 
 had contracted such a relation with the 
 plaintiff as might induce her the more 
 readily to support a forgery — just in the 
 same way as if she had been asked if she 
 was the sister or daughter of the plaintiff." 
 Where the question was, what considera- 
 tion passed on discounting a bill of ex- 
 change, Lord Tenterden held, that what a 
 witness had said upon a former trial be- 
 tween the parties concerning another bill 
 discounted^at the same time and under the 
 same circumstances was not collateral. 3 
 C. & P. 76. In an action on a policy of 
 insurance, a witness for the defendant was 
 asked, whether he had not said that " they 
 had not a leg to stand upon." Tindal, L. C. J., 
 held, that contradiction was inadmissible. 
 £:iton V. LarUns, 5 C. & P. 590. 
 
 {d) Yeivin's Case, 2 Camp. 638, n. ; cor. 
 Lawrence, J. 
 
 (e) The statute 46 G. 3, c. 37, declares
 
 TO IMPEACH HIS CREDIT. 
 
 I'Jl 
 
 himself to a civil liability or charge ; but he is not bound to How far 
 answer any question, either in a court of law or of equity, if his ii'bound*t« 
 answer will expose him to any criminal punishment or penal habi- answer. 
 lity, agreeably to the wise and humane principle that no man is 
 bound to criminate himself (/). Accordingly, a witness is not com- 
 pellable to say whether he published a particular paper, if the 
 contents be libellous {(/). Upon an appeal against an order of 
 bastardy, he is not bound to declare whether he is the father of 
 a bastard child (h). In an action against the acceptor of a bill 
 of exchange a witness is not bound to answer whether the bill was 
 not given for differences on stock-jobbing transactions for time {i). 
 
 and enacts, that a witness cannot by law 
 refuse to answer a question relevant to the 
 matter in issue, the answering of which 
 lias no tendency to expose him to a penalty 
 or forfeiture of any nature whatsoever, by 
 reason only, or on the sole ground, that 
 the answering of such question may esta- 
 blish, or tend to establish, that he owes a 
 debt, or is otherwise subject to a civil 
 suit, either at the instance of his Majesty, 
 or of any other person or persons. 
 
 Before the passing the above Act it was 
 vexata qucestio, whether a witness was 
 bound to answer wlieu the answer might sub- 
 ject him to civil liabilities. On tlie question 
 being proposed" by the House of Lords to 
 the Judges, Mansfield, C. J. of C. P., 
 Grose and Rooke, Js., and Thompson, B., 
 were of opinion that he was not ; but the 
 Lord Chancellor and the other Judges 
 were of a contrary opinion. They were all 
 of opinion that a promise to a witness that 
 he should be excused from certain debts, 
 provided he made a full and fair disclo- 
 sure, did not render him incompetent on 
 the score of interest. Cobbett's P, D. 
 Tol. 6, p. 167. 
 
 A rated parishioner in a settlement case 
 is a party to the appeal, and tlierefore does 
 not come within the words or meaning of 
 the Act. R. V. Wohurn, 10 East, 395. 
 See54G.3, C.170. 
 
 (/) R. V. Barhe); Str. 444; Gates v. 
 Hardacre, 3 Taimt. 424 : Sir J. Friend's 
 Case, 4 St. Tr. 6; Lord Macclesfield's 
 Case, 6 St. Tr. 649; 16 Ves. jun. 242; 
 Title V. Grevet, 2 Lord Raym. 1088. R. 
 V. Dates, 4 St. Tr. 9, 10 ; 2 Haw. c. 40 ; 
 
 Mitford's Ch. PI. 157. R. v. Lord George 
 Gordon, 2 Doug. 593. Hardifs Case, 
 24 Howell's St. Tr. 755. Parkkurst v. 
 Loictcn, 2 Swans. 216. But it seems that 
 a stock-broker, who, under the st. 7 G. 2, 
 c. 8, s. 29, is required under a jienalty to 
 keep a book, would be bound to produce 
 it. 
 
 A banker is not privileged from stating 
 the amount of his customer's balances. 
 Lloyd V. Freshfield, 2 C. & P. C. 329. 
 
 Where a witness declined on cross-exa- 
 mination stating where he lived, as he be- 
 lieved tbat a bailable writ was out against 
 him at the suit of the defendant, the Court 
 would not compel him to answer. Watson 
 V. Severn, 1 Carr. C. 363. 
 
 (fir) R. V. Barber, Str. 444; Moloney 
 V. Bartley, 3 Camp. C. 210, where, in an 
 action for a libel published in an affidavit 
 sworn before a magistrate, it was held 
 that the magistrate's clerk was not bound 
 to state whether he wrote the affidavit and 
 delivered it to the magistrate : a bill of 
 exceptions was tendered, but not proceed- 
 ed in. In an action for a libel on the 
 plaintiff as hundi'ed constable, purporting 
 to be a memorial from the vestry of P., 
 the vestry-clerk being called to produce 
 the vestry-books, it was held, that he 
 could not refuse on the ground that he 
 might thereby criminate himself. Brad- 
 shaio V. Murphy, 7 C. & P. 612. 
 
 (h) R. V. St. Mary's, Nottingham, 13 
 East, 58, n. 
 
 (i) Thomas v. Tucker, cor. Ld. Tenter- 
 den, C. J., sitt. after Easter, 1827.
 
 192 
 
 WITNESS-^CROSS-EXAMINATION : 
 
 How far 
 
 the witness 
 is bound to 
 answer. 
 
 Cross-exa- 
 mination in 
 order to 
 discredit 
 a witness. 
 
 The prosecutrix on an indictment for a rape is not bound to answer 
 whether she has had criminal intercourse with any other person (A). 
 An accomplice, admitted to give evidence for the Crown, is not 
 bound to disclose his share in other offences which are not the 
 subject of inquiry, and for which he would be liable to prosecu- 
 tion (l). A witness is also protected from answering any question 
 which would subject him to any penalty, or to forfeiture of his 
 estate (m). And it has even been held, that a witness is protected 
 from admitting his commission of an offence, although he has 
 received a pardon (n). But where a witness has been guilty of an 
 infamous crime, and has been punished for it, he may, it is said, be 
 asked whether he has not undergone the punishment, because his 
 answer cannot subject him to further punishment (o). And where 
 the questions might subject the witness to penalties, but the time 
 foi proceeding against him is passed, he is bound to answer (p). If 
 the witness answer questions improperly put, his answers may 
 afterwards be used as evidence against him (q). Where a witness, 
 after having been cautioned that he is not compelled to answer 
 a question on the ground that his answers might subject him to 
 an indictment, yet if he answers at all is bound to disclose the 
 whole of the transaction (r). 
 
 The protection has been carried much further. It has been 
 held, that a witness is not bound to answer any question which 
 tends to render him infamous, or even to disgrace him. Upon an 
 indictment for rape, it is said to have been held by a majority of 
 the Judges, that the prosecutrix was not bound to say whether she 
 had not had a criminal connexion with other men (t), and that 
 
 (k) R. V. Hodgson, 1 Russ. & Ry. C. C. 
 211; and see Dodd v. Norris, 3 Camp 
 C. 519. 
 
 (Z) West's Case, O. B. Sess. after Eas- 
 ter T. 1823. 
 
 (m) The declaratory statute 46 G. 3. 
 c. 37, imports that a witness is not bound 
 to answer any question the answering of 
 which tends to expose him to a penalty or 
 forfeiture of any nature whatsoever. So 
 in equity a party is not bound to answer 
 so as to subject himself to any punish- 
 ment, pains, penalties, or forfeiture of inte- 
 rest. See Mitford's Treatise on Chancery 
 Pleadings, 157. 
 
 (m) R. v. Beading, 2 St. Tr. 822 ; R. v. 
 Earl of Shaftshmj, 3 St. Tr. 439. In 
 
 such case the answer may place him in 
 jeopardy, and he would have to set up the 
 pardon in bar to the prosecution. 
 
 (o) R. V. Edwards, 4 T. R. 440, where 
 a bail was asked whether he had not stood 
 in the pillory for perjury. But see below. 
 
 {p) Roberts v. Allatt, 1 Mood. & M. 
 C. 192. 
 
 {q) Stochfleth v. De Tastet, 4 Camp. 
 10; Smith v. Beadrall, 1 Camp. 30. R. 
 v. Merceron, 2 Starkie's C. 366. 
 
 {r) Dixon v. Vale, 1 Carr. C, 278. 
 East v. Chapman, 2 C. & P. 570. So 
 in the case of a witness interrogated in 
 equity. Austin v. Poiner, 1 Sim. 348. 
 
 {t) R. V. Hodgson, York Summer Ass. 
 1810, cor. Wood, B., M.S. The answer
 
 TO IMPEACH HIS CREDIT. 193 
 
 such evidence was inadmissible. In Cooke s Case (u), Treby, Cross-ex- 
 C. J., said, ^' if it be an infamous thinff, that is enuugli. to pre- ]„ onk-r to 
 serve a man from heinq hound to answer ;" and he theief'ore held, discredit a 
 
 ' . witness. 
 
 that persons convicted and pardoned, or convicted and punished 
 for crimes, could not be obliiied to answer, since it was matter 
 of reproach; and that it should not be put upon a man to answer 
 a question wherein he would be forced to forswear or disgrace 
 liimself (.r). It is, however, to be observed, that the case of The 
 King v. JEdwards iy) is inconsistent with the above dictum ; since 
 it was there held that a witness might be asked whether he had 
 stood in the pillory for perjury. 
 
 The question, whether a witness may be asked questions which whetlicr a 
 tend to disgrace him (z), is, like manv other difficult questions on witness 
 the subject or evidence, one of policy and convenience. On the swera 
 one hand, it is highly desirable that the jury should thoroughly ^",^,^1"". 
 understand the character of the persons on whose credit they are to disgrace 
 decide upon the property and fives of others; and neither life nor 
 property ought to be placed in competition with a doubtful and 
 contingent injury to the feelings of individual witnesses. On the 
 other hand, it may be said that it is hard that a witness should be 
 obliged upon oath to accuse himself of a crime, or even to disgrace 
 himself in the eyes of the public ; that it is a harsh alternative 
 to compel a man to destroy his own character, or to commit per- 
 jury; that it is impolitic to expose a witness to so great a tempta- 
 tion ; and that it must operate as a great discouragement to 
 witnesses, to oblige them to give an account of the most secret 
 transactions of their lives before a pubfic tribunal. That a collateral 
 fact tending merely to disgrace the witness, is not one which is 
 properly relevant to the issue, since it could not be proved 
 by any other witness; and that there would be, perhaps, 
 some inconsistency in protecting a witness against any question, 
 the answer to which would subject him to a pecuniary penalty, and 
 yet to leave his character exposed. In the first place, it seems to 
 be quite settled that a man is not bound to criminate himself, or to 
 
 liere, however, might have subjected the Others, 4 Esp. C. 225 ; where it is said to 
 
 witness to spiritual censure and punish- iiave been ruled, that a witness could not 
 
 raent. be asked whether he had been in the 
 
 (u) 4 St.Tr. 748. 1 Salk. 153. House of Correction; and Macbride v. 
 
 {x) The question in that case was, whe- Macbride, 4 Esp. 242, where it was lield 
 
 ther a juryman who had been challenged tliat a witness could not be asked ques- 
 
 could be asked whether ho had not before tions which tended directly to disgrace 
 
 the trial asserted the guilt of the prisoner. him. 
 
 {y) 4 T. R. 440. See Bex v. Lewis and (~) See tit. Rape— Seduction. 
 
 VOL. I. O
 
 194 
 
 WITNESS — CROSS-EXAMINATION 
 
 Wlipthor 
 l)ound to 
 answer 
 questions 
 ten(lhi<jf to 
 Ills (lis- 
 crrace. 
 
 answer aiiy question which may incur a penalty (r/). It maybe 
 observed further, that the principle extends not only to questions 
 where the answer would immediately criminate the witness, but to 
 all questions which tend collaterally to his conviction (&), or to 
 supply any link in proof of a charge against him. As to questions 
 which tend merely to disgrace the witness, there is some difficulty. 
 
 In Cooke's Case (c), the prisoner, on an indictment for high 
 treason, asked the jurors, in order to challenge them, whether 
 they had not said that he was guilty, and would be hanged ? and 
 the question was overruled ; and the Court said, you shall not 
 ask a ivitness or juiyman whether he hath been whipped for larciny, 
 or convicted of felony; or whether he was ever committed to 
 Bridewell for a pilferer, or to Newgate for clipping and coining ; 
 or whether he is a villain or outlawed ; because that would make 
 a man discover that of Jiimself which tends to shame, crime, 
 infamy or misdemeanor. In this case it is to be recollected that 
 the object was to exclude the juryman entirely by raising an objec- 
 tion to his competency. The same observation applies also to 
 Layer s Case{d), where the Court overruled the attempt of the 
 prisoner to ask a witness, on the voire dire, whether he had been 
 promised a pardon, or some reward, for swearing against the 
 prisoner; and in that case L. C. J. Pratt said, if the objection 
 goes to his credit, must he not be sworn, and his credit left to the 
 jury? ]No person is to discredit himself, but is always taken to 
 be innocent till it appear otherwise. In Sir J. Friend's Case (e) 
 it was ruled, that the witness could not be asked whether he was 
 a Roman-catholic, since he might thereby subject himself to penal" 
 ties. The question, whether a witness was bound to answer a 
 question upon a collateral fact tending to disgrace him, did not 
 
 (a) Supra ; and see R. v. De Berenger 
 and Others, reported by Guniey, 195 ; 
 Parhliurst v. Lowton, 2 Swanst. 216 ; 
 Title V. Crecet, 2 Ld. Ray. 1088. Cates 
 V. Hardacre, 3 Taunt. 424 ; 16 Ves. 242; 
 Hardy's Case, 24 Howell's St. Tr. 720. 
 In some instances it has been found neces- 
 sary to protect witnesses from penalties to 
 which their evidence has rendered them 
 liable, by an Act of Parliament. See 45 
 G..3, e. 126; 1 &2 G. 4, c. 21. 
 
 (&) Cates V. Hardacre, 3 Taunt. 424. 
 Macullumv. Turton, 2Y. &J. 183. In 
 strictness, however, it is no ground of 
 legal objection by the party in the cause, 
 that the answer to a proposed question 
 
 may place the witness in jeopard}'; it is 
 peculiarly the objection of the witness 
 liimself, wlio is under the protection of the 
 law, and is always apprised of Iiis situa- 
 tion by the presiding Judge. 
 
 (c) 1 Salk. 153 ; 4 St. Tr. 748 ; and see 
 the observations of Trcby, J. above. 
 
 {d) 6 St. Tr. 259. The Chief J. (Pratt), 
 did not deny that the question niiglit be 
 put after the vv'itness had been sworn. 
 The cases of a witness and juror differ 
 very materially : with respect to jurors, 
 no question is properly allowable, except 
 for the purpose of shov/ing total incompe- 
 tency. 
 
 (e) 4 St. Tr. 259.
 
 TO IMPEACH HIS CREDIT. 195 
 
 arise in any of the foreo-oing cases (/), and therefore the dicta whether 
 thrown out by the Court were, in some measure, extra-judicial, as !^°"^^j.*'* 
 far as regards the present question. In the case of /li. v. Lewis ((j), questions 
 which was an indictment for an assault, a witness, who is stated j^'j" jj"? 
 in the report of the case to have been a common informer, and s^-^ce. 
 a man of suspicious character, was asked, upon cross-examination, 
 if he had not been in the house of correction in Sussex? And 
 Lord Ellenborough is stated to have interposed, and to have said, 
 that the question should not be asked, since it had formerly been 
 settled by the Judges, among whom were C. J. Treby and Mr. 
 J. Powell, both very great lawyers, that a witness was not bound 
 to answer any question the object of which was to degrade or 
 render him infamous. It is to be observed, however, that his 
 Lordship did not afterwards strictly adhere to this rule (A). In 
 the case oiMacbride v. Macbride (i), a witness for the plaintiff, in an 
 action of assumpsit, was questioned as to her cohabiting with the 
 plaintiff; Lord Alvanley interposed, and excluded the question; 
 but his Lordship added, " I do not go so far as others may ; I will 
 not say that a witness shall not be asked to what may tend to 
 disparage him; that would prevent an investigation into the 
 character of the witness, which it may be of importance to ascer- 
 tain. I think those questions only should not be asked which 
 have have a direct and immediate effect to disparage." In the 
 case of Harris v. Tippettij)^ the witness was asked in cross- 
 examination, whether he had not attempted to dissuade a witness 
 for the plaintiff from attending the trial ; he swore that he had not ; 
 and on its being proposed to bring evidence to contradict the wit- 
 ness on this point, Mr. J. Lawrence would not allow it, the fact 
 being collateral to the issue; but he added, " I will permit ques- 
 tions to be put to a witness as to any improper conduct of which 
 he may have been guilty, for the purpose of trying his credit ; but 
 when those questions are irrelevant to the issue upon record, you 
 cannot call other witnesses to contradict the answers he gives." 
 And in Yewins Case (k) the same learned Judge allowed the 
 
 (/) Tliere are many instances in whicli (g) 4 Esp. C. 224. 
 
 a man may be a witness who cannot be a (h) At the sittings of Westminster after 
 
 juror. 2 Hale, 278, 11 H. 4. One at- Ilil. Term 1818, a witness was compelled 
 
 tainted and pardoned cannot be a juror. by his Lordship to answer the question, 
 
 Per Holt, C. J., Rookicood's Case, 4 St. whether he had not been confined in a par- 
 
 Tr. G42 ; but he may be a witness: the tieular gaol. Infra, 197 {I). 
 reason is, that a juror cannot be examined (t) 4 Esp. C. 442 ; but see above, 190. 
 
 and sifted as to the grounds of his verdict, {j) 2 Camp. 637 ; cited in R. v. Wat- 
 
 as a witness may as to his testimony, «om, 2Starkie's C. 116; but see above, 190. 
 The ancient rule of law was otherwise. (/«) 2 Camp. 638, u. 
 
 O 2
 
 196 
 
 WITNESS — CROSS EXAMINATION 
 
 Wlictlier 
 
 witlU'SS 
 
 liound to 
 answer 
 qiuistions 
 tending- to 
 liis dis- 
 grace. 
 
 prisoner's counsel to ask a witness in cross-examination, wliother 
 he had not been charged with robbin"' liis master, Wliere 
 a man's lil^erty, or even Ufe, depends upon the testimony of 
 another, it is of infinite importance that those who are to decide 
 upon that testimony should know, to the greatest extent, how far 
 the witness is to be trusted ; they cannot look into his breast and 
 see what passes there, but must form their opinion on collateral 
 indications of his good faith and sincerity. Whatever, therefore, 
 may materially assist them in their inquiry, is most essential to the 
 investigation of truth ; and it cannot but be material for the jury to 
 understand the character of the witness whom they are called upon 
 to believe ; and to know whether, although he has not been 
 actually convicted of any crime, he has not in some measure 
 rendered himself less credible by his disgraceful conduct. In the 
 case of The King v. Edwards (/), on an application to bail the 
 prisoner, who was charged with felony, one of the bail was asked, 
 whether he had not stood in the pillory for perjury? and upon 
 objection being made that it tended to criminate the party, the 
 Court held that there was no impropriety in the question, since his 
 answer could not subject him to any punishment. The great 
 question, therefore, whether a witness is hound to answer a question 
 to his own disgrace, has not yet undergone any direct and solemn 
 decision, and appears to be still open for consideration. The 
 truth or falsehood of testimony frequently cannot be ascertained by 
 mere analysis of the evidence itself; the investigation requires 
 collateral and extrinsic aids, the principal of which consists in 
 a knowledge of the source or depositary from which such testimony 
 is derived : the whole question resolves itself into one of policy and 
 convenience, that is, whether it would be a greater evil that an im- 
 portant test of truth should be sacrificed, or that by subjecting 
 witnesses to the operation of this test, their feelings should be 
 wounded, and their attendance for the purposes of justice dis- 
 couraged ? The latter point seems to deserve the more serious con- 
 sideration, since the mere offence to the private feelings of a witness 
 who has misconducted himself cannot well be put in competition 
 with the mischief which might otherwise result to the liberties and 
 lives of others. No great injustice is done to any individual upon 
 whose oath the property or personal security of others is to depend, 
 in exhibiting him to the jury such as he is {m). As to the other 
 
 (Z) 4 T. R. 440. 
 
 (m) Where the witness has been con- 
 victed of an infamous crime, he is abso- 
 lutely disqualified, but the fact of convic- 
 
 tion cannot be proved except by tiie re- 
 cord ; and it is in many instances impos- 
 sible to be prepared with such evidence 
 where it is not previously known that the
 
 TO IMPEACH HIS CREDIT, 197 
 
 consideration, it dues not seem to be very clear that by permitting vviictiior 
 such examinations any serious evil would result ; the law possesses ^^^^^J^,^ 
 ample means for compelling the attendance of witnesses, however qnf-stions 
 unwilHno- thev may be. The evil on this side of the question is at },i.s dis- 
 all events doubtful and contingent ; on the other side it is plaiji and S^-'^^^e. 
 certain. 
 
 The principle on wdiich such evidence is admissible is clear and 
 obvious; the reason for excluding it is extrinsic and artificial, 
 and, it may be added, but theoretical; for Courts are in the 
 constant habit of permitting such questions to be put(/0, and 
 answers to be given and received as evidence for the consideration 
 of the jury. 
 
 The decision of this question is of less practical importance a witness 
 than might have been expected, since, whether a witness be or be ^^^^.^^ 
 not bound to answer such questions as tend to his disgrace, it questions 
 seems to be allowed that the questions may be put (o) ; and it is disgrace 
 obviously of little consequence whether the witness admits that l""'- 
 which is insinuated against him, or refuses to answer the ques- 
 tion ; for though in strictness no inference ought to be made as to 
 the truth of a fact where the witness has refused to answer (j9), 
 yet the refusal must make an unfavourable impression upon the 
 jury, since an honest man would naturally be eager to deny the 
 fact, and rescue his character from suspicion, and would not re- 
 fuse to answer merely because he had a strict legal right to refuse (5-.) 
 witness will be examined ; in such cases right to put questions tending to degrade 
 there is the greater reason for allowing the a witness, for the purpose of trying his 
 question to be put in another shape. character, 
 
 (n) In the rase of Frost v, Hollmciay, Best, C, J. : " I do not forbid the ques- 
 
 K, B. sitt, after Hil. Term 1818, Ld, El- tion on that ground; I for one will never 
 lenborough, C. J., compelled a witness to go that length. Until I am told by the 
 answer whether he had not been confined House of Lords I am wrong, the rule I 
 for theft in gaol; and on the witness's ap- shall always act upon is, to protect wit- 
 pealing to the Court said, " If you do not nesses from questions, the answers to 
 answer I will send you there." Ex rela- which may expose them to punishment ; 
 tione Gurney. Upon the trial of O'Coiff- if they are protected beyond this, from 
 ly and O'Connor (24 Howell's St. Tr, questions that tend to degrade them, many 
 1353 ), the witness having, upon a question an innocent man would unjustly suffer, 
 being put which threw an imputation on Tliis question may subject her to punlsh- 
 hini, appealed to the Court for protection inent ; I think, therefore, it ought not to 
 in the first instance, the Court would not be put," 
 permit the question to be repeated. (o) Harris v. Tippett, 2 Camp. G38 ; 
 
 In the case of Cundell v, Pratt, 1 It- v, Yeiciii, 2 Camp. G38, n, ; R. v. 
 Mo, & M, C. 108, the witness was asked, Watson, 2 Starkie's C, 110. 
 on cross-examination, whether she was {p) Rose v. Blakeinan, 1 Ry, & M, C. 
 
 not cohabiting in a state of incest with 384. 
 
 a particular individual; Best, C, J., inter- {q) See the observations of the Judges 
 
 fered to prohibit the question; it was in R.\. T^a^son, 2 Starkie's C, 116. 
 urged by Spankie, serj., that he had a 
 
 O 3
 
 198 
 
 WITNESS— CROSS-EXAMINATION 
 
 Must be 
 put to war- 
 rant t'vi- 
 (loiicc in 
 contradic- 
 tion. 
 
 Conse- 
 quence of 
 amswcrii)"-. 
 
 Where the question is so connected with the point in issue that 
 the witness may be contradicted by other evidence if he deny the 
 fact, the law itself requires that the question should be put to the 
 witness, in order to afford him an opportunity for explanation, 
 although the answer may involve him in consequences highly 
 penal (?•)• 
 
 It was lately held by all the Judges, not only that a question, as 
 to an act done by the witness, the answer to which might criminate 
 liim, might be put, in order to afford a foundation for contradicting 
 him, if he denied the fact, but even that the adverse party could 
 not without asking the question adduce such evidence to impeach 
 the credit of the witness (s). 
 
 The privilege of refusing to answer is that of the witness, and 
 not of the party ; and Lord Tenterden refused to allow the question 
 to be argued by the counsel of the party who called the wit- 
 ness(^j. 
 
 If a witness voluntarily answer questions tending to criminate 
 him on his examination in chief, he is bound to answer on cross- 
 examination, however penal the consequence may be (u), and if he 
 answers the question in part, he is bound to disclose the whole 
 truth (.r). 
 
 If a witness choose to answer a question to which he might 
 liave demurred, his answer may afterwards be used in evidence 
 against him for all purposes (?/). If a witness should admit that 
 he had been guilty of a crime, his admission would not render 
 him incompetent without proof of his conviction. 
 
 If a witness give an answer to a question put for the purpose of 
 degrading his character, the party will be bound by his answer, 
 and cannot adduce evidence in contradiction (;:). This is but a 
 
 ()•) The Queen's Case, 2 B. & B. 311. 
 
 (s) lb. 
 
 (t) By Lord Tenterden in Thomas v. 
 Netrton, Mo. & M. 48, n. 
 
 (u) Per Dampier, J. Winchester Sum- 
 mer Ass. 1815, Mann. Ind. Witness, 
 322. 
 
 (x) East V. Chapman, Mod. & M. C. 
 47. 
 
 {y) Smith v. Beadnall, 1 Camp. 30; 
 Stoclifleth V. Be Tastet, 4 Camp. 10 
 
 {z) Lord Ellenborough, in Watson's 
 Case, Gurney's Rep. vol. ii. 288, observed, 
 " Whether he has been guilty of such a 
 crime (improperly asking him in a degree, 
 because you are calling upon him, upon 
 the sanction of his cath, to answer that 
 
 which he is not bound to answer, for uo 
 man is bound to criminate himself), but if, 
 from a desire to exculpate himself from 
 the imputation of a crime, he gives an 
 answer, it has been held by many of our 
 Judges, and I never knew it ruled to the 
 contrary, that having put such question, 
 you must be bound by the answer. The 
 Court is not a Court to try a collateral 
 question of crime, and it would be unjust 
 if it were, for how can the party be pre- 
 pared with a case of exculpation, or with 
 an answer to any evidence which may be 
 adduced to charge him ? There is no pos- 
 sibility of a fair and competent trial on 
 that subject, and therefore in no instance 
 is it done."
 
 TO IMPEACH Ills CKEDIT. 1!H) 
 
 particular apjilication of" tlie general rule applicable in all cases of" 
 inquiry as to mere collateral facts. 
 
 If by an unfortunate or unskilful question put on cross-examina- ETect of 
 tion, a fact be extracted which would not have been evidence upon ^"^"'^'r "" 
 
 cioss-f'xa- 
 
 an examination in chief, it then becomes evidence against the minatiori. 
 party so cross-examining (a). 
 
 But a witness is not allowed voluntarily to obtrude inadmissible 
 evidence, and if he do, it is not to be considered as evidence in 
 the cause (b). This is a just and most important rule; a fraudu- 
 lent and subtle witness will sometimes endeavour to baffle his 
 cross-examiner, and deter him from pursuing his course, by in- 
 troducing into his answers matters foreign to the question, but 
 unfavourable to the cross-examining party. 
 
 In the course of the proceedings in the House of Lords in Cross-oxa- 
 the Queens Case, Louisa .Dumont, a witness in support of the as't! wHt- 
 charge, having been asked, upon cross-examination, whether she in^s. 
 did not use certain expressions which the counsel read from a sup- 
 posed letter from the witness to her sister, it was objected by the 
 Attorney-gener.il that the letter itself ought to be put in before 
 any use could be made of its contents. 
 
 The following questions were in consequence proposed to the 
 Judges (of): — 
 
 First, Whether, in the Courts below, a party, on cross-examina- 
 tion, would be allowed to represent, in the statement of a question, 
 the contents of a letter, and to ask the witness whether the witness 
 wrote a letter to any person with such contents, or contents to the 
 like effect, without having first shown to the witness the letter, 
 and having asked that witness whether the witness wrote that 
 letter, and his admitting that he wrote such letter ? 
 
 Secondly, Whether, when a letter is produced in the Courts 
 below, the Court would allow a witness to be asked, upon show- 
 
 (fi) Wright don. Clijiner v. Littler, staterl, that her brotlirr, wlieu lie prodiuTtl 
 
 Burr. 1244; 1 Bl. 340. The lessor of the the will of 1743, acknowledged and do- 
 plalntift" claimed under a will dated in • clared that the will of 1745 was forged by 
 
 1743. The defendant relied on a will himself. After a verdict for tlie plaintiff, 
 
 bearing date 174.5. The plaintiff, in an- upon a motion for a new trial, upon tiie 
 
 swer, called Mary Victor, the sister of ground, inter alia, that the dechiration 
 
 William Medlicott, deceased, whose name by Medlicott of his having forged the will 
 
 a;ipeared as an attesting witness to the of 1745, ought not to have been left to the 
 
 will of 1745, to prove that her brother, in jury, it was answered by the Court, that 
 
 his last illness, and three weeks before his the fact carae out upon the defendant's 
 
 death, pulled out of his bosom the will of own cross-examination. 
 
 1743, and said it was the true will of J". C (ft) Bleioett v. Tregonning, 3 Ad. & 
 
 Upon cross-examination by the counsel Ell. 584; 5 IN'. & M. 300. 
 
 for the defendants, the witness further (c) IVze Qwee/t's CWc, 2 B. &; B 286. 
 
 O 4
 
 200 WITNESS — CROSS-EXAMINATION : 
 
 Cross-pxa- iiiir a witiicss oiily a part of, or one or more lines of such letter, 
 
 to writings! '"AW^l "ot the whole of it, whether he wrote such part, or such one 
 
 or more lines ; and in case the witness shall not admit that he did 
 
 or did not write the same, the witness can be examined to the 
 
 contents of such letter ? 
 
 The first question was answered in the negative, for the follow- 
 ing reasons : — " The contents of every written paper are, according 
 to the ordinary and well-established rules of evidence, to be proved 
 by the paper itself, and by that alone, if the paper be in existence. 
 The proper course, therefore, is to ask the witness whether or no 
 that letter is of the handwriting of the witness ? If the witness 
 admits that it is of his or her handwriting, the cross-examining 
 counsel may, at his proper season, read that letter as evidence, 
 and when the letter is produced, then the whole of the letter is 
 made evidence. One of the reasons for the rule requiring the 
 production of written instruments is, in order that the Court may 
 be possessed of the whole. If the course which is here proposed 
 should be followed, the 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 
 a statement of a part." 
 
 To the second question, the Judges returned the following 
 answer : " In answer to the first part, * Whether, when a letter is 
 produced in the Courts below, the Court would allow a witness to 
 be asked, upon showing the witness only a part, or one or more 
 lines of such letter, and not the whole of it, whether he wrote 
 such part ?' the Judges are of opinion, that that question should 
 be answered by them in the afiirmative in that form; but in 
 answer to the latter part, which is this, * And in case the witness 
 shall not admit that he did or did not write such part, whether he 
 can be examined as to the contents of such letter ?' the learned 
 Judges answer in the negative, for the reason already given, 
 namely, that the paper itself is to be produced, in order that the 
 whole may be seen, and the one part explained by the other." 
 
 Upon the further question proposed, " Whether, when a witness 
 is cross-examined, and upon the production of a letter to the wit- 
 ness under cross-examination, the witness admits that he wrote 
 that letter, the witness can be examined in the Courts below, 
 whether he did or did not make statements such as the counsel 
 shall, by questions addressed to the witness, inquire are or are 
 not made therein : or whether the letter itself must be read as the
 
 AS TO WRITINGS. 2Ul 
 
 evidence to manifest that such statements are not contained in the CroHs-exa- 
 
 „ . . , , , miiiiitiiiii a» 
 
 letter? the J udges were ot opmion, that the counsel cannot, by towritiugs. 
 questions addressed to the witness, inquire whether or no such 
 statements are contained in the letter, but that the letter itself 
 must be read to manifest whether such statements are or are not 
 contained in that letter. They found their opinion upon what, in 
 their opinion, is a rule of evidence as old as any part of the com- 
 mon law of England, namely, that the contents of a written instru- 
 ment, if it be in existence, are to be proved by that instrument 
 itself, and not by any parol evidence. 
 
 To another question, viz. " In what stage of the proceedings, 
 according to the practice of the Courts below, such letter could be 
 required by counsel to be read, or be permitted by the Court below 
 to be read," the learned Judges answered, that according to the 
 ordinary rule of proceedings in the Courts below, the letter is to 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 ; that that 
 is the ordinary course ; but that, if the counsel, who is cross-exa- 
 mininp- suocrests to the Court that he wishes to have the letter read 
 immediately, in order that he may, after the contents of that letter 
 shall have been made known to the Court, found certain questions 
 upon the contents of that letter, which could not well or effectually 
 be done without reading the letter itself, that becomes an excepted 
 case in the Courts below ; and for the convenient administration of 
 justice the letter is permitted to be read at the suggestion of the 
 counsel ; but considering it, however, as part of the evidence of the 
 counsel proposing it, and subject to all the consequences of having 
 such letter considered as part of his evidence. 
 
 In the course of the same proceeding, the counsel for the Queen, 
 having cross-examined Giuseppe iSacchi, whether he had ever 
 represented to any person after he had left the service of the prin- 
 cess, that he had taxed himself with ingratitude towards a gene- 
 rous mistress ; it was objected, that the witness should be asked 
 whether such representation made by him was an oral or written 
 one, because, if written, the writing itself should be produced be- 
 fore the question could be put. The following question was in 
 consequence proposed to the Judges : " Whether, according to the 
 established practice in the Courts below, counsel, in cross-examin- 
 ing, are entitled, if the counsel on the other side object to it, to ask 
 a witness whether he has made representations of a particular na- 
 ture, not specifying in his question whether the question refers to 
 representations in writing or in words ?" 
 
 The Lord Chief Justice, in delivering the opinions of the Judges
 
 to writins. 
 
 202 WITNESS — CROSS-EXAMINATION : 
 
 Cross-pxa- obsorvcd, tliat they felt sonic difficulty in giving a distinct answer 
 iiiiiiatioiias ^^y ([^^^ proposition, as they did not remember an instance of a 
 question having been asked by the cross-examining counsel, pre- 
 cisely in those words, and were not aware of any established prac- 
 tice distinctly referring to 'such a question. He adverted to the 
 rule of law respecting the examination of a witness as to a contract 
 or agreement, in which case, if the counsel on 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 produced. 
 With reference to this established rule, they considered the question 
 proposed to them, and were of opinion that the witness could not 
 properly be asked on cross-examination, whether he had written 
 such a thing, the proper course being to put the writing 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 represen- 
 tation had been made in writing or by words ; and if in conse- 
 quence 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 undoubtedly have a right to put that question. 
 
 It seems to be perfectly clear, that if it appear from the cross- 
 examination of the witness, or from any antecedent evidence, that 
 the writing in question has been destroyed, the objection founded 
 on the reasons alleged by the learned Judges ceases; and as the 
 defendant may at all events, in his turn, adduce secondary evidence 
 of the contents, there is no objection to his proving the contents 
 in the first instance by means of the adversary's witness. 
 
 It is to be observed, that the opinions delivered by the learned 
 Judges upon the preceding questions, were founded principally on 
 the application of the principle, that the best evidence must be 
 adduced which the case admits of, and on the stipposition that the 
 object of the cross-examination is to establish in evidence the con- 
 tents of a written document as material to the cause. W here that 
 is the case the objection is invincible. 
 
 But it frequently happens that the cross examination of a wit- 
 ness as to what he has before said or written on the subject of 
 inquiry is material only as a test to try his memory uud his 
 credit. 
 
 Such evidence is usually admissible for no other purpose than to
 
 AS TO WRITINGS. 203 
 
 try the credit or capacity of the witness ; wliat a witness stated on Cross-exa- 
 a former occasion, may be very material evidence to contradict "o "yr*it|", '^^ 
 him, or impeach his testimony, but can rarely be evidence of the 
 fact stated ; and it is a remarkable circumstance, that the question 
 was never in the course of inquiry in the case which occasioned so 
 much discussion on the subject, directly raised, whether a cross- 
 examination as to something written by the witness, for the pur- 
 pose, not of proving- any fact in the cause, but simply of trying 
 the credit or ability of the witness, was subject to the same strict 
 rules as governed examination for proving material facts, and 
 whether the witness might not be cross-examined as to what he had 
 written, without producing the writing, where, although not proved 
 to be lost, it was not in the possession of the examining party. It is 
 also observable that the answers are founded mainly, if not wholly, 
 on the supposition that the writing to which the question relates is 
 in the possession of the examining party. 
 
 As the decisions of the Judges have, according to opinions enti- 
 tled to consideration, left the question, whether a witness may not 
 be cross-examined as to the contents of a written document, for 
 the purpose of impeaching his credit, without producing the docu- 
 ment, still open, it may not perhaps be deemed presumptuous to 
 offer a very few remarks upon this subject. 
 
 Upon every question of this nature two considerations arise : in 
 the first place, whether the practice be advantageous and desirable 
 with reference to some particular object ; and if so, still whether, 
 on the other hand, it may not be politic to exclude it, in order to 
 avoid some inconvenience which would result from its reception 
 greater than that which would accrue from its rejection. 
 
 That the permitting such a cross-examination may frequently 
 supply a desirable test for trying the memory and the credit of the 
 witness, admits of little doubt. If, for example, a witness profess 
 to give a minute and detailed account of a transaction long past, 
 such as the particulars of a .conversation, or the contents of a 
 written document, and consequently where much depends upon 
 the strength of his memory, it is most desirable to put that me- 
 mory to the test by every fair and competent means. His inabi- 
 lity under those circumstances to state whether he afterwards com- 
 mitted the details of the transaction to writing, or if he admitted 
 that he did so, his inability to state whether he then gave the 
 same or a different account, or his admission that he gave a dif- 
 ferent account, without being able to explain why he did so, must 
 necessarily operate to a greater or less extent to show the imper- 
 fection of his memory.
 
 204 WITNESS — CROSS-EXAMINATION : 
 
 Cro9s-Gxa- If a witness be culled to prove tlie contents of a document 
 to'wiitinJs. 'written by another, wliich, it may be, lie has seen but once, and 
 that at a distant time, must it not be of the highest importance to 
 ascertain whether liis powers of memory are sufficiently strong to 
 enable him to swear to the contents of a document written by 
 himself at a later period relating to the same subject-matter? If 
 he either deny that he has made any representation on the subject, 
 or be unable to recollect what statement he has made, the cir- 
 cumstance tends to impeach the faithfulness of his memory, even 
 to a greater extent than if the representation had been merely oral, 
 inasmuch as the act of writing is more deliberate, and more likely 
 to remain impressed on the memory, than a mere oral communica- 
 tion; and the contradiction which the witness receives from the 
 writing itself is also more important and more complete than that 
 which results from the testimony of another, whose memory may 
 be as liable to imperfection as that of the witness. 
 
 A cross-examination of this nature affords no mean test for 
 trying the integrity of the witness. An insincere witness, who is 
 not aware that his adversary has it in his power to contradict him, 
 will frequently deny having made declarations and used expres- 
 sions which he is, on cross-examination, ultimately forced to avow; 
 and it often happens, that by his palpable and disingenuous at- 
 tempts to conceal the truth, he betrays his real character ; and 
 thus his denials, his manner and conduct, become of far greater 
 importance, and much more strongly impeach his credit, than 
 the answer itself does which he is at last reluctantly constrained to 
 give. 
 
 Where the party is confined to the mere production and read- 
 ing of the paper, without previous cross-examination, all infer- 
 ences of this nature are obviously excluded, and the opportunity 
 of contradicting him by the production of the document in oppo- 
 sition to his statement on oath, cannot occur. 
 
 These observations apply even although fehe writing containing 
 the contradiction be in the possession of the party who cross- 
 examines ; but it may frequently happen that the document may 
 have been lost, but that proof of the loss, and of the contents of 
 the document, are in the power of the party cross-examining. 
 
 In such a case, if the rule were strictly adhered to, a dilemma 
 would occur, the effect of which might be to exclude the contra- 
 dicting evidence altogether. The adverse party would not be 
 able to go into evidence of the contradictory document before he 
 had, upon cross-examination, given an opportunity of explanation
 
 iiiiimtiDii ,'is 
 to writiiitrs. 
 
 AS TO WRITINGS. 205 
 
 to tlic witness, and he could not, accordint;- to tlie r\de, oxaniino Cross-ova- 
 as to the contents of the writing before he had proved the contents. 
 At all events he would labour under a difficulty in securing the 
 attendance of an adverse witness until such time as he had esta- 
 blished the necessary proof (c^). 
 
 Such a cross-examination would also frequently afford a test of 
 credit where the writing could not be produced, or its loss j)roved ; 
 for if the witness has in fact made statements in writing wliich if 
 produced, would impeach his credit, and either out of regard to 
 liis oath, or for fear of consequences, be induced to admit the fact, 
 his answer, subject to the explanation which he may be able to 
 give, must produce the same efiect. 
 
 The objections on the score of policy are, on the contrary, of a 
 limited nature, it being admitted on all hands that the answers 
 given cannot be received as any evidence of the writing itself for 
 the purposes of the cause. It is possible that the witness having 
 written what was true, may not recollect what he has written, or, 
 to go to the greatest extent, may, even mistakingly, and from de- 
 fect of memory, admit (even contrary to the truth) that he has 
 given a description of the transaction inconsistent with his pre- 
 sent testimony ; but even this would operate as a test to try his 
 memory, and the result would show that his recollection was 
 
 (d) It has been suggested, that for the evidence, as it were, de hene esse, and sub- 
 purpose of warranting tlie cross-exami- ject to be established or defeated by the 
 nation of a witness as to the contents of a subsequent proof or failure of proof, would 
 writing, which has in fact been destroyed, be going farther than any existing prece- 
 it is fit that the party proposing to cross- dent seems to warrant. It has, indeed, 
 examine should be allowed to interpose been not unusual, after proof of a docu- 
 evidence out of his turn to prove the fact ment by a witness under cross-examina- 
 of destruction, or, that if any inconve- tion, for the party cross-examining to have 
 nience should result from pursuing this it read in that stage of the proceedings, by 
 course, the Court should, in the exercise way of anticipation, as part of his own 
 of its discretion, either admit the witness's evidence; but there the proof is complete, 
 statement in the first instance, or defer the and nothing remains but to read the instru- 
 cross examination until the adversary shall ment. On the contrary, in the case pro- 
 have entered on his case. Without pre- posed the proof is incomplete, and the 
 suming to anticipate what course the Court party may with much more reason object 
 might in its discretion adopt when the case to the admitting secondary evidence, which 
 occurred, it may be observed, that cither may in the result turn out to have been 
 to allow a party to break in upon the ad- wholly inadmissible, nay, which perhaps 
 versary's case by adducing proof to sane- his opponent might render inadmissible, if 
 tion the admission of secondary evidence, it served his purpose, by afterwards omit- 
 or to allow him to enter upon secondary ting to support it by legal evidence*. 
 , * 
 
 * It has been frequently ruled, that a defendant having given the plaintiff notice to 
 produce writings in his possession, cannot cross-examine the plaintiff's witnesses as to 
 their contents. Graham v. Dyster, 2 Starkie's C. 23 ; Sideioays v. Dyson, ibid. 49.
 
 206 WITNESS— cross-examination: 
 
 Cross-eva- imperfect : a consideration of the highest importance where the 
 towHting'l! witness is called to detail conversations or the contents of a 
 written document; a task to which few memories are adequate 
 under ordinary circumstances. 
 
 And instances may be cited where evidence is admitted for one 
 purpose and object to which it is applicable, although with refer- 
 ence to other purposes and objects to which the evidence relates 
 it is inadmissible and wholly inoperative. Thus, in the ordinary 
 case where a witness is cross-examined as to oral declarations 
 made by him and connected with the cause, evidence is constantly 
 offered to prove those declarations, where he denies them, not with 
 a view to prove the truth of a declaration, but in order to impeach 
 his credit. If, for instance, in an action for goods sold and deli- 
 vered, a witness called to prove the delivery of the goods were to 
 deny that he said to A.B. that the defendant in fact never had 
 the goods, it would be competent to the defendant to call A. B. to 
 prove that the witness did in fact make that declaration, not with 
 a view to affect the plaintiff by making the declaration evidence of 
 the non-delivery (for it is no evidence of the fact), but to impeach 
 the credit of the witness. 
 
 Here the question is allowed for the purpose of impeaching the 
 testimony of the witness, although it involves a fact of which the 
 answer would be no evidence. If so, then, if the very same state- 
 ment were in writing, why might not the question also be allow- 
 able for the very same limited purpose, that is, to impeach the 
 witness's credit, although to establish the truth of the written 
 statement, viz. that the goods had not been delivered, it would 
 afford no evidence whatsoever. 
 
 Again, upon the ordinary examination of a witness on the voire 
 dire, he may, with a view to show that he is wholly incompetent, 
 be examined as to the contents of a written document not pro- 
 duced ; and the reason is, that it is not probable that the writing 
 which creates his incompetency would be in the possession or 
 within the knowledge of the adversary : a reason which would fre- 
 quently apply in full force in the present instance (e). 
 
 To the objection that to allow such a cross-examination would 
 be to deviate from the rule that the best evidence ought to be ad- 
 duced that the case admits of, it may be answered that the prin- 
 
 (e) It is true, that if the witness upon kie's C. 433.' But where a witness is 
 
 examination on the voire dire has the in- cross-examined in relation to a writing, 
 
 strument with him, it must be produced ; to try his credit, the reasons for permit- 
 
 for the reason for dispensing with its actual ting such cross-examination do not cease, 
 
 production, viz. the difficulty of procuring although the party cross-examining be in 
 
 it, has ceased. Butler \. Carver, 2 Star- possession of that instrument.
 
 AS TO WRITINGS. 207 
 
 riplc of the rule is applicable only to evidence offered to prove a Cross-exa- 
 material fact, and is inapplicable where the object is merely to try to writings, 
 the credit or ability of the witness. The objection that otherwise 
 only part of a document might be proved, seems to admit of the 
 same answer. Besides, if the witness did recollect what he had 
 written, he would be entitled to state the whole, or at least so 
 much as was material ; and if he denied having written to the 
 efl'ect stated, he could not be contradicted without producing the 
 document and reading the whole. 
 
 With respect to any supposed hardship in the case of a witness 
 who, having forgot what he had written, honestly gives an erro- 
 neous statement from recollection, it is not to be presumed that 
 in case of contradiction, by the subsequent production of the 
 document, he would incur any more serious imputation than 
 the one established by the proof that his memory was not perfect ; 
 the hardship, on the other hand, which might accrue to a party 
 whose property, or even life, depended on the jury's forming a 
 true estimate of the witness's power of recollection, might be 
 much more serious. 
 
 A party having produced a document in cross-examination, is 
 not bound to read it before he comes to his own case, although he 
 has shown it to the witness and cross-examined him upon it ( /) ; 
 and if a party, on cross-examination, obtains proof of a document, 
 the adversary, it seems, has no right to see the paper for the pur- 
 pose of cross-examining the witness as to the paper being in the 
 handwriting of the party whose handwriting is sworn to (g). 
 
 And it has been held, that where a witness has been examined 
 as to entries in a book, the adversary cannot cross-examine as 
 to other entries which have not been used, without putting them 
 in as evidence (/<)• 
 
 If, upon a writing being put into the witness's hand for the 
 purpose of cross-examination, the cross-examination wholly fails, 
 the adverse counsel is not entitled to look at the paper {i). 
 
 If a witness be called merely to produce a document which can 
 be proved by another, and be not sworn, he is not subject to cross- 
 examination (^). 
 
 {f) Holland v. Beeves, 7 C k P. 36, seen) be used for this purpose without 
 
 cor. Alderson, B. making it evidence. 
 
 (g) By Bosanquet, J., in EusseU v. (j) R. v. Buncombe, 8 C. & P. 369. 
 
 -Rirfe?-, G C.& P. 410. {k) Simpson y. SmitJi. Not. Summ. 
 
 (h) By Gurney, B., Gregory v. Taver- Ass. 182-2, cor. Holroyd, J., Phill. L. E. 
 
 non, 6 C. & P. 680. But semhle, he 260, aud per Bayley, J., Lancaster Spring 
 
 might use them to refresh the memory of Ass. 1824. 
 the witness ; a writing may (as has been
 
 208 WITNESS — re-examination: 
 
 Rp-oxami- A witness may be re-examined by the party who called him, 
 witness'^ upon all the topics on which he has been cross-examined : this 
 gives an opportunity of explaining any new facts which have come 
 out upon cross-examination ; but as the object of re-examining a 
 witness is to explain the facts stated by the witness upon cross- 
 examination, the re-examination is of course to be confined to the 
 subject-matter of cross-examination. 
 
 Where the witness has been cross-examined as to declarations 
 made by him, a counsel has a right, on re-examination, to ask all 
 questions which may be proper to draw forth an explanation of 
 the sense and meaning of the expressions used by the witness on 
 cross-examination, if they be in themselves doubtful, and also of 
 the motive by which the witness was induced to use those expres- 
 sions ; but he has no right to go farther, and to introduce matter 
 new in itself, and not suited to the purpose of explaining either 
 the expressions or the motives of the witness (Z). 
 
 It was formerly held that where a witness has been cross- 
 examined as to a conversation with the adverse party in the suit, 
 whether criminal or civil, the counsel for that party has a right to 
 lay before the Court the whole which was said by his client in the 
 same conversation ; not only so much as may explain or qualify 
 the matter introduced by the previous examination, but even mat- 
 ter not properly connected with the part introduced upon the 
 previous examination, provided only that it relate to the subject- 
 matter of the suit; because it would not be just to take part of a 
 conversation as evidence against a party, without giving him at the 
 same time the benefit of the entire residue of what he said on the 
 same occasion (m). 
 
 But in the Queen's Case eleven of the Judges were of opinion 
 that the conversation of a witness with a third person stood upon a 
 " different footing, and was distinguishable from the case of a con- 
 versation with a party, on the following grounds, viz. " The con- 
 versation of a witness with a third person is not in itself evidence 
 in the suit against any party in the suit. It becomes evidence 
 only as it may aftect the character and credit of the witness, which 
 may be affected by his antecedent declarations, and by the motive 
 under which he made them ; but when once all which had con- 
 stituted the motive and inducement, and all which may show the 
 meaning of the words and declarations, has been laid before the 
 Court, the Court becomes possessed of all which can aftect the 
 
 (Z) The Queen's Case, 2 B. & B. 297. (m) Ibid. 298.
 
 RE-EXAMINATION, 
 
 209 
 
 character or credit of the witness, and all beyond this is irrelevant Re-examl- 
 and incompetent (m)." nation. 
 
 But in the late case of Prince v. Samo (n) the Court of Queen's 
 Bench, after much deliberation, overruled this distinction, and laid 
 down a rule, founded in good policy, that whether the witness be 
 cross-examined as to a conversation with a party to the suit or 
 with a third person, the re-examination must, in the former case, 
 as well as the latter, be confined to matters connected with the 
 evidence given on cross-examination, as tending to show its true 
 nature and bearing. The action in that case was for a malicious 
 arrest for money alleged by the plaintiff to have been given to him. 
 The plaintiff called as a witness his attorney, who having been pre- 
 sent when the plaintiff was examined as a witness on an indictment 
 for perjury, stated, on cross-examination, that the plaintiff on the 
 
 (m) Upon these grounds, eight of the 
 Judges (Best, J., disscntientc) were of opi- 
 nion, that if on the trial of an action or 
 indictment, a witness examined on hehalf 
 of the plaintiff or prosecutor, upon cross- 
 examination by the defendant's counsel, 
 states that at a time specified he told A. 
 that he was one of the witnesses to be ex- 
 amined against the defendant, and being 
 re-examined by the plaintiff's or prosecu- 
 tor's counsel, states what induced him to 
 mention this to A., the plaintiff or prose- 
 cutor's counsel cannot further re-examine 
 the witness as to such conversation, even 
 so far only as it relates to his being one of 
 the witnesses, 
 
 Abbott, C. J., in delivering the opinion 
 of the Judges, observed, " The question as 
 proposed by the House contains these 
 words, ' and being re-examined, had stated 
 what induced him to mention to A . what 
 he had so told him;' by which I under- 
 stand that the witness had fully explained 
 his lohole motive and inducement to inform 
 A. that he was to be one of the witnesses; 
 and so understanding the matter, and there 
 being no ambiguity in the loords, ' I am 
 to be one of the witnesses,' I think there 
 is no distinction between the previous and 
 subsequent parts of the conversation, and 
 I think myself bound to answer your Lord- 
 ships' question in the negative." 
 
 His Lordship then gave the reasons of 
 the eight Judges for distinguishing between 
 a conversation between the witness and a 
 VOL. I. 
 
 party, and one between the witness and a 
 third person, to the effect above stated. 
 
 Best, J. was of opinion that the rule 
 which was acknowledged to have been set- 
 tled as to conversations of a party to the 
 suit, applied with equal reason and force 
 to the statements and conversations of a 
 witness ; and held, that if one part of the 
 conversation of a witness has been drawn 
 from him by cross-examination with a view 
 of disparaging his testimony, the whole of 
 what passed in that cross-examination 
 ought to be admitted on re-examination. 
 That this is justly due to the character of 
 the witness, who is entitled, in vindication 
 of his character, to have the entire con- 
 versation fairly and fully detailed in evi- 
 dence ; it was due to him also as a secu- 
 rity against proceedings which might other- 
 wise be instituted against him on state- 
 ments partially extracted on cross-exami- 
 nation. 
 
 The Lord Chancellor and Lord Redes- 
 dale also differed from the majority of the 
 Judges. As the learned Judges were 
 pleased to guard their opinion by stating 
 that they understood the question to as- 
 sume that the witness had fully explained 
 his whole motive and inducement to inform 
 A., the decision in the particular instance 
 thus presented to them does not go the 
 length of excluding the cotemporary state- 
 ment made by the witness where it would 
 be the best exposition of his real motive*. 
 
 (n) 3 Nev. & P. 139.
 
 210 WITNESS. 
 
 Re-exami« trial of tlie iiidictmfint admitted that he had repeatedly been insolvent 
 nation. ^^^ remanded by the Court. It was proposed, on re-examination, 
 to inquire whether the plaintiff had not also upon the same occa- 
 sion stated the circumstances out of which the arrest had arisen, 
 and what that statement was. Lord Denman, on the objection 
 being taken, rejected the evidence on the ground, " that the witness 
 might be asked as to every thing said by the plaintiff on the trial 
 of the indictment that could in any way qualify or explain the 
 statement to which he had been cross-examined, but that he had 
 no right to add any independent history of transactions wholly un- 
 connected with it." On a motion for a new trial the Court held^ 
 that the same rule which applied to statements made by a witness 
 applied also to those made by a party ; and, after observing that 
 the opinion of Lord Tenterden was extra-judicial, and not in terms 
 adopted by the Lord Eldon and the Judges, who concurred in the 
 answer to the proposed question, and was expressly denied by Lords 
 Redesdale and Wynford, added : " In our opinion the reason of 
 the thing would rather go to exclude the statements of a party 
 making declarations which cannot be disinterested. Nothing 
 would be more easy than to find or imagine examples of the ex- 
 treme injustice that might result from allowing such statements to 
 be received ; but none can be stronger than the actual case. Be- 
 cause the plaintiff was shown to have said that he was insolvent, 
 he would have been allowed, without any reference to his own 
 insolvency, to prove by his discourse at the same period every aver- 
 ment in his declaration, with every circumstance likely to excite 
 prejudice and odium against the defendant ; and if this were evi- 
 dence, the jury would be bound to consider and give full effect to 
 it, and thus award large damages for an injury of which no particle 
 of proof could be given excepting the plaintiff's own assertion." 
 
 A contrary rule would be supported by a specious, but in this 
 and in several other instances a fallacious principle ; for whilst it 
 may, at first view, seem to be conducive to enlarged views of 
 policy and convenience to admit the whole of a particular conver- 
 sation where part of it is given in evidence, and so to afford to the 
 jury the most ample means for attaining to the truth, yet here the 
 reverse is true ; for were this to be allowed, parties apprehensive of 
 the unjust consequences so forcibly represented in the foregoing 
 judgment, would frequently be deterred from giving any such admis- 
 sion or statement by the adversary in evidence ; and thus the means 
 of information afforded to the jury would be narrowed rather than 
 enlarged by the more extensive rule. 
 
 Where a witness, on cross-examination, varies from the state-
 
 CREDIT, IIOVV IMPEACHED. 211 
 
 ment made on his examination in chief, tlie party caUing him (it iie-exami- 
 has been held) may, on re-examination, inquire into facts to show "^t'*^"- 
 that the witness had been induced to betray tliat party (m). 
 
 It has already been seen that a witness cannot obtrude evidence 
 on cross-examination which he could not have given in chief; but 
 if counsel voluntarily cross-examine as to inadmissible matter, the 
 adverse counsel is entitled to examine upon it (re). 
 
 It seems that the Court will, after a case is closed, allow a wit- Rpcalling 
 ness to be called back, or receive fresh evidence, to get rid of ob- ^^^*^"'^''^- 
 jections which are beside the justice of the case, and little more 
 than mere form, but not to get rid of any difficulty on the merits. 
 Where the question was as to the petitioning creditor's debt on a 
 bill of which the bankrupt was the drawer, and no proof of any 
 default by the acceptor had been shown, the Court allowed a wit- 
 ness to be called, after the case had been closed, to prove the dis- 
 honour and notice to the bankrupt (o). 
 
 The credit of a witness may be impeached either by cross-exa- Credit of 
 raination, subject to the rules already mentioned, or by general ^Q^^m- 
 evidence affecting his credit, or by evidence that he has before done peached. 
 or said that which is inconsistent with his evidence on the trial ; or, 
 lastly, by contrary evidence as to the facts themselves. 
 
 It is perfectly well settled that the credit of a witness can be im- 
 peached by general evidence only, and not by evidence as to particu- 
 lar facts not relevant to the issue (j)) ; for this would cause the in- 
 quiry, which ought to be simple and confined to the matters in issue, 
 to branch out into an indefinite number of issues. The characters, 
 not only of the witnesses in the principal cause, but of every one 
 of the impeaching collateral witnesses, might be impeached by 
 separate charges, and loaded with such an accumulated burthen of 
 collateral proof, the administration of j ustice would become im- 
 practicable. Besides this, no man could come prepared to defend 
 himself against charges which might thus be brought against him, 
 without previous notice ; and though every man may be supposed 
 to be capable of defending his general character, he cannot be 
 prepared to defend himself against particular charges of which he 
 has had no previous notice (g). Questions put to a witness him- 
 
 (w) Dimn V. Aslett, 2 Mood & R. C. (q) R.v. Watso7i, 2 Starkie's Cas. 151. 
 
 122. Gurney's Rep. of same case, vol. ii. p. 288. 
 
 (n) Blewett r. Tregonning, 3 Ad. & iaye?-'*- Cajje, G State Tr. 298. 310. Rook- 
 
 Ell. 584 ; 5 Nev, & M. 308. ivood's Case, 4 State Tr. 693. B. N. P . 290. 
 
 (o) Giles V. Poicell, 1 Carr. & P. 259. See also Sharp v. Scoging, Holt's C.541. 
 
 S. P. Walls V. Atcheson, ibid. 209. Be la Motte's Case, Howell's State Tr. 811. 
 
 (ji) See Vol. II. tit. Character. Mawsony. Harsinh, 4 Esp. C. 102. 
 
 P 2
 
 212 
 
 WITNESS. 
 
 Character 
 of witness, 
 how im- 
 peached. 
 
 By proof of 
 declara- 
 tions, &c. 
 by the wit- 
 ness. 
 
 self upon cross-examination are not, it may be observed, open to 
 this objection, since liis answer is conclusive as to all collateral 
 matters. The proper question to be put to a witness for the pur- 
 pose of impeaching the general character of another witness is, 
 whether he could believe him upon his oath ? When general evi- 
 dence of this nature has been given to impeach the credit of a 
 witness, the opposite party may cross-examine as to the grounds 
 upon which that belief is ibunded (r). 
 
 In the next place, the witness may be contradicted by others 
 who represent the fact differently, or by proof that he has said or 
 written that which is inconsistent with his present testimony ; for 
 this purpose a letter may be read in which he has given a different 
 account of the matter (s). 
 
 It is a general rule, that whenever the credit of a witness is to be 
 impeached by proof of anything that he has said or declared, or 
 done in relation to the cause, he is first to be asked, upon cross- 
 examination, whether he has said or declared (t), or done that which 
 
 (?) Where a party states that he would 
 not believe a witness on his oath, it is no 
 objection that he has never heard him ex- 
 amined on his oath, if he liave, from pre- 
 vious knowledge of his character, reason- 
 able ground of belief that his word cannot 
 be trusted on oath. R. v. Blpsham, 4 
 Carr. & P. C. 392. 
 
 (s) De Sailly v. Morgan, 2 Esp. C 691. 
 The action was by a schoolmaster, for the 
 board and education of the defendant's 
 sons : the defence was, his neglect of the 
 scholars, &c. A witness for the plaintiff, 
 the usher of the school, swore that the 
 treatment of the scholars was proper : and 
 to contradict him, a letter written by him 
 to a fonncr scholar, containing immoral 
 matter, was read in evidence. — So a pro- 
 secutor, in a criminal case, may contradict 
 a witness by means of his deposition before 
 the magistrate. Oldroyd's Case, Vol. II. 
 tit. Depositions. — In a civil action, in 
 order to contradict a witness who had 
 sworn differently in an answer to a bill 
 in equity ; held, tliat the identity of the 
 person and answer being ascertained, an 
 examined copy of the answer was suffi- 
 cient, although it miglit go to affect the 
 character of the witness. Ewer v. Avi- 
 brose, 6 D. & R. 127; 4 R & C. 25. 
 So is an examined office-copy of his de- 
 position. Highjield v. Peake, 1 Mood. 
 
 Si. Mai. C. 109. But a conviction before 
 a magistrate, purporting to set out the 
 deposition of a witness, is not sufficient 
 evidence of his having made that deposi- 
 tion for the purpose of contradicting him. 
 R. V. Howe, 1 Camp. 461 ; 6 Esp. C. 125. 
 The courts of Scotland exclude such evi- 
 dence, upon the principle tliat the witness 
 ought to deliver his testimony unfettered 
 by previous declarations. Hume's Comm. 
 on Crim. Law of Scotland, vol. ii. p. 367. 
 Burnet's Treatise, p. 467. The policy of 
 tliis rule is, to say the least, questionable ; 
 if it relieve a well-disposed witness from 
 embarrassment in stating the truth, it also 
 relieves a fraudulent one from the difficulty 
 of explaining a statement made at a time 
 when he was under no temptation to de- 
 ceive, and thereby exclude a considerable 
 test of credit. An honest witness will 
 disclose the truth in spite of any prior 
 declaration; a dishonest one would cer- 
 tainly be encouraged by the exclusion. It 
 seems to be the wiser policy not to yield a 
 test of truth, at a certain sacrifice, for the 
 sake of an advantage so doubtful. 
 
 (0 The Queen's Case, (2 B. & B. 3t)0) 
 on a question proposed to the Judges. — The 
 following questions were proposed by the 
 House of Lords to the Judges. — " If a wit- 
 ness in support of a prosecution has been 
 examined in chief, and has not been asked in
 
 CREDIT, HOW IMPEACHED. 213 
 
 is intended to be proved. For in every such case, there are two By proof 
 questions, first, whether the witness ever did the act or used the tion'^Acc!^ " 
 expressions alleged; secondly, whether his having done so, im- 
 peaches his credit, or is capable of explanation. It would be mani- 
 festly unjust to receive the testimony of the adversary's witness 
 to prove the fact, without also admitting the party's witness to 
 deny it; and, assuming the act to have been done, or expression 
 used, it would be also unjust to deny to the party, or the witness 
 who admits the act or expression, the best, and it may be the only 
 means of explanation. If the witness admit the words, declaration, 
 or act, proof on the other side becomes unnecessary, and an oppor- 
 tunity is afforded to the witness of giving such reasons, explana- 
 tions, or exculpations of his conduct, if any there be, as the circum- 
 stances may furnish ; and thus the whole matter is brought before 
 the Court at once, which is the most convenient course (m). 
 
 It is not enough to ask a witness (in order to found a contra- inquiry 
 
 diction) the oeneral question whether he has ever said so and so, previous to 
 
 ° ' • 1 J • contradic- 
 
 but he must be asked as to the time, place, and person mvolved m tiou. 
 
 the supposed contradiction (v). 
 
 If the witness deny the words, declaration, or act imputed to 
 him, then, if it be not a matter collateral to the cause, witnesses 
 may be called to contradict him {x). 
 
 If the witness neither directly admit nor deny the act or de- 
 claration, as where he merely says that he does not recollect, or, 
 as it seems, gives any other indirect answer not amounting to an 
 admission, it is competent to the adversary to prove the affirmative, 
 for otherwise the witness might in every such case exclude evidence 
 of what he had done or said, by answering that he did not remem- 
 ber (y). 
 
 cross-examination as to any declaration person to give false testimony in such 
 
 made by him, or as to acts done by him, to cause, wliether the defendant's counsel may 
 
 procure persons corruptly to give evidence not be permitted to give evidence of such 
 
 in support of the prosecution, would it be corrupt act of the witness, without calling 
 
 competent to the party accused to examine liim back?" The Judges held, that the 
 
 witnesses in his defence, for the purpose of proposed proof could not in either case be 
 
 proving such declarations or acts, without adduced without a previous cross-exami- 
 
 first calling back the witness to be ex- nation of the witness as to the subject- 
 
 aniined or cross-examined as to the fact matter. 
 
 whether he ever made such declarations or (m) By the Judges, in the Queen's Case, 
 
 did such acts?" Again, "If a witness, 2 B. & B. 313. 
 
 called on the part ofaplaintiffor prosecutor, (r) Angus \. Sniithjl Mood. Sc Malk. 
 
 gives evidence against the defendant, and C. 474- 
 
 if, after cross-examination, they discover (x) 2 B. & B. 313, and supra. 
 
 that the witness so examined has cor- {y) Crowley v. Pa<jc, 7 C. & P. 701, 
 
 rupted or enduuvoured to corrupt another cor. Parke, B. who observed, " If tlic 
 
 P 3
 
 214 WITNESS. 
 
 Evidence in The witness having been asked, on cross-examination, if he has 
 
 tion^^*^'^' ^°* "^^^^ particular expressions, in order to hiy a foundation for 
 
 contradicting him, upon his denial, the witness called to prove that 
 
 he did use them, may be asked as to the particular words read 
 
 from the brief (2^), 
 
 If the witness decline to answer on account of the tendency of 
 the question to criminate him, the adverse party is still at liberty 
 to adduce the same proof (a). And the possibility that the witness 
 may on that ground decline to answer affords no sufficient reason 
 for not giving him the opportunity of answering with a view to 
 explain the circumstances, and to exculpate himself (6). And it is 
 of great importance that this opportunity should be thus afforded, 
 not only for the reasons already suggested, but because such ex- 
 planation, if not given in the first instance, may be rendered im- 
 possible ; for a witness who has been examined, and has no reason 
 to suppose that his further attendance is requisite, often departs 
 the Court, and may not be found or brought back until the trial be 
 at an end (c). 
 
 There is no distinction for these purposes between declarations 
 made by the witness, and acts done by him which relate to the 
 cause {d) ; in the one case as well as the other, an opportunity 
 must be afforded the witness of explaining his conduct before evi- 
 dence is adduced to impeach his credit by proof of the fact. 
 
 If the adverse counsel has omitted to lay such a foundation by 
 previously interrogating the witness on the subject of those decla- 
 rations, the Court will, of its own authority, call back the witness, 
 in order that the requisite previous questions may be put (e). 
 
 And even although the fact to be adduced in order to impeach 
 the witness's testimony be not discovered until after the conclusion 
 of the cross-examination, the rule still holds ; and evidence cannot 
 be given for the purpose of thus impeaching his testimony without 
 previous examination of the witness, even although the witness 
 
 witnes9, on cross-examination, admits the is stated to liave ruled the contrary in an 
 conversation imputed to him, there is no earlier case. Pain v. Beeston, 1 Mood- 
 necessity for giving further evidence of it; & R. C. 20. 
 
 but if he says he does not recollect, that is (z) Edmonds v. Walter, 3 Starkie's 
 
 not an admission, and you may give evi- C. 8. 
 
 dence on the other side to prove that tlie (a) The Queen's Case, 2 B. & B. 314. 
 
 ■witness did say what is imputed, always {h) Ibid. 
 
 supposing the statement to be relevant to (c) By the Judges, in the Queen's Case, 
 
 the matter at issue. This has always been 2 B. & B. 314. 
 my practice. If the rule were not so, you (rf) The Queen's Case, ibid, 
 
 could never contradict a witness who said (e) By the Judges, in the Queen's Case, 
 
 he could not remember." Tiudal, L. C. J. 2 B. & B. 314.
 
 CREDIT, HOW IMPEACHED. 215 
 
 should have departed the court, and cannot be brought back after Kvi'lcnce in 
 tlie discovery has been made (/). cnntradic- 
 
 In order to impeach the credit of a witness for a defendant upon 
 an information for assaulting revenue officers, by provin'»- his pre- 
 vious testimony on an information before two magistrates against 
 the same defendant for having smuggled goods in his possession, 
 proof of the conviction containing the testimony of the witness is 
 insufficient ; it is necessary to prove it by the testimony of those 
 who heard what was said {g). The record of conviction is con- 
 clusive for the purpose for which it is intended, that is, to prove 
 the condemnation ; but it is no evidence to prove the testimony of 
 the witnesses. 
 
 After proof in a criminal proceeding that the prosecutor has 
 employed A. B. an agent, to procure and examine witnesses in 
 support of the charge, it is not competent to the defendant to 
 examine a witness to prove that A. B. who is not examined as a 
 witness, had offered a bribe to give evidence upon the trial, or to 
 bring papers with him belonging to the defendant ; for the mere 
 employment of an agent for the purpose of procuring and examin- 
 ing witnesses is in itself an innocent, and in many cases a neces- 
 sary act, and it is not to be presumed that the prosecutor directed 
 the agent to use any unlawful means for the purpose ; neither can 
 any legitimate inference or conclusion be drawn from this fact 
 against the credit and veracity of the witnesses who are examined ; 
 for it is not to be presumed, in the absence of all proof, that they 
 were either parties to the illegal act, or privy to it, or to any act of 
 the like nature {h). 
 
 As upon an indictment for a conspiracy it is competent to the 
 prosecutor to prove, in the first instance, the existence of a conspi- 
 racy, by general evidence, without proving participation by the de- 
 fendant (^), so it is competent to a defendant on a criminal charge, 
 first to prove a conspiracy to suborn witnesses for the destruction 
 of his defence, and afterwards to affect the prosecutor by proof of 
 his participation (/i), provided proof of such a conspiracy would 
 afford a legitimate ground of defence {I). 
 
 A party cannot discredit the testimony of his own witness, by A party 
 general evidence of incompetency; for it would be unfair that he todLcraHt 
 
 (/) The Queen's Case, 2 B. & B. 212. (k) The Quee7i's Case, 2 B. & B. 303. 
 
 his own 
 witness. 
 
 ((/) jR. V. Howe, 1 Camp. 491, cor. Ld. 
 
 309. 
 
 Ellenborough. (I) 2 B. & B. 311. Qucere in what 
 
 (h) By the Judges, in the Queen's Case, cases proof of a crime committed by a pro- 
 
 2 B. & B. 302. secutor in so conspiring can afford any legal 
 
 (0 \o\. II. ; 2 B. & B. 303. defence to a defendant. 
 
 P 4
 
 216 
 
 WITNESS. 
 
 A party 
 when allow- 
 ed to con- 
 tradict his 
 own wit- 
 ness. 
 
 should have the benefit of the testimony if favourable, and be able 
 to reject it if the contrary (?w). Where, however, a party is under 
 the necessity of calling a witness for the purpose of satisfying the 
 formal proof which the law requires, he is not precluded from calling 
 other witnesses who give contradictory testimony (n). And even 
 where a witness by surprise gives evidence against the party who 
 called him, that party will not be precluded from proving his case 
 by other witnesses ; for it would be contrary to justice that the 
 treachery of a witness should exclude a party from establishing the 
 truth by the aid of other testimony. And their testimony, which 
 would have been admissible had they been called first, cannot in 
 principle be excluded by the circumstance of being called in a 
 different order. Accordingly, where a plaintiff had called the 
 servant of the defendant to prove a warranty of a horse, upon which 
 the action was founded, and the witness denied that he warranted 
 the horse, the plaintiff was allowed to prove the fact by means of 
 other witnesses (o). 
 
 A witness called by the plaintiff in an action on a policy of in- 
 surance against fire, to prove the sale of goods to the plaintiff, 
 denied the sending of any goods to the plaintiff, and swore, on his 
 examination in chief, that an invoice of the goods in his hand- 
 writing was made out by him after the fire, and that a letter, in his 
 handwriting, was in fact written in London, at the plaintiff's house, 
 and by his desire, and that the plaintiff's son and shopman had per- 
 suaded him to say that he had sent the goods. Lord Tenterden 
 refused to allow the son and shopman to be called again to nega- 
 tive this statement, but the Court of K. B. granted a new trial, for 
 the evidence was offered to prove a material fact relevant to the 
 issue, and it was held that, by such evidence, a party might con- 
 tradict his own witness (p). 
 
 Where a party, being surprised by a statement of his own wit- 
 ness, calls other witnesses to contradict him as to a particular fact, 
 the whole of the testimony of the contradicted witness is not 
 therefore to be repudiated (q). Doubt has been entertained on the 
 
 (m) Per Buller, J., B. N. P. 297. See 
 also Hastings's Trial, 2 Hawk. c. 46, s. 
 208, Leach's edition. Nor can he object 
 to the admissibility of evidence, after hav- 
 ing allowed it to be given. Webb v. Smith, 
 1 Ry. & M. 206. 
 
 (n) As in the remarkable case of Mr, 
 JoUiflfe's will. See tit. Will ; and see 
 Alexander v. Gibson, 2 Camp. 656. 
 
 (o) Alexanders. Gibson, 2 Camp.656; 
 
 and see Richardson v. Allan, 2 Starkie's 
 C. 556. Bwer v. Ambrose, 3 B. & C. 746. 
 Friedlander v. Royal Exchange Assur- 
 ance Company, 4 B. & Ad. 193. Wright 
 V. Becliett, 1 Mood. & R. C. 429. 
 
 (j)) Friedlander v. The London Assur- 
 ance Company, 4 B. & Ad. 193. 
 
 (^q) Bradley v. Ricardo, 8 Bing. 57. 
 The whole is, it seems, open to the consi- 
 deration of the jury.
 
 CREDIT, HOW IMPEACHED. 217 
 
 question whctlier it be competent to a party to impeach the testi- a party 
 mony of his own witness as to a particular fact, by proof that on a ^^I't/nHscrl- 
 former occasion he gave a different account, and so to contradict dit his own 
 him by his own statement. The resolution of this doubt depends, ^^'^'"^'*''' 
 as it seems, on the considerations whether, in the abstract, such 
 evidence is essential to justice, and if so, then whether the party is 
 to be excluded from such evidence, either by reason of any objec- 
 tion in the nature of an estoppel, or of any collateral inconvenience 
 which might result. As a general proposition, it is essential to 
 justice that in a case where the testimony of two witnesses upon a 
 question of fact is contradictory, every aid should be afforded to 
 enable the jury to decide which of them is better entitled to credit. 
 And there can be no doubt that, in such a case, the knowledge 
 that one of those witnesses on a former occasion gave an account 
 of the matter inconsistent with his present testimony is of im- 
 portance in order to enable them to form a correct conclusion. It 
 is admitted on all hands that a party may, by such means, impeach 
 the credit of his adversary's witness ; and it is manifest that a 
 third party, vested with the discretion of calling what witnesses he 
 thought fit for the ends of justice, would, in the exercise of that 
 discretion, submit the contradiction to the jury. It has indeed 
 been decided, in a criminal case, that it is competent to a Judge to 
 do this. Upon the trial of an indictment for murder (r), the Judge, 
 in his discretion, thought fit to call as a witness the mother of the 
 prisoner, whose name was indorsed on the indictment, but who had 
 not been called by the counsel for the prosecution. Her evidence 
 tended to acquit the prisoner, and the Judge, with a view to im- 
 peach her credit, referred to her deposition ; and all the Judges 
 were of opinion that it was competent to the Judge to do so; and 
 it is material to observe, that Lord Ellenborough and Mansfield, 
 L. C. J. intimated that the prosecutor had the same right. 
 
 If, as an abstract position, it be essential to the end of truth that 
 such evidence should be submitted to a jury, it remains to con- 
 sider, in the first place, whether the party having called the witness 
 is, as it were, to be estopped from afterwards so impeaching his 
 credit. It is difficult to come to this conclusion. A party who is 
 prepared with general evidence to show that a witness whom he 
 calls is wholly incompetent, acts unfairly and inconsistently ; for 
 knowing his witness to be undeserving of credit, he offers him to 
 the jury as the witness of truth, and attempts to take an unfair 
 advantage, by concealing or disclosing the real character of his 
 
 (r) R. V. Oldroyd, Russ. & Ry. C.C.L. 88.
 
 218 -WITNESS. 
 
 A party witness, as best serves his purpose. But a party may contradict 
 cdtodtscre- ^is own witness in the mode in question, without incurring any 
 dit his own guch blame ; he may have been purposely deceived by the witness, 
 ^^ "'^''®' or, though not under a legal necessity to call him, may be con- 
 strained by paucity of evidence under the particular circumstances ; 
 as where he cannot easily prove some other fact except by the tes- 
 timony of that witness, or where the not calling him might afford 
 a ground for strong observation against him. It may frequently 
 happen in such cases that a party may with great propriety call 
 a witness as to a particular fact, and yet impeach his testimony 
 upon another material fact, of which the witness, without intending 
 to deceive, may have obtained but an imperfect knowledge, or in 
 respect of which his memory may have erred. 
 
 It may happen that, although under no legal necessity to call a 
 particular witness, he may have none other than an adverse witness 
 to prove a material fact. In such a case, it would frequently be 
 attended with great hardship to preclude the party from using such 
 means as he possessed, to show that the witness admitted only 
 such facts as he could not with safety deny, but misrepresented 
 some other material fact in which he could not be contradicted, 
 and where the testimony, though false, would not expose him to a 
 prosecution for perjury. It might happen, for instance, that in an 
 action by two partners, for goods sold and delivered, an adverse 
 witness might be the only one who could be called by the plaintiffs 
 to prove the sale and delivery ; a fraudulent witness as to this might 
 be obliged to state the truth, for fear of a prosecution for perjury, 
 but still he might with safety defeat the action by proof of payment 
 to himself, as the agent of the plaintiffs, or by other evidence which 
 would not expose him to a prosecution for perjury. In such, am 
 many other cases which might be put, it would be a harsh rule to 
 exclude the party from defeating the attempt by evidence of the 
 witness's own statements on the subject. 
 
 In the case of an adverse witness, it may frequently happen that 
 what he states in favour of the party who calls him, may be regarded 
 as truth unwillingly wrung from a reluctant witness, whilst his 
 counter-statements are open to great suspicion ; in all such cases, 
 former declarations by the witness are obviously of importance, with 
 a view to ascertain what part of his statement ought to be dis- 
 credited, whilst credit is given to the rest. The ordinary rules as 
 to the examination of an adverse witness, supply an analogy in 
 favour of the affirmation of the present question, in all cases at least 
 where the witness is apparently an adverse one. Considering the 
 admission of such evidence, in its tendency to occasion collateral
 
 CREDIT, HOW IMPEACHED 219 
 
 inconvenience, the argument that a party ought not to be allowed a party 
 to discredit his own witness, by general evidence, seems to have ^^'to,iiacrc- 
 little weight; the contradiction proposed being plainly distinguish- ditlnsown 
 able, as already observed, from any general impeachment of the 
 witness's character, by evidence showing him to be altogether 
 unworthy of credit. It would, as was observed in the case of 
 Friedlander v. The Royal Assurance Company (s), be against all 
 justice that the whole of a man's testimony should be struck out 
 because a witness sets him right as to a single fact. A party may 
 with perfect propriety and consistency insist on the general com- 
 petency of his witness, although he alleges that his testimony as to 
 one particular fact is erroneous. It maybe urged that tlie practice 
 may open a door to collusion, and that a jury may mistake such 
 a statement for substantive evidence. The suspicion of collusion in 
 such a case is at most but weak, when it is considered how remote 
 would be the expectation of benefit to be derived from it. A party 
 might, no doubt, by such means, fraudulently introduce into the 
 evidence a former statement by his own witness in his favour ; but 
 it could not be of any use, unless the jury, against the direction of 
 the Judge, should regard it as substantive evidence. The latter 
 objection would operate with equal force to exclude such evidence, 
 when offered, to impeach the adversary's witness. 
 
 It has been truly observed, that to allow the evidence of a party's 
 own witness to be impeached by other evidence to the contrary, is 
 not founded on any principle generally warranting such an im- 
 peachment of credit by the party who calls the witness, for the 
 witnesses are not called directly to discredit the first witness, the 
 impeachment of his credit is incidental and consequential only. 
 But although the practice of contradicting by other evidence may 
 supply no aflirmative argument for contradiction by the witness's 
 own statement, it is observable that such practice shows that the 
 discrediting of the witness is not a consequence which ought to 
 exclude such evidence as the justice of the case may otherwise 
 require. The admission of this kind of evidence seems to stand 
 upon a substantive reasonable foundation. For such a course is in 
 the abstract essential to the forming a correct estimate of the 
 respective degrees of credit due to conflicting witnesses ; and it is 
 at most but doubtful whether the exclusion of such evidence is 
 warranted upon any collateral grounds of convenience. In the 
 case of Wright v. Beckett {t), Lord Denman having received 
 
 (s) 4 B. & Ad. 193. By Parke, Taun- of JEwer v. Ambrose, 3 B. & C. 746, cited 
 
 ton, and Patterson, Js. below, Mr. J. Bayley seemed to be of opi- 
 
 {t) 1 Mood. & R. C. 427. In the case nion (although it was unnecessary to decide
 
 220 WITNESS. 
 
 A party such evidence, the case was argued before Lord Denman and 
 edrdi'ciT- ^i'- l^aron Bolland, as Judges of the Court of Common Pleas at 
 dit his own Lancaster ; Lord Denman cited the case of Bernasconi v. Fair- 
 w^*«ess. irother, in which he had received similar evidence, and in his 
 judgment on the principal case, he adhered to the same opinion. 
 Mr. Baron Bolland was of opinion that the evidence was inadmis- 
 sible, and Lord Denman stated that others of great weight and 
 authority agreed with Mr. Baron Bolland. 
 
 It is observable, that the case of a witness thus giving evidence 
 of a fact tending to negative the claim made by his party, is dis- 
 tinguishable from that of a witness who denies all knowledge of 
 the fact, or simply fails in proving the fact which he is called to 
 prove. Li the former, it may be essential to justice that the jury, 
 who might otherwise attribute too much credit to the testimony of 
 the witness, should be supplied with the means to enable them to 
 judge of the degree of credit which they ought to give; but in the 
 latter, the witness proving nothing, his credit is immaterial, and 
 what he stated upon any former occasion cannot be received as 
 substantive evidence (v). Upon the trial of Warren Hastings, the 
 Judges delivered the following answer, by the Lord Chief Baron, 
 to a question proposed by the House of Lords : " That where 
 a witness, produced and examined in a criminal proceeding by the 
 prosecutor, disclaimed all knowledge of any matter so interrogated, 
 it is not competent for such prosecutor to pursue such examination 
 by proposing a question containing the particulars of an answer 
 supposed to have been made by such witness before a Conmiittee 
 of the House of Commons, or in any other place, and by demanding 
 of him whether the particulars so suggested were not the answers he 
 had so made " {x). In the case of Ewer v, Ambrose (y), a witness, 
 called by the defendant to prove a partnership between himself and 
 the defendant, having denied the fact, an answer of the witness in 
 Chancery was offered in evidence by the defendant's counsel, and 
 admitted. It was left to the jury to find for the plaintiff or 
 defendant, according to the credit given to the witness's answer in 
 Chancery or in Court. After a verdict for the defendant, the Court 
 granted a new trial, on the ground that the answer was not sub- 
 stantive evidence of the fact. 
 
 the point) that the answer in Chancery the Commons whether he had not been 
 
 was inadmissible altogether. Holroyd examined before a Committee of the House 
 
 and Littledale, Justices, expressed no of Commons, and whether he had not 
 
 opinion. before that Committee given a particular 
 
 {v) Eiccr V. Ambrose, 3 B. & C. 746. answer to a particular question. 
 
 (x) Journ. D. P., Ap. 10, 1788. Tlie (j/) 3 13. & C. 746. 
 witness had been asked by the managers for
 
 CREDIT, HOW CONFIRMED. 221 
 
 A party cannot bring evidence to confirm the character of a wit- Evidence 
 ness before the credit of that witness has been impeached, either ^^'t^ono'f 
 upon cross-examination, or by the testimony of other witnesses (z) ; witness. 
 but if the character of a witness has been impeached, although 
 upon cross-examination only, evidence on the other side may be 
 given to support the character of the witness («) by general evidence 
 of good conduct. 
 
 Where the character of a witness is impeached by general 
 evidence, the party who calls him is at liberty to examine the 
 witnesses as to the grounds of their belief; and in all cases where 
 the credit of a witness has been attacked, whether by general 
 evidence, or by particular questions put upon cross-examination, it 
 seems that the party who ^called him is at liberty to support his 
 testimony by general evidence of good character (b). So if the 
 character of the attesting witness to a deed or will, be impeached 
 on the ground of fraud, evidence of his general good character is 
 admissible (c), whether he be living or dead. But mere contra- 
 riety between the testimonies of adverse witnesses, without any 
 direct imputation of fraud on the part of either, supplies no ground 
 for admitting general evidence as to character (rf). 
 
 Where an attested document is disputed on the ground of 
 fraud, and one of the attesting witnesses impeaches the credit 
 of the other attesting witnesses, general evidence may be given 
 of the good character of the latter, for the credit due to their 
 attestation is put in issue by the evidence on the other side (e). 
 It seems to be the better opinion that a witness cannot be con- 
 firmed by proof that he has given the same account before, even 
 although it has been proved that he has given a different account, 
 in order to impeach his veracity ; for his mere declaration of the 
 fact is not evidence. His having given a contrary account, 
 although not upon oath, necessarily impeaches either his veracity 
 or his memory ; but his having asserted the same thing does not in 
 
 (z) Bishop of Durham t. Beaumont, (c) Doe d. Walker v. Stephenson, 3 
 
 1 Camp. 207. There the witnesses simply Esp. C. 284; 1 Camp. C. 210 j 4 Esp. C. 
 
 contradicted each other, and no fraud was 60. Provis v. Heed, 5 Bing. 435. But 
 
 imputed to either. a mere statement by a deceased attesting 
 
 (a) R. V. Clarke, 2 Starkie's C. 241. witness is not admissible to confirm nor to 
 
 Where the prosecutrix, upon an indictment impeacli his credit, even although he ad- 
 
 for an attempt to commit a rape, having mitted that the instrument was forged, 
 
 been cross-examined as to her having been See tit. Death-bed Declaration. 
 
 sent to the house of correction on a charge Sfobart v. Dryden, 1 M, &; W. G15. 
 
 of theft, evidence of her subsequent good {d) Bishop of Durham v. Beaumont, 
 
 conduct was admitted in support of the 1 Camp. 207. 
 
 prosecution. (e) Doe v. Stephenson, 3 Esp. C. 284 ; 
 
 (6) See B. v. Clarke, 2 Starkie's C. 241. 4 Esp. C. 50 ; 1 Camp. 210.
 
 222 
 
 WITNESS. 
 
 Evidence 
 in confir- 
 mation. 
 
 general carry his credibility further than, nor so far as, his oath (/). 
 But although such evidence be not generally admissible in con- 
 firmation of a witness, there may be many cases where under 
 special circumstances it possibly might be admissible; as, for 
 instance, in contradiction of evidence tending to show that the 
 account was a fabrication of late date, and where consequently it 
 becomes material to show that the same account had been given 
 before its ultimate effect and operation, arising from a change of 
 circumstances, could have been foreseen. So, where an imme- 
 diate account is given, or complaint made, by an individual, of 
 a personal injury committed against him, the fact of making the 
 complaint immediately, and before it is likely that anything 
 should have been contrived and devised for the private advantage 
 of the party, is sometimes admissible in evidence ; as upon an 
 indictment for a rape {g), or upon an action for a trespass and 
 assault committed on the wife (Ji). 
 
 Where a register of baptism stated the child to be seven years 
 of age at the time of baptism, it was held that the entry was no 
 evidence to prove the age, on an issue to try whether the party 
 was of age when he was arrested. But Bayley, J. expressed an 
 opinion, that if it could have been shown that the entry had been 
 made upon the representation of the mother, who was called as 
 a witness for her son, in order to prove his minority, the fact 
 would have been admissible to support her testimony upon its 
 being impeached {i). 
 
 On appeal. Unless there be some legislative provision to the contrary, it is 
 no objection that a witness called to support the appellant's 
 case before a court of appeal was not examined before the 
 original court {k), even although the party who obtained the con- 
 
 (/) B. N. P. 294. Buller, J. was 
 clearly of opinion that such evidence was 
 not admissible to support an unimpeached 
 witness, and doubted whether it was evi- 
 dence in reply. In the case of the Berke- 
 ley Peerage, 5th June 1811, Lord Redes- 
 dale held that, in general, declarations 
 made by a witness at another time could 
 not be examined into for the purpose of 
 supporting his testimony; and he referred 
 to a case where Lord C. J. Eyre rejected 
 such evidence when offered for the pri- 
 soner in a case of perjury. On the other 
 hand, see Gilb. Ev. 135. Lutterel v. Ray- 
 nell, 1 Mod. 282. Friend's Case, 4. St. Tr. 
 
 613. Harrison's Case, 12 Howell's St. 
 Tr. 861. 
 
 (g) R. V. Clarke, 2 Starkie's R. 242. 
 Brazier's Case, East's P. C. 444. It sel- 
 dom, however, happens, that in such a 
 case, an attempt is not made to impeach 
 the credit of the witness. 
 
 (h) Thompson and his Wife v. Treva- 
 nion, Skinn. 402 ; 6 East, 193. 
 
 (i) Wihen v. Law, 3 Starkie's C. 63. 
 
 {k) R. v. Commissioners of Ajrpeals, 
 3 M. & S. 133. Breedon v. Gill, 1 Ld. 
 Raym. 219 ; S. C. Salk. 555; 5 Mod. 271. 
 The Stat. 48 Geo. 3, c. 74, s. 15, upon con- 
 victions relating to malt, enacts that the
 
 WRITTEN instrument: PUBLIC DOCUMENT. 223 
 
 viction is liable to double costs on a reversal of the convic- 
 tion (I). 
 
 Written Instruments are, first, of a public nature ; secondly, Proof of 
 of a private nature ; thirdly, of a mixed nature, partly public P^^'lic J"; 
 and partly private ; public documents, again, are either judicial, or, general. 
 secondly, not judicial; and with a view to their means of proof, 
 they are either, first, of record ; or, secondly, not of record. Be- 
 fore the admissibility and effect of public documents are con- 
 sidered, it will be convenient to consider generally the means by 
 which public documents are to be procured and proved. 
 
 If the question be as to the existence or contents of a record How pro- 
 in the same court, the trial is by inspection of the record itself (m). ^'^'''^'^*- 
 Where the disputed record is one of another court, the tenor may 
 be obtained by means of a certiorari and mittimus out of Chan- 
 cery {n) ; for it would be inconvenient to remove the original. 
 W^here the record of an inferior court is disputed in a superior 
 court, the record itself, where it is necessary, and in other cases 
 the tenor, may be removed by certiorari out of Chancery (o), 
 or other higher court (p). In criminal cases, where a prisoner 
 pleads auterfoits acquit, he may remove the record by certiorari, if 
 he be arraigned in the King's Bench {q). In other cases, he may 
 remove the tenor of the record of acquittal into Chancery by cer- 
 tiorari, and either produce it in court with his own hands {en 
 poigne), or procure it to be sent to the Justices sub pede sigilli (r). 
 But the record in such case must be removed by writ, although the 
 Justices may receive a record without writ, where it is to be pro- 
 ceeded on for the King (s). 
 
 same witnesses, and no other, shall be (o) Butcher and Aldworth's Case, Cto. 
 
 examined upon appeal. On a writ of Eliz. 821. Guilliam v. Hardy, 1 Ld. 
 
 attaint, no other evidence can be given be- Raym. 216. 
 
 fore the grand jury than that wliich was ^ Atk. 317. Guilliam v. Hardy, 
 
 before given before the petit jury. But ^ ^^ Raym. 216. 
 
 there the question is, whether the jury 
 
 gave a false verdict on the evidence before (?) 20 Ed. 2, Coron. 232 ; Starkie's 
 
 tljgjn_ Crun. PI. 300. The usual practice is for 
 
 (I) Ibid. the clerk of assize or of the peace to make 
 
 (7rt) Nul tiel record was pleaded to the up the record and produce it in court 
 
 Composition Act ; 2 Salk. 5GG. Holt, without writ, 2 Russ. on Crimes, 720. 
 
 C. J. held that an exemplification was /j,\ ^ Hale 242- 2 E. 3. 26 Coron. 
 
 necessary, although a copy printed by |^q_ 
 
 the King's printer would be sufficient 
 
 evidence before a jury. Anon. 2 Salk. 566, W 2 Hale, 242 ; 8 Ed. 4, 18 ; B. Coron. 
 
 infra. ^^®- 
 
 (n) Pitt V. Knight, 1 Saund. 98. (*) See tit. Inspection and Public 
 
 ifeit'soKv. JS7-oz<5H, 2 Burr. 1034. Lut- Documents. 
 trell V. Lea, Cro. Car. 297.
 
 224 
 
 WRITTEN instrument: PUBLIC DOCUMENT. 
 
 Proof of 
 public do- 
 cuments by 
 exemplili- 
 catiuu. 
 
 Exemplifi- 
 cation un- 
 der tlie 
 seal of the 
 court. 
 
 A record may be proved either, first, by mere production, with- 
 out more ; or, secondly, by copy. 
 
 Copies of records are either exemplifications, or, secondly, copies 
 made by an authorized officer ; or, thirdly, sworn copies. 
 
 First, Exemphfications. These are, first, exemphfications under 
 the great seal ; or, secondly, under the seal of a particular court {t). 
 The reason of admitting a copy to be evidence in such cases, is 
 the inconvenience to the public of removing such documents, 
 which may be wanted in two places at the same time (u). A re- 
 cord to be exemplified under the great seal must either be a record 
 of the court of Chancery, which is the centre of all the courts, or 
 must be removed thither by certiorari {x). Nothing but records 
 can be given in evidence exemplified under the great seal, for 
 these are presumed to be preserved by the Court free from era- 
 sure or interlineation, to which private deeds are subject (y), 
 which are in the hands of private persons. Where any record is 
 exemplified, the whole must be exemplified, for the construction 
 must be gathered from the whole taken together (z). An exempli- 
 fication under the broad seal is of itself a record of the greatest 
 authenticity (a). 
 
 Secondly, Under the seal of the Court. The seals of the King's 
 courts of justice are of public credit, and are part of the constitu- 
 tion of the courts, and supposed to be known to all (Z») ; and this, 
 whether the court has existed from time beyond memory, or has 
 been recently created by act of parliament (c). But the seals of 
 private courts and persons are not receivable in evidence, unless 
 proved to be the seals of the respective courts or persons (rf). In 
 general the exemplification of any record under the seal of one of 
 the King's courts of justice is sufficient (e). So is an exemplifica- 
 tion of a commission and return under the seal of the Exche- 
 
 (0 Gil. Ev. 12. 
 
 (m) Bac. Ab. Ev. 620. 
 
 (x) Bac. Ab. Ev. F. B. N. P. 226; 
 3 Ins. 173; 10 Co. 93, a. 
 
 (y) B. N. P. 227; Bac. Ab. Ev. F. 
 3 Ins. 173; Gil. Ev. 12. 
 
 (z) 2 Ins. 273; Gil. Law Evid. 17. 
 But this rule is to be taken with some re- 
 Btriction. Vide B. N. P. 217. 
 
 (a) Gil. L. E. 14; Bac. Ab. Ev. 610; 
 Sid. 145; Hard. 118; Plowd. Comm. 
 411 (n.) 
 
 (6) Gil. L. E. 17. 20; 10 Co. 93, a. 
 
 (c) Sid. 146; Gil. L. E. 20. 
 
 (d) Gil. L. E. 20; and therefore, for- 
 merly, it seems to have been the practice 
 to deliver an exemplification under the 
 seal of a court to a jury, but not to deliver 
 a document under a private seal, because 
 the authenticity of the latter depended 
 upon a collateral oath. Gil. L. E. 17, 18, 
 19. The common seal of the city of Lon- 
 don proves itself. Doe d. Woodmas v, 
 3Iason, 1 Esp. 53. Olive v. Givyn, 2 
 Siderf. 145; S. C. Hardres, 118; Anon. 
 9 Mod. 66; Sed vide Moises v. Thornton, 
 8 T. R. 303. 
 
 (e) lOCo. 93, a.
 
 EXEMPLIFICATION. 225 
 
 quer (f), of a record of the great sessions in Wales, or in a ExcmpHfi- 
 county palatine, under the seal of tiie Court (//). Of the proceed- ji)|;"jj" ""' , 
 ings of the ecclesiastical courts (/«). So is an exemplification of of the 
 the pope's bull, under the seal of a bishop (i) Of the grant of 
 administration with the will annexed, under the seal of the arch- 
 bishop {h). So the exemplifications of the enrolment of a fine or 
 recovery in Wales, and in the counties palatine, under the appro- 
 priate judicial seals, are evidence of such fines and recoveries (Z). 
 
 But the mere production of an exemplification under the seal 
 of an university is not evidence, without further proof that a 
 party is entitled to his degree (m) ; neither is the exemplification 
 of the judgment or decree of any foreign court admissible with- 
 out proof of the seal of the court (/i). But if a foreign court has 
 an official seal, it ought to be used for the purpose of authenticat- 
 ing its judgments ; and no copy by any officer of the court will be 
 considered as of authority in this country (o). 
 
 Where the law entrusts a particular officer with the making of Copies by 
 copies, it also gives credit to them in evidence without further officers. 
 proof, although a mere office copy by a person not so licensed is 
 inadmissible ( p). The chirograph of a fine is evidence of the fine 
 itself, because the chirographer is an officer appointed by the law 
 to make out such copies ; but the chirograph is not evidence of 
 the levying of a fine with proclamations, as the officer is not 
 appointed to make copies of them((^). So a copy of a judgment 
 made out, examined, and indorsed by the clerk of the court, is 
 not in itself evidence, for he is entrusted as to the keeping only of 
 records, and not with the making out copies of them (r). So 
 where a deed enrolled is lost, a copy of the enrolment by the 
 clerk of the peace is not admissible in evidence, for he is em- 
 powered merely to authenticate the deed itself by enrolment, and 
 not to make out copies of the enrolment (s). The indorsement 
 
 (/) Tooker v. The Duke of Beavfort, (n) Aloises v. Thornton, 8 T. R. 303. 
 
 Say. 207. (o) Black v. Lord Braybrooke, 2 
 
 (g) Tooker v. Duke of Beaufort, Say. Starkie's C. 7 ; and AppJeton v. Lord 
 
 297 ; Hard. 120. Braybrooke, ibid. 
 
 (h) 1 Ford's MSS. 166. (p) Bac. Ab. Ev. F. ; B. N. P. 229. 
 
 (i) Hard. 118. (q) B. N. P. 229, 230; Com. 409, b. 
 
 (ft) Kempton v. Cross, 8 G. 2, B. R. Com. Dig. Ev. A (2). Chettle v. Pound, 
 
 H. 108, although it merely recite the Trin. Ass. 1700; Bac. Ab. Ev. F. Doe v. 
 
 fact. Bluck, 6 Taunt. 486. 
 
 (Z) By the stat. 27 Eliz. c. 9, s. 8, they (?•) Bac. Ab. Ev. 612, F. ; B. N. P. 229. 
 
 are of as great force as tlie record. Olive (s) Bac. Ab. Ev. F. ; and see Appleton 
 
 V. Giotjn, 2 Sid. 145. v. Lord Braybrooke, 2 Starkie's C. 6; 
 
 (rn) Henry v. Adey, 3 East, 221. i\m\Blackv. Lord Brnybrooh«f2StdiTW&'% 
 
 Vide infra, Judgments, proof or. C. 7 ; B. N. P. 229. 
 
 VOL. I. Q
 
 226 
 
 •NVRITTEN INSTRUMENT : PUULIC DOCUMENT. 
 
 Proof by 
 oflicL' copy. 
 
 Proof of 
 pulilic (lo- 
 cuinent by 
 a sworn 
 copy. 
 
 of the date of enrolment is conclusive evidence of the enrolment, 
 for it is part of the record {t). 
 
 Office copies of judicial proceedings, that is, copies made by 
 the known officers of the court, seem to be admissible for parti- 
 cular purposes in the same but not in other courts (u). With 
 respect to causes depending in Chancery, it is said that office 
 copies are the very records of the court, and prove themselves, 
 and that no other copy can be produced therein (x) ; but such 
 copies are not admissible in other courts (y). 
 
 Thirdly, Not only records, but all public documents which 
 cannot be removed from one place to another, may be proved by 
 means of a copy proved on oath to have been examined with the 
 original. This is to be considered as a deviation from the general 
 rule, that the best evidence must always be produced, for the sake 
 of public convenience. All judicial proceedings, whether in British 
 or in foreign courts {z), may be proved by means of a sworn copy, 
 although it be not an office copy (a) ; and whether the court be 
 
 {t) The King in aid of Reed v. Jackson, 
 3 Price, 495, in the case of an enrolment 
 of a bargain and sale. So in cases of 
 the enrolment of memorials of annuity 
 deeds. Gar?-ick v. Williams, 3 Taunt. 
 340. A memorandum of enrolment on a 
 lease, on tlie margin of the lease, signed 
 " A. B., Auditor," is sufficient proof that 
 the lease has been enrolled with the auditor 
 of the Duchy of Lancaster. Kinnei'sly v. 
 Orpe, 1 Dong. 56. 
 
 (u) In general, an office copy is ad- 
 missible in evidence in the same court and 
 in the same cause, but not in a different 
 cause, though in the same court. Per 
 Lord Mansfield in Denn v. Fulford, Burr. 
 1177. 
 
 {x) Demi V. Fulford, Burr. 1177. 
 
 (y) Bl. 289. BlacJi v. Lord Bray- 
 bi-ooke, 2 Starkie's C. 7; and it is said to 
 have been held at idsiprius that upon the 
 trial of an issue out of Chancery, office 
 copies of depositions in Chancery in the 
 same cause were not receivable. Barnard 
 V. Kent, 1 C. & P. 580; but see the 
 opinion of Littledale, J. in Higlifield v. 
 Pealie, M. & M. Ill, vol. ii. tit. Of- 
 fice Copy. 
 
 (z) Appleton v. Lord Biaybroolte, 2 
 Starkie's C. 6; 6 M. & S. 34. In an 
 action on judgments recovered in the 
 
 supreme court of Jamaica, the plaintiff 
 produced merely paper writings, purport- 
 ing to be copies of the judgments, sub- 
 scribed " true copy," and signed " jF. S. 
 clerk ;" to which were annexed several 
 certificates : first, of jP. S. under his hand 
 and seal of office, certifying that the above 
 were true copies of the original judgments 
 of record in his office, and that the same 
 were still unsatisfied ; secondly, a certifi- 
 cate of R. R~, described as secretary and 
 notary public, certifying that F. S- was an 
 accredited clerk, &c. ; the third, from the 
 Governor-general, under the seal of the 
 island, certifying that R. 7?. was secretary, 
 &c., and that to all acts, &c. signed by him, 
 credit was to be given : the evidence was 
 held to be insufficient, without proving 
 the copies to have been actually examined; 
 the seal of the island not being affixed to 
 the copy to give it the force of an exem- 
 plification, but only to authenticate the 
 person certifying to be a person to whom 
 credit was to be given. So, where the 
 copy was proved to be in the handwriting 
 of one who acted and signed official docu- 
 ments for the principal clerk. Black v. 
 Lord Braybrooke, M. & S. 39; 2 
 Starkie's C. 7. 
 
 (a) Denn v. Fulford, Burr. 1177 ; Hard. 
 119; Gil. L. Ev. 9.
 
 OFFICE COPY. 
 
 227 
 
 a court of record (b), or otherwise. The proceedings by EngUsh Swoni 
 bill in Chancery are not records, and may themselves be given in *^°P^* 
 evidence (c), or may be proved by means of examined copies (d). 
 
 But upon an indictment for perjury, assigned upon an answer 
 in Chancery, the original must be produced (e). And also, where 
 a voluntary affidavit has been made by a party, which has no 
 relation to a proceeding in a court of justice, to make it evidence 
 against the party the original must be produced (y"). Where a 
 will remains in Chancery, by order of the court, a copy of it is 
 evidence, because it becomes a I'oU of the court (^). 
 
 The copy must be one of a complete record, for until it be- 
 come a permanent record it is transferable, and the reason for 
 admitting a copy to be evidence does not apply (h). Consequently 
 a sworn copy of a judgment in paper, although signed by the 
 master, upon which judgment might be taken out, is not admis- 
 sible (i). And to prove an interlocutory and final judgment and 
 execution, an examined copy of the roll carried in must be proved ; 
 it is not sufficient to produce entries in the prolhonotary's book, 
 and the inquisition, with the prothonotary's allocatur {k). And, in 
 general, a mere minute book of proceedings from which the record 
 is subsequently to be made up is not admissible in evidence (/). 
 
 It is otherwise as to a matter which occurred before the same 
 court sitting under the same commission. Upon the trial of Home 
 Tooke the minutes of the court were produced to prove the acquit- 
 tal of Hardy (m). 
 
 The copy should be of the whole record, or of so much at least 
 as concerns the matter in question (w). 
 
 A book published by authority in a foreign country as a regular 
 copy of treaties concluded by the State, is not evidence without 
 proving it to have been compared with the original archives (o). 
 
 It is a general rule, that whenever the original is of a public Sworn 
 nature, a sworn copy is admissible in evidence And that when- admissibL 
 
 (b) B. N. P. 226. 
 
 (c) Bac. Ab. Ev. 620. 
 
 (d) Bac. Ab. Ev. F. 623 j 3 Mod. 116. 
 
 (e) Ibid.; for the identity of the de- 
 fendant must be proved. 
 
 if) Chambers v. Robinson, Trin. 12 
 Geo. 1 ; B. N. P. 238 ; Bac. Ab. Ev. 623. 
 
 (g) Keb. 40. 117 ; Gil. L. E. 276 ; Bac. 
 Ab. Ev. F. 632. 
 
 (/i) Bac. Ab. Ev. F.610; B. N. P. 228. 
 Ayrey v. Davenport, 2 N. R. 474. 
 
 (i) Ibid. So to prove a bill of indict- 
 ment to have been found, it is necessary 
 
 to show a record with a complete caption. 
 JR. v. Smith, S B. &C. 341. 
 
 (k) Godefroy v. Jay, 3 C. & P. 192. 
 The day-book kept at the office is not 
 evidence of the date of signing judgment. 
 Lee V. Muroche, 5 Esp. C. 177. 
 
 (Z) R. V. Smith, 8 B. & C. 341 . Porter 
 V. Cooper, 6 C. & P. 354. R. v. Bel- 
 lamy, 1 Ry. k M. 366. 
 
 (m) Howell's St. Tr. vol. 25, p. 446. 
 
 (n) Tri. P. P. 166; 3 Inst. 173. 
 
 (o) Richardson v Anderson, 1 Camp. 
 C. 65. 
 
 Q 2
 
 228 WRITTEN instrument: public document. 
 
 Sworn ever the tlnnt^ to be proved would require no collateral proof 
 
 copy, when '. .. iii /\aji 
 
 admissible, upon its production, it IS proveable by a copy(j;). And that, 
 
 where the document when produced would require support 
 from collateral proof, a copy of it is not admissible. And there- 
 fore, where an application was made that an examination before 
 a magistrate might be produced upon the trial of a cause, it 
 was ordered, because the examination itself, if produced, would 
 not in itself be evidence, without proof of the handwriting of the 
 party (^). 
 
 Sworn copies of the following documents have been received 
 in evidence : 
 
 Of a bank-note filed at the Bank (r). 
 
 Of transfer-books of the East India Company (s). 
 
 Of the books of the city of London (t). 
 
 Of court-rolls (u) under the hand of the steward. 
 
 Of the journals of both Houses of Parliament (x). 
 
 Of the minute-books of the House of Lords (y). 
 
 Of an agreement, from a book in the Bodleian library, from 
 which books cannot be removed {z). 
 
 Of the probate of a will relating to personalty (a). 
 
 Of a parish-register (b). 
 
 Of a poll-book at an election (c). 
 
 Of a public book in one of the universities (d). 
 
 Of entries in the council-book in the secretary of state's 
 office (e). 
 
 Of the enrolment-book in which leases are registered in the 
 bishopric of Durham (f). 
 
 Of books of commissioners of excise (g). 
 
 (p) Ld. Raym. 154; Str. 126; 3 Salk. (u) Doug. 572. 163; Com. 337; 12 
 
 153. Mod. 24. 
 
 (q) B. V. Smith, Str. 126. (^) Do"g- ^93; Cowp. 17; Str. 126. 
 
 (?•) Maji V. Cary, 3 Salk. 155; 12 Vin. ^^^ ^ ^°^1'- ^'' 
 Ab.97.99. To prove a transfer of stock, (^) Bun. 191. JDownei y. Mm-eman, 
 a copy from the Bank books must be pro- ^ ^^'"- ^^^' ^^'^' hoy^e^ev, was con- 
 duced ; the testimony of the broker who ^'^""'^^ ^' ^" indulgence under the parti- 
 «..,.,. e ■ ■ ai ■ J. r, ^ cular circumstances of the case, 
 eitected the transier,i8 insuincient. Breton 
 
 V. Cope, executor, Peake, 30; and see («) 3 Salk. 154. Hoe y . Nettlethorpe, 
 
 Douglas, 572, n. 3. 593, n. Such copies ^ ' ,J"' ^^tV o o „ 
 
 ,. ;, ., J Iv ri .. .^ (ft) i»/a2/v. 3/rtM, 3 Salk. 154; ib. 281; 
 
 are direct evidence ; and the Court, for the ' j j'> ^ ? 
 
 , - . ,, . „ X lOStateTr 250; Str. 1073. 
 
 sake 01 example, would not allow the , . ^ 
 
 ,,..,., , ,, , (c) Mead v. Robinson, Willes, 234. 
 
 books themselves to be read. Marsh y. ^ „ ' 
 
 Collnett,2Y.^.m^. {d) SemNe,ST.-R. 307. 
 
 (e) Eyre v. Palsgrave, 2 Camp. 606. 
 
 is) Doug. 572 ; 1 Str. 646. (y^ ^^^^^^ ^ ^„„,^ H^H-^ c. 601 . 
 
 (0 2 Str. 954,935. (g) Fuller v. Fotch, Carth. 346.
 
 PROOF BY COPY. 22S 
 
 Of books of assessments by commissioners of land-tax {h). Swom 
 
 Although, for the sakeof pubhc convenience, the copy of a pub- admiUible. 
 lie document is admitted in evidence as an original, a copy of a copy 
 is of no weight whatsoever, since it is one step farther removed from 
 the original {i). 
 
 The copy must be proved by one who swears that he has com- if'*^* 
 pared it with the original (A), taken from the proper place of depo- 
 sit. It is sufficient for this purpose, either that the witness should 
 have read the copy whilst another read the original, or vice versd{l), 
 for it will not be presumed that a person wilfully misread the record. 
 And it is not necessary that the record should have been read by 
 the officer of the court (m). Before a document can be read as a 
 copy of a record, it must be proved that the original either came 
 out of the hands of the officer of the court, or from the proper 
 place of depositing the records of the court of which it purports to 
 be a record, and the contents of the document itself cannot be 
 referred to in support of such proof (w). 
 
 A copy is never admissible where the original is produced (o). copy not 
 A copy of an entry in a customal beino- offered in evidence asfainst ^^I'^'ssibie 
 
 ^ •' . '' _ V . . where the 
 
 a corporation, was rejected on production of the original (jo). original is 
 
 Where a record has been lost, a copy may in some instances be P™ ^ 
 read in evidence without proof upon oath that it is a true copy (</). jjo^p^oved 
 But to warrant such evidence the document must be according to when lost. 
 the rule of civil law, vetustate temporis aut judiciaria cognitione 
 rohoratair). A copy of a decree of tithes has, it is said, been 
 often given in evidence in London, without proving it to be a true 
 copy, the original having been lost (5). So the exemplification of 
 a recovery of lands in ancient demesne, where the original was 
 lost, and possession had gone a long time with the recovery, was 
 
 (li) R. V. King, 2 T. R. 234. he compared the writing with a record 
 
 {i) Gil. L. E. 9; and see Locke's Essay produced to him in a room over the Four 
 
 on the Understanding, 2d vol. 283. Courts, where the records of the superior 
 
 (k) Bac. Ab. Ev. F. ; Str. 401 ; L. Ev. courts are kept, without seeing whence the 
 
 104; Mod. 4. 94. 144. 266; 2 Keb. 31. record was taken, or knowing the person 
 
 546; 3 Keb. 1, 2. 477 ; 5 Mod. 211. 386; who produced it to be an officer of the 
 
 6 Mod. 225. 248 ; 10 Co. 92. Court. 
 
 (0 Rolfa V. Bart, 2 Tr. 52. Gyles v. iP) 10 St. Tr. App. 137. 
 
 Hill, 1 Camp. 469. Tyson v. Kemp, 6 f^) I^i^- 
 
 C. &P. 72. Reidv. Macquison,\C2Lm^. (?) Vent. 257; Sty. Pr. Reg. 205; 
 
 469. 1 Mod. 117; Salk. 285; Gilb, L. E. 89, 
 
 (m) Eecles v. Hill, 1 Camp. 469. P^" ^^- ^^''- ^^- ^^- ^• 
 (n) Adamthicaite v. Si7ige, 1 Starkie's ('') Dig. 292; 1 Mod. 117. 
 
 C. 183; 4 Camp. 372. In order to prove («) 1 Vent. 257; B. N. P. 228. See 
 
 a copy of an Irish judgment, it was held to Macdowgal v. Young, Ry. k M. 393. 
 be insufficient for the witness to prove that
 
 230 
 
 WRITTEN EVIDENCE : PUBLIC DOCUMENTS. 
 
 Record, &c. 
 how proved 
 when lost. 
 
 Public do- 
 cuments 
 not judi- 
 cial, ad- 
 missibility 
 of. 
 
 admitted in evidence (t). So, where it appeared that the records 
 of tlie city of Bristol had been burned, an exemphfication of a 
 recovery, under the town-seal, of houses in Bristol, was allowed in 
 evidence (u). 
 
 Upon an ejectment brought for the recovery of a rectory, to 
 which a recusant had presented, it was held, that the recovd of the 
 conviction, which had been burned, might be proved by estreats in 
 the Exchequer (.r), and an inquisition of the recusant's lands re- 
 turned there. So, in trover, if a fie7'i facias or venditioni exponas 
 be lost(y), other evidence is admissible; so also if a recovery in 
 ancient demesne be lost, and the roll cannot be found, it may be 
 proved by the oral testimony of witnesses, where the possession 
 has gone accordingly (z). So, where the question of appropriation 
 is in issue, and the king's licence has been lost, the issue may be 
 proved by other evidence {a). 
 
 Documents of a public nature, and of public authority, are 
 generally admissible in evidence, although their authenticity be not 
 confirmed by the usual and ordinary tests of truth, the obligation 
 of an oath, and the power of cross-examining the parties on whose 
 authority the truth of the document depends. The extraordinary 
 degree of confidence thus reposed in such documents is founded 
 principally upon the circumstance that they have been made by 
 authorized and accredited agents appointed for the purpose, and 
 also partly on the publicity of the subject-matter to which they 
 relate, and in some instances upon their antiquity. Where parti- 
 cular facts are inquired into, and recorded for the benefit of the 
 public, those who are empowered to act in making such investiga- 
 tions and memorials, are in fact the agents of all the individuals 
 who compose the public ; and every member of the community 
 may be supposed to be privy to the investigation. On the ground, 
 therefore, of the credit due to the agents so empowered, and of the 
 public nature of the facts themselves, such documents are entitled 
 to an extraordinary degree of confidence, and it is not requisite 
 
 (t) In Green v. Proud, 1 Mod. 117, 
 the exemplification of a recovery of lands 
 in the Marquis of Winchester's court, in 
 ancient demesne, was admitted in evi- 
 dence, although it was not proved that 
 it was a true copy. And the reason 
 given was, because it was ancient ; and 
 Lord Hale said, that he recollected a case 
 where one had got a presentation to the 
 parsonage of Gosnall in Lincolnshire, and 
 brought a quare impedit, and the defend- 
 
 ant pleaded an appropriation; there was 
 no licence of appropriation produced, but 
 the Court said they would intend it. 
 
 {u) 1 Mod. 117. 
 
 (a:) Knight v. Balder, Hard. 323; 1 
 Salk. 285. 
 
 (y) Hard. 323; Al. 18. 
 
 (:) 1 Vent. 257; 2 Str. 1129; 2 Burr. 
 1072; 4T. R. 514. 
 
 {a) Hard. 323.
 
 ACT OF PAnHAMENT. 
 
 231 
 
 that they should be confirmed and sanctioned by the ordinary Pui.iic do- 
 tests of truth; in addition to this, it would not only be difficult, *^'"',".'^"/.*. , 
 but often utterly impossible, to prove facts of a public nature by ii<iiiiif»sibi- 
 means of actual witnesses examined upon oath ; such, for example, ' ^ '^ * 
 as the passing of particular Acts of Parliament, and the making 
 of public surveys (b). 
 
 The Acts of the Legislature are records written on the rolls of Acts of 
 Parliament (c), and are of the highest and most absolute proof, ^irimment 
 They are either public or private. They are public or general Acts 
 when they do or may concern the kingdom at large ; they are pri- 
 vate when they relate to a particular class of men, or to individuals 
 only: of the former class, are Acts which concern the king, all 
 lords of manors, or all officers generally, or all spiritual persons, 
 all traders (d) ; of the latter, are Acts relating to the nobility only, 
 or to particular persons or trades (e). 
 
 A public statute requires no proof; and where it is necessary to 
 refer to one, a copy is not given in evidence, but merely referred to, 
 as it were, to refresh the memory (y). Where a statute is not in 
 express terms made a public statute, it is still such with a view 
 to evidence, if it be of a general and public nature, affecting all the 
 king's subjects; and therefore it has been ruled at the assizes, that 
 a statute, as far as it related to a public highway, was to be consi- 
 
 (6) See further as to the principles on 
 whicli public documents are admissible, 
 sup7'a, 225. 
 
 (c) See Preface to the Statutes, by the 
 Commissioners of Public Hecords. The 
 original of a public Act of Parliament is 
 kept in the Parliament Office, and a tran- 
 script is engrossed and certified by a clerk 
 in Parliament, and deposited in the Rolls 
 Chapel. Private Acts are filed and labelled, 
 and remain with the clerk of the Parlia- 
 ment, and are not (except a few of the 
 earlier) deposited in the Rolls Chapel. 
 
 (d) It seems that the distinction be- 
 tween public and private Acts was not 
 observed before the reign of Richard 3d. 
 See preface to the new edition of the 
 statutes at large. 
 
 (e) If a private statute be recognised 
 by a public Act, it will afterwards be ju- 
 dicially noticed ; as the statute of bail- 
 bonds, 23 H. G, c. 9; which, at all event«, 
 became a public statute when the statute 
 4 & 5 Ann. c. 16, s. 20, made the bond 
 assignable. Samuel v. Evans, 2 T. R. 
 575. Saxby v. KirJnis, B. N. P. 22.4. 
 
 (f) A printed statute-book iS' evidence 
 of a public statute, not as an authentic 
 copy of the record itself,, but as hints of 
 that which is supposed to be lodged ia 
 every man's mind already. Gil. L. E. 12 ; 
 2 Salk.566; 10 Mod. 126. 216; Bac. Ab. 
 Ev. F. The Courts take notice of all public 
 Acts of Parliament, and it is unnecessary 
 to plead them ; but private Acts must 
 be specially pleaded. B. N. P. 152. 
 Lord Bernard v. Saul, 1 Str. 498 ; Ld. 
 Raym. 89. But although public Acts will 
 be noticed by the Court when the party 
 insists upon them by way of defence, the 
 defence itself must be pleaded. As, where 
 a defendant means to insist upon the 
 statute of limitations, or the statute of 
 usury, unless he plead the defence spe- 
 cially, he cannot rely upon the statute of 
 limitations in evidence under the plea of 
 the general issue in assumpsit, nor upon 
 tlie statute of usury upon the plea of nan 
 est factum to a declaration upon a bond, 
 B. N. P. 232. See tit. Debt— Deed- 
 Penal Action — Usury — Higiiway.- 
 
 Q 4
 
 232 WRITTEN evidence: public documents. 
 
 Public Act dered as a public statute ( g). So it is said that the Act of Bedford 
 
 of Pallia- l^evels, and that for rebuildiuo- Tiverton, are, from the publicity of 
 ment. ' ° • i ^ 
 
 the subject-matter, public Acts ; and that a printed copy may be 
 
 given in evidence (A). On tlie other hand, an Act of Parhament, 
 private in its nature, is not made admissible in evidence against 
 strangers, by the general clause declaring it a public Act, which 
 only applies to the forms of pleading, and does not vary the general 
 nature and operation of the Act. A power in an Act to levy tolls 
 on all persons using a particular navigation, is not sufficient to 
 make it a public Act as against strangers (i). 
 Private Act Where an Act of Parliament is of a private nature, proof of it is 
 
 of Parlia- necessarv : for althoueh every man is bound to take notice of all 
 ment. -^ o ./ _ 
 
 Acts which concern the kingdom at large, he is not presumed to 
 
 be cognizant of those which merely concern the private rights of 
 
 another (k). The usual proof is by means of a copy proved upon 
 
 oath to have been examined with the parliament roll. It may 
 
 also be proved by means of an exemplification under the great 
 
 seal (Z). 
 
 Act of Par- ^" some cases it is directed, that a copy printed by the king's 
 
 liament, printer shall be admitted in evidence ; and then the production of a 
 
 copy purporting to have been so printed is sufficient {m). 
 
 (fj) By Chambre, J. MS. C. But a (h) B. N. P. 225, par Holt, C. J.; 12 
 
 private Act that concerned Rochester Mod. 216. See Pothier by Evans, vol. 2, 
 
 Bridge, tliough printed by Rastal, was not p. 152. 
 
 allowed In evidence. L. E. 89, pi. 14, tarn. (-•) -q^.^^^ ^^ Beales, 1 M. & M. 417. 
 
 qu. A private inclosure Act, containing ^^^ ^^ ^^_ p_. ^.j_ ^ ^^ ^^ 
 
 clauses respecting public highways, .is, as ^^^ ^^^^ ^^^^ ^^ ^^^^ ^^^^^^^ ^^ p,^^^.., 
 
 to those clauses, a public Act. it. v. . Trr ^ ■•« t.t i o-o •<. i 
 
 , ' . ,„„„ ^ ,^ ciaH5 v. ITes^, 10 Mod. 3o3, cited si</jm, 
 
 Utterby, Lincoln Sp. Ass. 1828. Lord C. ^ , ^ , ' ., .. , 
 
 , . , , . . , , . note (n), and the cases there cited. 
 B. Parker permitted the printed statute 
 
 concerning the College of Physicians to be (0 See tit. Exemplification. 
 
 read from the printed statute-book, printed {m) Upon nul tiel record, pleaded to the 
 
 by the king's printer. Gil. Law Ev. 10. Composition Act, Holt, C. J. held, that a 
 
 13. See further, Bac. Ab. St. T. A very copy printed by the king's printer was not 
 
 learned opinion given by Mr. J. Holroyd, sufficient, and that an exemplification was 
 
 when at the bar, that an Act of Parlia- necessary; but said, that an Act printed 
 
 ment, although in other respects private, by the king's printer was always good 
 
 Is, as regards a public highway to wliicli evidence before a jury. Anon. 2 Salk. 56G. 
 
 it refers, to be considered a public Act, has Where an indictment set out the title of 
 
 ia many instances been acted upon by an old statute (5 Eliz. cap. 4), agreeably 
 
 magistrates at the sessions. In a late to Riiffhead, which differed from a copy of 
 
 case, R. v.Stonebeckiip, York Summer Ass. the Act lately printed by the King's printer, 
 
 1839, on an indictment for obstructing a the Court refused to direct an acquittal 
 
 public way, Maule, B., received an award without proof of an examination of the 
 
 under a local inclosure Act, in evidence, so parliament roll. Rex v. Baniitt, 3 Camp, 
 
 far as regarded a public highway, set 341. Cor. Ellenborough, C. J. 1813. 
 out under the award.
 
 ACTS OF STATE : GAZETTE. 233 
 
 But where an Act of a private nature is declared to be a public {^'^^ "^ i'*""" 
 Act, and required to be judicially noticed, it is unnecessary to how 
 prove an examined copy (n). proved. 
 
 Where a party appealed against an act done by another under a 
 private statute, it was held that the appellant was not bound to 
 prove an examined copy of the roll, and that a printed copy was 
 sufficient (o). 
 
 Where the printed copy of an Act is incorrect, the Court will be 
 guided by the parliament roll (p). 
 
 By the statute 41 Geo. 3, c. 90, s. 9, copies of the statutes of Irish sta- 
 Great Britain and Ireland prior to the Union, printed by the printer 
 duly authorized, shall be received (mutually) as conclusive evidence 
 of the several statutes in the courts of either kingdom. 
 
 The recital in the preamble of a public Act of Parhament of a Recitals lu 
 public fact, is evidence to prove the existence of that fact. Where Acts of 
 an information for a libel alleged that outrages had been committed meat. 
 in particular parts of the kingdom, the preamble of a public Act 
 reciting the fact was held to be admissible evidence to support the 
 averment ; for every subject is, in contemplation of law, privy to 
 the making of such an Act {q). 
 
 Acts of state may be proved by a production of the official printed Acts of 
 document authorized by Government. The Gazette (?■) is evidence 
 of all acts of state, and of everything done by the king in his regal 
 capacity, as to prove an averment that divers addresses had been 
 presented to the king (s) ; for having been received by the king in 
 his public capacity, they become acts of state. So the Gazette is 
 evidence to prove the king's proclamation, as for performance of 
 quarantine. So the printed proclamation of peace is evidence, 
 
 (n) Beaumont v. Mowitain, 10 Bing. Van Omeronv. Dowich, 2 Camp. 44; 12 
 
 404. Woodward v. Cotton, C. M. & R. Vin. Ab. 129; Dxijmys v. Shepherd, 12 
 
 44. Mod. 216. In a prosecution for murder, 
 
 (o) R. V. Shaw, 12 East, 479. the articles of war ought to be produced to 
 
 (jo) See R. v. Jejferies, 1 Str. 446. show how far the prisoner was bound to 
 
 Spring v. £:ve, 2 Mod. 240. P7-ice v. obedience to the deceased, who was his 
 
 Mollis, 1 M. & S. 105. Serjeant. Ibid. In the case of the Attor- 
 
 {q) R. V. Sutton, 4 M. & S. 532. And ney-General v. Theakstone. 3 Price 89, 
 
 see R. V. De Berenger, 3 M. k S. G7. It it was held that the Gazette was sufficient 
 
 is otherwise as to recitals in private Acts, evidence of a proclamation issued by the 
 
 per Alderson, B., 1 C. M. & R. 47. council, because it is a public Act regard- 
 
 (r) A gazette purporting to be printed ing the Crown and the government, and 
 
 by the King's printer, must be taken to be must pass the great seal before it can be 
 
 the London Gazette. JS. v. i/oZ^,5 T. R. admitted into the Gazette. In General 
 
 439. Picton's Case, Howell's St. Tr. 493, the 
 
 (s) R. V. Holt, 5 T. R. 436. The king's Gazette was admitted to prove the articles 
 
 proclamation is not noticed by the Court of capitulation ibr the suncnder of an 
 
 without the production of the Gazette. island. 
 
 state- 
 Gazette.
 
 234 WRITTEN EVIDENCE : PUBLIC DOCUMENTS. 
 
 Gazette. witliout examination with the parhament roll {t). And it was held, 
 that a proclamation for the discovery of certain offenders, which 
 recited that outrages had been committed in certain districts, was 
 evidence to satisfy an averment, in an information for a libel, that 
 such outrages had been so committed (u). So the articles of war, 
 published by the king's printer, are evidence of such articles (x). 
 The proclamation for reprisals in the Gazette is evidence of an 
 existing war (?/). 
 
 It seems, however, that knowledge of a fact, although it be of a 
 public nature, is not to be conclusively inferred from a notification 
 in the Gazette {z) ; it is a question of fact for the jury. 
 
 But the Gazette is not evidence to prove a particular military 
 appointment («), nor to prove particular facts between individuals, 
 and therefore it is not evidence in an action to prove the appoint- 
 ment of one of the parties to a commission in the army, unless (at 
 least) the adversary refuse to produce the commission, which is the 
 best evidence (b). But it is evidence, as a medium to prove notices ; 
 as of the dissolution of a partnership, which is a fact usually noti- 
 fied in that manner (c). But without proof that the party to be 
 affected by the notice read the particular Gazette in which it is 
 contained, such evidence is very weak (d). And it seems to be 
 incumbent on those who dissolve partnership to give special notice 
 of it to those with whom they have had dealings (e). Notices of 
 bankruptcies in Gazettes are made sufficient by express legislative 
 provisions. It is unnecessary to give any evidence to authenticate 
 the Gazette produced, or show whence it came(/). 
 
 (t) Bac. Ab. Ev. F. Doug. 594, in n. ports, are 'not evidence. Boherts, et alt. 
 
 B. N. P. 226. Ca. K. B. 216. Quelch's v. Edclington, 4 Esp. C. 88. And see 
 
 Case, 8 State Tr. 212. Waldron v. Coonibe, 3 Taunt. 162. 
 
 (m) B. v. Sutton, 4 M. & S. 546. {z) Harratt v. Wise, 9 B & C. 712, 
 
 (a;) B. V. Withers, cited by BuUer, J. (a) B. v. Gardner, 2 Camp. 513. 
 
 5 T. R. 546, as the opinion of the Judges. {b) Kirwan v. Cockburn, 5 Esp. 233. 
 
 See above, note (s). S. P. B. v. Gardner, 2 Camp. 513. 
 
 (y) B. v. Holt, 5 T. R. 443. Public (c) Leesonv. Holt, 1 Starkie's C. 186: 
 
 notoriety is, it is said, sufficient evidence of GraTiam v. Hope, Peake's C. 154. God- 
 
 tbe existence of a war. Fost.C. L.219. See freij v. Macauley, Peake's C. 155, n. 
 
 B. v. Berenger, 3 M. & S. 67, and 11 Ves. Gorham v. Thompson, Peake's C. 42. 
 
 292. And a declaration of war by a foreign (d) Leesonv. Holt, I Starkie's C. 186. 
 
 government, transmitted by the English See Partnebship. And. see Graham v, 
 
 ambassador, and produced from the se- Hope, Peake's C. 154. Mann v. Baker, 
 
 cretary of state's office, is evidence of tlie 2 Starkie's C. 255. Gorham v. Thomp- 
 
 commencement of war with a foreign state. son, Peake's C. 42. 
 
 Thelhisson v. Gosling, 4 Esp. C. 266 j (e) lEsp. C. 171. Gorham v. Thowp- 
 
 and see 1 Dodson Ad. R. 244. Docu- son, Peake's C. 42. Jenkins v, Blizard, 
 
 mciits transmitted by British consuls, 1 Starkie's C. 418. 
 
 stating the arrival of vessels at particular (/) B. v. Forsyth, Russ. & R. 274.
 
 PUBLIC ACTS OF THE CROWN, 235 
 
 The journals of the House of Lords have always been admitted Journals of 
 as evidence of their proceedings even in criminal cases (^) ; and ImiCom- 
 the journals of the House of Commons are also admissible for ™*'"^' 
 the same purpose, but this was once doubted, because they are 
 not records (h). An unstamped copy of the minutes of the re- 
 versal of a judgment in the House of Lords, without more of 
 the proceedings, is evidence of the reversal (i). The journals of 
 the House of Lords are evidence to prove an address of the house 
 to tlie king, and his answer (/e), in order to support an averment 
 in an information, that certain differences had existed between 
 the king of England and the king of Spain. But the journals 
 are not evidence of particular facts stated in the resolutions, 
 which are not a part of the proceedings, of the house. Upon 
 the indictment of Oates for perjury, a resolution of the House of 
 Commons of the existence of a popish plot was rejected as evi- 
 dence of the fact (/). In Knollys's case it was held, that, upon 
 a plea in abatement that the party was a peer, a replication was 
 bad, which alleged that the peerage had been disallowed by the 
 Lords (m). 
 
 All pubhc acts done by the Crown affecting the possessions Public 
 and revenues of the Crown, are to be considered as pubhc Acts, crown * ° 
 and are admissible in evidence as such. An enrolment of a lease 
 of lands belonging to the Crown in right of the duchy of Lan- 
 caster is admissible (w), on account of the interest of the Crown 
 in the Duchy of Cornwall and its revenues. 
 
 A caption of seisin taken to the use of the first Duke by per- 
 sons assigned by his letters patent for that purpose, was held 
 admissible as a public Act in evidence to show the rights of the 
 duchy (o), 
 
 A book in which leases were enrolled and kept in the custody 
 of the auditor of the bishop of Durham (who is a patent officer 
 within the county palatine), is a public muniment. And there- 
 
 (g) See Jones v. Randall, Cowp. 17. (n) Kinnersley v. Orpe, Doug. 56. 
 
 R. V. Lord George Gordon, Doug. 593. (o) Rowe v. Brenton, 8 B. & C. 743. 
 
 Lord Melville s Case, 24 Howell's St. Tr. And the same rules are applicable whether 
 
 683. the lands and revenues are at any parti- 
 
 (h) Ibid. cular time vested in the Duke of Coniwall 
 
 (i) Ibid. or the King. Held, therefore, that as the 
 
 (A) FranJdin's Case, 9 State Tr. 259, enrolment of a lease in the duchy office 
 
 cited by Buller, J. 5 T. R. 465. And see would be good evidence of a lease if the 
 
 4 State Tr. 376. 445 ; Doug. 572. Crown alone were interested, it was equally 
 
 (Z) R. V. Oates, 4 State Tr. 39; 10 so in the case of a lease by the Duke. 
 
 Howell, 1165. Ibid. 756. 
 (m) 2 Salk. 509.
 
 23fJ WRITTEN EVIDKNCK : PUBLIC DOCUMENTS. 
 
 fore where search had been ineffectually made for an original 
 lease, and the counterpart to a lessee under the bishop, it was 
 held that such book was admissible as secondary evidence of such 
 lease {p). 
 Ancient Surveys, taken under authority, are also evidence. Domesday- 
 
 unde7au- ^ook was a survcy made of the king's lands in the time of William 
 thority. the Conqueror {q) ; and when a question arises whether a particu- 
 lar manor be of ancient demesne or not, that is, of the socage 
 tenures which were in the hands of Edward the Confessor, the trial 
 is by inspection of Domesday-book., which is preserved in the 
 Exchequer (r). Frequent changes in the names of places render 
 evidence for the purpose of identification very important {s). It 
 has been held that a variance between the modern name and that 
 contained in Domesday ought to be averred on the record {t). This 
 ancient survey seems to be generally admissible as to all matters 
 which it contains in respect of manors, and as to ancient local 
 divisions or boundaries, the tenure or occupation of manors, lands, 
 or mills ; as also to matters of pedigree, and other immemorial 
 rights or circumstances which are the subject of proof. 
 
 In the Exchequer also is another ancient survey, which ascer- 
 tains the extent of the king's ports (m). 
 
 The valor heneficiorum, a valuation of the profits of spiritual 
 
 {p) Humble v. Hunt, Holt's C. 601. was not a solitary instance of the kind, 
 
 A book produced from the chapter-house of A tax, or census, proportioned to the pos- 
 
 the dean, &c. of S., kept by the chapter- sessor's revenues, would probably be sus- 
 
 clerk, and purporting to contain copies of pected as one motive for compiling such a 
 
 leases, &c. granted by the dean, &c. held document. 
 
 to be in the nature of a public document, (r) Hob. 188 ; Gil. Ev. 78, 2d ed. Trial 
 
 and admitted in evidence to prove reputa- per Pais, 342 ; Bac. Ab. Ev. 633. A very 
 
 tion as to boundary of a parish. Coomhs faithful copy of this document has lately 
 
 V. Wether, 1 M. & M. 398. And see been printed by Government. 
 Humble v. Hunt, above cited. (s) See an instance cited, 1 Phill. Ev. 
 
 (q) The public in general, and the legal 580, 7tli ed., where the manor of Bugden 
 
 profession more especially, are greatly in- was identified with that of Bugedine, in 
 
 debted to Sir H. Ellis for his most valua- Domesday, by means of old deeds. In the 
 
 ble and instructive work on Domesday ; case of Alcocke v. Cooke, cited ib., the 
 
 a record in which the lawyer, the antiquary, question turned on what, according to 
 
 and the historian possess one common in- the correct mode of reading Domesday, 
 
 terest. Some curious particulars connected was parcel of the manor of Grantliam, and 
 
 with the compilation of Domesday are to whether the effect of a red line drawn 
 
 be found in Ingulphus's History of Croy- through tlie words " Hytlie Wapentake," 
 
 land. Ingulphus, the abbot, and learned denoted an error, or was for the purpose of 
 
 historian of his own abbey, and the early drawing attention. 
 
 friend of William the Conqueror, relates, {t) Gregory v. Williams, 28 C. 2 ; Gil. 
 
 with satisfaction, that the possessions of Ev. 44; 3 Keb. 588; ivfra, tit. Vari- 
 
 the abbey were underrated ; and his state- ance. 
 mcnt fairly affords the inference that tills (ii) Gil. Ev. 78 ; Bac. Ab. Ev. Y.
 
 ANCIENT SURVEYS : TERRIERS. 237 
 
 preferment, made under a commission from pope Nicholas III., Ancient 
 
 and completed a. d. 121)2, and known also by the title of Pope 
 Nicholas's Taxation, is still preserved in the Exchequer, in the rity 
 office of the king's remembrancer. In applying the restrictive 
 clause in the statute 21 Hen. 8, concerning pluralities, and the 
 exemptions from it, to college livings, their value is ascertained by 
 this survey (x). When the first fruits and tenths, on the abolition 
 of the papal power, were annexed to the Crown, a new valor bene- 
 ficiorum was made, by which the clergy are at present rated (?/). 
 This valuation was made by commissioners under the great seal, 
 .who, in executing this duty, seem to have calculated the value of the 
 first fruits and tenths, without regarding any modus or other legal 
 exemption. A survey, dated 1563, from the First-fruits OtBce, of 
 the possessions of the nunnery of St, Mary without the walls of 
 York, was admitted to prove a vicar's right to certain tithes, 
 although the original commission was lost(;r). Parliamentary 
 surveys under the Commonwealth are also admissible (a) ; and 
 where the originals have been lost, as many were at the time of 
 the great fire of London, copies of them, taken from unsuspected 
 repositories, have also been admitted (b). So great is the reputed 
 accuracy of these surveys, that their silence as to an alleged modus 
 has been considered to be strong evidence against its existence (c). 
 
 Another ancient record is the inquisitiones nonarum, which was 
 taken in the reign of Ed. 3, by commissioners under the great seal, 
 upon the oath of the parishioners in every parish, in order to ascer- 
 tain the value of the ninth of corn, wool, and lambs in every parish, 
 a grant having been made by Parliament in the 14th year of the 
 reign of that sovereign (d). 
 
 On the same ground an inquisition taken in 1730, by the direc- 
 
 (x) 2Lut.l305. Humphries y. Knight, College, CanibHdge, 1 Wils. 170. Under- 
 
 Cro. Car. 445. Stamp v. Ayliffe, 2 Gwill. hill v. Durham, 2 Gwill. 542. 
 
 536. See the First Report of the House of (a) Blundell v. Thompson, 1 M. & S. 
 
 Commons on Public Records. This taxation 292. 
 
 is evidence of the value at which those (6) Underhill v. Durham, 2 Gwill. 542 ; 
 
 employed to make it estimated the living. 4 Dow. 325. Green v. Proude, 1 Mod. 
 
 See J3M//ew V. Mic7(e7?, 2 Price, 477. And 117. See further as to these, Vol. II. 
 
 all taxes due to the king, as well as the (c) 1 M. & S. 292; 11 East, 284. 
 
 pope, were regulated by it. As to the effect (d) The commissioners were to levy the 
 
 of this and other such surveys, and also as ninth in every parish, according to the rate 
 
 to ministers' accounts, see Vol. II. tit. at which churches were taxed, (viz. by 
 
 Tithes. Pope Nicholas's Taxation,) if the value of 
 
 (y) 1 Comm. 285. This valor heneficio- the ninth amounted to so much, but if not, 
 
 rum is commonly called the king's books, then only according to the true value. See 
 
 a transcript of which is given in Bacon's the Report of the Commissioners of Public 
 
 Liber Regis, and in Ecton's Thesaurus. Records, App. L. 2, p. 146. As to minis- 
 
 (z) Kellington v. Master, §-c. of Trinity ters' accounts of monasteries, see Vol. 1 1 . 
 
 surveys un- 
 der autho-
 
 238 
 
 WRITTEN evidence: PUBLIC DOCUMENTS. 
 
 Ancient 
 surveys un- 
 der autho- 
 rity. 
 
 Inquisi- 
 tions post 
 mortem. 
 
 Terriers. 
 
 tion of the House of Commons, has been received as conclusive 
 evidence of the tenure and fees of the different offices to which it 
 relates (e). And, as it seems, upon the same principle, inquisitions 
 under public commissions, but of limited extent, have also been 
 received, as in the case of Tooker v. TJce Duke of Beaufort {f)y 
 Avhere it was held that a return to a commission out of the Exche- 
 quer, in the reign of Elizabeth, to inquire whether the prior of St. 
 Swithin, or the Crown, after the dissolution of the priory, were 
 seised of certain lands, was evidence. So in the case of Doe v. 
 Harcourtig), it was held that a survey of lands, belonging to the 
 prebend of the Moor of St. Paul's, was admissible evidence 
 against the lessees of the prebendary. 
 
 An ancient extent of crown lands, produced from the proper 
 place of deposit (the lord treasurer's remembrancer's office), 
 purporting to have been taken by the steward of the king's lands, 
 and following in its construction the stat. 4 Edw. 1, was held 
 to be admissible, on the presumption that it had been taken 
 under proper authority, although the commission could not be 
 found {h). 
 
 Inquisitions post mortem appear originally to have been taken 
 before justices in eyre upon the deaths of the king's tenants in 
 capite (i). The st. 1 H. 8, c. 8, enacts, that these shall be taken 
 on the oaths of twelve men, and in open places. These were after- 
 wards placed under the jurisdiction of the Court of Wards and 
 Liveries, erected in the 32d & 33d years of H. 8. Upon the abolition 
 of this court, together with the military tenures from which they 
 sprung, the practice of taking such inquisitions ceased. 
 
 Such inquisitions thus made under authority are admissible, and 
 are most important (k), although not conclusive evidence (Z) of their 
 contents. 
 
 And where the proceedings appear to have been irregular such 
 inquisitions are not receivable in evidence (m). 
 
 Similar to these in their nature, but differing in point of autho- 
 rity, are old terriers, or surveys, whether ecclesiastical or temporal. 
 
 (e) Green v. Heioitt, Peake's C. 182; 
 Peake's Ev. 87, 3d ed. 
 
 (/) Burr. 148. 
 
 {g) Peake's Ev. 84. 
 
 {h) Boice V. Brenton, 8 B.&C. 747. 
 
 {i) See 2 Bl. Comm. 68. Vol. II. tit. 
 Pedigree. 
 
 {It) Lord Mansfield observed (in Birt v. 
 Barloiv, Dav. 171,) that it is easier to 
 cstablisli a pedigree for five centuries be- 
 
 fore the time of Cliarles the Second, than 
 for one century afterwards. 
 
 (0 Per Lord Hardwicke, in Serjeantson 
 V. Sealy, 2 Atk. 412. Lord Thanet v. 
 Forster Jones, 224. And see tlie obser- 
 vations of Bayley, B., in Bree v. Beck, 
 1 C. & J. 307. 
 
 (?«) See Cruise on Dignities, c. 6, s. CO, 
 and Vol. II. tit. Pedigree.
 
 ANCIENT SURVEYS : TERRIERS. 239 
 
 which are admissible to prove old tenures or boundaries (w). Terriers. 
 Such boundaries are artificial and arbitrary, and cannot be esta- 
 blished by the testimony of eye-witnesses ; in such cases, there- 
 fore, vniless surveys of antiquity and of authority were admissible, 
 all evidence would frequently be excluded. It is however 
 necessary to clothe such evidence with some authority, in order 
 to distinguish it from the mere inaccurate description made by a 
 stranger (o) for purposes unknown. Ecclesiastical terriers, which 
 contain a detail of the temporal possessions of the church in 
 every parish, are made by virtue of an ecclesiastical canon (p), 
 which directs them to be kept in the bishop's registry (q), or the 
 registry of the archdeacon of the diocese (r), and it is not unusual 
 to deposit a copy in the chest of the parish church (s). These being 
 made under authority are admissible evidence as a species of eccle- 
 siastical memorials or records of the possessions of the church, and 
 are as strong in their nature as any that can be adduced for such 
 purposes {t). 
 
 It is, in general, essential to the reception of ancient instru- Proof as to 
 ments of this kind, and indeed of all others, whether they be of P^*^^^ °^ 
 a public or private nature, such as public surveys, inquisitions, 
 or ancient deeds, that the authority of the document should be 
 established by the only kind of proof of which it is in general 
 capable ; that is, by proof that it came out of the proper reposi- 
 tory. A document, purporting to be an endowment by a bishop, 
 but without his seal, and an inspeximus of the bishop under his 
 seal, were rejected, because they came out of the hands of a 
 mere private person {u). In the case of Michell v. Rabbetts (v), 
 it was held that an ancient grant to an abbey, in a manuscript, 
 entitled " Secretum Abbatis," kept in the Bodleian library at 
 Oxford, was inadmissible, for want of proof of proper custody. 
 On this authority also, it was held, by Lawrence, J. that an ancient • 
 PTant to a priory, found amongst the Cottonian Manuscripts in 
 the British Museum, without proof of connection between the 
 
 (7i) B. N. P. 248 ; Bac. Ab. Ev. F. Gil. (p) 87tli. 
 
 Ev. 78, 79. ChajjmanY.Coiclmi, 13 East, (q) Atkins y. Hatton, 4 Gwill. 1406; 
 
 10. An unsigned map, or terrier, is not 2 Anst. 386. PwZZey v. IfoZ^on, 1 2 Price, 
 
 evidence. Earl, clerk, v. Lewis, 4 Esp. 625. 
 
 C. 1. Though it purport to have been (r) Potts v. Durant, 4 Gwill. 1450. 
 
 taken by competent authority, and have (<) Armstrong v. Hewett, 4 Price, 
 
 been generally received as authentic. 218. 
 
 Pollard V. Scott, Peake, 18, cor. Lord (0 3 Price, 380. 
 
 Kenyon. And see Atkins v. Watson, (m) Potts v. Durant, 4 Gwill. 1453. 
 
 2 Anst. 386. Lygon v. Strutt, ib. COl. (i-) Cited 3 Taunt. 91. 
 
 (o) See the principle, supra, 225.
 
 tlcposit. 
 
 240 WRITTEN evidence: ancient documents. 
 
 Proof as to posscssioii of the grant, and an interest in tlie estate (a;), could 
 place of ^^^ jjg received in evidence. 
 
 It is not essential to the admissibility of evidence of this nature 
 that the inquiry should have been made by means of witnesses 
 examined on oath, it is sufficient that it was made by virtue of 
 competent authority on behalf of the public, and on a subject- 
 matter of public interest. 
 
 It is, however, of the very essence of evidence of this nature 
 that the inquiry should have been made under proper authority ; in 
 pcneral, therefore, unless the authority be in its nature notorious 
 it must be proved by the production of the commission, as in the 
 case of an inquisition post mortetn, and such private offices (y). 
 And in other cases, where it may^be presumed that the commission 
 under which the depositions were taken has been lost, they may be 
 read without its production (z). And in cases of general concern, 
 such as the ministers' returns to the commission in Henry the 
 Eighth's time, to inquire into the value of livings, the party is not 
 bound to give in proof the commission («), and it would be attended 
 with great inconvenience and expense to oblige parties to take 
 copies of the whole record. Where an inquisition has been taken 
 without legal authority it is inadmissible (6). 
 
 Papers delivered by the son of a deceased rector to the succes- 
 sor's attorney, as old parish documents, are sufficiently identified 
 by the attorney, without calling the son (c). 
 
 An ancient extent of crown lands found in the proper office, and 
 purporting to have been taken by a steward of the king's lands, 
 and following in its construction the directions of the stat. 4 Ed. 1, 
 will be presumed to ^have been taken under proper authority, 
 although the original commission cannot be found (d). 
 
 To show the authenticity of ecclesiastical terriers, it must be 
 proved that they were found in the proper repository, the bishop's 
 registry, or that of the archdeacon of the diocese (e); or proof 
 must be given to establish a connection between the terrier and 
 the place in which it was found. As against a prebendary of Lich- 
 field, a terrier found in the registry of the dean and chapter of 
 
 (x) Swinnerton\. Marquis of Stafford, (b) See below, Latlioic v. Earner , 
 
 3 Taunt. 91. Earl v. Lewis, 4 Esp. C. 1. 2 H. B. 437. Glossoj} v. Poole, 3 M. & S. 
 
 So it must be proved that records, when 175. 
 
 produced, came out of the proper custody. (<.) Barl v. Leiois, 4 Esp. C. 1 . 
 
 1 Starkie's C. 183. 
 r' ^ n N P 2''8 ^^^ Howe v. Brenton, 8 B. & C. 737. 
 
 (z) Bayleij v. Wylie, 6 Esp. C. 85. (e) AtUiis v. Hutton, 2 Anstr. 38G. 
 
 (a) Bayley v. Wylie, 6 Esp. C. 85. Miller v. Foster, ibid. 387, in not. 4 Gwill. 
 
 Vicar of Killington v. Trinity College, 1406. 1593. 
 
 2 Wils.170.
 
 PROOF OF CUSTODY. 
 
 241 
 
 Lichfield was held to be admissible (/), on the ground that the 
 terrier was sufficiently connected with the place in which it was 
 found, and because it was found annexed to an old and nearly cotem- 
 porary lease {g). One found in the charter-chest of Trinity-college, 
 Cambridge, which had property in the parish, was held to be inadmis- 
 sible (li). Terriers are admissible not only in suits between landown- 
 ers on one side and the parson on the other, but also in suits between 
 a vicar and impropriator {i). A terrier is always strong evidence 
 against the parson, but not for him, unless it has been signed by the 
 churchwardens also, or (if they be nominated by him) by some of 
 the substantial inhabitants, without which it deserves (it is said) 
 little credit (J). A terrier imperfect, because it has not been signed 
 by the vicar, is still admissible {k).^ But a terrier from the custody 
 of a person who was the owner of the tithes of a district of the 
 parish, has been held to be admissible (/). Upon a question of title 
 between the vicar and rector, a terrier, signed by the churchwar- 
 dens, but not by the vicar, was held to be not only admissible, but 
 to be even stronger evidence for the successor than if it had been 
 signed by the vicar for the time being ; and it was held to be no 
 objection, that it was not signed by any one who claimed under 
 the rector (m). Old terriers, signed by the rector, churchwardens, 
 overseers and some of the resident parishioners, were held to be 
 good evidence for the rector, to rebut the presumption of in farm- 
 modus which was attempted to be established, although such ter- 
 riers were not proved to have been signed by any person interested 
 in the farm {n). 
 
 The king's sign-manual, authorizing the release of a prisoner, is 
 evidence to prove the legality of his being at large (o). But, in 
 
 Proof 118 to 
 place of 
 deposit. 
 
 Public 
 licenses — 
 grants and 
 certificates. 
 
 (/) Miller v. Foster, 2 Anstr. 387, in 
 note. 
 
 ig) 4 Gwill. 1453. 
 
 Qi) Atkins v. Hatton, 2 Anstr. 386; 
 4 Gwill. 1406. 
 
 {i) nVmgioorth v. Leigh, 4 Gwill. 1615. 
 Potts V. Durant, 3 Anst. 796. As to the 
 effect of terriers in evidence, see Atkins v. 
 Brake, M'Clellan, & Y. 214. Lake v. Skin- 
 ner, 1 J. & W. 9. Stuart v. Greenall, 
 9 Price, 113. Vol. II. tit. Tithes. 
 
 (j) B. N. P. 248. JEarl v. Leivis, 
 4 Esp. C. 1. 
 (k) 4 Gwill. 1615. 
 
 (0 Tucker v. Wilkins, 4 Simons, 241. 
 VOL. I. 
 
 It is otherwise where the possession is 
 merely private, and unconnected with the 
 subject-matter. Potts v. Durant, 4 Gwill. 
 1450. 
 
 (rn) Illingicorth v. Leigh, 4 Gwill. 
 1615. 
 
 (w) Mytton v. Harris, 3 Price, 19. 
 Wood, B. dissentiente. He agreed that, 
 as to such terriers as affected the parish 
 generally, it would be sufficient if they 
 were signed by any of the parishioners; 
 but held that their signing a terrier would 
 not make it admissible to affect a farm- 
 modus. 
 
 (o) Miller's Case, Leach, C. C. L. 3d ed. 
 69.
 
 cates 
 
 242 WRITTEN evidence: public documents. 
 
 Public general, the certificate by the king of a matter of fact under his 
 
 licenses— gio-n-manual is not admissible in evidence (p). 
 
 grants and & • •^ • ^ ■ i 
 
 certificates. The license of the pope, durnig his supremacy m this kingdom, 
 
 is evidence of an impropriation {q). So his bull has been admitted 
 to show that lands belonging to a monastery were discharged of 
 tithes at the time of the dissolution (r). But it is said that a 
 copy of a bull is not evidence (s). So an endowment by a bishop, 
 under his seal (0, would be evidence if derived from the proper 
 custody. 
 Certifi- Certificates, and other documents made by persons entrusted 
 
 with authority for the purpose, may also be considered as public 
 documents, and they are evidence against all, to the extent of the 
 officer's authority, of the facts which he is directed to certify. For 
 where the law has appointed a person to act for a specific purpose, 
 the law must trust him as far as he acts under its authority (u). 
 Therefore the indorsement of the officer upon a deed of bargain 
 and sale is evidence of its enrolment (x). The chirograph of a 
 fine is evidence of the fine, because the officer is appointed to give 
 out copies of the agreements between the parties that are lodged 
 of record. Wherever it is an essential part of the officer's duty 
 to deliver out copies of a record, such copies are evidence (y). 
 Where a court has, for its own convenience, appointed officers to 
 make out copies, such copies are evidence in that court, without 
 further proof, but not elsewhere. An office copy of depositions is 
 admissible in equity, without examination with the roll, but is not 
 receivable in a court of law (z). By the 7 & 8 Will. 3, c. 7, s. 5, 
 the entry in the book kept by the clerk of the Crown for entering 
 returns, alterations, and amendments, or a copy of so much as 
 relates to the return, is made evidence in an action for a false or 
 double return. So by many other statutes, authorized entries and 
 documents, which will be noticed in their proper places, are made 
 evidence (a). 
 
 (p) By Willes, L. C. J. in Omichundv. (x) Kinnersley v. Orpe, Doug. 67. 
 
 Barker,\N\\\es, 550; 2 Roll. Ab. 086, H. {y) See Black v. Lord Braybroohe, 
 
 Although in one old case such evidence 2 Starkie's C. 7. 13 j and see below, tit. 
 
 was admitted, no exception being taken. Judgments — Judicial Documents. 
 
 Abicjnye v. Clifton, Hob. 213. (2) B. N. P. 229. Black v. Lord Bray- 
 
 (q) Cope V. Bedford, Palm. 427; Gil. brooke, 2 Starkie's C. 6. Barnard v. 
 
 Ev. 6 ; Bac. Ab. Ev. F. JVeict, 1 Carr. & P. C. 578. 
 
 (r) Lord Clanricardes Case, Pal. 38. (a) See 3 W. & M. c. 9, s. 7, as to exa- 
 
 {») Brett 'v.Ward,'Wmc\x.lO. Butqu. mination under Mutiny Act. Whereupon 
 
 {t) Potts V. Durant, 4 Gwill. 1453. a question as to the delivery of a cask of 
 
 * See furtlier, as to certificates, Vol, II. whiskey, the Court below had decided up- 
 
 tit. Certificate. on the effect of extracts from the excise 
 
 (m) B. N. p. 229. books, and the certificate of a commissioner
 
 PARISH REGISTERS. 
 
 2^45 
 
 Public registers, although not originally intended for the pur- r''>i>''<' '•<'- 
 poses of evidence, are generally admissible in support of the facts parish. 
 to which they relate, for they are made by persons in an official 
 situation, whose duty it is to make the entries accurately of the 
 facts immediately within their knowledge. These are, the regis- 
 ters (h) kept in churches, of baptisms, marriages, and burials {c). 
 Although the entries are first made in a day-book, such day-book 
 is not evidence when the entry has been made in the register (d). 
 And therefore, where in the day-book the letters B B were added, 
 which were explained to mean base-born, but were not added in 
 the subsequent entry in the register, the Court held that the entry 
 in the register could not be controlled or altered by the entry in 
 the day-book, for there could not be two registers in the same 
 parish (e). An entry in the register of baptism by a minister, of 
 the baptism of a child which had taken place before he became 
 minister, and made on the information of the clerk, is not admis- 
 
 of excise, as to the accuracy of the books 
 from which such extracts were taken, the 
 House of Lords reversed the judgment, as 
 having been decided upon inadmissible 
 evidence. Excise books, as public docu- 
 ments, might be received ; or if on account 
 of public convenience the originals could 
 not be produced, examined copies on oath 
 might be produced. Dunbar v. Harvie, 
 2 Bli. 351. 
 
 (b) These were originally instituted at 
 the instigation of Lord Cromwell, who 
 (temp. H. 8.) was Vicar-general to the 
 King, and before whom all wills to the 
 value of 200 Z. were to be proved. This 
 appointment was afterwards confirmed by 
 the injunction of Edward 6th, who directed 
 that the registering should be in the pre- 
 sence of the parson and churchwardens, on 
 a Sunday, and that the book should be 
 kept locked in the church, the vicar and 
 churchwardens having keys. See Salk, 
 281 ; GiL Ev. 76. See also the Marriage 
 Act, 26 Geo. 2. c. 33, s. 14, which directs 
 that immediately after the celebration of 
 every marriage, an entry thereof shall be 
 made in such register, in which it sliall be 
 expressed that the marriage was celebrated 
 by banns or license ; and if both or either 
 of the parties married by license be under 
 age, with consent of parents or guardians, 
 as the case shall be ; and shall be signed 
 
 by the 'minister with his proper addition, 
 and al«o by the parties married, and at- 
 tested by two credible witnesses. By the 
 Stat. 52 Geo. 3, c. 146, s. 7, copies of re- 
 gisters 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. Provisions of a 
 similar nature had been made by the ca- 
 nons of 1603, but these prescriptions had 
 fallen into disuse. See the provisions of 
 the recent stat. 6 & 7 Will. 4, c. 86. See 
 Burn's Ecc. Law, 295; Gibson's Codex, 
 204 J and Vol. II. tit. Mareiage. 
 
 (c) Sid. 71 ; Godb. 145. 
 
 (d) May v. May, Str. 1073 ; per Pro- 
 byn and Lee, Js., Page, J. disse7itlente. 
 See Walker v. Wingfield, 18 Ves. 443. 
 
 (e) May v. May, Str. 1073. Lee \. 
 Meecock, 5 Esp. C. 177. If the entry in 
 the day-book, which represented the plain- 
 tiff to be illegitimate, had been made under 
 the direction of the reputed father and 
 mother the evidence would, it seems, have 
 been admissible as the declaration of a de- 
 ceased parent. In the absence of such 
 evidence, it appeared to be nothing more 
 than a private memorandum, made for the 
 purpose of assisting the clerk to make up 
 the register. 
 
 R 2
 
 244 
 
 WRITTEN EVIDENCE : PUBLIC DOCUMENTS. 
 
 Public re- sible evidence, neither is the private memorandum of the clerk, 
 
 ^'trislf "* "^ ^'^^ ^^^^ present at the baptism (/). 
 
 The books of the Fleet prison are not, it is said, admissible in 
 evidence to prove a marriage, for they are not made under public 
 authority {g). Nor is the copy of a register of a foreign chapel 
 admissible here to prove a marriage abroad (h). Neither is the 
 copy of a register of baptism in Guernsey (i) ; nor the register of 
 a dissenting chapel {k). 
 
 An entry in a register, like any other public document, may be 
 proved by means of an examined copy (Z) ; and it is of course un- 
 necessary to give any proof by means of the subscribing witnesses, 
 or to prove their handwriting (m), although the register be pro- 
 'duced {n). A register is evidence, even between strangers, as to 
 the time of marriage (o). And a statement in the register that a 
 child was base born has been received in evidence (p). The regis- 
 
 (/) Doe V. Bray, 8 B. «k C. 813. 
 
 (fj) Reed v. Passer, Peake's C. 231. 
 Doe d. Orrell v. Madox; Hayicood v, 
 Firmin, Peake's C. 233. Howard v. 
 Burtonwood, ib. (n). Coolie v. Loyd, ib. 
 But semble, that on a question of pedigree, 
 the books of the Fleet are evidence to show 
 the name by ■which a woman passed when 
 she was married there. Laivrence and 
 others v. Dixon, Peake, 136 ; 1 Esp. 213. 
 And in Doe v. Lloyd, Shrewsb. Summer 
 Ass., Heath, J. admitted them in evidence. 
 See Peake's Ev. 87. These books are said 
 to have been purcliased by Government, 
 and to be deposited in the Consistory 
 Court of London. They contain the ori- 
 ginal entries of marriages solemnized in the 
 Fleet prison from 1680 to 1754. Phillips 
 on Ev. Vol. I. p. 595, 8th ed. 
 
 {li) Leader v. Barry, 1 Esp. 353. 
 Whitehead v. Wynn. 1 Jac. & Walk. 483. 
 See further, Vol. II. tit. Marriage. 
 
 (z) Huet V. Le Mesurier, 1 Cox. Cas. 
 175. 
 
 (A) For it is not a public document. 
 Neioham v. Raithby, Phillimore, 315. 
 A register of baptism of the child of a dis- 
 senter (twenty-five years after the alleged 
 birth), containing the words " said to be 
 born," &c. being mere hearsay and in- 
 formation, and therefore of no assistance 
 
 in establishing the fact, was refused to be 
 allowed to remain as a part of the proceed- 
 ings. Duins V. Donovan, 3 Hagg. 301. 
 — An entry of the birth of a dissenter's 
 child, in a book kept at Dr. Williams's 
 Library in Redcross-street, was held to be 
 inadmissible evidence. Ex parte Taylor, 
 1 J. & W. 483. — In order to establish the 
 determination of a life estate, hearsay evi- 
 dence of the death of the cestui qui vies is 
 not, as in a case of pedigree, sufficient; 
 nor are the register of a dissenting chapel, 
 or inscriptions on the tombstones in the 
 adjacent burial ground receivable. Whit- 
 tuck V. Waters, 4 C. & P. 375. 
 
 (l) Birt V. Barloic, 1 Doug. 173. 
 " They are in the nature of records, and 
 need not be produced or proved by sub- 
 scribing witnesses." Per Lord Mansfield, 
 ib. See 52 Geo. 3, c. 146, s. 17. Qu. 
 liowever, whether they can be proved by 
 oral evidence. Per BuUer, J., 2 Evans's 
 Pothier, 139. 
 
 (m) Birt v. Barlow, Doug. 173. See 
 Drake v. Smyth, 5 Price, 369 ; tit. 
 Tithes. 
 
 (n) Ib. 
 
 (o) Doe V. Barnes, 1 M. & R. 386. 
 
 (p) Cope V. Cope, 1 M. & R. 269 
 where it was said that similar evidence 
 had been received in Morris v. Davis.
 
 PARISH REGISTERS. 245 
 
 ter is no proof of the identity of the parties ((/) ; nor is it evidence Public rc- 
 that a party was of the particular age stated in the register (r). parish!' 
 
 It has been held at Nisi Prius (s), that annual returns made to 
 the registry of the diocese, according to the requisitions of the 
 70th canon, are admissible only as secondary evidence, but that 
 returns made under the stat. 52 Geo. 3, c. 146, would be proveable 
 by examined copies or originals. 
 
 The bishop's register was held to be admissible to establish a 
 custom as to the nominating a curate {t). 
 
 A copy taken from a book produced by the parson of a parish, 
 as being the parish register, upon application made to him for it, 
 will be sufficient (m). But if to such application he reply that there 
 is no such register for the particular year, that will not be evidence 
 of loss sufficient to let in secondary evidence (v). 
 
 In an action for the disturbance of the plaintiff in the use of Parish 
 his pew at church, an old entry made in the vestry-book by the 
 churchwardens, stating that the pew had been repaired by the 
 owner of a messuage under whom the plaintiff claimed, was ad- 
 mitted as evidence of the right, having been made as to a fact 
 within the scope of the churchwarden's office, and being evidence 
 of the reputation in the parish as to the right (li)). An entry in a 
 vestry-book has also been admitted to prove an averment in an 
 indictment for a libel, that the prosecutor had been elected trea- 
 surer at a vestry duly held in pursuance of notice (x). 
 
 iq) lb. Doug. 162. See tit. Polygamy concurrently with the rector. Harthj v. 
 
 Marriage. Cooke, 5 C. & P. 441. And see Bishop 
 
 (r) Wiheii V. Laio, 3 Starkie's C. 63. of Meath v. Beljield, 1 Wils. 215. Bid- 
 
 R. V. Clapham, 4 Carr. & P. C. 29. Nor len v. Michell, 2 Price, 399. See further 
 
 without evidence to show that the party as to Bishop's books, Humble v. Himt, 
 
 was young when christened, is it evidence Holt's C. 601. 
 
 that he was born within the parish. JR. (««) Walker v. Beauchamp, 6 C. & P. 
 
 V. North Pellerton, 5 B. & C. 508. Burg- 552. 
 
 hart V. Angerstein, 6 C. & P. 690. Buins {v) Ibid. 
 
 V. Donovan, 3 Hagg. 301. (w) Price v. Littleioood, 3 Camp. 388. 
 
 («) Walker v. Beauchamp, 6 C. & P. See Vol II. tit. Pew. 
 
 552. (x) B. V. Martin, 2 Camp. C. 100. So 
 
 (0 Arnold v. Bishop of Bath and Wells, corporation books concerning the public 
 
 6 Bing. 306. A faculty by Archbishop of government of a city or town, where they 
 
 Canterbury to inhabitants of P. to christen have been publicly kept, and the entries 
 
 and bury there, is evidence to show that have been made by a proper officer, are 
 
 F. is not a parish. Isham v. Wallace, admissible evidence of the facts witnessed 
 
 4 Sim. 25. Note, that the document was in them. B. v. Mothersall, 1 Str. 93. 
 
 produced from the possession of a person Thetford Case, 12 Vin. Ab. 90, pi. 16. 
 
 whose rights were abridged by it. Extracts B- v. Mayor, §'c. of Liverpool, 4 Burr, 
 
 from the Bishop's register of the appoint- 2244. See also Button v. Cope, Peake's 
 
 ment to parish offices are evidence to show C. 30. 
 the right exercised by the parishioners 
 
 B 3
 
 24G wuiTTEN evidence: public documents. 
 
 Parish Oil an appeal, the respondents, in order to prove the fact of the 
 
 dehvery to tliem of a certificate given by the appellants, acknow- 
 ledging the pauper to be their settled inhabitant, produced an old 
 book from their own parish chest, in which was an entry of that 
 fact in the handwriting of a former parish officer. It was held 
 that such evidence was inadmissible (^). 
 
 An old entry in a vestry-book is not admissible on the part of 
 the parishioners to siiow that they have the right concurrently with 
 the rector to elect to a parish office, there being nothing to show 
 that the rector was present at the meeting (2^). But such entries 
 at meetings where the rector was present are receivable (a). 
 
 By the 17 Geo. 2, c. 38, s. 14, copies of all rates and assess- 
 ments for the relief of the poor are to be kept in a book by the 
 churchwardens and overseers of every parish, which is to be kept 
 in a public place in the parish, and to be produced at the sessions, 
 when any appeal is to be heard. 
 
 In the case of the Zouch peerage, a parish book of rates and 
 loans was admitted as evidence of the existence and residence of 
 a party in the parish in the year 1649, by the entry of the payment 
 of her subscription to a parish loan in that year {b). 
 
 The st. 2 G. 3, c. 22, directed the registration in every parish 
 within the bills of mortality, of all infants under the age of four 
 years, which shall be in the workhouse, hospital, or other place 
 provided for the maintenance of the poor, or under the care of the 
 churchwardens or overseers of the poor, with the times when they 
 were received, their names, ages, and such other description as 
 could be traced. 
 
 By the 42 Geo. 3, c. 46, the churchwardens and overseers are 
 to keep a book containing the names of all parish apprentices, 
 and of the other particulars required by the Act ; the entries are 
 to be signed by the justices who assent to the indentures ; and 
 when the latter are proved to have been destroyed or lost, such 
 register is to be deemed sufficient evidence in all courts of law 
 in proof of the existence of such indentures, and of the other 
 particulars specified in the register : and each entry, if approved, 
 is to be signed by the justices, and such book may be inspected 
 at all seasonable hours, and a copy taken, if the indentures are 
 lost or destroyed. 
 
 (y) R. V. Dehenham^ 2 B. & A. 185. (&) Printed evidence, 162, Entries by 
 
 (r) Hartley v. Cooke, 5 C. & P. 441 a chureliwarden not made in the course of 
 
 (a) Ibid.; and extracts from the regis- his official duty, and by wliich he does not 
 
 ter of the Bisliop of tlie diocese were read charge himself, are not admissible. Cooper 
 
 to prove the same appointments. v. Banket, 2 C. & P. •^78.
 
 PUBLIC BOOKS. 
 
 247 
 
 The register of the Navy-office, made up from the captains' Hooks of 
 returns, with proof of the method there used to enter all persons offices, 
 dead witii the letters D d, is evidence of siich death (c). And so 
 is the muster-book transmitted by the officers of the ship to the 
 Navy-office (c?). So the log-book of a man-of-war which con- 
 voyed a fleet, is evidence to prove the time of sailing (e). Where 
 a statute required that every vessel engaged in the whale fishery 
 should carry out an apprentice for every 50 tons, and that the 
 same should be verified by the master, mate, and two of the mari- 
 ners, it was held that an affidavit verifying a muster-roll, upon 
 which it appeared that a certain number of apprentices was on 
 board when the vessel cleared out, is prima facie evidence that 
 such apprentices were on board when the vessel sailed {f). 
 
 The custom-house copy of the searcher's report, produced by the 
 officer in whose custody it is lodged, is evidence of the actual 
 shipment of the goods therein specified {g). 
 
 (c) B. N. p. 249 ; Bac. Ab. Ev. G35. 
 
 B. V. Rhodes, Leach's C. C. L. 3d ed. 29. 
 a. V. Fitzijerald Sf Lee, ib. 24. Tlie book 
 kept at the Sick and Hurt Office, in which 
 are copied the different returns, made by 
 officers of the navy, of persons dying on 
 board, is evidence to show the time of a 
 seaman's deatli. Wallace, administi-ator, 
 V. Cook, 5 Esp. C. 117. But where the 
 wife of A. B. obtains goods after stating 
 that her husband is dead, it is not a suffi- 
 cient answer to an action for the amount, 
 to show by the muster of a ship from the 
 Admiralty, that a person of the name of 
 A. B. was living at the time. Barber v. 
 Holms, 3 Esp. C. 190; Kenyon, C. J. 
 1800. As to the books at Lloyd's, see 
 Ahel V. Potts, 3 Esp. C. 242, and Vol. II. 
 tit. Policy. 
 
 {d) R. V. Fitzgerald §■ Lee, Leach, 
 
 C. C. L. 24. R. V. Rliodes, ib. 24. 
 
 (e) D' Israeli y.Jowett, 1 Esp. C. 427. 
 Such log-book and the official letter of the 
 commander to the Admiralty were read 
 without objection, as proof that the fleet 
 encountered a storm, and that a particular 
 vessel parted company. Watso7i and 
 another, Adininistratoi-i of Maxtvell, v. 
 King, 4 Campb. 272 ; EUenborough, C. J. 
 1815. 
 
 And the log-book of a merchant-man 
 may be used by a witness to refresh his 
 memory, with respect to a fact which he 
 
 remembers to have seen there at a time 
 when he had a clear recollection of the 
 circumstance. Burrough v. Martin, 2 
 Camp. C. 112. 
 
 (f) Lacon v. Hooper, 1 Esp. C. 246. 
 
 (g) Johnson v. Ward, 6 Esp. C. 47. 
 Note, that the paper was proved to have 
 gone with the ship. So a copy of an official 
 document, made in pursuance of an Act of 
 Parliament, containing the names, capa- 
 cities, and descriptions of passengers, was 
 held to be good proof of such persons being 
 on board. Richardson v. Mellish, 2 Bing. 
 229. In R. V. Grimicood, 1 Price, 369, 
 it was held that excise books transcribed 
 from the maltster's specimen paper were 
 admissible evidence against him without 
 calling the officers to substantiate them, 
 even although they were charged to be 
 fraudulent and collusive, without proof 
 given that they were so. But a shipping 
 entry at the Custom-house, although for 
 some purposes a public document, is not 
 evidence to affect the person whose duty 
 it was to cause the entry to be made cri- 
 minally, the note from which the entry 
 had been made by the officer having been 
 accidentally destroyed. Hughes v. Wat' 
 son, 1 Starkie's C. 179. The entry of the 
 contract in the book of the clerk of the 
 coal market in London is not evidence of 
 the sale under 47 Geo. 3, sess. 2, c. 68, 
 8. 29, unless the buyer be proved aliunde 
 
 R 4
 
 248 
 
 WRITTEN EVIDENCE : PUBLIC DOCUMENTS. 
 
 Poll- books. 
 
 Prison 
 books. 
 
 Chancel- 
 lor's book. 
 
 Books of 
 Clerk of 
 the Peace. 
 
 Ships' 
 
 registers.' 
 
 The poll-books at an election for members in parliament are 
 evidence in a penal action for bribery (A). So the daily book 
 kept by the keeper of Newgate, and the books of the King's 
 Bench and Fleet prisons, are evidence to prove the dates of the 
 commitments and discharges of prisoners (i), although the entries 
 are sometimes made from the information of the turnkeys, and the 
 indorsements upon the warrants (k). But they are not evidence 
 of the cause of commitment, the commitment itself being the 
 best evidence (/). And it seems that they are not strictly public 
 documents, so as to warrant the reception of a copy in evidence, 
 since the gaoler is not required to make such entries, but does 
 it for his own information and security (m). The books of the 
 bank of England are evidence to prove the transfer of stock (w). 
 The book kept in the master's office in the court of King's Bench 
 is evidence to prove that a particular person is an attorney of the 
 court (o). 
 
 An entry in the public books of a corporation is not evidence 
 for the corporation, unless it be an entry of a public nature (p). 
 
 A book kept by order of the Chancellor was held to be good 
 secondary evidence of the allowance of a certificate of bankruptcy ; 
 but a book kept in the office of the secretary of bankrupts, without 
 such order, is not admissible (q). Books in the office of clerks of 
 the peace of enrolments of deputations of gamekeepers for a manor, 
 are admissible to prove the exercise of manorial rights, without 
 proof of the loss of the original deputations, and that the game- 
 keepers acted under them (r). 
 
 The registry of a ship is evidence to negative ownership, since 
 
 to have signed the contract ; although the 
 Act directs that all contracts for the sale 
 of coals shall be signed by the buyer and 
 
 the factor, that the factor shall deliver a 
 copy to the clerk, who shall enter it in a 
 book, and although the 32d section makes 
 such entries evidence in all cases, suits, 
 and actions, touching anything done in 
 pursuance of the Act. Brown v. Capel, 
 1 M. & M. 374. 
 
 (Ji) Mead v. Robinson, Willes, 422. 
 J{. V. Hughes, cited ib. R. v. Duins, 2 
 Str. 1048. 
 
 (i) R. V. Aiekles, Leach, C. C. L. 2d ed. 
 435; 3 Bos. & Pull. 188. 
 
 (Jt) 3 Bos. & Pull. 188. On the ground 
 that it had been the constant and estab- 
 lished practice of the keepers of public 
 prisons to register the discharge of pri- 
 soners in such books. 
 
 {I) Ib. This case, therefore, and some 
 others of a similar nature, do not rest upon 
 the ground that the entry was made by an 
 authorized officer. Salte v. Thomas, 3 B. 
 & P. 188. 
 
 (m) Ibid. 
 
 {n) Marsh v. Colnet, 2 Esp. C. 665. 
 Breton v. Cope, Peake's C. 30. 
 
 (o) R. V. Crossley, 2 Esp. C, 626. 
 And see Jones v. Stevens, 11 Price, 235. 
 
 {p) Marriage v. Lawrence, 3 B. & A. 
 142. 
 
 {q) Henry v. Leigh, 3 Camp. C. 499. 
 
 (r) Hu7it V. Andreios, 3 B. & A. 348. 
 
 * See the provisions made by the statute 
 6 G. 4, c. 110, s. 43, as to the inspection 
 and proof of such registers, and Appen- 
 dix.
 
 PUBLIC BOOKS, 
 
 249 
 
 no one can be an owner who is not registered as such (s) ; but the Ships' 
 registry is not necessarily proof of ownership, without showino- the '^'^Sisters. 
 privity of the party, since the entry may have been made by a 
 stranger for the purpose of fraud {t). For the same reason the 
 mere fact of an entry of a stage coach at the licensing office is no 
 evidence of ownership (m). On the same principle, a register is 
 not evidence for the defendant to prove a joint ownership on a 
 plea in abatement (x) ; nor (without possession) to prove an inte- 
 rest of another person in the ship, in an action brought by an 
 agent on a policy of insurance, describing the interest in that other 
 person (y) ; nor to prove that a ship is British built, as described 
 in the register (z). 
 
 The books in the Heralds'-office, containing the pedigrees of Heralds' 
 the nobility and gentry of the realm, are evidence on a question of 
 pedigree (a) ; and so are the minute-books of a visitation (b), from 
 which the entries are afterwards made in the books of the heralds' 
 college (c). In the case of Pitton v. Walter (d), a minute-book 
 
 books. 
 
 («) Camden y. Anderson, 5 T. R. 709; 
 14 East, 229. Marsh v. Robinson, 4 Esp. 
 C. 98. Infra, Vol. II. tit. Policy. Pirie 
 V. Anderson, 4 Taunt. 652. Floioer v. 
 Young, 3 Camp. 340. Abbott on Ship- 
 ping, ch. 2, p. 27, and Vol. II. tit. Ship. 
 
 (0 T'mkler v. Walpole, 14 East, 226. 
 Smith V. Fuge, 3 Camp. 456. Fi-aser v. 
 Hopkins, 2 Taunt. 5. Teed v. Martin, 
 2 Camp. 170. Cooper v. South, 4 Taunt. 
 102. Ditchburn v. Spachling, 5 Esp. C. 
 11. In an action for stores furnished for 
 a ship by the captain's order, the register 
 purporting to have been obtained by all 
 the defendants, on the oath of one of them, 
 was held to be pritnA facie evidence to 
 charge them as owners. Stokes v. Carne 
 and others, 2 Campb. 339. In trover for 
 a ship, if the plaintiff produce the original 
 register, and attempt, unsuccessfully, to 
 deduce a title under it, he cannot after- 
 wards rely upon his possession. Sheriff 
 V. Cadell, 2 Esp. C. 617; Kenyon, C. J. 
 1798. 
 
 (m) Strothei- v. Willan, 4 Camp. C. 24. 
 Mlis V. Watson, 2 Starkie's C. 453. The 
 clause in the statute 50 Geo. 3, c. 48, s. 7, 
 enacts that the name painted on the out- 
 side panel of each door of a public stage- 
 coach shall be evidence of ownership, and 
 as the enactment is general in its terms it 
 is not confined in its application to sum- 
 
 mary proceedings before magistrates, but 
 is in general good evidence of proprietor- 
 ship. Barford v. Nelson, 1 B. & Ad. 571. 
 
 {x) Flower v. Young, 3 Camp. C. 240. 
 
 (?/) Pirie v. Anderson, 4 Taunt. 652. 
 
 {z) Eouse V. Meyers, 4 Camp. C. 375. 
 See further, as to proof of property in a 
 ship, Vol. II. tit. Policy. 
 
 (a) Pitton V. Walter, Str. 162; Salk. 
 281; Skin. 623; Yelv.34. King y. Foster, 
 2 Jon. 164—224. A book found therein, 
 purporting to be an account of the posses- 
 sion of property by a monastery, is not 
 evidence of that fact. Lygon v. Strutt, 
 2 Anst. 601. 
 
 (b) Sherriff v. Cadell, 2 Esp. 617; 
 2 Jones, 224; B. N. P. 248. 
 
 (c) The visitation-books were compiled 
 by the provincial kings-at arms, who were 
 usually authorized, soon after their inves- 
 titure in office, by a commission under the 
 great seal, to visit the several counties 
 within their respective provinces, to take 
 survey and view all manner of arms, &;c. 
 with the notes of the descents, pedigrees, 
 and marriages of all the nobility and 
 gentry, &c. They occupy the interval be- 
 tween the 21 H. 8, and the end of the 
 reign of Jac. 2. See the first report of the 
 House of Commons on the public records, 
 p. 82. 
 
 (d) Str. 162.
 
 260 
 
 WRITTEN evidence: PUBLIC DOCUMENTS. 
 
 Heralds' 
 books. 
 
 Official 
 document. 
 
 Commis- 
 sioners' 
 books. 
 
 Public his" 
 tories and 
 chronicles. 
 
 of a visitation, signed by the heads of several families, and found 
 in the library of Lord Oxford, was received in evidence. 
 
 But an extract from a pedigree proved to be taken out of the 
 records is not evidence (e), because a copy of the record might 
 be had, and therefore it is not the best evidence. 
 
 The bill of cravings of a sheriff entered, and allowed, and of 
 record in the Exchequer, was held admissible evidence upon a 
 question of the duty of the sheriff of the county (/). 
 
 Where a local Act authorised acts to be done at meetings to be 
 called for that purpose, and directed that entries in the commis- 
 sioners' books should be evidence ; held that entries, stating orders 
 to have been made at a meeting held by public notice, without 
 showing that notice was given of the purpose for which it was 
 called, was not sufficient to establish the legality of the meeting (^). 
 
 Land-tax assessments are admissible evidence to show the seisin 
 of the particular person assessed ; for it is the duty of the officer 
 to ascertain and charge the occupier {h). And such assessments 
 are admissible, in conjunction with other evidence, to prove the 
 seisin of land by a particular individual, although they contain 
 only the surname generally (i). But such evidence was held to 
 be insufficient to prove the seisin of a particular individual, where 
 it appeared that the assessors had, in the first instance, entered the 
 name of a former owner incorrectly, and continued it after his death( A). 
 
 Books and chronicles of public history are not admissible in 
 order to prove particular facts or customs (Z), but they are evidence 
 to prove a matter relating to the kingdom at large, as being the 
 best of which the subject-matter is capable {m). Camden's Bri- 
 tannia was rejected on the question, whether, by the custom of 
 Droitwich, salt-pits could be sunk in any part of the town, or in 
 a certain place only {n). And so was Dugdale's Monasticon, on 
 
 (e) B. N. P. 248. 
 
 (/) R. V. Antrohxis, 6 C. & P. 704. 
 
 {g) Heysham v. Forster, 6 M. & Ry. 277. 
 
 (A) Coventry on Conveyancers' Evi- 
 dence, c. 7, s. 1, p. 275. Doe v. Seaton, 
 2 Ad. iScEll. 171. 
 
 (i) lb. 
 
 (Ji) Doe d. Stansbury v. Arhoright, 
 2 Ad. & Ell. 182. 
 
 (Z) B. N. P. 248. Cochnan v. Mather, 
 1 Barnardist. 14. 
 
 (m) Ibid. 249; Salk. 281. On the 
 impeachment of Warren Hastings, the 
 History of the growth and decay of 
 the Ottoman Empire, by Prince Demetrius 
 Cantemir, was received in evidence to 
 
 prove the customs in Hindostan respecting 
 the treatment of women of rank : and after 
 argument as to the admissiblity of the 
 evidence, it was held that the managers 
 were entitled to read it, on the ground 
 that it went to prove an universal custom 
 of the Mohammedan religion. See Phillips 
 on Evidence, vol. 1, 424, citing a report 
 of the proceedings on the impeachment-, 
 in the possession of T. Jones Howell, the 
 editor of the State Trials. The point was re- 
 ferred to by Lord Ellenbourgh, on the trial 
 of General Picton, 30 Howell's St. Tr. 492. 
 (n) Stabler y. The Burgesses of Droit- 
 wich, Salk. 281 ; Skinner, 623 j 1 Vent. 
 151.
 
 PUBLIC HISTORIES. 261 
 
 the question, whether the Abbey de Sentibus was an inferior abbey, PuMic his- 
 or not, because the original records might be had at the Augmen- chronicles, 
 tation-office (o). It was held that Duijjdale's Baronao-e was not 
 evidence to prove a descent (p). But in the case of Neale v. 
 Fay (q), in order to show that a deed was forged which bore date 
 1 Ph. &c M., in which all the titles were given to Philip which he 
 used after the surrender of Charles the Fifth, chronicles were 
 admitted to show that he did not take those titles upon him till 
 six months after the date of the deed. And in the case of St. 
 Katherine's Hospital, Lord Hale admitted a chronicle to prove a 
 particular point of history in the reign of Edward the Third (r). 
 The year-books are evidence to prove the course of the court (s). 
 
 The history of a particular county is not admissible to prove 
 the boundary between two parishes, it being admitted that the 
 latter was coincident with the former, (t). See further as to Al- 
 manacks — Vol II. tit. Time ; Corporation Books — Vol. II. tit. 
 Corporation ; Manor Books — vol. II. tit. Copyhold — Manor. 
 
 It is a general rule, that whenever the original document is of pubHc do- 
 a public nature, an exemplification of it (if it be a record), or a cuments, 
 sworn copy, is admissible in evidence (u), because documents of a ed. 
 public nature cannot be removed without inconvenience, and 
 danger of being lost or damaged (.r) ; and the same document 
 may be wanted in two places at the same time. The document 
 must always be proved to be that which it purports to be, and for 
 which it is offered, by some extrinsic proof; as in the case of 
 records, terriers, &c., by showing that they came from the legal 
 custody or repository (y). And this is in general sufficient, where 
 the original is produced, for a record proves itself; and terriers 
 
 (o) Cited Salk. 281. the county, although the case differed 
 
 O) Piercy's Case, 2 Jon. 164. ^om that of a general history of the 
 
 {q) Ibid. 282, and B. N. P. 249, and country. 
 Neale v. Jay. (m) B. N. P. 294; Gil. Ev. 4, 5. But 
 
 (r) Salk. 282. though a copy of a contract with the land- 
 
 tax commissioners is made evidence by 42 
 
 Geo. 3, c. 116, s. 165, the original con- 
 tract is not evidence by implication. 
 Burclon v. BicJtets, 2 Camp. 121. And 
 
 («) Ibid.; Spelman's Nomina Villarum 
 
 has been received to prove Newstead to be 
 
 a vill. Phillip's on Evidence, vol. 1, 
 
 p. 605, 8th edit. Bishop Well's Liber de 
 
 ^ J. ' -v ^,. . , , , see Sav. 46, pi. 98. Vol. II. tit. Penal 
 
 Ordmatiombus Vicariorum, has been ad- ' ^ 
 
 mitted to prove an endowment. Tucker 
 
 V. Wilkins, 4 Simons, 262. (x) Gil. L. E. 8 ; Bac. Ab. Ev. F. And 
 
 (0 IJvans v. Getting, 6 C. & P. see Lynch v. Clarke, 3 Salk. 153. R. v. 
 
 586. It was thrown out that the writer Haines, Comb. 357. 
 
 might have the same interest as any other (y) See tit. Records, Judgments, &c. 
 
 inhabitant in extending the boundaries of gge also Terriers, $upra, 239.
 
 262 WRITTEN evidence: judicial instrument. 
 
 and other ancient writings do not usually admit of further authen- 
 tication (z). 
 Judements Judicial documents may be divided into, First, judgments, de- 
 &c., gene- crees, and verdicts. Secondly, depositions, examinations, and 
 pl^es ofad- mquisitions, taken in the course of a legal process. Thirdly, 
 inissibiiity. writs, Warrants, pleadings, bills, and answers, &:c. which are inci- 
 dent to judicial proceedings. With respect to judgments, decrees, 
 and verdicts, may be considered ; first, their admissibility and 
 effect ; secondly, the means of proof; thirdly, the mode of answer- 
 ing such evidence. It is important to consider, in the first place, 
 for what purpose a verdict or judgment is offered in evidence ; 
 whether with a view to establish the mere fact, that such a verdict 
 was given, or judgment pronounced, and those legal consequences 
 which result from that fact ; or it is offered with a view to a col- 
 lateral purpose ; that is, not to prove the mere fact that such a 
 judgment has been pronounced, and so to let in all the necessary 
 legal consequences of that judgment, but as a medium of proving 
 some fact, as found by the verdict, or upon the supposed existence 
 of which the judgment is founded. 
 
 For the first of these purposes, that is, for establishing the fact 
 that such a verdict has been given, or such a judgment pronounced, 
 and all the legal consequences of such a judgment, the judgment 
 itself is invariably not only admissible as the proper legal evidence 
 to prove the fact, but usually conclusive evidence for that purpose ; 
 for it must be presumed that the Court has made a faithful record 
 of its own proceedings. And in the next place, the mere fact 
 that such a judgment was given can never be considered as res 
 inter alios acta, being a thing done by public authority ; neither 
 can the legal consequences of such a judgment be ever so con- 
 sidered; for where the law gives to a judgment a particular ope- 
 ration, that operation is properly shown and demonstrated by 
 means of the judgment, which is no more res inter alios than the 
 law which gives it force. But with reference to any fact upon 
 whose supposed existence the judgment is founded, the proceeding 
 may or may not be res inter alios, according to circumstances. 
 For instance, if B., being indicted, be convicted of beating A.y 
 the record of the judgment would be incontrovertible evidence of 
 the fact that B. had been so convicted ; it would be conclusively 
 presumed that the Com't had kept a faithful record of its own 
 proceedings. It would in like manner be conclusive as to all the 
 legal consequences of such conviction. For instance, one of such 
 
 {z) For the mode of procuring access to public documents, see tit. Inspection.
 
 ADMISSIBILITY AND EFFECT. 253 
 
 consequences is, that B. shall not be punished a second time for Ji.dgmcnts, 
 the same offence ; and consequently the record would be conclu- '^*'"* 
 sive, when shown to the Court, to protect him from a second pro- 
 secution for the same offence. So if B. had been acquitted, and 
 had brought an action against A. for a malicious prosecution, it 
 would have been necessary to prove the fact of acquittal ; and 
 here again the record would have been conclusive evidence to show 
 that fact. But next suppose, that upon ^.'s conviction A. brought 
 an action to recover damages for the assault, and offered to prove 
 the assault by the record of conviction, he would then be offering 
 the judgment, not with a view to prove the mere fact of convic 
 tion, or to establish any legal consequence to be derived from it, 
 but for a collateral purpose, that is, to prove the fact upon whose 
 supposed existence the judgment was founded. With respect to 
 such facts, that is, the facts upon which a judgment professes to 
 be founded, the judgment may or may not be evidence, according 
 to circumstances, considering the nature of the facts themselves, 
 and the parties. 
 
 A record is in no case direct and positive evidence of any fact conclusive 
 which it recites, as having been found by a jury, or otherwise ^^'^'^* 
 ascertained ; it is in the nature of presumptive evidence only, for 
 even the jury who found the fact may have acted upon mere pre- 
 sumption, without the aid of any direct evidence. If, therefore, 
 no rule of pohcy intervened, no verdict could ever establish any 
 fact conclusively, for it never could prove more than that the jury, 
 in the particular case, presumed, from some evidence or other, 
 that the fact was true. But public policy requires that limits 
 should be opposed to the continuance of litigation upon the same 
 subject-matter, and therefore the law will not permit a matter 
 which has once been solemnly decided by a court of competent 
 jurisdiction to be again brought into litigation between the same 
 parties or their representatives {a) ; consequently a decree or judg- 
 ment between the same parties upon the same subject-matter is 
 usually conclusive as to private rights. On the other hand, it is 
 an elementary rule and principle of justice, that no man shall be 
 bound by the act or admission of another to which he was a 
 stranger; and consequently no one ought to be bound, as to a 
 matter of private right, by a judgment or verdict (h) to which he 
 
 (a) According to the legal maxims, (6) See the judgment of C. J. De Grey, 
 
 " nemo vexari debet bis pro eadem causa," in the Duchess of Kingston's Case, 1 1 St. 
 and " reipublicre interest ut sit finis li- Tr. 261. 
 tium." See 3 Wilson, 304, Kitchen v. 
 Campbell.
 
 254 WRITTEN EVIDEXCE t JUDICIAL INSTRUMENT. 
 
 Judgment was not a party, where he could make no defence, from which he 
 conclusive, ^.q^i^ ^ot appeal, and which may have resulted from the negli- 
 gence of another, or may even have been obtained by means of 
 fraud and collusion. Neither ought any one in justice to be bound 
 by a verdict, although he was privy to it, but where his adversary 
 was not also a party, and consequently where the verdict may 
 have been founded upon the evidence of that adversary himself, 
 who had an interest in obtaining a verdict for the purposes of evi- 
 dence ; for as he cannot give direct evidence upon the subject, he 
 ought not to make use of his own evidence by circuitous means (c). 
 Another principle which (as it is frequently said) operates to the 
 exclusion of a verdict, as evidence, on a matter of private right, is 
 this, that a person who could have received no prejudice from the 
 verdict, had it been given the contrary way, shall not derive any 
 benefit from it when it turns out to be in his favour (d), and because 
 a judgment operates by way of estoppel, and estoppels must be 
 founded on mutuality (e). 
 
 Another ground of objection, even where the evidence is offered 
 against a party to the former proceeding, arises when, from the 
 nature of the former proceeding, the party is not entitled to the 
 same means of disproving the fact, or the same means of redress, 
 of which he might avail himself in the second suit ; for this would 
 be virtually, although circuitously, to deprive him of those advan- 
 tages. For example, to admit upon the trial of a civil action, a 
 conviction on an indictment for felony (except for the purpose of 
 establishing a legal consequence of the conviction), would be indi- 
 rectly to deprive the party, against whom the evidence was 
 offered, of the power of repelling the proof by means of a full 
 defence by counsel, and of his attaint of the jury for finding a 
 false verdict. 
 Judgment These objections are however applicable to those cases only 
 "^ •■e™' where a matter of private right or liability is concerned ; for in 
 matters of a public nature, where the proceeding is, as it is usually 
 termed, in rem, public convenience requires that the sentence, de- 
 cree, or judgment, should be binding upon all (/). In cases also 
 where the matter is of a public nature, and where reputation would 
 be admissible evidence, a verdict or judgment is frequently evidence, 
 as falling within the scope of general reputation. 
 
 Such are the general considerations by which the reception of 
 
 (c) Gil. L. Ev. 31. (e) Per Lord Ellenborough, 4 M. & S. 
 
 (d) Ibid. 479. 
 
 (/) Vide mpra, tit. Res inter alios.
 
 ADMISSIBILITY AND EFFECT. 255 
 
 evidence of this nature is governed, depending mainly on the elc- Jiuiffment 
 mentary principles already announced ; viz. that no one ought to l^f^ct^'l^d 
 be bound by any testimony where he has not had the power of as to all le- 
 cross-examining the witness, and controverting the evidence by quences?" 
 opposite testimony (g), nor by any evidence which comes within 
 the description of res inter alios. 
 
 The admissibiUty and 'effect of a verdict or judgment may be 
 considered, 1st, with a view to the proof of the judgment itself as a 
 fact, and its legal consequences ; or, 2dly, with a view to the proof 
 of the matters on which it is founded. — 1st. With a view to the 
 proof of the judgment itself as a fact, and its legal consequences. — 
 It seems to be an incontrovertible rule, that every judgment is evi- 
 dence for such purposes. An attainder of felony or treason is, in 
 general, evidence as to all the consequences of the attainder (7i). 
 A conviction of the principal for felony is evidence (although not 
 conclusive) against the accessory (z). A conviction of an infamous 
 crime is evidence against all, to show the incompetency of the party 
 as a witness (k). So the judgment by a person of competent autho- 
 rity is evidence to protect him against actions for any matter judi- 
 cially done within the scope of that authority (/). For his immunity 
 is a legal consequence of his acting in that situation ; and the 
 judgment is offered, not to prove the truth of the facts upon which 
 it is founded, since, with a view to such a defence, the truth of 
 those facts is not material, but in order to prove the fact of a 
 judgment pronounced by competent authority, and so to establish 
 the immunity of the judge, which is a legal consequence of the 
 judgment (w). In these, and a number of other instances, where a 
 judgment is admitted to prove the fact itself, and with a view to 
 its legal consequences, every such judgment may be considered as 
 operating in rem (n). 
 
 In an action by A. against a sheriff, for trespass to his goods, judgment 
 the defendant may give in evidence a judgment against B., and always evi- 
 that he seized the goods by virtue of 2i fieri jacias upon that judg- fact. 
 ment, and thereupon seized the goods in question, being the goods 
 of B. So where the title to particular goods is litigated between 
 A. and B., it is competent to A. to show a judgment against C, 
 and that the sheriff sold the goods to him, being the goods of C, 
 nndev a. fieri facias. A judgment in assumpsit against three de- 
 
 (</) Supra, tit. Excluding Tests. (0 Vide i7ifra, tit. Convictions by 
 
 (h) Vide infra, tit. Accessory. Justices, Vol. II. 
 
 (i) Ibid. (m) Jw/»a,ib. tit. Justices— Trespass. 
 
 (*) Supra, tit. Witness. (m) Supra, tit. Res Inter alios.
 
 256 
 
 WRITTEN evidence: JUDGMENTS, &C. 
 
 Ju(la;ment 
 always evi- 
 dence as a 
 fact. 
 
 Judgment 
 in matter 
 of private 
 litigation. 
 
 Judgments 
 between 
 private 
 persons. 
 
 fendants as partners, is prima facie evidence for one against the 
 others, to prove their Uability to contribution (o). 
 
 So where A. has obtained a verdict against B. for the negligence 
 of his agent C, in an action by £. against C, the recovery in the 
 former action is evidence, not to prove the fact on which it was 
 founded, viz. the negUgence of C, but to show how far S. has 
 been damnified (p) ; the judgment here is the best evidence to 
 show the amount of i^.'s hability to A., but it is no evidence to 
 show that such liability was the consequence of Cs neghgence, a 
 fact which must be proved aliunde. So a verdict in a former cause 
 inter alios is admissible for the purpose of introducing evidence to 
 show that a witness on the former trial gave evidence directly 
 contrary to that which he gives on the latter ((/). 
 
 So in an action for a malicious prosecution, an indictment against 
 the plaintiff is evidence to show the act done by the defendant in 
 the prosecution of his malicious intention, and also to show the 
 plaintiff's acquittal (r). So a record is frequently evidence by way 
 of inducement, as upon an indictment for perjury (s). 
 
 Secondly/, With a view to the proof of those matters on which 
 the judgment is founded. It will for this purpose be convenient to 
 divide all adjudications into, First, Those which relate to matters 
 of private litigation between party and party ; Secondly, those of a 
 criminal and penal nature ; Thirdly, those which relate to proceed- 
 ings in rem; Fourthly, those which relate to matters usually 
 proved by reputation. First, as to the admissibility of a verdict 
 or judgment relating to a matter litigated between parties. — It has 
 been laid down by great authority, that in civil cases the judg- 
 ment of a court of concurrent jurisdiction directly upon the point, 
 is as a plea or bar, and as evidence (0 conclusive between the 
 same parties upon the same matter directly in question in another 
 court : and that the judgment of a court of exclusive jurisdiction 
 is, in like manner, conclusive upon the same matter coming inci- 
 dentally in question in another court, between the same parties for 
 
 (o) 2 N. R. 371. 
 
 (jP) Green v. The Neio River Coynjmny, 
 4 T. R. 590. 
 
 {q) Clarges v. Sherwin, 12 Mod. 343. 
 B. N. P. 
 
 (r) See Vol. II. tit. Malicious Pro- 
 secution. 
 
 («) See Vol. II. tit. Perjury. 
 
 (J) Altliough the celebrated judgment 
 in the Duchess of Kingston's Case has 
 received frequent sanction from eminent 
 Judges by whom it has been cited with- 
 
 out qualification, it will be seen from 
 the modern authorities below referred to 
 that the case where a fonner judgment is 
 used, not as a decision on the identical 
 subject-matter of complaint, but as a 
 decision on the same controverted point, 
 which is to operate by way of estoppel, it 
 cannot so operate unless it be pleaded, 
 even although the party seeking to avail 
 himself of it, had no opportunity for plead- 
 ing it, as where he is defendant in an 
 ejectment.
 
 IDENTITY or PARTIES. 257 
 
 a different purpose. But that neither the judgment of u court of Jmiiiiiioiit-t 
 concurrent or exclusive jurisdiction is evidence of any matter pliva'te' 
 which comes collaterally in question, though within their jurisdic- perscus. 
 tion, nor of any matter to be inferred by argument from the 
 judgment {u). 
 
 This was part of the judgment of C. J. de Grey, in the case of 
 The Duchess of Kingston. The principal position amounts to this, 
 that no matter once litigated and determined by proper authority 
 shall a second time be brought into controversy between the same 
 parties. 
 
 It is then essential to consider, First, The identity of the par- identity of 
 ties. »Seconf?/y, Of the matter litigated, 77<!w%, The nature and i""*"'"- 
 manner of the adjudication. Fourthly, The application of the 
 adjudication to the fact to be proved. Fifthly, The effect of the 
 judgment. 
 
 No one, in general, can be bound by a verdict or judgment un- Must be 
 less he be a party to the suit, or be in privity with the party, or p^J.""^,,,"' 
 possess the power of making himself a party. For otherwise he privy. 
 has no power of cross-examining the witnesses, of adducing evi- 
 dence in furtherance of his rights ; he can have no attaint, nor can 
 he challenge the inquest, or appeal ; in short, he is deprived of the 
 means provided by the law for ascertaining the truth and excluding 
 error, and consequently it would be repugnant to the first principles 
 of justice that he should be bound by the result of an inquiry to 
 which he was altogether a stranger {x). 
 
 Hence, if one bring several ejectments against several, upon the 
 same title, a verdict against one is not evidence against the rest, 
 because the party against whom the verdict was had might be 
 relieved against, if it was not good, but the rest could not (;//). 
 
 So a verdict against a tenant for life will not bind a reversioner (r). 
 For the tenant for life is seised in his own right, and that possession 
 is properly his own. He is at liberty to pray in aid of the rever- 
 sioner or not, and the reversioner cannot possibly controvert the 
 
 (m) By De Grey, C. J., in giving judg- (x) 11 H. 4. 30; Tr. per Pais, 29, 30; 
 
 ment in the Duchess of Kingston's Case, 44 Ass. 5. Kinnerslcy v. Orpe, Dougl. 
 
 11 St. Tr. 2C1. A verdict is conclusive 57. 
 
 between the same parties on the same (y) 3 Mod. 142. Bell v. Harwood, 
 
 facts, unless it has been reversed by at- 3 T. R. 308; Lord Ray. 1292; Vern. 415; 
 
 taint, Co. Litt. 227 b. A defendant who Ch. Pr. 212 ; 12 Mod. 319, 339 ; 10 Mod! 
 
 has omitted to plead his certificate under 292; Carth. 77. 181 ; 5 Mod. 380; 2 Jones, 
 
 a commission of bankrupt in a former 221. 
 
 action, by Tp]ea, puis darrein continnajice, (z) B.N. P.; 232; Hardr. 462; Yelv. 
 
 cannot plead it to an action on the judg- 32. 
 ment. Todd v. Maxfield, 6 B. & C. 105. 
 
 VOL. I. S
 
 Tliose 
 claiiiiin 
 
 258 WRITTEN EVIDENCK : JUDGMENTS, &C. 
 
 matter wlicre no aid is prayed. But if the reversioner were to 
 come in upon an aid prayer, he might then have an attaint, and 
 consequently tlie verdict wouhl then be evidence against him (a). 
 But one who claims in privity with another, is in the same situa- 
 privity. tion with the latter, as to any verdict or judgment, either for or 
 against him, whether he claim as privy in blood or estate, or as 
 privy in law (b). Accordingly the heir may give in evidence a ver- 
 dict for his ancestor (c). And a verdict against the ancestor binds 
 the heir {d). So a verdict against an intestate or testator binds his 
 representative (c). So in ejectment between Doe on the demise of 
 A. and B., A., it is said, is bound by a verdict for the defendant. 
 For the Courts take notice tiiat in ejectment the lessor of the 
 nominal plaintiff is the party really interested, and upon the trial 
 A. had the opportunity to cross-examine the witnesses for J)., and 
 to controvert their testimony {f ). 
 
 If several remainders be limited by the same deed, a verdict for 
 one in remainder will be evidence for the next in remainder aoainst 
 the same party ig). But a verdict against a particular tenant for 
 life does not bind the reversioner unless he come in to defend upon 
 aid prayer (It) : and consequently, for want of mutuality, a verdict 
 for the tenant for life would not be evidence for the reversioner 
 unless called in aid against the same party {i). Partly upon the 
 
 (a) Ibid. (e) R. v. Hebden, And. 389. 
 
 (&) Such verdict and judgment operate (f) Bac. Ab. tit. Ev. F. GIG; B. N. P. 
 as an estoppel, when pleaded in bar. 232; Ilardr. 472; Gil. L. Ev. 33. Aslin 
 Com Dig. Estoppel, B. ; Co. Litt. 352. v. Par/>;m, 2 Burr. GOS. It may be doubted 
 Vooght V. Winch, 2 B. & A. Oiitrain v. whether the older authorities on this sub- 
 Moretmod, 3 East, 316; 16 East, 334. ject do not relate to the now obsolete 
 Incledon v. Burgess, 1 Show. 28. Hooper action of ejectione firmas, in which the 
 V. Hoq/jer, M'Clellan & Y.509. One having pleadings were carried on and issue joined 
 lands by escheat, tenant by courtesy, tenant as in other ordinary actions of trespass. 
 in dower, the incumbent of a benefice. It has, however, lately been held, that a 
 and others that come in by act of law, judgment for the defendant in a former 
 or in the post, are mentioned by Lord ejectment, is evidence for him on a sub- 
 Coke as examples of privities in law, sequent ejectment, the lessor of the plain- 
 Co. Litt. 352 b. A verdict against an tiff being the same. Doe d. Strode v. 
 unmarried woman is admissible against Seaton, 2 C. M. & R. 731 ; and see 
 her husband and herself after marriage. Wright v. Tatham, 1 Ad. &; Ell. 19. 
 Outran v. Moretoood, 3 East, 353. A {g) 1 Ray. 730; B. N. P. 232; Hardr. 
 judgment against a schoolmaster is evi- 462. 
 
 dence against his successor. Brownlier v. ^^^^ j^ j^ p_ 333 . jj^^^^.^ ^3^ . ^^^ ^^ 
 
 Atkins, Skinn. 15. See vol. II. tit. j^^^ ^^^ . ^^^ ^^^ p,,j„ 3^ ^^^^^^ 
 
 Tithes — Quo Warranto. ..., ^., , r o- on «• 7 ^.^• 
 
 ^ 472; Gil. L. Ev. 3o, 36. Bishop of Lm- 
 
 (c) Locke V. Nm-horne, 3 Mod. 141. coin v. Sir W. Ellis, 2 Gwill. 632. 
 
 (fZ) Locke V. Norborne, 3 Mod. 141 ; (i) B. N. P. 232, 233; Ca. K. B. 319. 
 
 and It. V. Hebden, And. 389.
 
 IDENTITY OF PARTIES. 1>.M> 
 
 same principle, judgment of ouster a<;uiiist a mayor is evidcMice Timso 
 upon a quo warranto against one admitted by him (A). lurvily? 
 
 Two plaintiffs brought an action for a diversion of water from 
 their works. One of them, whilst in possession of the same works, 
 had recovered against the same defendants for a similar injury. It 
 was held that this was prima facie evidence of ])rivity in estate 
 with the former plaintiff to render the former verdict and judgment 
 admissible in evidence against the defendants (Z). A former verdict 
 and judgment are admissible between privies, although those who 
 offer the evidence may have been examined in the former suit(m)- 
 But although a verdict and judgment for a party is evidence for 
 one claiming in privity with him, this must be understood of a 
 claim acquired subsequently to the verdict {n). 
 
 If a party, after a verdict and judgment against him, assign 
 his interest, the assignee is bound by the verdict. After a ver- 
 dict against J. S. and judgment, J. S. aliened to J. JV., and it 
 was held that the verdict was evidence against J. N. ; for it 
 would have been evidence asainst J. S. at the time of the 
 transfer, and the substitute cannot be in a better condition than 
 the principal (o). 
 
 In ejectment on the several demises of a mortgagor and mort- 
 gagee, a judgment in an ejectment brought against the mortgagor 
 after the mortgage, is not admissible for the lessor of the plain titf 
 in the former action as against the mortgagee, although the judg- 
 ment was entered in pursuance of the award of an arbitrator, to whom 
 the cause was referred, there being no evidence to show that the 
 mortgagee took any part in the proceedings (p). 
 
 (k) B. N. p. 231 ; 2 Barnard. 370. R. under the same title previous to the ver- 
 
 V. Lisle, And. 163. R. v. Grimes, Burr. diet, the eifect of such verdict might be 
 
 2968; 5 T. R. 72; 11 St. Tr. 216. See carried back to an indefinite extent. Per 
 
 tit. Quo Warranto. Littledale, ,J., 1 Ad. Sc Ell. 787. So a 
 
 {I) Blaliemore v. Glamorrjanshire Canal verdict against a lessor is admissible. 
 Compamj, 2 C. M. & R. 133. (o) 2 Roll. Ab. 680; Bac. Ab. Ev. F. 
 (m) Blaliemore v. Glamorganshire 617. The answer of a Dean and Chap- 
 Canal Company, 2 C. M. & R. 139. See ter to a bill filed to establish a farm 
 also Brook v. Carjmiter, 3 Bing. 300, modus, admitting a distinct modus, is evi- 
 andvol.II.tit. Malicious Prosecution. dence against a subsequent lessee of the 
 See also Davis v. West, 6 C. & P. 172 ; Dean and Chapter in a suit by him for 
 where a conviction obtained on the .evi- tithe in kind. It is said that a verdict 
 dence of one defendant, was admitted in and judgment for or n gainst a lessee is 
 favour of co-defendants. evidence for or against a reversioner. 
 {n) Doe V. Earl of Derby, 1 Ad.& Ell. Com. Dig. Ev. (A. 5), Gil. Ev. 35, 36. 
 787, and the rule laid down Com. Dig. Ev. liushicorth v. Countess of Pembroke, 
 (A. 5), viz. that a verdict is evidence for Hardr. 472. This it seems is to be under- 
 one under whom any of the present parties stood of a lessee in the old action of ejec- 
 claiin, must be so understood. If it could tioncfrmcE. 
 
 be understood to extend to other lands (y^) Doe \. Webber, 1 Ad. k EU. 119. 
 
 S 2
 
 260 
 
 WRITTEN evidence: JUDGMENTS, &C. 
 
 Form of 
 action. 
 
 Against 
 one who 
 might have 
 l)een a 
 party. 
 
 It is not essential that cither the parties or tlie form of action 
 should be precisely the same, if they are substantially the same. 
 Thus in ejectment, as has been seen, the law recognizes the real 
 parties (5-). Where an action of trover was brought against a 
 creditor and the sheriff, for goods levied under an execution, and 
 the defendants had a verdict, the judgment was held to be a bar to 
 a subsequent action of assumpsit against the creditor alone (r). 
 
 In an action for a trespass in the plaintiff 's fishery (s), a ver- 
 dict for the plaintiff in a former action, against one who justified 
 as the servant of J. S., was admitted in evidence against the de- 
 fendant in the second action, upon its appearing that the defendant 
 in that action had acted by the command of J. S., for it was con- 
 sidered that J. S. was the real party in both actions {t). But the 
 evidence is not conclusive. 
 
 So a verdict in an action by the vicar against the occupier of 
 land, for tithes, is evidence against another occupier of the same 
 land (u). A judgment against the schoolmaster of a hospital, as 
 to rights claimed in respect of his office, is evidence against his 
 successors (x). So a decree in favour of a vicar as to his right to 
 small tithes, against an impropriator, is evidence for his succes- 
 sors (y). A verdict against one defendant was held to be evidence 
 of the plaintiff's right on a second action against the defendant 
 and two others, who justified under the former defendant for a 
 subsequent injury affecting the same right (^r). 
 
 So in an action by A. and S., a judgment in a former action upon 
 the same rights brought by A. alone was held to be admissible (a). 
 
 A record is evidence against one who might have been a party 
 to it, for he cannot complain of the want of those advantages 
 which he has voluntarily renounced (b). 
 
 {q) Supra, 258 ; supra, note (/). And 
 see Strode v. Seaton, 2 C. M. & R. 21 7. 
 
 (/•) Kitchen v. Campbell, 2 Bl. 827 ; 
 3 Wlls. 304. See below, p. 262, and the 
 cases there cited. 
 
 (s) Kinnersley v. Orpe, Dougl. 56. 
 At the trial it was held to be conclusive 
 evidence ; but the Court of King's Bench 
 held that it was admissible, but not con- 
 clusive. See Simpson v. Pickering, 1 C. 
 M. & R. 529. It is not sufficient to sliow 
 that a party to the former suit might pos- 
 sibly be interested in the subsequent suit. 
 
 (t) See the last preceding note. 
 
 (m) Brown v. Olive, 2 Gwill. 701. 
 Travis v. Chaloner, 3 Gwill. 1237. 
 
 {x) Lord Broicnher \. Sir R. Atkins, 
 Skinn. 15. 
 
 (y) Cai-r v. Heaton, 3 Gwill. 1261; 
 but, as it is said, not conclusive evidence, 
 unless the Ordinary be a party to the first 
 suit. 
 
 {z) Strutt V. Bovingdon, 5 Esp. 56. 
 In Buller's N. P. 40, it is said that a 
 verdict on an issue out of Chancery, to 
 which only one of the defendants was 
 party, may be read against all the de- 
 fendants, to prove the time of tlie act of 
 bankruptcy. 
 
 («) Blakemore v. Glamorganshire Ca- 
 nal Co?npa?uj, 2 Cr. M. & R. 133. Note, 
 that B. claimed in privity with A., and 
 the evidence was held to be admissible, 
 although B. had been a witness on the 
 former trial. 
 
 (/>) Bac. Ab. Ev. F. 616.
 
 IDENTITY OF PARTIES. 201 
 
 It is a general rule, that a verdict shall not be used as evidence ^vant of 
 against a man where the opposite verdict would not have been mutuahty. 
 evidence for him ; in other words the benefit to be derived from the 
 verdict must be mutual (c). This seems to be no more than a 
 branch of the former rule, that to make the judgment conclusive 
 evidence the parties must be the same, for then the benefit and 
 prejudice would be mutual and reciprocal. Where the parties are 
 not the same, one who would not have been prejudiced by the 
 verdict cannot afterwards make use of it, for and between him and 
 a party to such verdict the matter is res nova, although his 
 title turn upon the same point {d). And the verdict ought not 
 to be admitted to prejudice the jury against the former litigant {e). 
 Besides, the former verdict may have been obtained upon the evi- 
 dence of the party who afterwards seeks to take advantage of it ; 
 and this is one reason why a conviction upon an indictment at the 
 suit of the king is not evidence in a civil action {f)- 
 
 From the principles announced, it seems to be a general conse- verdict in 
 quence that a verdict in a civil proceeding will not be evidence *"'vij pro- 
 
 . . ... . ceeding, 
 
 either against or for a party in a criminal proceeding. The ac- whether 
 quittal in an action ought not to be admitted as evidence in bar a^criminal" 
 of an indictment, because the parties are not the same, and the case. 
 king or the public ought not to be prejudiced by the default of a 
 private person in seeking his remedy for an injury to himself; 
 especially as upon the trial of the indictment the testimony of 
 tiie former plaintiff is admissible, which was before excluded by 
 
 (c) B.N.P.232,3; Ca.K.B.319; Hardr. same point, because if he be an utter 
 
 472; Bac. Ab. Ev. F. ; 4 Maul. &; Sel. stranger to the fact it is perfectly res woy« 
 
 479; Co. Litt. 352; 1 T. R. 86; Com. between him and the defendant; and if it 
 
 Dig. Estoppel, D. R. v. The Warden of be no prejudice to the plaintiff had the 
 
 the Fleet, B. N. P. 233 ; 12 Mod. 337. fate of the verdict been as it would, he 
 
 In the case of Whately \. Manheim and cannot be entitled to reap a benefit; for 
 
 Levy, 2 Esp. C. 608, Lord Kenyon is said it would be unequal, since the cause is a 
 
 to have held, that a verdict on an issue out new matter between the parties, that the 
 
 of Chancery, to try the question, whether jury should be swayed by any prejudice; 
 
 A. and B. were partners, was evidence for the letting in of pre-judgments supposes 
 
 for a third person, in an action against that the case has been already decided, 
 
 them to prove the partnership. Sed qu., and that it is not tried and debated as a 
 
 for there was no mutuality ; and the ver- new matter, but as the effect of some liti- 
 
 dict might have been obtained on the gious cross in the defendant, that holds 
 
 evidence of the party who afterwards took out the possession when the cause has 
 
 advantage of it. been decided against him ; and this ought 
 
 {d) B. N. P. 232; 3 Mod. 141; Hardr. not to be thrown out upon him on a new 
 
 472. inquiry. — The same principle applies to 
 
 (e) In Gil. L. Ev. the principle is thus depositions. Hardr. 472. 
 
 expounded :— But a person that hath no (/) B. N. P. 233 ; Str. 68. Gibson v. 
 
 prejudice by the verdict can never give it Macarty, Ann. ^\\. Bartlett v . Pickers- 
 
 \n evidence, though his title turn upon the gill, Burr. 2255. 
 
 S 3
 
 n (■riiiiiiiu 
 case 
 
 262 wuiTTEN evidence: judgments, (fcc. 
 
 Verdict in his bcini:; a ])arty to the cause. By such additional evidence 
 
 cmlinu-r ^lie jury may be induced to come to a contrary conclusion (w/). 
 
 wIuHkt Neither, as it seems, is a verdict for the plaintiff in a civil action 
 
 in ^^j^j^j^^g ^^p^j^ j^j^ indictment (w) ; for although the defendant has 
 
 had the opportunity to cross-examine the witnesses and controvert 
 
 the testimony of his opponent, yet it would be hard that upon 
 
 a criminal charge, which concerns his liberty, or even his life, he 
 
 should be bound by any default of his in defending his property. 
 
 In addition to this, there is a want of mutuality; the parties 
 are not the same, and the party wojuld lose the privilege of pro- 
 ceeding against the jury in case of a false verdict, by attaint. It 
 is also to be observed, that the adjudication in the civil case 
 would seldom be commensurate with the matter intended to be 
 })rovcd in the criminal case, since evidence sufficient to render a 
 man responsible in damages may be insufficient to prove that he 
 acted with a criminal intention. 
 V( rdict 1,0- Secondly y It is essential not only that the parties should be 
 vate par-'" the same, but that the same fact should have been in issue in the 
 ties. former cause ; for if it was not in issue, the jury could not have 
 
 Identity of -in r ^ t / \ 
 
 the lact. been attamted tor a laise verdict (o). 
 
 A verdict for the same cause of action between the same parties 
 is absolutely conclusive. And the cause of action is the same, 
 when the same evidence will support both actions, although the 
 actions may happen to be founded on different writs {p). This is 
 the test to know whether a final determination in a former action 
 is a bar, or not, to the subsequent action ; and it runs through all 
 the cases in the books, both in real and personal actions. It was 
 resolved in Ferrer's Case {q), that where one is barred in any action, 
 
 {ill) Ca. Tem. Kardw. 31 2 j 11 St. Tr. action of the same nature; but that is 
 
 222. where the first recovery is a satisfaction 
 
 (n) 11 St. Tr, 222. for the very thing demanded by the second 
 
 (o) li. N. P. 233; Hob. 53. action. In an action of trover the plaintiff 
 
 {p) Tlius a judgment in trespass will be recovers damages for the thing, and it is 
 
 a bar to an action of trover for the same as a sale of the thing to the defendant, 
 
 taking ; Bl. R. 831 ; Com. Dig. Action, K. which vests the property in him, and there- 
 
 3. And a verdict in trover will be a bar fore it is a bar to an action of trespass for 
 
 to an action for money had and received the same thing : and therefore it was held, 
 
 for the sale of the same goods. Kitchen that damages, on a contempt in prohibition, 
 
 v. Campbell, 2 Bl. 827 ; 3 Wils. 308. See which are recoverable only from tlie time 
 
 also Lcchincre v. loplady, 2Vent. 1G9; of the prohibition granted, were no bar to 
 
 1 Show. 14G. A recovery in trespass at an action for suing the plaintiff in the 
 
 common law will bar a writ of ravishment Admiralty Court, where the Court had no 
 
 of ward, Hob. 94; 2 Inst. 200 ; Per Lord jurisdiction. See SpaiTr/s Case, 5 Co. 
 
 Hardwickc, in Smith v. Gibsoti, II. T. II. Gl; Preface to 8 Co., and 6 Co. 7 a. ; and 
 
 319, there are several cases where a reco- see Vol. II. tit. Eecokd. 
 
 very in one action will be a bar to another (q) Rep. 7.
 
 IDENTITY OF FACTS. 
 
 2(J3 
 
 real or personal, by judgment, upon confession, demurrer, verdict, 
 &c., he is burred as to that, or the like action of the like nature 
 for the same thing, for ever ; for expedit reijinbllccB ut sit finis 
 litium. By actions of the like nature are meant actions of the 
 same degree, and where a writ cannot be had of a higher nature (r). 
 All personal actions are of the same degree (s) ; but a verdict in a 
 personal action was not a bar to a real action brought by the 
 same right (t). 
 
 Where, however, the real merits of the present action have not 
 been at all inquired into in a former proceeding, issue may be taken 
 on the fact, the judgment being pleaded in bar (u). Thus a recovery 
 in one action cannot be pleaded in bar of a second, where no 
 evidence on the trial of the first action was given in support of the 
 claim on which the second is founded (x). Where issue is taken 
 
 8aiiie CHiisc 
 ui'uctiiiii. 
 
 (r) A bar in a writ of aiel, was lielil to be a 
 bar in a writ of Besael ; and in a collateral 
 action, as cosenagc ; for these are ancestral, 
 and of the same nature : but will not bar a 
 writ of right, 3 Wils. 308 j G Rep. 7. 
 
 (if) And therefore, in an action for taking 
 a mare, it is a good plea to the writ, that 
 a replevin is pending for the same taking, 
 3 Wils. 308 ; 5 Rep. Gl b. 
 
 (t) See Outrain v. Moretcood, 3 East, 
 359. 
 
 (u) Kitchen v. Campbell, 2 Bl. R. 827 ; 
 3 Wils. 304. 
 
 (x) Seddon v. Tutop, 6 T. R. 107. So 
 in the cases of Ravee v. Farmer, 4 T. R. 
 14G, and Golujhtly v. Jellicoe, ib. in note, 
 it was held that an award made of all mat- 
 ters in difference between the parties, was 
 no bar to any cause of action that the 
 plaintiff had against the defendant at the 
 time of the reference, if the plaintiff could 
 prove that the sulject-matter of the action 
 was not inquired into before the arbitrator. 
 But if a plaintiff having several causes of 
 action, offers evidence of some in which he 
 fails, he cannot afterwards bring another 
 action for those causes of action in which 
 he has failed. Per Best, C. J., in Stafford 
 y. Clarke, 2 Bing. 382. See Hall v. Stone, 
 1 Str. 515. Marliham v. Middleton, 2 
 Str. 1259. So if a plaintiff sue in an in- 
 ferior court for a less sum, having a claim 
 for a larger sum, or having a demand for 
 COZ., consisting of thrtc s^ums of 20/. 
 consent at Nisi Prius to take a verdict for 
 
 40 Z., he cannot afterwards bring a second 
 action for the residue. Lord Burjot v. 
 Williams, 3 B. & C. 235. See also Bow- 
 den v. Home, 7 Bing. 716, as to the effect 
 of a nolle prosequi as to part of a sum 
 recovered. In the case o^D^mn v. Mvrrai/, 
 9 B. & C. 780, where a claim within the 
 scope of a reference to an arbitrator was 
 not brought forward by the plaintiff as a 
 matter in difference, it was held that he 
 could not afterwards make it the subject- 
 matter of a fresh action. And there 
 Lord Tenterden in giving judgmeni, re- 
 ferred to that of Lord Ellenborough in 
 Smith \. Johnson, 15 East, 213, who laid 
 it down that where all matters in differ- 
 ence are referred, the party, as to any 
 matter included within the scope of 
 such reference, ought to come forward 
 with the whole of his case. A plaintiff 
 brought debt for rent and for stone taken 
 from a quarry, and before the trial brought 
 another action for improperly quarrying 
 stone, with a count in trover for stone, 
 and delivered bills of particulars for similar 
 quantities of stone, on the first trial he 
 gave no evidence as to the claim for stone, 
 but recovered as to the rest; in the second 
 he had a verdict for the stone taken away, 
 and it was held by the Court of Exchequer, 
 on a review of the autlioritics, that the 
 trial was not waived, nor tlie action barred, 
 by the former recovery. Hadley v. Green, 
 2 Tyrr. 390. 
 
 s 4
 
 264 WRITTEN EVIDENCE : JUDGMENTS, (fcc. 
 
 Tdontityof Oil the fact, wlietlicr the second action is brought for the same 
 the fact. cause of action as the first, evidence is admissible of what passed 
 at tlie trial (y). 
 
 It is not, however, necessary that the fact to be proved by the 
 record should have been solely and specifically put in issue on the 
 former trial ; it is sufficient if it was a fact essential to the finding 
 of that verdict. A verdict against a division of a parish, for not 
 repairing a road, is afterwards (in the absence of fraud) conclusive 
 as to the obligation to repair, although the verdict also involve 
 another fact ; viz. that the road was out of repair (z). So a verdict 
 in an action for diverting water from the plaintiff's mill, is evidence 
 in a subsequent action for a similar injury at a subsequent time (a), 
 as to the right to the water (b). In such case, however, the record 
 would operate as evidence only, and not as an estoppel. 
 
 It is not necessary that the former verdict should have been 
 founded upon the same precise subject-matter, provided the ques- 
 tion be the same, and between the same parties. It is laid down 
 that " it is not necessary that the verdict should be in relation to 
 the same land, for the verdict is only set up to prove the point in 
 question ; and every matter is evidence that amounts to a proof of 
 the point in question " (c). 
 
 Where the same party sues, or is sued, in a different capacity, 
 and in a different right, he will not be concluded by the former 
 record. Thus, if a party sue as administrator, and fail, he will not 
 be estopped from maintaining an action against the same defendant 
 as executor (^/). So if one claim as heir to his father, he will not 
 be estopped from afterwards claiming as heir to his mother (e). 
 Must be TAirtZ/y, as to the nature and manner of the adjudication; the 
 
 judgment, decree, or sentence, must be direct upon the precise 
 point, and is not evidence of any matter which came collaterally in 
 question, although it was within the jurisdiction of the court, nor 
 of any matter incidentally cognizable, nor of any matter to be in- 
 
 {y) Seddon v. Tutop, 6 T. R. 607. though the former recovery could not be 
 
 Marten v. Thornton, 4 Esp. C. 180, where deemed to be a legal estoppel, so as to con- 
 
 an arbitrator was examined as to the evi- elude the rights of the parties by its pro- 
 
 dence laid before him. duction, he should tliiuk himself bound to 
 
 {z) B. V. St. Pancras, Peake's C. 219: tell the jury to consider it as conclusive. 
 
 2 Saund. 159; 2 Camp. C. 494. See tit. b Esp. C. 59. 
 
 Highway. (e) B. N. P. 232. Leiois v. Clargcs, 
 
 (a) Strutt V. Bovingdon and others, 5 1700. It seems, however, that in such 
 
 Esfi. 56, although other defendants be a case the verdict would not be conclusive, 
 
 joined in the second action to the sole In Gil. L. Ev. 29, the case is put as one of 
 
 defendant in the Hrst, but who justify un- persuading evidence to ajury. 
 
 der that defendant ; ibid. (^d) Jiobinson's Case, 6 Rep. 32. 
 
 {b) Lord Elleiiborough said, that al- (c) Com. Dig. Estoppel, C. 
 
 direct.
 
 MANNER OF ADJUDICATION. 2G5 
 
 ferred by argument from the judgment, as having constituted one Mannomf 
 of the grounds of that iudsment ( f ). For it is obvious, that t''<^.»'iJ"J»- 
 although the matter expressly adjudicated upon is certain, the 
 grounds of the adj udication are often uncertain ; and that a par- 
 ticular ground cannot be safely inferred and relied upon, especially 
 where its effect is to be conclusive. To permit this would induce 
 the necessity of unravelling the materials of the former decision ; 
 for it would be manifestly unjust to admit a presumption that a 
 particular fact was established upon the former inquiry, and yet 
 not to allow that presumption to be rebutted by proof that it is 
 unfouncled. In Blackhams Case (g), which was an action of trover, 
 the defendant proved that the goods were Jane Blackham's in her 
 lifetime, and that he had administered to her effects. The plain- 
 tiff proved that Jane Blackham was married to him a few days 
 before her death. The defendant contended that the plaintiff was 
 concluded by the letters of administration granted to himself, since 
 the lettei's of administration must have been founded upon the 
 presumption that there was no such marriage. But Holt, C. J. 
 said, a matter which has been directly determined by their sentence 
 cannot be gainsaid ; their sentence is conclusive in such cases, and 
 no evidence shall be admitted to prove the contrary ; but that is to 
 be intended only in the point directly tried; otherwise it is, if a 
 collateral matter be collected or inferred from their sentence, as in 
 this case, because the administration is granted to the defendant, 
 
 (y*) See the opinion of De Grey, C. J. would be to try that same case again. In 
 
 in the Duchess of Kingston's Case, 11 St. some instances, however, it is necessary to 
 
 Tr. 261 ; Harg. Law Tracts, 456 ; Pothier show by parol evidence to what particular 
 
 by Evans, 357. Leioick v. Lucas, 1 Esp. subject-matter a record, general in its 
 
 C. 43. Action on the case for unskilfully terms, was applied ; as, for instance, where 
 
 varnishing engravings : the defendant pro- a defendant pleads a recovery by the 
 
 posed to give in evidence the record in an plaintiff in a former action for the same 
 
 action in which he recovered against the subject-matter, and wliere issue is taken 
 
 present plaintiff for work and labour, and on the question, whether the former verdict 
 
 to show by parol evidence that the two ac- embraced tlie present claim. Supra, 262, 
 
 tions related to the same work. Lord and see tit. Parol Evidence; and see 
 
 Kenyon rejected the evidence, because the R. v. Knaptoft, Vol. II. tit. Settle- 
 
 record was general; and in order to render ment. Where the appellant parish, on a 
 
 a record evidence to conclude any matter, second order, shows that the former order 
 
 it should appear that that matter was in was quashed upon appeal, it is competent 
 
 issue, which should appear from the record to the respondents to show that it was 
 
 itself; nor should evidence be admitted quashed on the preliminary objection that 
 
 that under such a record any particular the pauper was not chargeable. It. v. 
 
 matter came in question. The record in Wheelock,bB.k,C.b\\. See Vol. II. tit. 
 
 the former action was general ; and to in- Settlement. Meed \. Jackson, l^a^t, 
 
 quire whether the object of it was to re- 3.55. Rex v. Wick St. Lawrence, 5 B. ic 
 
 cover for the work done in varnishing the Ad. 520. 
 
 prints, and whether the defendant in that (j/) 1 Salk. 290; see 7 Bro, P. C. 319 ; 
 
 action had availed himself of the circum- Ibid. 414. 
 stance of their being unskilfully done.
 
 2(5G WUITTKN evidence: JUDGMENTS, &C. 
 
 Manner of therefore they infer that the phiiiitifl' v/as not the intestate's 1ms- 
 cuUoa' ' '" '^^"^*^') '^^ ^^^ could not have been taken to be if the point there tried 
 hud been married or unmarried, and their sentence had been, not 
 mariied. So, although it was once held that the production of the 
 probate by a prisoner indicted for the forging of a will, was con- 
 clusive evidence for liim (h), the contrary has since been frequently 
 adjudged, and is now settled law {i). So the refusal of letters of 
 administration, on tlie ground that the applicant was not mar- 
 ried to the deceased, is not evidence to disprove the marriage in 
 a court of law (k). And a sentence of excommunication against 
 the father and mother for fornication is not evidence to disprove 
 the legitimacy of the son (Z). Letters of administration granted 
 to the plaintiff as administrator of the goods of -4. 2?., are not 
 evidence of the death of A.B.{m). And the judgment is not 
 evidence, if the point arose collaterally in the original suit, although 
 it appear from the pleadings that it was expressly in issue. Where 
 a suit was instituted in the Ecclesiastical Court by B. against C. 
 for a divorce, causa adulterii, with D., and she pleaded that she 
 was married to Z)., and upon proof made, the Court so pronounced, 
 and accordingly dismissed J3.'s libel, it was held that the judgment 
 was not evidence in an ejectment, in which the marriage between 
 C. and D. came in dispute (w). The principle of this case must, 
 however, be limited to cases where the question arises between 
 different jmrties ; for if issue be joined upon a particular point, the 
 verdict upon that point would (in civil courts at least) be evidence 
 upon the same point between the same parties (o). So if in an 
 ejectment between a devisee and the heir-at-law, the defendant 
 should obtain a verdict, on proof that the will was not duly exe- 
 cuted, he could not give the verdict in evidence on another eject- 
 ment brought by another devisee (p). If in an information against 
 ^.* issue were taken on the fact whether J. S. was mayor of such 
 a borough in such a year, and it were to be found that he was not, 
 such finding and judgment would not be evidence on the like 
 information against J3. (q). 
 
 (/i) R. V. Vincent, Str. 481. It. v. property is not evidence of the contents of 
 
 Rhodes, ibid. 703 ; 1 Wils. 75. tlie will. Doe v. Culvert, 2 Camp. 389. 
 
 (i) See 11 St. Tr. 221. R. v. Sterling, Hume v. Rundall, 6 Madd.331. B. N. P. 
 
 Leach, 117. R. v. Buttery and anothe?; 245. R. v. Nctherseal, 4 T. R. 258. Nor 
 
 O. B. Dec. 1817, and afterwards before the as to copyholds, Vol. II. tit. Copyholds. 
 
 Judges, Hil. 1818; and R. v. Gibson, (n) B. N. P. 244, cites Robin's Case, 
 
 Lancaster, 1802, cor. Lord Ellenborough. C. B. 1760. In this case, however, the 
 
 Evans's Pothier, 356. evidence was offered with a view to affect 
 
 (k) Ann. 12. other parties. 
 
 (I) Hilliard v. Phalcy, 8 Mod. 1§0. (o) Da Costa v. Villa Real, Str. 001. 
 
 (m) Thompson \. Donaldson, Q Esp. C. (p) B. N. P. 244. 
 
 03. The probate of a will devising real (q , This iiiutancc is given in BuIIcr's
 
 MANNEU OF ADJUDICATION. 
 
 207 
 
 It seems, also, that the lornier jiidgnicnt or sentence must not 
 only be direct, but also final and conclusive (r) in the court of which 
 it is a judgment upon the subject-matter; for if it do not decide 
 the fact there, it cannot have a greater effect in any other court (s). 
 Hence, although a sentence in a jactitation suit has been admitted 
 in evidence as to tiie fact of marriage in a temporal court, it seems 
 in principle to be wholly inadmissible, at least as against those who 
 were not parties to the suitC^. A colonial judgment cannot be 
 pleaded in bar of an action in this country, unless it would have 
 been conclusive in the colony, although the judgment has been 
 pronounced by a court of error in the colony, and by the King in 
 Council {u). 
 
 Neither will a foreign judgment be acted upon where the pro- 
 ceedings are imperfect (x). A decree in a foreign court of equity 
 will not support an action where the amount of the sum due is left 
 indefinite (?/). 
 
 It has been held that proceedings which would not constitute 
 an estoppel are wot prima facie evidence of the fact (2;). 
 
 Fourthly and fifthly j assuming then, that a Court of competent 
 
 notliing, it is not conclusive ; tlie question 
 is, wliether the verdict be admissible in 
 evidence ; as matter of opinion the judg- 
 
 AranrifT of 
 tlie luijudi- 
 eutiou. 
 
 N. P. 244, in illustration of the rule, that 
 a determination is not evidence, unless it 
 be ex directo; but it is to be observed, 
 that had the decision been directly against 
 J. S., it would not have been evidence 
 against one not claiming in privity with him. 
 
 (»•) See the judgment of C. J. De Grey, 
 list. Tr. 261. 
 
 (s) In Doe d. Tatham v. Wright, Lan. 
 Summer Ass. 183G, cor. Coleridge, J., 
 the question was as to the capacity of M. 
 to make a will : tlie defendant, claiming 
 under a supposed will, tendered in evidence 
 a decree in equity dismissing a bill filed by 
 the plaintiffs lessor. Admiral Tatham, to 
 set aside the will, on the ground of fraud 
 and influence alleged to have been exer- 
 cised by the defendant, also an order to try 
 the issue dcvisuvit vel non, the j)Ostea and 
 verdict finding the devisavit with a view 
 to establish the fact in evidence of the 
 former jury having so fjund. Coleridge, J. 
 on a subsequent day delivered his opinion, 
 that though the decree and postea were 
 admissible evidence for the purpose of 
 warranting the admission of the evidence 
 given on the trial of the former issue by 
 witnesses since deceased, those documents 
 were inadmissible to prove the former 
 verdict. The decree, he observed, decides 
 
 ment is unnecessary ; but it is not contend- 
 ed that the judgment is unnecessary. The 
 judgment, however, decides nothing, and 
 therefore the verdict on which it is founded 
 decides nothing. The verdict is not sever- 
 able from the decree as a matter of common 
 law decision, because there is no power of 
 reversing the judgment at common law 
 by motion in arrest of judgment, writ of 
 error, or otherwise; the admission, there- 
 fore, of the former verdict as eviderfce, 
 would tend only to prejudice the inquiry. 
 
 The defendant's counsel afterwards in- 
 sisted that as the j)ostea was evidence for 
 one purjiose he had a right to have the whole 
 read, upon which Coleridge, J., thought he 
 was in strictness entitled to have it read, 
 and it was read accordingly. 
 
 {t) See the Duchess of Kingston's Case, 
 11 St. Tr. 198. 
 
 (u) Plumtree v. Woodhouse, 4 B. & C 
 G25. 
 
 (x) Ohiclni v. Bligh, 8 Bing. 3ol. 
 
 [y) Sadler v. Robins, 1 Camp. 263. 
 And see Henley v. Sojjcr, 8 B. & C. 20. 
 
 (z) Wri'jht V. Doc d. Tatham, 1 Ad. 
 &EU. 19.
 
 268 
 
 WRITTEN EVIDENCE : JUDGMENT, 
 
 Applica- 
 tion of tlie 
 judgment 
 in proof. 
 
 jurisdiction has adjudicated directly upon a particular matter, the 
 next question is as to the application and effect of that judgment 
 in proof of the same disputed fact. The adjudication is offered to 
 prove either, First, the same fact for the same purpose, that is, 
 where the same matter is again litigated (a) in a court of concur- 
 rent jurisdiction ; or, secondly, to prove the same fact for a different 
 or collateral purpose. In the first case, according to the judgment 
 of Ch. J. De Grey, already cited (&), the judgment is as a plea a 
 bar, and as evidence conclusive between the same parties (c). In 
 order, however, to make such a judgment operate as a conclusive 
 bar in a civil action merely as an estoppel, it is necessary to plead 
 it as an estoppel (d). If a party will not rely on an estoppel when 
 he may, but takes issue on the fact, the jury will not be bound by 
 the estoppel, for they are to find the truth of the fact (e). They 
 
 (a) A judgment by default is not evi- 
 dence by way of admission, where the same 
 cause is removed to a higher court. Upon 
 the removal, by habeas corpus, of the cause 
 from the inferior court, the defendant 
 liaving- suffered judgment by default, it 
 was held that it was not receivable in evi- 
 dence against him as an admission of a 
 cause of action ; upon the removal, both 
 parties were to be considered as in the 
 same situation as if no such judgment had 
 been given. Bottings v. Firby, 9 B. & C. 
 762. See Tidmus v. Lees, 5 C. & P. 233, 
 where Lord Tenterden received such evi- 
 dence, but the plaintiff was afterwards non- 
 suited. So a verdict on a former trial is 
 not evidence on a new trial. 2 Show. 255. 
 But it has been seen that if a party omit to 
 plead that which would have been a bar to 
 the former action, he cannot plead that 
 matter to an action on t!ie judgment. 
 Todd V. Max-field, 6 B. & C. 105; and 
 see above, 257, note (?/). After a com- 
 plaint against the sheriff by action, and 
 special relief given, an action is not 
 maintainable against him. Cameron v. 
 Heynolds, Cowp. 403. A cessio honorum 
 in Scotland does not discliarge the party 
 from a contract in England. Phillips v. 
 Allen, 8 B. & C. 477. Secus, if the plain- 
 tiff be entitled to a distributive share. lb. 
 In the case of a joint and several obligation, 
 ajudgment and execution witliout satisfac- 
 tion against one, is no bar. 3 Tyr. 466 ; 
 Higgins's Case, 6 Co. 446; Broicn v. 
 Woolto/i,Cro. J. 73 ; Com.Dig.Action,L.4. 
 
 Two being liable on a contract, the Statute 
 of Limitations runs : one promises to pay 
 his proportion, a joint action is brought 
 against both, a verdict is found against the 
 party so promising, and a verdict on the ge- 
 neral issue for the co-defendant, on a second 
 action brought against the former, on the 
 special promise, the verdict and judgment 
 for the co-defendant are no bar. Lechmere 
 V. Fletcher, 3 Tyr. 453. 
 
 (b) Vide supra, 256. 11 St. Tr. 201; 
 Hargr. Law Tracts, 456; Pothier, by 
 Evans, 357 ; 3 Wils. 304. 
 
 (c) B. N. P. 244; Stra. 901 ; 4 Co. 29 ; 
 11 St. Tr. 21.3, 214; Cowp. 322; 8 T. R. 
 130; Burr. 1005. 
 
 (d) See the cases cited below, and Com. 
 Dig. tit. Estoppel, A. Outram v. More- 
 wood, 3 East, 354; 16 East, 334. A 
 plaintiff is estopped by livery of seisin, 
 unless he show by the deed that the de- 
 livery was conditional. Co. Litt. 225; 
 Litt. 363. But the jury are not estopped 
 under the general issue. Co. Litt. 226; 
 Litt. 366 ; see further Vol. II. tit. Record. 
 See the Digest, De Exceptione rei Judi- 
 catse, 44; tit. 1, 2. Tlie judgment not 
 being pleaded is not conclusive, altliough 
 the form of action was such (ejectment) 
 that the defendant had no election. 
 Strode v. Seaton, 2 C. M. & R. 
 
 (e) Vooght v. Winch, 2 B. & A. 662; 
 Trevivan v. Lawrence, Salk. 276; B. N. 
 P. 298 ; Hannaford v. Iliinn, 2 Carr. & 
 P. C. 148.
 
 APPLICATION AND EFFECT. 209 
 
 cannot, indeed, find ur.ytliing against that which the parties have Effnctofa 
 affirmed, and admitted on record, although such admission be con- J"^b'"'*^"'" 
 trary to tlie truth ; but in other cases, though the parties be estopped 
 to say the truth, the jury are not, as in GoddarcVs Case{f), where, 
 in an action upon a bond to a deceased intestate, the defendant 
 pleaded the death of the intestate before the date of the bond, as 
 alleged in the declaration, and so concluded that the writing was 
 not his deed ; on which issue was joined, and it was held that the 
 jury were not estopped from finding that the bond was executed 
 nine months before it bore date, and in the lifetime of the intes- 
 tate (^). 
 
 In an action on the case for diverting water from the plaintiff's 
 mill, the defendant gave in evidence the record of a judgment in a 
 former action between the same parties for the same cause of action, 
 in which the defendant had pleaded not guilty, and obtained a 
 verdict. It was contended, both at the trial and afterwards in 
 bank, that the plaintiff ought to be nonsuited ; but it was held 
 that it was not conclusive, upon the plea of not guilty, although it 
 would have been so had it been pleaded by way of estoppel, for the 
 defendant had elected that the matter should be considered by a 
 jury upon evidence, and it was left open to them to inquire into the 
 same upon evidence, and to give their verdict upon the whole of 
 the evidence submitted to them. And the case of Sird v. jRan- 
 dall{h), where Lord Mansfield was reported to have said that a 
 former recovery need not be pleaded, but will be a bar when given 
 in evidence, was denied; and it was said that the judgment in a 
 former action for the same cause did not necessarily show that the 
 plaintiff had no cause of action. If the matter had been pleaded 
 it would have operated as an estoppel ; but having put it to the 
 jury to find what the fact was, it was inconsistent with the issue 
 which the defendant had joined, to say that the jury were estopped 
 from going into the inquiry. He might, however, use the former 
 verdict as evidence, and pregnant evidence, to guide the jury, who 
 were to try the second cause, to a verdict in his favour ; but if, 
 notwithstanding the prior verdict and judgment, the jury thought 
 the case was with the plaintiff, they were not estopped from finding 
 the verdict accordingly (i). 
 
 (/) B.N. p. 298. difficult to say what degree of weight in the 
 
 (a) 2 Rep. 4. scale is to be attributed by the latter jury 
 
 (h) 3 Burr. 1853. to the opinioa of the former, without the 
 
 (i) Vooght V. WincJi, 2 B. & A. 662.^s- means of knowing the reasons which led 
 
 Sliming that the former verdict was founded them to that decision, or how far they are 
 
 on evidence as to the right, it is exceedingly to distrust their own judgment, formed on
 
 270 
 
 WRITTEN evidence: JUDGMENT 
 
 Wlion con- 
 clusive. 
 
 The above general rule, that a judomcut by a couit of competent 
 jurisdiction upon the same matter, between the same parties, and 
 for the same purpose, is conclusive, appears to comprehend not only 
 all adjudications by the courts of this country, whether of record 
 or not, but also those of foreign courts (k). It has, indeed, been 
 sussested that the judgments of the courts in this country, wliich 
 
 nil* 
 
 are not of record, afford mere prima facie evidence of the subject- 
 matter to which they relate, and are liable to be controverted by 
 opposite evidence. This position does not, however, seem to be 
 warranted by any decision, or to be tenable upon principle. 
 
 The question, also, whether the judgments of foreign courts, 
 when actions are brought upon them here, are conclusive, or merely 
 judgments, prima facie evidence of the debt, has been subject to some doubt, 
 clusiv™ ' but the former position seems to be best supported, both by princi- 
 ple and by analogy to decided cases (Z.) That the evidence in 
 these cases is merely joHma /acz'e, is a position which rests chiefly 
 on these authorities: the case of Walker v. Witter {m), which was 
 
 Between 
 parties ; 
 tbreisn 
 
 grounds which they do know, in order to 
 embrace that formed on grounds whicli 
 they do not know. The fuUowing obser- 
 vations are taken from Douglas on con- 
 tested elections: — " It will be remarked 
 that the evidence of a former verdict is 
 generally (except where it is directly con- 
 clusive), cautiously to be received by a 
 jury who are to decide on their own con- 
 scientious conviction, and not on that of 
 other men. If there was clear and full 
 proof to guide the opinion of a former jury, 
 another jury will be satisfied with like 
 proof; if the evidence before was doubtful 
 in its nature, no verdict will render it 
 otherwise, while the facts remain the same. 
 Perhaps there is among men in general 
 too great proneness to be prejudiced in 
 matters of fact, and even in points of 
 conscience, by the notions or determina- 
 tions of others who may have been ante- 
 cedently so prejudiced themselves, instead 
 of attending to their most solemn duty, 
 when called by the nature of the subject 
 to use their own. On the whole, though 
 the verdict of one jury may be evidence to 
 another, and that verdict may vary in its 
 real force, yet generally it seems to be 
 evidence merely admissible; it is wisely 
 limited by the law within very narrow 
 bounds. In proof of au ancient custom 
 
 it is very strong." See further, Vol. IT. 
 tit. Record. In an action for mesne pro- 
 fits, the judgment in ejectment is not, it 
 has been held, conclusive in evidence. Doe 
 V. Huddart, 2 C. M. & R. 322. 
 
 {k) As to the effect of a foreign judg- 
 ment in discharging a debt contracted in 
 this country, see Sidaicay v. Hay, 3 B. 
 & C. 12 ; where it was held that a debt 
 contracted in England was discharged 
 under a sequestration in Scotland, issued 
 under 54 Geo. 3, c. 137. But that was on 
 the construction of the particular statute. 
 See further, Smith v. Buchanan, 1 East, 
 6; Potter v. Brown, 5 East, 124; Pedder 
 V. M'Master, 8 T. R. GOO ; Quin v. Shea, 
 
 2 H. B. 553 ; Jcffenj v. M'Tuggart, cited 
 
 3 B. & C. 22. 
 
 (I) Subsequently to the writing these 
 observations, the case of Martin v. 
 Nicholls, 3 Sim. 458, has been decided in 
 equity, in which the Vice-Chancellor, 
 after considering the authorities, held, 
 that the grounds of a foreign judgment 
 could not be received in the Courts of this 
 country, and that a bill for a discovery, 
 and a commission to examine witnesses in 
 Antigua, in aid of the plaintiff's defence to 
 an action brought on a foreign judgment 
 in this country, was demurrable. 
 
 (w) Doug. 1.
 
 IN CIVIL MATTERS, EFFFCT OF. 271 
 
 an action on a jiul<2;mcMit in Jamaica, in which it was observed Poroitrn 
 incidentally {)i) that courts not of record, or foreign courts, or J"''o"'i'"t- 
 courts in Wales, have not the privilege of not having their judg- 
 ments controverted. Tlic case of Sinclair v. Fraser (o), which was 
 an action in Scotland upon a judgment in Jamaica, in which the 
 Court required evidence of the original debt, and in which, upon 
 appeal to the House of Lords, it was resolved, that the judgment 
 of a court in Jamaica ought to be received as prima facie evidence 
 of the debt. Also a dictum of Eyre, C. J., in giving judgment in 
 the case of Phillips v. Hunter {p), in which he considered foreign 
 judgments as matters in pais, and prima facie sufficient to raise a 
 promise. It is to be observed, in the first place, that these autho- 
 rities are all, with a view to this question, extra-judicial. In 
 Walker v. Witter, and Sinclair v. Fraser, the only question neces- 
 sary to be determined was, whether on proof of a foreign judgment 
 in his favour the plaintiff was entitled to recover against the defend- 
 ant, without entering into the original consideration on which the 
 judgment was founded; and the question how far such evidence 
 was controvertible did not arise ; and the case of PldlUps v. Hunter 
 was decided against the opinion of Eyre, C. J., by the three other 
 Judges. Secondly, the position in Walker v. Witter, and the ob- 
 servation of Buller, J., in support of it, in a subsequent case(<;^), 
 proceed upon the supposition that no judgments are conclusive 
 except those of record in this country; and that the judgment of 
 a foreio-n court could not be entitled to greater credit than the 
 judgment of a court not of record in this country. But this seems , 
 
 to be doubtful at the least. In the case of 3Ioses v. Macfarlaneir), 
 
 (n) See Mr. Evans's Obsorvatious, 2 paid according to the sentence of the Court 
 
 Pothier, by Evans, 349. could be recovered in opposition to that 
 
 (o) Cited 1 Doug. 5. sentence, as money had and recived to 
 
 {p) 2 H. B. 402. the plaintiff's use; and whether he ought 
 
 {q) Galbraith v. Neville, 1 Doug. R. not to have declared for breach of tiie 
 
 6, n. 2 ; and 5 East, n. b. special agreement. It was held that tlie 
 
 (?•) Burr. 1005. Macfarlane sued plaintiff was entitled to recover, for tliat 
 
 Moses in the Court of Conscience, as the the commissioners had properly refused to 
 
 indorser of a small bill of exchange, and take notice of the agreement in bar of the 
 
 recovered against him, in breach of an suit; and, therefore, that the i»ermitting 
 
 agreement in writing between them (which the plaintiff to recover money so paid, 
 
 the commissioners of the court refused to was no impeachment of their decision ; and 
 
 notice), that Moses should not be liable as it was money which, under all the cir- 
 
 nor prejudiced by reason of his indorse- cumstances, was justly due to the plaintiff, 
 
 ment. Moses paid the money, and brought it might be recovered in that form of action. 
 
 an action in the King's Bench to recover This decision has created great dissatisfac- 
 
 it back, as money had and received to his tion, and the objections to it were stated 
 
 use, and did recover it. The principal with great force and perspicuity by Lord 
 
 question was, whether the money thus C. J. Eyre, in giving his opinion in I'hil-
 
 272 WRITTEN evidence: judgment 
 
 Foreion which has been the subject of strong animadversion on account of 
 judgment, its tendency to unsettle foundations (s), the Court fully admitted 
 the general doctrine, that the judgment of a competent tribunal 
 could not be overhaled in an original suit; and although the judg- 
 ment, which was there insisted upon as final, was one by the com- 
 missioners in a court of conscience, it was never contended that it 
 was not equally conclusive with the judgment of a court of record. 
 So in Moody \. Thurstan{t), under an Act for stating the debts 
 of the army, the commissioners had power to call the officers 
 and agents before them, and in case they found money due from 
 one to the other, to give a certificate upon which an action might 
 be brought, as upon a stated account ; in an action for money so 
 due, the plaintiff produced his certificate ; the defendant tendered 
 his accounts, offering to show that no money was due ; and he 
 complained that the commissioners had refused to hear him, and 
 made their certificate upon the first summons, without giving him 
 time to produce his accounts : but the Chief Justice upon the trial, 
 and the whole Court afterwards, were of opinion that the certifi- 
 cate was conclusive. So the allowance of a debt by the commis- 
 sioners of bankrupts is conclusive evidence (m). It is true, that in 
 the case of Henshaw v. Pleasance{x), it was doubted whether a 
 condemnation by commissioners of excise was conclusive evidence 
 in justification of the officer who seized the goods, because it was 
 not a judgment of a court of record. But in the case of Roberts 
 V. Fortuneiy), it was held by Lee, C. J., that such an adjudication, 
 although not of record, was final. So tlie judgments of the Eccle- 
 siastical Courts (;r) and Admiralty Courts (a), although not of 
 record, are frequently conclusive(6). So the decision of a private 
 arbitrator, to whom the parties have referred themselves, is binding 
 upon the subject-matter (c). These are instances in which the 
 
 lips V. Hunter, 2 H. B. 402, who observed, («) Vide infra, 241. 243. 
 
 tliat it was beyond his comprehension how /,v t ^i i- >^ 7 ht • • 
 
 '' ' (b) In the case of Gahan v. Mainjay, 
 
 the same iudgnient could create a duty for .. , „ t^ . t. ii • om ^i t i 
 
 •^ " , , . , , , cited 2 Evans s Pothier, p. 350, the Lord 
 
 the recoverer, upon which he might liave „, „ , », , ,> , 1 ^i .. ^1 
 
 ' ^ ^ Chancellor (of Ireland) observed, that the 
 
 debt, and a duty against him upon which t^ 1 • i- i 1 a i • 1.. r^ 
 
 ' .; o , , , Ecclesiastical and Admiralty Courts are 
 money had and received would lie. 
 
 (s) See the observations of Eyre, C. J., 
 in Phillips V. Hunter, 2 H. Bl. 416. See 
 also Broion v. M'Kinnally, 1 Esp. C. 279. 
 Marriott v. Hampton, 7 T. R. 269; 2 
 Pothier, by Evans, 350. 
 
 (t) Str. 481. 
 
 (u) Doug. 392. (c) Boe v. Rosser,3 East, 15; 16 East, 
 
 (x) 2 Bl. 1174. 208; Barrett v. Wilso7i, I C. M. & R. 
 
 ( y) 1 Hargr. Law Tracts, 446. 586; Johnson v. Burant, 2 B. & Ad. 930; 
 
 {z) Da Costa v. Villa Real, Str. 901. Jupp v. Grayson, 1 C. M. & R. 523. 
 
 not courts of record, and that sitting in a 
 court of law, he was not at liberty to enter 
 into the examination of the justice or in- 
 justice of any judgment of a court of com- 
 petent jurisdiction, unless it came before 
 him by writ of error.
 
 IN CIVIL MATTERS, EFFECT OF. 273 
 
 adjudication, though not of record, is final. A matter is not less Foni^n 
 res adjudicata because it is not of record, that is, because it is J"^o"'i'"t- 
 not preserved and authenticated in a particular manner j and when 
 it has been established as a legal judgment by a court of compe- 
 tent jurisdiction, it seems to be equally entitled to consideration (d!). 
 The principle on which the conclusive quality of judgments, decrees 
 or sentences depends, applies just as much to foreign judgments 
 attempted to be enforced here, as to any othei". Judgments of in- 
 ferior courts in this country do not differ in that respect from re- 
 corded judgments ; and if the mere circumstance of their being 
 foreign made any difference, the objection would equally apply to 
 all foreign judgments, and consequently the sentences of foreign 
 courts of Admiralty would not be, as they are, conclusive here. 
 The principle upon which a judgment is admissible at all is, that 
 the point has already been decided in a suit between parties or their 
 privies, by some competent authority, which renders future litigation 
 useless and vexatious. If this principle extends to foreign as well 
 as domestic judgments, as it plainly does, why is it to be less ope- 
 rative in the former than in the latter case ? If it does not embrace 
 foreign judgments, how can they be evidence at all? By admitting 
 that such judgments are evidence at all, the application of the 
 principle is conceded : Why, then, is its operation to be limited as 
 if the foreign tribunal had heard nothing more than ex parte state- 
 
 (rf) It will be seen that decisions by was not necessary to consider whether the 
 
 justices of the peace by virtue of a sum- judgment (of a Scottish court) could be 
 
 raary jurisdiction are conclusive on an impeached here ; and in the latter, the 
 
 action brought, and that the propriety of question was, not Avhether the former 
 
 such decisions cannot be questioned. See judgment could be examined into with a 
 
 vol. II. tit. Justices. In the case of view to the merits, but only whether the 
 
 Guinness v. Carroll, 1 B. & Ad. 459, an process of the Scotch Court, in which the 
 
 action having been brought upon an Irish judgment had been pronounced was suf- 
 
 judgment, the attempt was made to un- ficient to make the judgment binding on 
 
 ravel the former proceedings, but the case the defendant. In the case of Barnes v. 
 
 was decided on a collateral ground. It is WincUer, 2 C. & P. 345, the plaintiff 
 
 observable, however, that on the case of having sued for his debt in the county 
 
 Buchanan y. Rucher, 9 East, 192, being court, and the plaint having been dis- 
 
 cited as an authority to warrant such missed on the merits, it was held that 
 
 inquiry, Lord Tenterden observed, that he might still sue in a superior court 
 
 in that case the proceedings showed that for the same demand, that the former 
 
 judgment had been given by default upon proceedings would not be conclusive 
 
 summonses not personally served, where against him, but were for the consideration 
 
 it did not appear that the defendant ever of the jury, as something might have oc- 
 
 hadbeen summoned. The cases of Aimott curred in the county court which was not 
 
 V. Reclfern, 3 Bing. 353, and of Douglas brought before the jury in the second 
 
 V. Forrest, 4 Bing. G86, were also cited on action. But see the case oi Huxham v. 
 
 the same side. But in the former. Best, Smith, 2 Camp. 19, hifra. 277. 
 C. J., in giving judgment, observed, that it 
 
 VOL. I. T
 
 274 WRITTEN evidence: juugment 
 
 Forci'.Tii mont and proof? Lord C.J. Eyre lays stress on the circumstance, 
 •'" ^ ' that the jud<2;mcnt is voluntarily submitted by the party who 
 claims the benefit of it, to the jurisdiction of the court ; but so it 
 is in every case where a party claims the benefit of such a judg- 
 ment, for no one is compelled to avail himself of a judgment; and 
 it can make no difference whether he attempts to enforce it as 
 ])laintifF, or as matter of defence ; for it could scarcely be con- 
 tended, that a judgment was mere\y prima facie evidence for a 
 plaintiff who endeavoured to recover the debt, but that it was con- 
 clusive in his favour when he used it by way of set-off. In the 
 case of Galbraith v. Neville, Lord Kenyon expressed strong doubts 
 as to the doctrine advanced in Walker v. Witter; and it appears 
 that ultimately(e) the Court refused a new trial, being of opinion 
 that the judgment was at all events prima facie evidence of the 
 debt, without entering into the question how far it was impeach- 
 able. 
 
 Upon an action of covenant (f), for not indemnifying the 
 plaintiff against partnership debts due from a dissolved firm 
 in which the plaintiff and defendant were partners, the plaintiff 
 proved a decree in the court of Grenada against himself and 
 the defendant, for a partnership debt, on which a sequestration 
 issued against the plaintiff's property, by which he was compelled 
 to pay the debt. Upon the trial the defendant offered to prove 
 that the account had been incorrectly taken ; but Lord EUenbo- 
 rough rejected the evidence, on the ground that the foreign court, 
 being a court of competent jurisdiction, must be taken to have 
 decided rightly, and the Court of King's Bench afterwards refused 
 a rule nisi for a new trial. The case of Burrows v. Jemino {g) 
 is direct to show that foreign judgments are conclusive. In 
 that case, the acceptor of a bill, residing at Leghorn, having been 
 discharged of his acceptance, according to the laws there, by the 
 failure of the drawer, instituted a suit there, and had his accept- 
 ance vacated by a decree of the court ; and being afterwards sued 
 in England upon the same bill, he applied to the Court of Chan- 
 cery for an injunction, which was granted on the broad ground 
 that the sentence of a court of competent jurisdiction is con- 
 clusive. 
 
 (e) 5 East, 475 (n.) b. court for the same cause of action, was a 
 
 (/) Tarleton v. Tarleton, 4 M. & S. bad plea, for not showing tliat such a 
 
 20. See Maloiuj v. Gibbons, 2 Camp. judgment would have been conclusive in 
 
 502. the colony; but it seems to have been 
 
 (g) Str. 733. In the case o{ Plummer assumed that the judgment, if shown to be 
 
 V Woodhouse, 4 B. & C. 625, it was held conclusive in the colony, would also be 
 
 that a plea alleging a judgment in a colonial conclusive here.
 
 IN CIVIL MATTERS, EFFECT OF. 275 
 
 Til the late case of Martin v. Nicolh{h), a bill for a discovery Fomgn 
 and coinniission to examine witnesses in Antis2,ua, in aid of the "'" °""^" ' 
 plaintiff's defence to an action brought on a foreign judgment in 
 this country, was, after an examination of the authorities, held to be 
 demurrable, on the broad principle that the grounds of a foreign 
 judgment cannot be raised in the courts of this country. It may 
 not, therefore, be going too far to say, that the doubts which have 
 rested on this important question, and on which it has been seen 
 that eminent authorities have differed, are now set at rest; and 
 that it may be laid down as a general position, that the decisions 
 of foreign courts, which being apparently regular, and free from error 
 on matters within the scope of their jurisdiction, are conclusive in 
 the court and country in which they are pronounced, are also con- 
 clusive in this country. 
 
 Where, however, a foreign judgment has proceeded upon some 
 error apparent on the face of the judgment, it is impeachable on 
 that ground. In the case of Novelli v. Rossiii), the defendant, in 
 answer to proof of a debt due by him to the plaintiff, showed that 
 he had indorsed two bills to the plaintiff, of which the defendant 
 himself was also the indorsee ; that the acceptance on these bills 
 had, on presentment for payment, been cancelled by the banker's 
 clerk, who immediately wrote opposite to them, " cancelled by 
 mistake;" that the plaintiff afterwards took up the bills, and 
 returned them, regularly protested, to the defendant, who applied, 
 without success, to the prior parties for payment ; that a suit 
 having been instituted by him in a French court, to which the 
 plaintiff had been cited, the court adjudged (and afterwards a 
 court to which the plaintiff had appealed adjudged) that the 
 defendant was discharged from the bills, on the ground that the 
 cancelling of the bills operated as a suspension of the legal reme- 
 dies against the acceptor, and was equivalent to a delay granted 
 to him by the holder, with whom the plaintiff was identified. It 
 was contended that this decree was conclusive, but the Court held 
 that as it appeared that the French courts had mistaken the law 
 of England as to the effect of the cancellation (J), the defendant 
 was still liable. The courts of England will not, however, for 
 obvious reasons, set aside the judgment of a court of a foreign 
 country, for a mistake of the law of that country, unless the error 
 be very manifest {-k). 
 
 (A) 4 Sim. 458. Birkbeck, 15 East, 17. WiUdnson v. 
 
 (i) 2 B. & Ad. 757. See also the ob- Juhnson, 3 B. & C. 428. 
 servations of Lord Ellenborougli in Bu- {k) Becqnet v. 31' Cart)/, 2 B. & Ad. 
 
 chanan v. Rucker, 1 Camp. G7. 957. Alison v. Furnival, 1 C. M. k R. 
 
 (j) As to this point, see also Itapcr v. 293. 
 
 T 2
 
 examin- 
 able. 
 
 '27() WRITTEN EVIDENCE : JUDGMENT 
 
 Forcijin -j^ijp procee(llnG;s upon which a foreio;n judf^ment lias been 
 
 how far obtained, are also, to a certani extent, open to exanunation, tor the 
 purpose of ascertaining whether tlie judgment has been fairly- 
 obtained, and pronounced by proper authority, in a case within 
 the jurisdiction of the court. 
 
 'J'hus, where tlie plaintiff declared in assumpsit on a foreign 
 j-udgment in the island of Tobago (Z), and upon the trial a copy of 
 the proceedings and judgment was produced, from which it 
 appeared that the defendant had been summoned by nailing up 
 a copy of the declaration at the court-house door, upon which 
 judgment was afterwards given by default, and no evidence was 
 given that the defendant had ever been present in the colony, or 
 subject to the jurisdiction of the colonial court, Lord Ellenborough 
 nonsuited the plaintiff, and a rule nisi for a new trial was after- 
 wards refused (m). So in the case of Cavan v. Stewart (ri). Lord 
 Ellenborough held that a party here was not bound by a colonial 
 judgment, unless it appeared that he had been summoned, or was 
 proved that he had been once resident upon the island ; and that 
 it was not sufficient that he was described as an absentee on the 
 face of the proceedings. 
 
 Where a party, once resident in a colony, absented himself from 
 it without leaving any attorney, but where it was the duty of the 
 procurator fiscal to take care of the interests of an absentee, the 
 judgment was held to be binding (o). Credit will be given to facts 
 specifically alleged : where the judgment (by default) stated that 
 the defendant appeared by attorney, it is to be presumed that he 
 had authority to appear for the defendant ( p). 
 
 It seems to be a general rule with respect to foreign judgments, 
 vrhich are not unfrequently inaccurately expressed, to regard their 
 substance, and not their form, and this is according to the rule 
 adopted by the Privy Council {q). 
 
 (0 Buchanan v. liitcJier, 9 East, 192. be operative upon them. And see the 
 
 And see Lord Tenterden's observation on case of Cavan v. Stewart, 1 Starkie's C. 
 
 this case in Arnott v. ReclfL'rr),3 B'lng. 52o,&n(\ of Douglas v. Forrest, 4 B'm^,GS6. 
 
 35.3. FranMand v. M'Gvstxj, 1 Knapp. Pr. C. 
 
 (m) It appeared that, by a law of the 274. Olivier w. Bligh, 8 Bing. 35. 
 
 colony, if a defendant be absent from the (n) 1 Starkie's C. 525. 
 
 island, and have no attorney, manager or (o) Becquet v. McCarthy, 2 B. & Ad. 
 
 overseer there, such mode of summoning 958. So an action lies on a Scottish judg- 
 
 shoull be deemed good service. But the ment of horning, Douglas v. Forrest, 4 
 
 Court held, 1st, That the law applied to Bing. 693. 
 
 those only who had once been present upon (jy) Malony v. GU)hons, 2 Camp. 503. 
 
 the island ; and, 2dly, That if its terms {q') Per Lord Teuterden in Henley v. 
 
 could be construed to extend to those who Safer, 8 B. & C. 20. 
 bad never been present, the law could not
 
 IN CIVIL MATTERS, EFFECT OP 277 
 
 The rule (as to exaniining- previous proceedings) appears to be Jiifi-rmenis 
 the same with respect to the judgments of inferior courts in this "^"j'^''''"' 
 country. In Fisher v. Lane (r), the plaintiff, an administrator, f'"" cxamin- 
 brought assumpsit for goods sold and delivered by the intestate ; "^ '^' 
 the defendant pleaded the general issue, and gave in evidence the 
 payment of a sum of money in consequence of a judgment upon a 
 foreign attachment in London. From the minutes of the judonient, 
 it appeared that Henry Janson had by this process attached the 
 sum of 92/. 18s. in the hands of the defendant, for a debt due 
 from the intestate, and for default of the present plaintiff in not 
 appearing, had had execution ; but it did not appear from the pro- 
 ceedings that the plaintiff had received any notice of the process, 
 and the Serjeant- at-mace stated that such was the custom of the 
 city com't. The Court of Common Pleas held that the judgment 
 was erroneous, since the plaintiff, who never had been summoned, 
 had made no default (s). 
 
 A judgment and process of execution in a county court beino- 
 pleaded in bar of an action of trespass, it was held that the jury 
 were at liberty to consider the whole of the proceedings fi-audulent 
 and collusive, no process having been served, or appearance en- 
 tered, although a motion to set aside the proceedings of the court 
 below had been made without effect {t). 
 
 It is also to be observed, that error or insufficiency, manifest on 
 the face of the proceedings, before courts of inferior jurisdiction, 
 may usually be objected, even where the conviction or adjudication 
 is offered in justification of some act done under its authority (m). in private 
 
 Secondly, where a iudgment is offered to prove the same fact, ™'>^"f S; 
 
 J ' J ^ A ' conclusive 
 
 effect of. 
 
 (r) 3 Wils. 297. lo Herbert v. CooTte, that a custom in an inferior court to de- 
 
 Willes, 36, note («), it was held that in an glare against a defendant before an appear- 
 
 actionofdebt, on a judgment of an inferior ance entered by him, or by some person 
 
 court, not of record, the defendant might for him, was bad in law : and it seems also 
 
 plead that the cause of action arose beyond that a custom to issue a summons and 
 
 thejurisdictionof the court. In Huxham attachment at the same time, is also bad. 
 
 V. Smith, 2 Camp. C. 19, Lord Ellen- gee also Doe d. Lord Thanet v. Gartham, 
 
 borough held that the judgment against 1 Bing. 357. R. v. Dr. Gask'm, 8 T. R. 
 
 the defendant as garnishee in the Lord 209. Pratt \. Dixo7i,C\-o. i.\Q%. Ward 
 
 Mayor's court was pri/nA facie evidence v. Ellayn, ib. 261. 
 
 of a debt due to the plaintiff from the de- {t) Thompson v. Blackhurst, 1 Nev. & 
 
 fendant on a cause of action, within the M. 273. 
 
 city of London ; but he admitted evidence (w) As in the case of a summary convic- 
 
 to prove the contrary. See Palmer v. tion before a magistrate ; see the cases col- 
 
 Hooker, 1 Ld. Ray. 727. But he held Iccted, Vol. II. tit. Justices. It would 
 
 that the judgment was conclusive as to probably be different in the case of a 
 
 the debt. judgment in a court of record, which, 
 
 («) See also Williams v. Lord Bagot, though erroneous, is in force till it is 
 
 in error, 3 B. & C. 772 ; where it wus licl I reversed. 
 
 T 3
 
 278 
 
 WRITTEN evidence: JUDGMENT 
 
 In i)rivatc 
 matters, 
 conclusive, 
 ctfbct of. 
 
 Verdicts 
 and judg- 
 ments in 
 criminal 
 cases, ad- 
 missibility 
 of. 
 
 but for a difTerent or collateral purpose, then if the judgment was 
 by a couit of exclusive jurisdiction, it is conclusive evidence upon 
 the question so incidentally arising (.r). In an action upon a 
 contract of marriage, per verba de futuro, the defendant gave in 
 evidence a sentence of the Spiritual Court in a cause of contract, 
 where the Judge had pronounced against a suit for the solemniza- 
 tion in the face of the church, and declared the defendant free from 
 all contract, and this was held to be conclusive evidence although the 
 proceedings were diverso intuitu; that in the Spiritual Court being 
 for a specific performance, and that in the action for damages (?/). 
 
 In the next place, although the judgment or decree be not pro- 
 nounced by a court of exclusive jurisdiction upon the subject- 
 matter, yet, if the same point once determined between the same 
 parties again arise, although for a different purpose, the judgment, 
 it seems, would be admissible but not conclusive evidence {z). 
 
 An adjudication of a criminal nature seems to have little opera- 
 tion as evidence, except with a view to proof of the mere fact of 
 adjudication, or to establish its own legal consequences. 
 
 The principles adverted to seem to exclude a verdict in a criminal 
 proceeding from being evidence in one of a civil nature. For, 
 independently of other objections in such cases, the parties are not 
 the same ; and, therefore, there is not such a mutuality as is essen- 
 tial to an estoppel (a). 
 
 In an action brought by a private person, the acquittal of the 
 defendant upon an indictment is not evidence, because the plaintiff 
 was no party to the criminal proceeding, and therefore his private 
 remedy ought not to be concluded by the result (6). In addition to 
 which it may be observed, that an acquittal, however well founded, 
 would seldom, if ever, show conclusively that the defendant had 
 not committed an injury for which he is responsible in damages; 
 for he may be liable in damages without having acted criminally; 
 ^ converse, a conviction upon an indictment is not evidence for the 
 plaintiff in an action for the same wrong : first, because the defend- 
 ant upon the indictment could not attaint the jury for a false ver- 
 dict ; and, secondly, because there is no mutuality ; thirdly, because 
 
 {x) According to the judgment of De 
 Grey, C. J. antea, 256. And see Da 
 Costa V. Villa Bcal, Str. 961. 
 
 ( ij) Da Costa v. Villa Bcal, Str. 961. 
 
 (z) Lewis V. Clarges, Gil. Law. Ev. 
 29. A judgment in replevin, on the plea 
 of non tenuit to a cognizance for rent 
 arrear, is admissible evidence in an action 
 for rent. Hancock v. Welsh, I Starkie's 
 
 C. 347. Debt on bond, plea usury, the 
 judgment in an action by the defendant 
 against the plaintiff for penalties, is admis- 
 sible in evidence for the plaintiff. Clive v. 
 Potvell, 1 M. & R. 228. 
 
 (a) B. N. P. 232; Gil. Law Ev. 30. 
 Hudson v. Robinson, per Lord Ellenbo- 
 roiigh, 4 M. & S. 476. 
 
 (b) Supra, p. 261,
 
 IN CRIIMINAL MATTERS, EFFECT OF. 27t) 
 
 it does not appiuir that the veixhct was not procured by means of Venii-ts 
 the testimony of the interested party (c). Accordingly, a conviction ;t||!l,ts'iif 
 upon an indictment for trespass is not evidence upon an action criiniuul 
 brought for the same trespass (6?); and a conviction upon an in- SuS.iiit'y 
 dictment for a conspiracy is not binding upon a writ of conspiracy "^• 
 by the same party (e). But where, upon an indictment, the de- 
 fendant confesses his guilt, the confession, it seems, is evidence in 
 a civil proceeding ( /), since those objections do not apply ; for the 
 record does not rest upon the testimony of any interested witness ; 
 and an attaint is out of the question. It has been laid down, that 
 a conviction in a court of criminal jurisdiction is conclusive evidence, 
 if the same fact afterwards come collaterally in controversy in a 
 court of civil jurisdiction (^r). And, therefore, that the conviction 
 of the father upon an indictment for bigamy would be conclusive 
 in ejectment as to the validity of the second marriage, although an 
 acquittal would be no proof of the reverse. In support of this 
 position no authority is cited except that of Boyle v. Boyle {h) ; 
 but the question there was, whether a prohibition should not be 
 awarded in a jactitation suit, the complainant in that suit having 
 been convicted of bigamy in marrying a second wife, whilst his 
 first wife, the defendant in the jactitation suit, was living; and a 
 prohibition was granted . Admitting this decision to be law, it can 
 scarcely be inferred that the conviction would have been equally 
 conclusive of civil rights in a temporal court. An action was 
 brought for words which charged the plaintiff with being accessory 
 to felony ; and though the party charged as principal in the felony 
 had been acquitted, it was held that the defendant was at liberty 
 to go into evidence to prove his guilt, because what had passed 
 between others could not affect him {i). 
 
 (c) In Gil. Law Ev. 31, it is urged, Sharde is, that a confession is stronger 
 
 that where the verdict is founded on other tlian a verdict. In such a case, the objec- 
 
 evidence besides the party's own oath, it is tion, tliat tlie verdict may have been ob- 
 
 admissible; but how are the jury to Icnow tained on the evidence of tlie party who 
 
 what weight the oath of the party had, now seeks to take advantage of it, ceases ; 
 
 and how is it to be known without going and tlie case seems to stand upon the same 
 
 into extrinsic evidence, by what witnesses, footing with that of any other admission ; 
 
 or upon what evidence, the former verdict and so ruled by Wood, B., Leicester Lent 
 
 was obtained? Assizes, 1808. But see Phillijis's L. E. vol. 
 
 {d) P. C. Samj)Son v. Toothil, 1 Sid. 1, p. 523, where it is stated tluit lord 
 
 324; B. N. P. 233; Hob. 53. Jones v. Tenterden doubted as to the admissibility 
 
 WAi^c, Str. G8. of such evidence. 
 
 (e) 27 Ass. 13; Tr. per Pais, 30. {y) B. N. P. 245. 
 
 {/) Such evidence is warranted by the (/*) 3 Mod. 164 ; Comb. 72. S. C. 
 
 old authorities. See Lamb's Inst. B. 2, c. (i) England v. Bourke, 3 Esp. C. 80. 
 
 9 ; 9 H. 6. 60, 11 H. 4. 65 ; Tr. per Pais, An acquittal of a party by the judgment 
 
 30; 27 Ass. 7. The reason given by of a court-martial from the charge on 
 
 T 4
 
 280 WRITTEN EVIDENCK: Jl'UCMENT 
 
 Verdict in As a ti;cnonil rule, it seems that a verdict or judgment in a cri- 
 
 criniinal urinal case is not evidence of the fact upon which the judgment 
 case not ... JO 
 
 evidence! iu was founded in a civil proceeding, 
 civil action. ,^,j^^ ^.^^^ ^^ rpj^^ ^^.^^^^ against The Warden of the Fleet (k) is 
 
 a strong authority for this position. The defendant was tried at 
 bar for permitting the escape of prisoners from the Fleet prison. 
 To prove the escape a witness was offered who had been a pri- 
 soner. It was objected that he was incompetent, since he had 
 given a bond for his being a true prisoner, which he had forfeited 
 by his escape ; and besides tliat, he had been retaken ; and that 
 if the defendant should be convicted upon his evidence, and debt 
 should afterwards be brought by him upon the bond, the convic- 
 tion would be evidence to make it void, as taken for ease and 
 favour; and that, in an action of false imprisonment for the re- 
 taking, the conviction would also be evidence. But it was 
 answered, and resolved by the Court, that the conviction would 
 be no evidence against the warden upon debt on the bond, nor 
 for the prisoner in false imprisonment against the warden ; because 
 it would not be between the same parties. For a conviction at suit 
 of the King for battery, &c. cannot be given in evidence in an ac- 
 tion of trespass for the same battery nor vice versa, the like law of 
 an usurious contract. In the case of Hillyard v. Grantham{l), 
 upon a trial at bar, the Court of King's Bench were of opinion 
 that a sentence of excommunication against the father and mother 
 for fornication was not admissible in evidence upon an ejectment 
 to bastardize the issue, because it was a criminal matter, and 
 therefore could not be admitted in a civil cause ; and also because 
 it was res inter alios acta. And in the case of Gibson v. Macarty (m), 
 where the question was whether certain promissory notes were 
 genuine, the defendant offered in evidence the record of the 
 plaintiff's conviction for the forgery of one of the notes ; but Lord 
 
 which he was arrested, does not deprive ants upon an indictment, where the plain- 
 
 the defendant, in an action of trespass for tiff was a witness, was not evidence. A 
 
 the arrest, of his right to justify, on the conviction is not evidence for the informer, 
 
 ground that there was reasonahle and pro- thougli his name do not appear on the face 
 
 bable cause for the imprisonment. Bayley of tlie proceedings. Smith v. Rummens, 
 
 V. Warden, 4 M. & S. 400. 1 Campb. 9; S. P. ruled in Hathaway v. 
 
 (k) 12 Mod. 337. See also the cases of Barrotc and others, 1 Campb. 151. See 
 
 It. v. Boston, 4 East, 581 ; and Bartlett also Burden v. Browning, 1 Taunt. 520. 
 
 V. PiciersgiU, ib. 377, in which the prin- Bichardson v. Williams, 12 Mod. 319. 
 
 ciple is fully established, that a conviction Gibson v. 31' Cariy, Cas. temp. Hardw. 
 
 obtained on the oath of an interested party 311. Hillyard v. Crrantham, cited by 
 
 is of no effect. See also Hathaway v. Lord Hardwick in Brownsword v. Ed- 
 
 Barroio, 1 Camp. 151, where Sir J. Mans- tcards, 2 Ves. 246. 
 
 field held, that in an action on the case for (I) Cited Ca. temp. Hard. 311. 
 
 R conspiracy, a conviction of the defend- (/«) Ibid.
 
 IN CRIMINAL MATTEUS, EFFECT OF 281 
 
 Hardwicke refused to admit the evidence, on the ground suggested Voniict in 
 by the plaintiff's counsel, viz. that no record of a conviction could ease mir^ 
 be evidence in a civil suit, because it might have been obtained by *"vuioiice in 
 the evidence of a party interested. And the same doctrine is action. 
 reported to have been expounded by the Court in the case of 
 Richardson v. Williams (ri). In the case of the King v. Boston {a) 
 it was held, on an indictment for perjury, assigned upon an answer 
 to a bill of injunction, that the prosecutor, against whom the 
 defendant had brought the action at law, was a competent witness, 
 on the express ground that the conviction could not be used by 
 him for the purpose of obtaining relief in equity. 
 
 The main objection to the reception of such evidence is that 
 there would be no mutuality ; for an acquittal of a party on a cri- 
 minal proceeding would not be available in a civil action (/>). 
 Where the father was acquitted on an indictment for having two 
 wives, it was held that the record was not evidence in a civil case, 
 where the validity of the second marriage was controverted (//). 
 On this ground it is asserted in Buller's Nisi Prius (r), that a con- 
 viction at the suit of the King for a battery, cannot be given in 
 evidence in trespass for the same battery. 
 
 The record of an acquittal or conviction upon a criminal charge, Judgment 
 is in general pleadable in bar, or conclusive evidence upon another caseTeffect 
 indictment or other proceeding for the same offence. The parties o*'i" evi- 
 
 dence. 
 
 (n) 12 Mod. 319; and see Jo7ies v. The Glamorganshire Canal Company, 2 
 
 White, Str. 68, where the question was, C. M. & R., Parke, B., observed as to the 
 
 whether upon the issue devisavit vel nan, cases there cited, that although the Judges, 
 
 the coroner's inquest, finding the deceased in noticing the objection to tlie reception 
 
 a lunatic, was admissible in evidence ; and of such evidence, that the verdict might 
 
 the Judges were divided upon the question have been obtained upon the evidence of 
 
 of admissibility. But Eyre and Pratt, Js. the party seeking to avail himself of it, 
 
 were for excluding the evidence, because they were only assigning one reason which 
 
 the proceeding was of a criminal nature, existed in the particular cases, instead of 
 
 and therefore was not admissible in a civil relying on the general principle. An es- 
 
 proceeding. And the Chief Justice, and toppel is always reciprocal. Gaunt v. 
 
 Powys, J., thought it admissible, on the Wainman, 2 Bing. N. C. 89; Gil. Ev. 
 
 special ground, that since the plaintiff was 28; B. N. P. 232. 
 
 executrix, the inquest which saved the {q) The reason assigned for this is, that 
 
 personal estate, was to her advantage. less evidence is necessary to maintain the 
 
 And see It. v. Bowler, Vol. II. tit. Will. action than to attaint the criminal, and 
 
 (o) 4 East, 581. See also Bartlett v. therefore his acquittal was no argument 
 
 Pickersgill, 4 East, 377. Burden v. that the fact was true. Gil. L. Ev. 33. 
 
 Broioning, 1 Taunt. 520. (r) 233. So a conviction of an assault 
 
 (p) Gil. L. Ev. 35 ; B. N. P. 232, 3. before a magistrate, on the information of 
 
 See Lord Ellenborough's observations, the party assaulted, is not evidence in an 
 
 Hudson V. Robinson, 4 M. &S. 479; 12 action for the assault. Smith v. Rum- 
 
 Mad. 339; Hardr. 472; 11 St. Tr. 462. mens, 1 Camp. 9. See also Hat hazvay v. 
 
 Bac. Ab. Ev. F. 216. In Blakcmorc v. Barrow, 1 Camp. 151 ; 1 Taunt. 520.
 
 282 WRITTEN evidence: .iudoment 
 
 jii(i)ini(!nt arc llie same in both, and no one ought to be bioii<^lit into jeopardy 
 
 cases ctfect twice for the same charge (s). Upon this ground it has been held, 
 
 of in evi- ^j^t ^ person who had killed another in Spain, and had been tried 
 
 and acquitted by a competent tribunal there, could not be tried 
 
 again here for the same offence (t). 
 
 An acquittal upon an indictment for the non-repair of a road, is 
 not conclusive evidence upon a subsequent indictment as to any 
 particular point, since it concludes nothing as to the general lia- 
 bility, but only shows that the defendant was not liable at the 
 particular time laid in the former indictment {?i). But a con- 
 viction in such case is conclusive as to the liability, unless fraud 
 can be shown (x). The record of a conviction is conclusive evi- 
 dence against the inhabitants of a particular district of their obli- 
 gation to repair a road, unless they can show that it was obtained 
 by fraud (?/). Fraud is put by way of example (z), for as against 
 the parish at large the judgment is inconclusive, if the defence was 
 conducted by the inhabitants of a particular district in which the 
 indicted road lay, without any notice to the rest of the parish (a). 
 So upon an indictment against a parish consisting of several dis- 
 tricts, one of which pleaded a custom for the inhabitants of each 
 of the three districts to repair their own roads, independently of 
 each other, which custom was traversed, the prosecutor having 
 upon the trial proved records of conviction of the parish at large 
 (upon not guilty pleaded), for not repairing roads lying in the par- 
 ticular districts ; the defendants were permitted to adduce evidence 
 that such pleas were pleaded without their knowledge (Z»). 
 A penal The record of a judgment in a criminal case, (as in all other 
 
 conclusive cascs), is in general conclusive evidence as to the fact of the con- 
 as t(> all 
 
 tga con- (5)4 Co. 40; 2 Haw. c. 35, s. 1. SeeB.N. in controversy in a court of civil iuris- 
 
 scqucnces. \ / ^ ' j j 
 
 P. 243 ; 1 Sid. 325. diction, yet an acquittal does not prove the 
 
 (0 Hutchinson's case, 1 Show. 6; B. reverse, because it does not ascertain the 
 
 N. P. 245. See Vol. II. tit. Foreign facts. Per BuUer, J., B. N. P. 245. 
 
 Law. (2/) H. v. St. Pancras, Peake's C. 219. 
 
 {u) A new trial will not be granted Note, that Lord Kenyon held it in the 
 
 after an acquittal on an indictment for not above case to be conclusive on an indict- 
 
 repairing a road. B. v. Burhon Ink. 5 M. ment against another parish. The question 
 
 & S. 392. Per Lord Kenyon, Bex v. St. however was, between the indicted parish 
 
 Pa7icras, Peake's C. 219. Qu. & videYoh and the parish of Islington, the convicted 
 
 II. tit. Highway. An acquittal which parish. 
 
 does not, like a conviction, ascertain facts, (z) See the note, 2 Saund. 159, a. See 
 
 is no proof of the reverse. B. N. P. 245 ; also R. v. Eardisland, 2 Camp. 494. 
 
 Gil. Evid. 32. (a) Doug. 421, 3d edit. B. v. Toicnsend. 
 
 {x) Although a conviction in a court B. \. Leominstei-; see 2 Will. Saund. note 
 
 of criminal jurisdiction is conclusive evi- 159, a. 
 
 deuce of the fact, if it come collaterally {b) B. v. Eardisland, 2 Camp. 494.
 
 IN CRIMINAL MATTERS, EFFECT OF. 283 
 
 viction and judgment, and as to all legal consequences resulting A penal 
 
 troni It. is e,.nch.- 
 
 A iudoment in a criminal proceeding is in the nature of a iudg- ^^y"; '-^^ to 
 JO 1 p . . *' ® all Ic'^al 
 
 ment in rem; such a judgment standing unreversed is, with some const- 
 exceptions, conclusive evidence as to all its consequences. Thus fi"^"ces. 
 an accessory to a felony, notwithstanding the judgment against his 
 principal, is entitled to controvert his guilt in evidence. In this 
 case, although the conviction of the principal may be alleged 
 in the indictment against the accessory, or may be given in 
 evidence (c) ; it is in effect but prima facie evidence (c?). But 
 this is perhaps the only case in which a judgment founded on a 
 verdict is not conclusive as to the attainder of the principal (e). 
 For a judgment in a criminal matter, as far as regards all the con- 
 sequences of the judgment, is binding upon all; the attainder of 
 a criminal is, as long as it remains in force, conclusive upon all 
 claiming from or through the party attainted (/). And a convic- 
 tion of a crime which deprives the party of competency, is con- 
 clusive against one who had an interest in his testimony (g). 
 
 Upon the same grounds, decisions in the inferior courts of Juclgments 
 justice, convictions by magistrates, and indeed all other legal and tjons "" '^' 
 
 IS m 
 
 authorized adjudications, as, for instance, sentences of expulsion inferior 
 by colleges, or of deprivation by visitors, are evidence to establish 
 the fact that such an adjudication has taken place, and with a 
 view to establish all the legal consequences that may be derived 
 from it, one of which is the protection of the party who acted in a 
 judicial capacity within the limits of his judicial authority. 
 
 Where actions are brought against magistrates and others, in convictions 
 consequence of what has been done under a conviction for any byjostices. 
 
 (c) But note, that in R. v. Turner, Mood. accessory, as a receiver, may controvert 
 C. C. L. 347, it is stated that many of the the guilt of the alleged principal, yet the 
 Judges (all the Judges except two being record of conviction of the principal, upon 
 assembled) were of opinion that the record his pleading guilty, is prinui facie evidence 
 of the conviction of the principal would of the principal felony as against the acces- 
 not be evidence of the fact, where the sory. R. v. Blich, 4 C. & P. 377. 
 indictment against the accessory alleged (e) Qu, whether this is not admitted in 
 not the conviction but the guilt of the favorem vitce, for it is not necessary that 
 principal. the indictment should aver the guilt of the 
 
 (d) Fost. 364, 5. R. v. Smith, Leach, principal. Foster, 365. It is sufficient to 
 288. See tit. Accessory. One reason allege the conviction simply. See Fost. 
 for this is, that the witnesses against the Disc. 3, c. 2. 
 
 principal may be dead, or cannot be pro- (/) Where it is founded upon a verdict, 
 
 cured ; but the main reason appears to be, an alienee cannot falsify the attainder by 
 
 that as to the attaint of the principal, the suggesting that there was no felony com- 
 
 jiroceeding is i>i rem, and in general con- mittcd. 1 Hale, 361 ; 2 Hawk. c. 50, 
 
 elusive against all the world as to all the s. 2. 
 
 conscfiuences of the attaint. Although an ((/) See Witness.
 
 284 
 
 VVKITTEN EVIDENCE : JUDGMENT 
 
 Convictions olleiicc vvithiu tlicir jurisdiction, tlie proceedings themselves, if 
 byjusticcs. ,.ggy]m.^ are evidence of the fact on which the judgment was 
 founded ; and the pkiintifF is not at Hberty to controvert and dis- 
 prove it by evidence (h). In an action for trespass and false im- 
 prisonment, the defendant gave in evidence a conviction by him, 
 as a magistrate, of the plaintiff", for unlawfully returning to a pa- 
 rish after removal from it, and a warrant, reciting the conviction, 
 requiring the keeper of the house of correction to keep him to 
 hard labour for twenty-six days; and Yates, J., held that the 
 conviction could not be controverted in evidence, and the plaintiff" 
 was nonsuited (i). For although the magistrate may have formed 
 an erroneous judgment upon the facts, that is properly the sub- 
 ject of an appeal ; and therefore, where an appeal lies, no action 
 can be maintained till the merits have been heard, and the con- 
 viction quashed (J). Whenever a magistrate assumes a more 
 extensive jurisdiction than belongs to him (k) he is liable in an 
 action; and if the excess of jurisdiction appear on the face of the 
 proceedings, the conviction cannot be set up as a defence to the 
 action, although it has never been formally quashed (/). But 
 where the proceedings are regular and formal, and the conviction 
 
 (70 Fuller v. Fotch, Holt, 287. In 
 Wilson V. Weller, 1 B. & B. 57, it was 
 held, tliat a magistrate's order for the pay- 
 ment of wages to a servant, stating a com- 
 plaint upon oath, and an examination on 
 oath, precluded the plaintiff, in replevin, 
 from pleading, in bar of a plea of cogni- 
 zance, that the complaint was not made 
 upon oath. What Judges of the matter 
 have adjudged is not traversable. Per 
 Holt, C. J., in Groenvelt v. Biirrell, Salk. 
 396. But if a constable commit a man 
 for a breach of the peace, his power is tra- 
 versable, for he is not a Judge ; he acts 
 not for punishment, but for safe custody. 
 Ibid. If a justice of the peace record that 
 upon his view, as a force, which is not a 
 force, he cannot be drawn in question 
 either by action or indictment. 12 Co. 
 23; 27 Ass. 19; Salk. 397. Neither an 
 indictment nor an action lies against a 
 Judge for what he does judicially, and for 
 what he has jurisdiction to do if the cir- 
 cumstances warrant it. Hammond v. 
 Howell, 1 Mod. 184; 2 Mod. 218. Bu- 
 sheWs Case, Vaugh. 146; 1 11.6,64; 47 
 E. 3, 50. See Vol. II. tit. Justices — 
 
 TKESrASS. 
 
 (i) Strickland v. Ward, 7 T. R. 633. 
 And see Fuller v. Fotch, Holt, 287; 
 Carth. 346 ; Hardr. 478 ; Cro. Car. 395 ; 
 
 1 Vent. 273. 
 
 (j ) FuUe)- v. Fotch, Holt, 287 ; 7 T. R. 
 631; 2 B. & P. 391; 12 East, 81; 16 
 East, 21. 
 
 {k) Crip2-)s v. Durden, Cowp. 240. Gray 
 V. Cookso7i, 16 East, 21. Hill \, Bate- 
 man, 2 Str. 710. 3Iorgan v. Hughes, 
 
 2 T. R. 225. 
 
 Q) For instances in which magistrates 
 have been considered to exceed their juris- 
 diction, see Hilly. Bateman, 2 Str. 710, 
 where the magistrate committed the party 
 to prison, although he had effects which 
 might have been distrained upon. Where 
 an overseer under the st. 17 G. 2, c. 38, 
 s. 2, was committed to the common gaol 
 until he had given up all and every the 
 hooks concerning his said office of overseer, 
 belonging to the said parish, the informa- 
 tion mentioning one specific book only, it 
 was held that the commitment and adju- 
 dication which it pursued were an excess 
 of jurisdiction. Grooiue v. Forrester, 5 
 M. & S. 314. Vol. II. tit. Justices— 
 Conviction.
 
 IN REM, EFFECT OF. 285 
 
 still subsists, it seems that the plaintilF cannot go into any evi- Convic-tions 
 dence in order to show that in tlic particular case the defendant '-^ •^"'' '^'^ * 
 had no jurisdiction (7w). Upon trespass brought against the de- 
 fendants, Avho were justices, they proved a conviction by them of 
 the plaintiff, for a misdemeanor in his service as an apprentice. 
 The plaintiff, in order to rebut this, offered to prove that the in- 
 dentures had previously been avoided, and this proof being 
 rejected, he was nonsuited ; and upon a motion to set aside the 
 nonsuit, the Court were of opinion that upon the point of juris- 
 diction the plaintiff was confined to such objections as appeared 
 on the face of the conviction (n). 
 
 Upon the same principle, it has been held, that upon an indict- Sentences 
 ment for an assault in turning the prosecutor out of a college, the '^y colleges 
 sentence of expulsion is conclusive evidence of the fact of expul- tors. 
 sion(o). And that a sentence of deprivation by a visitor of a 
 college, is conclusive evidence of the fact of deprivation, in an 
 action of ejectment for one of the college estates (p). Such sen- 
 tences are, however, impeachable for want of jurisdiction (q). 
 
 Thirdly, the admissibility of a judgment, decree or verdict, is to judgments 
 be considered, where it is allowed to operate as evidence against i" rem. 
 strangers to the original suit, the proceeding being, as it is tech- 
 nically called, in rem : for there it may be evidence against one 
 who was not a party to the suit, and who does not claim in privity 
 with a party. This happens where a court exercises a peculiar 
 jurisdiction, which enables it to pronounce on the nature and qua- 
 lities of particular subject-matter of a public nature and interest, 
 independently of any private party (r). 
 
 This class comprehends cases relating to marriage and bas- 
 tardy, where the Ordinary has certified ; sentences relating to mar- 
 riage and testamentary matters in the Spiritual Court ; decisions 
 of courts of Admiralty, judgments of condemnation in the Ex- 
 
 (m) Gra?j V. CooJtson, 16 East, 21. See although the sentences of courts martial 
 
 also Mann v. Davos, 3 B. & A. 603. Vol. are conclusive in actions at law', yet the 
 
 II. tit. Justices. courts of law will examine whether tliey 
 
 (??) Ibid. have exceeded their jurisdiction. Case of 
 
 (o) R. V. Gmndon, Cowp. 315. the ship Bounty, 1 East, 313. Grant v. 
 
 {j}) Phillips V. Bury, Skinn. 447 ; 2 Gould, 2 H. B. 69. Stratford's Case, 
 T. R. 346; 1 Ld. Raym. 5; and see Dr. 1 East, 313, and see the Mutiny Acts. 
 Patricks Case, 1 Lev. 65. Case of New (r) A commission of bankruptcy is a 
 College, 2 Lev. 14. Dr. Wedrington's proceeding to which all the world are par- 
 Case, 1 Lev. 23. R. v. Bishop of Chester, ties. Per Lord Ellenborough in Gervis v. 
 1 Bl. 22. Bishop of Bly v. Bently, ib. Westminster Canal Company, 5 M. & S. 
 85. 78. 
 
 (5) Doe V. Iladdon, 3 Doug. 310. So,
 
 286 WRITTEN evidence: judgment 
 
 jn(i£cniont3 chequcr, and adjudications upon questions of settlement. Ileve 
 tlie general rule is, that such a judgment, sentence, or decree, 
 provided it be final in the court in which it was pronounced, is 
 evidence against all the world, unless it can be impeached on the 
 ground of fraud or collusion (,s). This seems to be built upon one 
 or both of the following considerations : First, Because it is essen- 
 tial to the practical efficacy of such a jurisdiction that its judgments 
 should be binding in all courts ; Secondly, Because all who are 
 interested in the result may usually become parties to the proceed- 
 ing. First, The jurisdictions which operate in rem, without 
 reference to the litigant parties, are principally those of the 
 Spiritual Courts, upon marriages, matters testamentary, and other 
 questions of ecclesiastical cognizance ; of courts of Admiralty, 
 in questions of prize ; of the Court of Exchequer, upon the for- 
 feiture of goods; and orders of justices, upon questions of settle- 
 ment. 
 
 In the first place, it is evidently essential to the exercise of a 
 jurisdiction of this nature that its adjudications upon the subject- 
 matter should be final, not only in the courts m which they 
 are pronounced, but in all other courts where the same question 
 arises. 
 
 It would not only be inconsistent that the decision in rem 
 General sliould not be final in the court in which it is pronounced, but, 
 principles. fj-Q^j^ ^]^g nature of the subject-matter, mischievous and incon. 
 venient. Although the parties who are in a greater or less degree 
 affected by the consequences of the judgment may change, the sub- 
 ject-matter is immutable, and therefore the decision upon it ought 
 not to be liable to be disturbed. And it ought to be binding in 
 other courts, in order to prevent inconsistency, and to support the 
 jurisdiction of the court in which that sentence has been pro- 
 nounced ; for it would be in vain for a court of exclusive jurisdic- 
 tion to decide, if its decisions upon the subject-matter were to be 
 wholly disregarded. 
 
 Secondly, In general all parties really interested in the proceed- 
 ing in rem may usually be heard in assertion of their rights. Where 
 a question of marriage or bastardy arises in the courts of common 
 law, the certificate of the bishop, when returned and entered of 
 record, is binding, not only upon the parties to that suit, but upon 
 all other litigating parties between whom the same point arises {t)- 
 But in cases of bastardy, the stat. 9 H. 6, c. 11, specially provides 
 
 (s) B.N. P. 244 J llSt.Tr.2G2. {t) B. N. P. 245; 11 St. Tr. 2G1 ; 
 
 2 Wils. 128.
 
 IN REM, EFFECT OF. 287 
 
 that before any writ of certificate sliall pass out of the court to the rionoral 
 Ordinary, a remembrance, reciting the issue joined, shall be ccrti- '"''"'^''"'•^' 
 fied to the Chancellor, and that thereupon proclamation shall be 
 made in Chancery by three months, once in every month, to the 
 intent that all persons, pretending any interest to object against 
 the party which pretendeth himself to be mulier, be before the Or- 
 dinary, to make their allegations and objections, as the law of the 
 holy church requireth (u). Now, although the immediate object of 
 this statute was to ensure a greater degree of publicity and noto- 
 riety to the proceeding in the particular case of bastardy, yet it is 
 to be observed, that it did not at all affect the nature of the pro- 
 ceeding before the Ordinary, but assumed that all who are inte- 
 rested will be allowed to offer their allegations and proofs before 
 him. Whence, perhaps, it may be inferred, that in all such cases 
 any party interested is entitled to insist upon his objections before 
 the Ordinary. With respect to the proceedings upon an original 
 suit in the Exchequer, relating to the seizure and condemnation of 
 goods, and also to suits in the Spiritual Courts and Courts of Ad- 
 miralty, it must be presumed that, before they proceed to pass a 
 final decree or sentence, such reasonable notice has been given as 
 the justice of the case requires. 
 
 In conformity with these principles, it has been held that the OftheOr- 
 certificate of the Ordinary, when returned to the Temporal Court ^"!^^^ ''^"'^ 
 is conclusive upon all parties (a;), as regards civil rights at least (7/), Court. 
 upon questions of bastardy and marriage. So the grant of a pro- 
 
 (u) The statute also provides, tliat in intervene or appeal ; secondly, such doc- 
 default of making such proclamation as it trines would tend to give the Spiritual 
 requires, the writ of certificate, and the Courts, which are not permitted to exer- 
 certificate of the Ordinary upon it, shall cise any judicial cognizance in matters of 
 be void. crime, an immediate influence in trials for 
 
 (x) B.N. P. 245 J 2 Wils. 128; 11 St. offences, and to draw the decision from 
 
 Tr. 261 ; Fitz. Estopp. 282. R- v. Rhodes, the course of the common law, to which it 
 
 Leach. 29. solely and peculiarly belongs. The ground 
 
 (y) As to the effect of such a judgment of the judicial powers given to the Eccle- 
 
 in a criminal case the law is thus stated siastical Courts is merely of a spiritual 
 
 by De Grey, C. J., in The Duchess of consideration, pro correctione morum et 
 
 Kingston's Case: pro salute anima. They are therefore 
 
 " Proceedings in matters of crime, and addressed to the conscience of the party, 
 
 especially of felony, fall under a different But one great object of the temporal ju- 
 
 consideration from civil suits, first, be- risdiction is the public peace, and crimes 
 
 cause the parties are not the same, for the against the public peace are wholly, and 
 
 King, in whom the trust of prosecuting in all their parts of temporal cogni- 
 
 public offences is vested, and which is exe- zance alone. A felony by common law 
 
 cuted by his immediate orders, or in his was also so. A felony by statute be- 
 
 name by some prosecutor, is no party to comes so at the moment of its institution, 
 
 such proceedings in the Ecclesiastical The Temporal Courts alone can expound 
 
 Courts, and cannot be admitted to defend the law and judge of the crime and its 
 
 or examine witnesses, or in any manner proofs ; in doing so they must see with
 
 288 WRITTEN evidence: judgment 
 
 Of the Or- bate in tlie Spiritual Court is conclusive evidence against all as to 
 (liiiary and ^|^g ^jj.jg ^q personalty, and to all rights incident to the character 
 Court. ' of an executor or administrator (a). So is a sentence in the Spi- 
 ritual Court of nullity of marriage (h), when the decision in the 
 court itself is direct and final. Accordingly, where the wife, de 
 facto, of T. was libelled in the Spiritual Court by J. S. for a 
 divorce on the ground of a pre-contract with him, upon which the 
 Court dissolved the marriage, although T., the husband, de facto, 
 was no party to the suit, it was held that he was bound by the 
 sentence, and that the issue of the second marriage of the wife 
 with J. S. was legitimate (c). So where C. K. had issue M. K. 
 by C. S. his wife, de facto, and after a sentence of nullity of mar- 
 riage, C. K. married F., and they had issue E. K., it was held, 
 upon the death of C. K., that so long as the sentence of nullity 
 stood unreversed, M. K., the issue of the first marriage, was a 
 bastard {d). Although neither the sentence of a Spiritual Court, 
 nor of any other court, can be evidence upon a subject beyond its 
 jurisdiction (e), yet if the matter be within its jurisdiction, it is 
 evidence to all purposes, although not within the jurisdiction. 
 Therefore, in an action of trespass, a sentence of deprivation in 
 the Spiritual Court, on the ground of simony, was allowed to be 
 read, notwithstanding the objection taken that a freehold interest 
 of the plaintiff ought not to be concluded by what was done in the 
 Spiritual Court. For the Court said that the Spiritual Court did 
 not oust him of his freehold, but the ouster was the consequence of 
 the sentence (/). 
 
 their own eyes and try by their own rules, ment of money to an executor who has 
 
 that is, by the common law ; it is the trust obtained probate of a forged will, is a dis- 
 
 and sworn duty of their office." charge to the debtor of an intestate. Allen 
 
 It is observable that in The Duchess of v. Dundas, 3 T. R. 125. 
 Kingston's Case, the judgment given in ^^^ Bmiting's Cme, 4 Co. 29. Kenn^s 
 
 evidence was not a judgment i« rem. It Case, 1 Co. A\. Hatfield x. Hatfield, 
 
 has however been seen that upon an in- g^^_ ^^^ ^^^ ^^^^^ ^_ y.^^^ ^^^^^ .^^.j_ 
 
 dictment against one as accessory to a jonesv. Boto,C^xt\v.22b. Harvey's Case, 
 
 felony, the conviction of the principal, al- ,, o. m ^nr 
 
 though in other respects conclusive as to 
 
 his attainder, is yet but primit facie evi- (<") Bunting and Lepingwell's Case, 
 
 deuce against the accessory. The rule ^ C°- 29. 
 
 therefore, as laid down by C. J. De Grey, (^;) Kenn's Case, 7 Co. 41. Note, It 
 
 may perhaps in like manner be regarded y,^^ also there resolved that no sentence 
 
 as an exception in favorem vita, on the of divorce could be after the deatli of the 
 
 same footing with tlie case of the accessory, parties, because that would bastardize 
 
 without further impeaching the accuracy their issue. 
 
 of that part of the judgment. See further 
 
 on tins subject, Vol. II. tit. Polygamy. (^). ^^^- ^^- ^etsicorth v. Betsworth, 
 
 12 Vin. Ab. 128. 
 
 (/) rhilUps 
 Wells, 1 Lev. 235; 1 Ld, Ray, 2G2. Pay- pi. 103; 12 Vin. Ab. 128. Note, the Court 
 
 (a) Roll. Ab. G38 ; 4 T. R. 258 ; 11 St. 
 Tr.218; ST. R. 130; Roll. Ab. G78. iVoe?v. (/) rhilUps v. Crawley, Freem. 84,
 
 suit. 
 
 IN REM, EFFECT OP. 289 
 
 Sentence in a jactitation suit, as it seems, is not admissible cvi- Scnumceof 
 dence of marriage in a temporal court, unless it be between the couJun 
 same parties {g) ; at all events it is not conclusive. In Jones v. j:ietitation 
 Bow{h), where the plaintiff in ejectment claimed throuoh the 
 issue of Robert Carr and Isabella Jones, it was held that a sen- 
 tence in the Arches in a jactitation suit, by which it was decreed 
 that there was no marriage between them, was a conclusive bar 
 to the plaintiff", and estopped him from going into any proof of 
 marriage, unless he could show that the sentence had been re- 
 pealed. This decision, however, is open to the objection, that 
 in a jactitation suit the question of marriage arises collaterally, 
 and not directly, and that it is not final. In the case of HiUiard 
 V. Phaley {i), it was held, that proceedings in the Spiritual 
 Court against the father for incontinency with the mother, could 
 not be given in evidence against a child of the marriage claiming 
 by descent from the father (/{). And certainly such evidence could 
 not be considered as conclusive, because the marriage was not 
 directly in issue. In Blackham's case il), it was expressly held, 
 that although a matter directly decided by the Spiritual Court 
 could not be controverted, yet that the rule did not extend to any 
 collateral matter to be inferred from their sentence. 
 
 A jactitation suit is founded merely on a supposed defamation, 
 and involves no matrimonial question, unless the defendant plead 
 a marriage ; and whether it continues a matrimonial cause 
 throughout, or ceases to be so on failure of proving a marriao-e, 
 still the sentence has only a negative and qualified effect, viz. 
 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 marriage in anotlier 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 {m). The sentence in a jacti- 
 tation suit is, therefore, neither a direct nor a conclusive sentence 
 
 would not allow the proofs in the Spiritual Court carried on in a regular suit, and in 
 
 Court to be read, because it was not a the life-time of the parties, that they were 
 
 court of record. guilty of fornication, and the payment of 
 
 (gr) Infra, 290, note {q), 295. commutation money by the fatiier, was 
 
 {h) Carth. 225,220; 12Vin. Ab. 128. strong evidence to show that there was no 
 
 (i) 8 Mod. 180. marriage, and he thought it hard that it 
 
 (Ji) The reason which is assigned is, should be excluded, 
 that such proceedings could not affect the (0 1 Salk. 290. 
 
 title to lands. King, Lord Chancellor, {in) 11 St. Tr. 201. 
 
 thought that the sentence in the Spiritual 
 
 VOL. I. U
 
 290 
 
 WRITTEN EVIDENCE : JUDGMENT 
 
 Sentence of as to any marriage : conse(iuently, as it is not a proceeding in rem, 
 Co^uT*"^* it appears on general principles to be inadmissible evidence to prove 
 or disprove a marriage in a proceeding in any other court. In the 
 Duchess of Kingston's case, where such a sentence was offered by 
 the defendant on a charge of polygamy to disprove the first mar- 
 riao;e, the Judo;es held that such a sentence, even admitting it to 
 be evidence at all in a criminal proceeding, was not conclusive evi- 
 dence, and that at all events its effects might be avoided by proof 
 of fraud or collusion (n). In the case of Robins v. Cruchley, the 
 plaintiff having brought a writ of dower, the defendants pleaded 
 ne unque accouple ; the replication alleged that Sir W. Wolseley 
 libelled the plaintiff in the Spiritual Court, as his wife, charging 
 her with adultery with Robins (as whose widow she claimed), and 
 praying a divorce ; and that she pleaded that she was the wife of 
 Rol3ins, and then set forth the sentence of the court that she was the 
 wife of Robins. The defendants demurred ; and after two arguments, 
 the Court held the plea to be bad ; and this judgment seems to have 
 been founded not merely on the consideration that the bishop could 
 not be ousted of his jurisdiction by this plea, but also on the 
 ground that such a decree could not be pleaded in bar at all 
 against a stranger. Willes, C. J. said (o), no determinations in the 
 high courts touching lands shall bind strangers ; much less ought 
 a sentence in the Spiritual Court, to which Mr. Robins was no 
 party, to bind his heirs. And Clive, J. said {p), " Robins was no 
 party to the suit ; and why the sentence should bind his heirs I 
 cannot conceive ; it is mere matter of evidence (7)." So upon an 
 indictment for forging a will, it may be now proved that the will 
 was a forgery, notwithstanding the probate (r), although the con- 
 trary was once held (s). 
 Ofcondem- So a judgment of condemnation in the Exchequer is conclusive 
 
 thfE?che- "PO^ ^^^ ^^)» "^^^ ^"^y ^^ ^^ *^^® n^i of the Crown to the con- 
 quer. 
 
 (n) R. V. Duchess of Kingsto7i, 11 St. 
 Tr. 261. As to the construction of stat. 
 1 Jac. 1, c. 11, see Polygamy. 
 
 (o) 2 Wils. 124. 
 
 {jj) Ibid. 
 
 {q) It was intimated by Willes, C. J., 
 and Batliurst, J., that the sentence was 
 not conclusive, because it was not final 
 even between the parties, who might (ac- 
 cording to Oughton) at any time apply to 
 have it reversed ; and that the Court would 
 not be bound by the sentence of a spiritual 
 court, which was not binding even in that 
 court. Note also, the Court said, that the 
 
 sentence might possibly be evidence before 
 the bishop. 
 
 (r) E. V. Buttery and another, Old 
 Bailey, May 6, 1818. R. v. Gibson, Lane. 
 Summer Ass. 1802, cor. Lord Ellenbo- 
 rough ; 2 Pothier, by Evans, 356. 
 
 (s) R. V. Vincent, Str. 481. 
 
 (t) Scott V. Shearman, Bl. 977; 11 
 State Tr. 218. See Lord Kenyon's obser- 
 vations in Geyer v. Agu'dar, 7 T R. 696. 
 See Evans's Observations, 2 Pothier, 354, 
 So the judgment of commissioners of taxes 
 on an appeal, is final in an action of tres- 
 pass against the officer for levying ; and a
 
 IN REM, EFFECT OF. 
 
 291 
 
 demned property, but also in justification of the officer who Sentoncoof 
 seized it, where tlie only question is, whether it was forfeited or c^'"''!'"'"/*- 
 
 *'. ' . tioii in the 
 
 not(M). In one case, nideed(a;), it was doubted whether the Exchequer. 
 same doctrine apphed to a condemnation by commissioners of 
 Excise. 
 
 A conviction in penalty for adulterating spirits, which does 
 not operate in rem, is not evidence between other parties. Such 
 a conviction is not evidence for the defendant in an action for the 
 price of spirits sold, in proof of their adulteration (?/), and is not 
 evidence of the facts stated on another charge in respect of the 
 same goods, founded on a different statute (z). In the case of 
 Cooke V. Sholl (a). Lord Kenyon was of opinion, that an acquittal 
 in the Court of Exchequer, upon a seizure made for want of a 
 permit, was conclusive evidence in an action for the seizure, that 
 the permit was regular (b), and precluded all question upon the 
 construction of the permit. It is, however, observable, that the 
 case was decided on a collateral ground (c). 
 
 It has been seen that a condemnation by commissioners of 
 Excise is final (c?). 
 
 Inquisitions of lunacy are admissible but not conclusive evi- 
 dence, when the question is as to the state of the party's 
 mind (e). 
 
 warrant of distress for several duties im- 
 posed by different Acts of Parliament, each 
 giving a separate power of distress, is legal. 
 Patchett V. Bancroft and others, 7 T. R. 
 367 ; B. N. P. 244. See also 5 Price, 
 202. 
 
 (m) Ibid. 
 
 {x) Henshaio v. Pleasance, 2 Bl. 1174. 
 
 (y) Hart v. Macnamara, cor. Gil)bs, 
 C. J. See also 4 Price, 154; 5 Price, 
 195. 
 
 (2) Attorney-gen. v. King, 5 Price, 
 195. 
 
 (a) The question reserved upon the trial 
 being upon the construction of tlie permit, 
 and not on the point whether the determi- 
 nation in the Exchequer was conclusive, a 
 verdict was entered for the defendant. 5 
 T. R. 255. 
 
 (6) CooU v. Sholl, 5 T. R. 255 ; and see 
 12 Vin. Ab. A. b. 22. 
 
 (c) Supra, note (a). A mere acquittal, 
 it has been seen {supra, 282), stands on a 
 very different footing as to its effect iu 
 
 evidence, from a conviction ; it may have 
 resulted from collateral causes, indepen- 
 dent of the merits ; and in such a case 
 it may be doubted whether the general 
 principle, that a man is not to be concluded 
 by a proceeding to which he was no party, 
 is superseded by the peculiar princi- 
 ples which give effect to judgments in 
 rem. 
 
 (d) Supra, 272. And see Te?-ry v. 
 Huntington, Hardr. 480. Fuller v. Fetch, 
 Carth. 346. La7ie v. Hegberg, B. N. P. 
 19. Broion\.Bullen,\ Doug. 407. Ead- 
 nor V. Reeve, 2 B & P. 391. 
 
 (e) In debt on bond against executors of 
 obligor, an inquisition finding that the tes- 
 tator was a lunatic, without lucid inter- 
 vals, at the period of tlie execution of the 
 bond, is admissible, though not conclusive 
 evidence. Faulder v. Silk and another, 
 executors of Jervoise, 3 Camp. 126; 1 
 Collmsou, 390. See also Sergcson v. 
 Seahj, 2 Atk. 412. See also Vol. II. tit. 
 Wills. 
 
 U 2
 
 292 WRITTEN evidence: JUDGMENT 
 
 Admiralty Upoii the samc principles (/" ), adjudications in the courts of 
 Admiralty, whether domestic (^), or foreign (h), upon prize ques- 
 tions, being decisions of an exclusive jurisdiction operating in 
 rem, are conclusive evidence upon the matters which they de- 
 cide (i), when the same points arise incidentally in other courts ; 
 whether they involve questions as to the right of property, as in 
 actions of trover (k) ; or the questions of compliance or non-com- 
 pliance with warranties in actions on pohcies of assurance ; and 
 even although it appear that the court has acted on peculiar rules 
 of evidence and presumptions which are not consistent with general 
 principles (Z). 
 
 Accordingly (m) it has been held that a sentence of condemna- 
 tion by a French court of admiralty during a war between England 
 and France, is conclusive evidence to show that the ship was not 
 Swedish (h). So a sentence of condemnation is conclusive evi- 
 dence to show that a ship was not neutral, if that appear to have 
 been the ground of condemnation (o). So a condemnation of a 
 ship at Malaga, on tlie ground, inter alia, that the ship was Eng- 
 lish, was held to be conclusive evidence that she was not neutral (p)' 
 And whenever the sentence states the facts upon which the con- 
 demnation was grounded, it is conclusive as to those facts (q) ; as 
 where the ship is condemned on the ground that she was enemy's 
 
 (/) " From the time of Lord Hale down rent courts, or in that of a co-belligerent, 
 to the present period it has been clearly or ally, by a court constituted according 
 settled that a sentence of condemnation to the law of nations. 8 T. R. 270. Have- 
 in the Court of Admiralty, where it pro- lock v. Rockwood, 8 T. R. 268. Donald- 
 ceeds on the ground of enemy's property, son v. Thompson, Camp. 429. 
 is conclusive that the property belongs to (i) Barzillay v. Lewis, Park. Ins. 469. 
 enemies, and not only for the immediate Baring v. Clacgett, 3 B. & P. 201. Sa- 
 purpose of such sentence, but is binding in loucci v. Woodmas, 8 T. R. 444; Park, 
 all courts and against all persons. The Ins. 471. 
 
 sentence of the Court of Admiralty pro- (k) Ibid. Per Chambre, J., in Lothian 
 
 ceedingiw rem muat bind all parties, must v. Henderson, 3 B. & P. 513. Baring v. 
 
 bind all the world." By the Master of the Claggett, 3 B. & P. 214. 
 
 Rolls, in A'twrfeWeyv. C/trtse; at the Cock- (Z) Bolton \. Gladstone, 5 East, 155 f 
 
 pit, 1801, Park on Insurance, 490. 5 East, 99. 155; 2 Taunt. 85. 
 
 {q) 2 East, 473. Geyer v. Aguilar, 7 ('") Burro^vs v. Jendno. Roach v. 
 
 T. R. 681 . Garrells v. Kensington, 8 T. R. ^^'•^•«"' ^ '^''- ^^^- ^^^^^ ^- ^''^ «^«^'- 
 
 230. Beering v. Royal Exchange As- nations, 2 H. B. 410. Contra, Walker y. 
 
 surance, 5 East, 99 ; 1 Sid. 320. Le Caux ^^*^^^''' I>°"g- ^^ 
 
 V. Eden, 2 Doug. 600. Kinder-ley v. Chase, ("> ^- ^- ^- ^^4 : 2 Show. 232. 
 
 Park Ins 490 ^^^ Bernardi v. Motteux, Doug. 554. 
 
 Calvert v. Bovill, 7 T. R. 523. 
 
 {h) Hughes v. Cornelius, 2 Show. 232 ; 2 (^) oddy v. Bovill, 2 East, 473. 
 
 Doug.575. .BMTToit'sv. J'miwo,2Str.732; \q) Christie v. Secretan, 8 T. R. 192. 
 
 Roach V. Garvan, 1 Ves. 159. Eyre, C. J., Marshal y. Parker, 2 Camp. 79. Bverth 
 
 Observations, 2 H. B. 410. But the sen- v. Hannam, 2 Marsh, 72. Fishery. Ogle, 
 
 tence must be given either in the bellige- j Camp. 418.
 
 IN REM, EFFECT OF. 
 
 293 
 
 property (r). And where the ground of condemnation is doubtful, Admiralty 
 tlie Court will look into the proceedings to ascertain the grounds of 
 the sentence (s), and will act upon the grounds of that decision, 
 provided they can be distinctly ascertained {t) But such a judg- 
 ment must decide the point distinctly : in order to afiect a war- 
 ranty or representation in a policy of insurance, the intention of 
 the Court to decide the point is not to be collected by inference or 
 argument, but by specific affirmation {u) ; and even to this extent 
 such decisions have not without considerable reluctance been held 
 to be conclusive (.r). If the facts disclosed do not warrant the 
 sentence, it will not, as to them, be conclusive (?/). 
 
 So if the sentence has not decided the question of property, nor 
 declared whether it be neutral, but has condemned the property 
 as prize on a different ground, c. g. of a foreign ordinance against 
 the law of nations, the sentence, although conclusive on the ques- 
 tion of prize or no prize, would not be so on the question of neu- 
 trality {z). Such a sentence is not admissible, unless it be that of 
 a court, constituted according to the law of nations, exercising its 
 functions in the belligerent country, or in the country of a co-belli- 
 gerent or ally (a) in the war. 
 
 (r) 3 Bos. & Pul. 525. 
 
 (s) 3 Bos. & Pul. 525. The sentence is 
 binding, if it can be collected from the 
 whole of the proceedings that the sentence 
 was founded on the fact that the property- 
 was enemy's property. Bolton v. Glad- 
 stone, 5 East, 155. Baring v. Royal 
 ^Exchange Assurance Company, 5 East, 
 99. If a ship be condemned generally as 
 lawful prize, no special ground being stated, 
 it is to be presumed that it proceeded on 
 the ground that the property was that of 
 enemies. Saloucci v. Woodmas, 8 T. R. 
 444. Kindei-ley v. Chase, Park. Ins. 
 490. 
 
 (0 Kinderley v. Chase, Cockpit, 1801 ; 
 Park on Ins. 544; Sir Will. Scott's obser- 
 vations on the case of Pollard v. Bell, ib. 
 Where the sentence of condemnation of a 
 foreign prize court, for breach of blockade, 
 was expressed with so much ambiguity as 
 to render it impossible to ascertain the real 
 gTound on which it proceeded ; held, that 
 the Court was at liberty, upon the evidence 
 given at the trial in an action on the policy, 
 to determine whether such violation of the 
 blockade did take place or not ; held also, 
 that a voyage described in Uie policy as to 
 
 B., but if advised of a blockade continu- 
 ing, then to M. V., was not illegal. Bal- 
 gleish v. Hodgson, 7 Bing. 495. And see 
 Nayler v. Taylor, 9 B. & C. 718. The 
 Shephe)-dess, 5 Rob. Adm. R. 262. And 
 see Honyer v. Lushington, 3 Camp. 89. 
 Bernardi v. Motteux, Doug. 581. 
 
 {u) Per Lord Ellenborougli, C. J., in 
 Fisher v. Ogle, Park on Ins. 554 ; 1 Camp. 
 C. 418. 
 
 {x) See Lord Ellenborough's observa- 
 tions, ibid. 
 
 (y) Calvert v. Bovill, 7 T. R. 523. Pol- 
 lard v. Bell, 8 T. R. 444. See also Bird 
 V. Appleton, 8 T. R. 562. Bolton v. Glad- 
 stone, 2 Taunt. 85 ; 2 Camp. 154. 
 
 (z) Pollard\.Bell,'m.'RAU. Baring 
 V. Claggett, 3 B. & P. 215. Bird v. Ap- 
 pleton, 8 T. R. 562. 
 
 (a) Oddy v. Bovill, 2 East, 473. And, 
 therefore, a sentence pronounced by the 
 authority of a capturing power, within the 
 dominions of a neutral country, to which 
 the prize has been taken, is illegal, and 
 inadmissible to falsify the warrant of neu- 
 trality. Havelock v. Rochwoud, 8 T. R. 
 268. Donaldson v. Thompson, 1 Camp. 
 429. 
 
 U3
 
 294 
 
 WlllTTEN evidence: JUDGMENT 
 
 Admiralty 
 decisions. 
 
 Proof of 
 foreign law. 
 
 Such a sentence is binding, not only on the parties to the foreign 
 suit, but in all courts and on all persons (b). The admissibility of 
 such evidence seems to extend to all decisions of foreign courts of 
 competent jurisdiction which operate in rem (c). 
 
 The existence of a foreign law is to be proved as a matter of 
 fact(c/). The written law of a foreign state must be proved by 
 documents properly authenticated (e). The unwritten law, on 
 proof that it is unwritten, may be proved by the parol testimony 
 of witnesses possessing competent skill (/). Upon a question 
 whether the law of the mother country be the law of a colony, 
 the statement of text writers is admissible ((/). Acts of state in 
 a forei"-n country must be proved by authenticated copies of such 
 acts (h) ; commercial regulations by copies of such regulations (i). 
 
 So orders of justices on questions of settlement, when confirmed 
 at sessions, are conclusive against all (k), as to all the facts stated in 
 
 (&) See Kinderley v. Chase, Park on 
 Ins. 490 ; where it was held to be con- 
 clusive on the fact that the property was 
 enemy's property. 
 
 (c) As in case of marriage. Roach v. 
 Garvan, 1 Ves. 159. See Lord Hard- 
 wicke's observations, ibid. So on criminal 
 charges. Hutchinson's case, 2 Str. 733 ; 
 1 Show. G. Roche's case, 1 Leach, C. C. L. 
 160; supra,seeYo\. II.tit.FoREiGN LAW. 
 Marriage. 
 
 (d) See tit. Foreign Law, Vol. II. 
 
 (e) lb. In Lacon v. Higrjin, 3 Star- 
 kie's C. 178, a book was produced by the 
 French vice-consul, which he said con- 
 tained the French code of laws, upon which 
 he acted at his office. He said that there 
 was in France an office for the printing of 
 the laws of France, called the Royal 
 Printing-office, where the laws were pub- 
 lished by the authority of the French go- 
 vernment. The book itself, which con- 
 tained not only a body of French laws, but 
 a commentary upon them, purported to 
 have been printed at that office, and to 
 contain a copy of the constitutional charter 
 of France ; the witness also stated that 
 the book would have been acted on in any 
 of the French Courts. Abbott, L. C. J., 
 admitted the evidence on the authority of 
 the case of The King v. Picton, Howell's 
 St. Tr. 514. Note, that the objection in 
 that case seems to have been waived. 
 
 (/) Miller v. Heinrick, 1 Camp. C. 
 
 155. In the case of Dalrymple v. Dal- 
 rymple, 2 Haggard's Rep. 81, Sir Wm. 
 Scott, speaking of the authorities for the 
 law on which the validity of a Scotch mar- 
 riage was to be determined, observes, " The 
 authorities to which I shall have occasion 
 to refer, are of three classes: first, the 
 opinion of learned professors, given in the 
 present or similar cases; secondly, the 
 opinions of eminent writers, as delivered 
 in books of great legal credit and weight ; 
 and, thirdly, the certified adjudications of 
 the tribunals of Scotland on these subjects. 
 I need not say that the last class stands 
 highest in point of authority. Where pri- 
 vate opinions, whether in books or writings, 
 incline on one side and judicial opinion on 
 the other, it will be the undoubted duty of 
 the Court wliich has to weigh them stare 
 decisis." The practice of a court of justice 
 in a foreign country may be proved by wit- 
 nesses professionally acquainted with the 
 practice. Buclmnan v. Rucker, 1 Camp. 
 66. 
 
 (g) R. v. Picton, 30 Howell's St. Tr. 
 492. On the same principle (according 
 to Lord Ellenborough) which renders his- 
 tories admissible. 
 
 (/() Richardson v. Anderson, 1 Camp. 
 65 n. 
 
 (i) 30 Howell's St, Tr. 491. 
 
 Qi) R. V. Norlhfeatherston, 1 Sess. C. 
 154 J 4 Burn. 603. So an order of filiation
 
 IN REM, EFFECT OF. 295 
 
 the order (/), and as to all derivative settlements (wj). So an order Proof of 
 of removal executed without appeal, is also conclusive (/i) as to the °'^'''^" ^^^' 
 settlement of the pauper up to that time, against all the world ; but 
 where the justices wanted jurisdiction, the order is a nullity (o), 
 and may be objected against, even after a lapse of twenty years. 
 
 The proceeding by quo warranto is analogous to a proceeding in J"'>gment 
 rem, so that a judgment of ouster against a mayor upon a quo warranto. 
 warranto is evidence upon a similar proceeding against a burgess 
 who claims to have been admitted by that mayor (p) ; and is con- 
 clusive evidence, unless fraud can be shown {q). So also a con- 
 viction of felony is, for many purposes, a proceeding in rem, ; and is 
 in general binding against all as to the consequences of the 
 attainder. It is still, however, as has been seen, competent to an 
 accessory to controvert the guilt of the alleged principal, although 
 the record of conviction is 'prima facie evidence against the acces- 
 sory as to the guilt of the principal. In Buller's Nisi Prius, a con- 
 viction for bigamy seems to be considered to be in the nature of a 
 proceeding in rem; and therefore, as conclusive in an action of 
 ejectment upon a question of legitimacy : this, however, seems to 
 be very doubtful in principle (r). 
 
 Where the judgment is admissible evidence against one who Conclusive, 
 was neither a party nor privy to it, being a direct, final and con- "ho^yu ^^ 
 elusive determination of a court of competent jurisdiction upon the 
 particular subject-matter, the rule seems to be, that the judgment 
 is conclusive in any other, unless it can be impeached on the ground 
 of fraud or collusion (s). Fraud, however, does not merely lower 
 
 is conclusive to show that the party is the 616. It. v. SilcJiester, B. S. C. 551 ; 2 
 
 putative father, JR. v. Best and others, 6 Bott. 686. 
 
 Mod. 185. See also B. v. Catterall, 6 M. (n) 2 T. R. 598 ; 11 East, 388. R. v. 
 
 & S. 83. B. v. Sarratt, Burr. C. C. 73. Corsham; and see 2 Salk. 488. Sutton 
 
 Barroto v. Islip, Salk. 524. B. v. Knap- St Nicholas v. Leverington, B. S. C. 
 
 toft, 2 B. & C. 883. B. v. Wick St. 276. 
 
 Zaicretice, 5 B. & Ad. 526. B. v, Whe- (o) 8 T. R. 178. Se?nMe, the quashing 
 lock, 5 B. & C. 511. Osgathorpe v. Di?i- of an order upon an appeal, concludes 
 worth, 2 Str. 1256. B. v. Oldbury, 4 Ad. nothing as to the place of settlement; for 
 & Ell. 167. The fact whether the order it may have been quashed because the party- 
 was quashed on the merits or not may be was not removeable. 
 
 inquired into on subsequent removal. B. (p) B. N. P. 231. B. v. Lisle, Andr. 
 
 V. Wick St. Lawrence, K. B, Midi. 1833. 163. 336. 389. B. v. Hehden, 2 Str. 1109 ; 
 
 B. v. Osgathorpe Whelock, 5 B. & C. The 2 Barnard, 70; 5 T. R. 72. 
 
 former quashing was by consent, the pau- {q) B. v. The Mayor of York, 5 T. R. 
 
 per not being removeable. See Vol. II, 72. 
 
 tit. Settlement, where the decisions on (r) B. N. P. 245; supra, 265, et seq. 
 
 this subject are more fully considered. (s) B. N. P, 244 ; 11 St, Tr. 262. Fraud 
 
 (f) Ibid, And B. v. Woodchester, 2 Str. (according to Lord Coke) avoids all judi- 
 
 1172 ; B. S. C. 191 ; 2 Bott, 685, cial acts, ecclesiastical or temporal. 
 
 (»j) R. V. St. Mary, Lambeth, 6 T, R. 
 
 U 4
 
 206 
 
 WRITTEN EVIDENCE : JUDGMENT 
 
 Conclusive, 
 uiilessfraud 
 be shown. 
 
 Conclusive 
 against par- 
 ties — when. 
 
 To prove 
 custom, &c. 
 
 the evidence to mere prima facie evidence of tlie fact, capable of 
 being- rebutted by adverse evidence, but destroys its effect alto- 
 gether. For it seems that a record of a judgment in rem is usually 
 either conclusive, or wholly inoperative ; except, indeed, in cases of 
 felony, where the guilt of the accused depends partly upon the 
 guilt of another, as the guilt of an accessory depends upon that of 
 the principal ; for there the record of the conviction of the principal 
 is but prima facie evidence to affect the accessory, who may con- 
 trovert the guilt of the principal, notwithstanding the record (t). 
 A judgment upon a quo wa7Ta7ito against a mayor, is evidence upon 
 a quo warranto against one claiming to be a burgess by virtue of 
 his admission ; it is not indeed absolutely conclusive (m), but it 
 cannot be impeached except upon the ground of fraud (x). So in 
 the Duchess of Kingston's case, upon the trial of the defendant, on 
 an indictment for bigamy, one of the points resolved by all the 
 Judges was, that admitting a sentence of the Spiritual Court in a 
 jactitation suit to be conclusive evidence for a defendant, yet, that 
 still the counsel for the Crown might avoid the effect of it, by 
 proving it to have been obtained by fraud and collusion (y). 
 
 Although it is a general rule that a stranger may be admitted to 
 impeach a proceeding to which he was not a party, on the ground 
 of fraud or collusion, the reason ceases where the judgment or sen- 
 tence is offered against one who was a party to it. In the case of 
 Prudham v. Phillips, the defendant proved her marriage with 
 A.B.; this was answered by a sentence in the Ecclesiastical 
 Court (to which she was a party), which showed that she was then 
 married to another person ; and, after much consideration, Willes, 
 C, J. refused to permit the defendant to show that the sentence 
 had been fraudulently obtained {z). Judgments of courts of com- 
 petent jurisdiction in foreign countries, upon the subject of mar- 
 riage, and all other matters where the adjudication can be con- 
 sidered as in rem., seem to be equally binding with the decisions of 
 our own courts (a). 
 
 Fourthly (Z»), in cases of custom, prescription and pedigree, or 
 where general reputation is evidence, a judgment, decree or sen- 
 tence is evidence, not only as between the same parties (where it 
 
 (0 Fost. 365, 6, 7; 9 Co, 118, 119; 
 svpra, Eiujland v. Bourlt, 3 Esp. C, 80. 
 
 (?<) R. V. Grimes, Burr. 2598. B. N. P. 
 231 ; 2 Barnard, 370. B. v. Lisle, Andr. 
 1G3 ; 5 T. R. 72. R. v. Hehden, Str. 2109 ; 
 11 State Tr. 1261. 
 
 (a;) 5 T. E. 72; and see the cases last 
 cited. 
 
 Cross V. Salter, 3 
 
 (y) 11 St. Tr. 261. 
 T. R. 639. 
 
 {z) Ambler, 763. 
 
 (a) See Lord Hardwicke's dictum, Roach 
 V. Garvan, 1 Yes. 159; supra, 294. 
 
 {h) Supra, 254.
 
 IN PROOF OF CUSTOM. 297 
 
 would be conclusive upon the same point), but also against all To prove 
 others ; for such evidence is of the same nature, but much stronger, ' 
 
 than mere evidence of reputation (c). Accordingly, to prove a 
 custom, not only an ancient verdict in prohibition has been held 
 to be evidence {d), but also a recent verdict (e). 
 
 So is a decree in the Exchequer, on a commission to try the 
 question of custom (/). 
 
 So in the case of a prescription for a public right of way, a 
 verdict against one defendant, negativing such a right, is evidence 
 against another defendant who justifies under the same right (^). 
 So upon a question as to the liability to repair a public highway (A), 
 or upon the public right of election to a parochial office (z). 
 
 So a special verdict between other parties is evidence to prove a 
 pedigree (A). 
 
 Such evidence is not conclusive (Z), unless both the parties be the 
 same. 
 
 When such evidence is adduced to prove a custom or prescrip- 
 tion, where general reputation would be evidence, a judgment or 
 verdict would be evidence against strangers to the record, as 
 falling within the general description of evidence capable of sup- 
 porting such an issue, being in fact a solemn adjudication, founded 
 upon satisfactory testimony, and therefore certainly as binding upon 
 a stranger as much as mere hearsay upon the subject; but it is 
 not, it seems, conclusive, where the party was in fact a stranger to 
 the record, because he had not an opportunity to cross-examine 
 the witnesses, or to disprove the fact by opposite testimony, and 
 ought not to be concluded by the laches of another. 
 
 The proofs of verdicts, decrees and judgments, whether of record Proof of 
 or not of record, have already been considered in common with the verdicts ' 
 proofs of pubhc documents in general (m). At present, such '^'^• 
 
 (c) 1 East, 157. The record of a judg- (k) 1 Burr. 146. B. N. P. 233. Cartli. 
 
 ment in an action of trespass by a corpo- 79. 181. 5 Mod. 386. Sir T. Jones, 221. 
 
 ration for putting up stalls in a market, 2 Mod. 142, contra. Neale v. Wilding, 2 
 
 the defendant having pleaded a right to do Str. 1151. Mr. J. Wright was of opinion 
 
 so without paying toll, is admissible evi- in that case that the verdict was admis- 
 
 dence for the corporation, being relevant sible ; the other Judges differed from him, 
 
 to the claim in issue. Lawrence v. Lovell, because it was res inter alios acta, and the 
 
 6 C. & P. 437; 9 Bing. 465. evidence laid before the former jury might, 
 
 ((Z) Bac. Ab. 617. for anything they knew to the contrary, 
 
 (e) B. N. P. 283; Carth. 281. still be produced. 
 
 (/) Cort V. Birhbeck, Doug. 218. (Z) See the cases referred to, and also 
 
 {g) Bead v. Jackson, 1 East, 355. Biddulph v. Ather, 2 Wils. 23. Mayor of 
 
 Qi) Ibid, and ^. V. /Si. Pa?jcrrt5, Peake's Hull \. Home); Co\wy\.\\\. 
 
 C. 219. (»0 See Public Documents, proof 
 
 (i) Berry v. Banner, Peake's C. 156. op, 223.
 
 298 
 
 WRITTEN EVIDENCE : JUDGMENT, 
 
 Proof of 
 jiidiTinents, 
 verdicts, 
 &c. 
 
 matters only will be noticed as are peculiar to this branch of the 
 subject. Tliey are either of record or not of record. If of record, 
 they are to be proved either by actual production from the proper 
 repository, by an exemplification {n), or by a sworn copy (o). 
 Records are complete as soon as they are delivered into court 
 ingrossed upon parchment, and become permanent rolls of the 
 court ; then, and not before, a copy becomes evidence {p). A 
 judgment of the House of Lords may be proved by means of a 
 copy of the minute-book of the House of Lords, for the minutes of 
 the judgment are the solemn judgment itself ((7). An averment 
 that a commission has been duly superseded, ought to be proved by 
 a writ of supersedeas under the great seal (r). An objection to the 
 reading a decree or judgment mast be made before it is read (s). 
 
 A verdict is not evidence without producing the judgment, or an 
 examined copy, for perhaps the judgment was arrested, or a new 
 trial granted (t) ; but the rule does not hold where the trial was 
 upon an issue out of Chancery, for there the decree is evidence that 
 the verdict was satisfactory (zf). But the production of the postea 
 without the judgment is evidence to show the fact that there was a 
 trial between the parties(a:), and the amount of the damages; or 
 
 Ev. F, 
 
 (n) See above, 224; Bac. Ab 
 Str. 162. 
 
 (o) For these proofs, see tit. Public 
 Documents, &c. 
 
 ( p) Gil. L. Ev. 22 ; supra, 224; B.N. P. 
 283. An allegation in an indictment for 
 conspiracy, &c. that at the quarter ses- 
 sions, &c. a bill of indictment was pre- 
 ferred against A. B. and found by the 
 grand jury, can only be proved by a cap- 
 tion formally drawn up of record at such 
 sessions, and by the production of the ori- 
 ginal or an examined copy ; held therefore 
 that the minutes of the cleric of the peace 
 were inadmissible, although no record had 
 in fact been drawn up. R. v. Smith, 8 B. 
 & C. 341. To prove the time of signing 
 final judgment, the day-book at the judg- 
 ment-office, from which the judgments are 
 entered into the docket-books is not evi- 
 dence. Lee V. MeecocJi, 5 Esp. C. 177. 
 Minutes of proceedings at sessions, from 
 wliicli the record is afterwards to be drawn 
 up, are not evidence on a subsequent pro- 
 secution for perjury, alleged to have been 
 committed by a witness on a former trial. 
 R. V. Bellamy, 1 Ry. & M. C. 171. But 
 in the case of The King v. TooJie, it was 
 held that the indictment, witli the officer's 
 
 notes, was evidence of an acquittal of one 
 cliarged as a conspirator, without having 
 the record formally drawn up. See Vol. 
 II. tit. Conspiracy. Proof of a writ of 
 execution is not evidence of a judgment, 
 except as against a party to the cause. 
 Achivorth v. Kemp, Doug. 40, and see 
 Vol. II. tit. Sheriff. 
 
 {q) Per Lord Mansfield. Jones v. Ran- 
 dall, Cowp. 17 ; Bac. Ab. Ev. G19. 
 
 (r) Poynton v. Forster, 3 Camp. 60. 
 Tlie Chancellor's order for the supersedeas 
 is insufficient. 
 
 (s) Layburn v. Crisp, 8 C. & P. 397. 
 
 (0 Pitton V. Walker, 1 Stra. 161 ; 
 Willes, 367; B. N. P. 234; Hard. 118. 
 But formerly a verdict was admitted, al- 
 though the judgment was arrested. Gil. 
 L. E. 37, 2d edit. 
 
 (u) Montgomery v. Clarke, Bac. Ab. 
 Ev. F. ; B. N. P. 234. Hopkins v. Jones, 
 1 Barnard, 243. 
 
 (x) Str. 162; Barnard, 243. R. v. 
 Mimnu, Esp. N. P. 750. See Harrop v. 
 Bradshaio, 9 Price, 359 ; Willes, 367. In 
 Fanner v. Hitchingman, Willes, 367, it 
 was held that tlie postea and indorsement 
 on it were admissible to prove allegations 
 tliat a cause (which was proved aliunde to
 
 PROOF OF. 
 
 299 
 
 as introductory of tlic evidence of a witness since dead(7/); or on Proof of 
 a trial for perjury (z). verdicts, 
 
 An allegation that an indictment was preferred, and a true bill *:c. 
 found is, not, it has been held, proved by the production of the bill 
 itself indorsed as a true bill, but should be proved by the record 
 made up (a). 
 
 The judgment of a Court is proved by a copy examined with 
 the judgment entered on the roll; proof by the judgment book of 
 the court is not sufficient, although the record may not have been 
 made up, and although the party interested in the judgment is 
 a stranger (Z»). 
 
 have existed) was brought to trial on an 
 issue joined, when a juror was witlidrawu, 
 and the cause referred. See Barnes, 44!) ; 
 7 Mod. 451. But the postea is not, it 
 seems, evidence to establish the fact 
 proved by the verdict. Pitton v. Wallier, 
 1 Str. 162. In Garland v. Schoones, 2 
 Esp. C. 647, Lord Kenyon is reported to 
 have held that the mere production of the 
 postea was sufficient to establisli a set-off 
 for the defendant, to the extent of tlie sum 
 indorsed as the verdict in the cause ; and 
 added, that in the case of issues out of 
 Chancery, the Chancellor always admitted 
 the production of the postea as conclusive 
 evidence of the extent of the demand. 
 But there it is not usual to enter up judg- 
 ment in such a case, and the decree of the 
 Court is proof that the judgment stands in 
 force. Montgomery v. Clarke, B. N. P. 
 234. Hopkins v. Jones, 1 Barnard, 243. 
 In the case of Baskerville v. Brown, 2 
 Burr. 1229, which was cited by the party 
 offering tlie postea in Garland v. Schoones, 
 the objection was, that the defendant hav- 
 ing recovered a verdict for 30 Z. against 
 the plaintiff at the same sittings, could not 
 set off against the plaintiff's claim in the 
 latter action for III., part of the sum for 
 which he had obtained a verdict, without 
 deducting the 11/. There the postea was 
 offered, not by the defendant in the latter 
 action to establish his set-off, but by tlie 
 plaintiff in the latter action, to show that 
 the plaintiff in the former action had taken 
 a verdict for his whole debt. In Foster v. 
 Compton, 2 Starkie's C. 365, it was 
 doubted whether in such a case the plain- 
 tiff was entitled to recover half the costs 
 on production of the postea, with the 
 
 Master's allocatur, without producing the 
 judgment. The postea is admissible as 
 introductory to prove what a witness, 
 since dead, swore upon the former trial. 
 Pitton V. Walker, 1 Str. 162; B. N. P. 
 243. JR. V. lies, and jR. v. Robinson, 
 there cited. — To prove the day on which 
 the Court sat for the trial at Nisi Prius, 
 the record itself must be produced. 
 Thomas v. Ansley and Smith, Sheriffs of 
 London, 6 Esp. C. 80. Where, however, 
 there are proper materials, the postea may 
 be indorsed in court, nunc pro tunc. R, v. 
 Hammond Page, 2 Esp. C. 650, and 6 
 Esp. C. 83. But where a juror has been . 
 withdrawn, and the cause referred, such 
 special circumstances will not be allowed 
 to be indorsed in court at the second trial. 
 Ibid. It was also held that the j^ostca 
 could not be read without a stamp. Ibid. 
 In London and Westminster it is not the 
 practice, as in country causes, for the offi- 
 cer at the trial to indorse the postea; and 
 the postea, with a minute of the verdict 
 indorsed by the officer on the jury pannel, 
 is evidence to show that the cause came 
 on for trial. R. v. Broicne, 1 Mood. & M. 
 315. The minute being a general one 
 against all the defendants, it was held that 
 parol evidence was admissible to show that 
 one of them was acquitted. 
 
 (2/) 1 Str. 162; B. N. P. 243; Hardr. 
 118. 
 
 (z) See Vol. II. tit. Perjury. 
 
 (rt) Porter v. Cooper, 6 C. & P. 354. 
 So in order to prove that an apjieal was 
 heard at the sessions, a record must be 
 made up. R. v. Ward, 6 C & P. 366. 
 
 {b) Ayres v. Davenport, 2 N. R. 474; 
 supra, 224.
 
 300 
 
 WRITTEN EVIDENCE : JUDGMENT, 
 
 Proof of 
 jjidgraents, 
 verdicts, 
 &c. 
 
 Proof of a 
 decree in 
 Ohancery. 
 
 Sentences 
 of Spiritual 
 Courts. 
 
 All office copy of a rule of court is admissible in the same court 
 and in the same cause, but not in a different cause, though in the 
 same court (c). An office copy of a will received in the course of 
 office, need not be proved to be an examined copy {d). 
 
 A Judge's order is sufficiently proved by the rule of court 
 thereon (e). 
 
 Proceedings in Chancery by bill and answer are not records, 
 because they are not precedents of justice, being decided according 
 to the justice and equity of each particular case (/) ; and therefore 
 they may themselves be given in evidence (g). 
 
 But regularly, in order to prove the facts on which a decree 
 professes to be founded, the proceedings on which it is founded 
 ought to be read in evidence (A). A decretal order in paper may 
 be read on proof of the bill and answer (i), or without such proof, 
 if they be recited in the order (k). 
 
 The decree itself is proved either by means of an exemplification, 
 an examined copy, or decretal order in paper (Z). 
 
 A sentence of the Spiritual Court of a divorce a mensa et tJioro 
 has been received as evidence, without proving the libel and other 
 proceedings (m). The probate of a will consists of a copy of the 
 
 (c) Denn v. Fulford, Burr. 1177. 
 
 (d) Duncan v. Scott, 1 Camp. C. 100. 
 
 (e) Still V. iJaZ/mZ, 4 Camp. C. 17. 
 (/) Co. Litt. 260. 
 
 {g) Bac. Ab. Ev. 620. 
 
 {h) Com. Dig. tit. Ev. A. 4. Upon a 
 question as to the right of the deputy oyster 
 meters of unloading, &c. all oysters brought 
 within the port of London, and to have 
 reasonable compensation ; held, that a de- 
 cree in equity upon the same right was 
 admissible in evidence, without putting in 
 tlie depositions, although referred to in the 
 decree, but that when the decree had been 
 put in, either party was entitled to read 
 the depositions. Layburn v. Crisp, 8 C. & 
 P. 397. 
 
 (i) See 1 Keb. 21. Com. Dig. Ev. C. 
 
 (Ji) Com. Dig. Ev. C. 1, by Trevor, J., 
 in Wheeler v. Loicth, there cited ; but see 
 1 Keb. 21. It has been said, that if a 
 party wish to avail himself of the decree 
 only, and not of the answer, he may give 
 the decree in evidence under tlie seal of 
 the court, and enrolled, without producing 
 the answer J and the opposite party will 
 
 be at liberty to show that the point in 
 issue was not the same as the present 
 issue. B. N. P. 235 ; citing Lord Tlianet 
 v. Patersoyi, K. B. Easter, 12 G. 1. But 
 as a general rule, the whole record ought 
 to be produced. Com. Dig. Ev. A. 4. So 
 in proof of a sentence in the Admiralty 
 Court on a libel and answer, or the judg- 
 ment of a court baron, the proceedings 
 ought to be produced. Com. Dig. tit. 
 Evidence. C. 1. Where the mere object 
 is to prove the fact that a decree was 
 made, or made and reversed, and not to 
 prove the contents, proof of tlie previous 
 proceedings is not necessary. Jones v. 
 Randall, Cowp. 17. And see the observa- 
 tions of Bayley, B., in Bloiaer v. Hollis, 
 1 Cr. & M. 396. And in the case of an 
 ancient decree, where the bill and answer 
 have been lost, the decree alone is admis- 
 sible. 
 
 (Z) Com. Dig. Ev. (c. 1.); and see 
 Blower v. Hollis, 1 Cr. & M. 396. 
 Trowell v. Castle, 1 Keb. 21. 
 
 (wt) Stedman v. Gooch, 1 Esp. C. 4. 
 Lord Kenyon, C. J., and afterwards in 
 K. B.
 
 PROOF OF. 301 
 
 will ingrossed upon parchment, iinder the seal of the Ordinary, Sontonces 
 with a certificate of its having been duly proved (n). A probate is ('ourt's? "'^ 
 therefore good evidence of the will, as to the personal estate, being 
 a copy of it under the seal of the court, which preserves the original 
 will in its own custody (o). 
 
 When administration is granted by the Ecclesiastical Court, it 
 does not grant an exemplification, but only a certificate that ad- 
 ministration was granted {p). And therefore, when a lessee pleads 
 an assignment of a term from an administrator, such certificate is 
 good evidence (q). So would the book of the Ecclesiastical Court, 
 wherein was entered the order for granting administration (r). So 
 the original book of acts, directing letters of administration to be 
 granted with the Surrogate's fiatj is evidence of the title of the 
 party to whom administration is directed to be granted, without 
 producing the letters of administration themselves, notwithstanding 
 subsequent letters of administration granted to another, the first 
 not being recalled (s). So an examined copy of the act-book, 
 stating that administration was granted to the defendant, is proof 
 that he was administrator, in an action against him, as such, with- 
 out notice to produce the letters of administration (t). So the act 
 of the court indorsed upon the will is as good evidence with respect 
 to the title to personalty as the probate itself (m). But although 
 the probate of the will has been produced, the will itself cannot be 
 read in evidence upon the mere production of it by the officer of 
 the Ecclesiastical Court (x), without some indorsement upon it for 
 the purpose of authentication. In an action against an executor 
 for money had and received, after notice had been proved to pro- 
 
 (n) 3 Bac. Ab. tit. Executor, B. N. P. with such memorandum was sufficient evi- 
 
 244. dence of the executor's title ; and also, that 
 
 (o) B. N. P. 246. an exemplification of several letters of 
 
 (p) B. N. P. 246. Knajjton v. Cross, administration relating to the same estate 
 
 8 G. 2, K. B.; Bac. Ab. Ev. F.; 1 Lev. on one parchment, with one 3 Z. stamp, was 
 
 25. sufficient. Doe v. Gunning, 2 Nev. & P. 
 
 (q) B.N. P. 446. 260. 
 
 (r) Ibid, and Elden v. Keddell, 8 East, {x) R. v. Barnes, Starkie's C. 243. 
 
 187. Bac. Ab. Ev. F. 631. Polhill v. Per Rajmiond, C. J., in Coe v. Wesfern- 
 
 Polhill, 1701. ham, Norfolk Summer Assizes, 1725. Sel. 
 
 (s) Elden v. Keddell, 8 East, 189. N. P. 793: " I cannot allow the original 
 
 (t) Davis V. Willia?ns, 13 East, 232. will to prove property in the executor; 
 
 JKay V. Clarke, ib. 238. the probate must be produced, or perhaps 
 
 (m) Doe V. Barnard, Cowp. 295. Where the Ecclesiastical Court will not allow this 
 
 by the practice of the Ecclesiastical Court to be the testator's will. Besides, until 
 
 no book was kept, but a memorandum probate, a man dies intestate ; and if his 
 
 only indorsed or entered at the foot of the executor die before probate, his executor 
 
 original will by the officer of the court, it shall not be executor to the first tes- 
 
 was held, that the production of the will tator."
 
 302 WRITTEN EVIDENCE : JTTDGMENT, 
 
 Sentences duce the probate, it was licld, that the original will produced by 
 Courtsf'"''^ the officer of the Ecclesiastical Court, and bearing the seal of that 
 court, and indorsed as the instrument on which the probate was 
 granted, with the value of the effects sworn to, was admissible as 
 secondary evidence (?/). Where a probate has been lost, an ex- 
 amined copy is evidence to prove the party to be the executor, for 
 the probate is an original document of a public nature (z). In such 
 case it is the practice of the Ecclesiastical Court to grant, not 
 a second probate, but an exemplification only (a). 
 
 The minute book of the Ecclesiastical Court is evidence of a 
 decree for discovery pronounced in that Court, although no decree 
 be drawn up ; nothing in practice being done with the minutes 
 unless the alimony be not paid (Z>). 
 
 Although it be a general rule that the probate or ledger-book be 
 no evidence, except in relation to the personal estate, yet the ledger 
 may in some instances be secondary evidence as to a devise of 
 a real estate ; as where, in an avowry for a rent-charge, the avow- 
 ant could not produce the will under which he claimed, that belong- 
 ing to the devisee of the land ; but producing the Ordinary's 
 register of the will, and proving former payments, it was holden 
 to be sufficient evidence against the plaintiff, who was devisee of 
 the land charged (c). Since the ledger-book is a roll of court, it 
 seems that a copy is admissible evidence (d). Although a probate 
 be no evidence to prove the contents in a will, in order to establish 
 a pedigree, since it is but a copy, and the seal of the court does 
 not prove it to be a true copy, unless the suit relate only to the 
 personal estate ; yet the ledger-book, it seems, in such cases is 
 admissible evidence, as being a roll of court, and made under the 
 authority of the Spiritual Court, to prove such a relation (e). 
 
 To prove that the probate has been revoked, an entry of the 
 
 (y) Gorton v. Dyson, 1 B. 219; and qu. a probate was not evidence, because it was 
 
 whether it would not be good original evi- a copy of a copy. 
 
 dence. The probate-act book, containing (a) Shepherd v. Shorthouse, 1 Str. 
 
 an entry that the will was proved and 412. 
 
 probate granted, was held to be the origi- (&) Hoioleston v. Smyth, 2 C. & P. 
 
 nal, and primary evidence ; and, therefore, 25. The practice of the court is proveable 
 
 to be sufficient proof that tlie parties were by oral evidence. Beaurain v. Scott, 3 
 
 executors, although the probate was not Camp. 388 
 
 produced, nor any excuse offered for its (c) Ca. K. B. 375 ; B. N. P. 246. 
 
 non-production. Coxv. AlUngham,lJa.c. [d) B. N. P. 246, where it is said that 
 
 515. And see Garrell v. Lister, 1 Lev. the contrary had been often ruled, on the 
 
 25. mistaken ground that the ledger was a 
 
 {z) Hoe V. Nelthorpe, 1 Salk. 154. B. copy. 
 V. Haynes, Skinn. 584. In R. v. Haynes, (e) R. v. Ramsbottom, 1 Leach, C.C.L. 
 
 Comb. 339, Holt, C. J., said, that a copy of 30, in note.
 
 PROOF OF. 303 
 
 revocation in the book of the Prerogative Court, which is the 
 record of the proceedings of the court, is good evidence ( /"). 
 
 A judgment of an inferior court, not of record, is usually esta- Judgment 
 blished by the production of the book containino- the minutes !:„!'!. ''.'..T 
 of the proceedings of the court from the proper place of deposit, 
 proved to be such by oral testimony. Copies of court-rolls, and of 
 proceedings in the Ecclesiastical and inferior civil courts, are also 
 evidence, since the originals are public documents (</). And it is 
 said, that as it is not usual for inferior courts to draw up their 
 records in form, but only short notes, copies of those short notes 
 are good evidence {h). It appears also, that in the case of an 
 inferior court, such as a court-baron, hundred, or county-court, 
 evidence should be given of the proceedings previous to the judg- 
 ment, as w'ell as of the judgment itself (z), in order to show that the 
 proceedings were regular (^). In an action for a malicious arrest, 
 on process out of the Sheriff's Court in London, it was held that, 
 in order to prove the averment that the former suit was wholly 
 ended, &c., it was sufficient to show an entry in the minute-book of 
 " withdrawn by the plaintiff's order," opposite to the entry of the 
 plaint, and to prove that it was the course of the court to make 
 such an entry upon an abandonment of the suit by a plaintiff (Z). 
 
 It is said that when actions are brought against justices of the Proof of 
 peace, they must show the regularity of their convictions, and that j'onvictions 
 the informations upon which their convictions were founded must of the 
 be produced and proved in court (m). But it seems that the con- P^''^^^- 
 viction itself, when proved under the hand and seal (if necessary) 
 of the magistrate, is sufficient evidence that the judgment which 
 it recites was given (n). In the case of Massey v. Johnson (o), it 
 
 (/) B.N. p. 246. the cause of action did not arise within 
 
 ((/) 12 Vin. Ab. A. b. 26, pi. 49. the jurisdiction of the court. Herbert v. 
 
 (A) Per Hale, in B. v. Hains, 12 Vin. Cooke, Willes, 36, in note; or may take 
 
 Ab. A. b. 26, pi. 49 ; Comb. 337. Fisher advantage of it on evidence at the trial. 
 
 V. Lane, 2 Bl. 834, per Lord Tenterden. See 2 Mod. 272. See Appendix, 303. 
 
 B. V. Smith, 8 B. & C. 342. But see (I) Arundel v. White, 14 East, 216. 
 
 Pitcher v. Binter, 12 Vin. Ab. A. b. 48, See Macally's case, 9 Co. 69, where the 
 
 contra. If they are not entered in the brief note of the plaint was as follows : 
 
 books they may be proved by the officer " ss. J. M. & B. B. Debt 500 1, pledo-es 
 
 of the court, or other person cognizant of C. D. by B. F. serjeant," and was held 
 
 the fact. Dyson v. Wood, 3 B. & C. to be sufficient to warrant the arrest. 
 
 451. (m) Str. 710; but see Vol. II. tit. 
 
 (i) Com. Dig. tit. Evidence, C. 3. Justices. 
 
 Fisher v. Lane, 2 Bl. 836. Arundel v. («) Per Holt, C. J., Fuller v. Fotch, 
 
 White, 14 East, 216. Holt, 287; Carth. 346; Hardr. 478. Vol. 
 
 (fi) Vide supra, 299. In an action on II. 
 
 a judgment of an inferior court, the de- (o) 12 East, 67. 
 fendant may (it has been held) plead that
 
 304 
 
 WRITTEN evidence: JUDGMENT, 
 
 Proof of 
 convictions 
 by justices 
 of the 
 peace. 
 
 Proof of an 
 award. 
 
 Of a 
 
 foreign 
 judgment. 
 
 was held that a magistrate mig-ht justify, by virtue of a conviction 
 of the plaintiff as a vagrant, although the warrant of commitment 
 alleged that the plaintiff had been charged on the oath of 71 *S^., 
 and in fact no charge had been made by T. S., but the defendant 
 had been convicted upon the information of another person, and 
 although the conviction itself was informal. But it was observed, 
 that the case would have assumed a very different shape if there 
 had been no information to ground the conviction (p). In the case 
 of Grat/ V. Cookson and others (q), it was held that the defendants, 
 having jurisdiction over the subject-matter, were protected by a 
 conviction drawn up after the commencement of the action. 
 
 An Act of Parliament in making certified copies evidence of the 
 proceedings of a court, does not take away the right of proof by 
 the production of the original proceedings (r). 
 
 Where the parties have submitted themselves to the jurisdiction 
 of an arbitrator appointed by themselves, his decision, as has been 
 observed, will be conclusive upon the subject-matter to the extent 
 of his authority (s). In order to establish his award or judgment, 
 it will be necessary to prove his authority by proof of the submis- 
 sion bonds, or other written or parol authority, and to prove the 
 due making of the award {t). 
 
 A foreign judgment should be authenticated by an exemplifica- 
 tion or copy under the seal of the court. In such case it is not 
 sufficient to prove the hand-writing of the Judge, without also 
 proving that the seal affixed to it is the seal of the court (ri). If a* 
 colonial court be proven to have no seal, other proof, as by the sig- 
 nature of the Judge, must be given to entitle it to credit (i;). It is 
 not sufficient to produce what purports to be a copy under the seal 
 of one who is proved to be clerk of the court (x). A divorce under 
 
 (2)) Per Le Blanc, C. J. ib. 
 
 (q) IG East, 13. 
 
 (r) So held in reference to the Insolvent 
 Act, 7 Geo. 4, c 57. Northam v. La- 
 touche,iC.&,V. 140. 
 
 (s) Supra, 272. And see Doe v. 
 Mosser, 3 East, 11. 
 
 (t) See Vol. II. tit. Award. 
 
 (m) Henry v. Adey, 3 East, 221. 
 Slack V. Lord BraybrooJee, 2 Starkie's 
 C: 7. Appleton v. Lord Braybrooke, 2 
 Starkie's C. 6 ; 9 Mod. 66. Alves v. Btm- 
 bury, 4 Camp. 28. Buchanan v. Itucker, 
 1 Camp. 63. Flindt v. Atkins, 3 Camp. 
 215. If a colonial court possess a seal, it 
 ought to be used, although so much worn 
 as no longer to make any impression. 
 
 Cavan v. Stewart, 1 Starkie's C. 525. 
 
 {v) Appleton v. Lord Braybrooke, 2 
 Starkie's C. 11. Alves v. Bunbury, 4 
 Camp. 28. 
 
 {x) Ibid. But it seems tliat an 
 examined copy of a foreign judgment 
 would be admissible; 6 M. & S. 36. 
 Ada)litJnvaife v. Synge, 1 Starkie's C. 183. 
 InAlison v. Furnival, 1 Cr. M. & R. 277, 
 it was held that an agreement of reference 
 made in France was proved by an examined 
 copy, and the evidence of the attesting 
 witness, the original being deposited with 
 a notary in Paris for safe custody, and 
 proof being given of the established usage 
 in France not to allow the removal of a 
 document so circumstanced.
 
 PnOOF OF. 305 
 
 tlie seal of a foreign court is not evidence without calling persons 
 to prove the law of the country (y). 
 
 A judgment, decree, or sentence, maybe impeached by proof, iiow rebut- 
 first, that it never existed, or was void ab initio {z) ; secondly, *''''■ 
 that it was fraudulent and covinous ; thirdly, that it has been 
 revoked. — First, that it never existed, as by showing that the 
 alleged probate was forged (a) ; that the testator had bona no- 
 tabilia in another diocese (b) ; that the testator is still living ; 
 but not that the will was forged (c), or that the testator was 7ion 
 compos, or that another is executor {d), for this would be to falsify 
 the judgment (e). In trespass, where the plaintiff had been con- 
 victed upon four convictions, for carrying on his trade, upon the 
 same day, it was held to be a sufficient answer to three of such 
 convictions, that the justices had no jurisdiction, although the con- 
 victions had not been quashed (y). An Ecclesiastical Judge is not 
 liable to an action, though he excommunicate a party erroneously, 
 but it is otherwise if he excommunicate not having jurisdiction (//). 
 So it may be shown that a person is not within the scope of the 
 bankrupt laws, although the commissioners have declared him to 
 be a bankrupt (7i), But nothing which might have been insisted 
 upon by way of appeal against a sentence can be urged in answer 
 to the evidence supplied by the sentence (i) ; and therefore, where 
 
 {y) Goner v. Lady Laneshorough, (/) Burden v. Cripps, Cowp. G40. 
 
 Peake's C. 17. See Fremotdt v. Dedire, So as to an order of removal. Vid. 
 
 1 P. Wms. 431. infra. 
 
 (z) No appeal need be made against (g) Ackerley v. Parkinson, 3 M. & S. 
 
 an order where the justices wanted juris- 411. See also Moody v. Thurston, 1 Str. 
 
 diction; see Vol. II. tit. Settlement; or 481; Vol. II. tit. Justices. Brown y. 
 
 against the proceedings of commissioners, Bidlen, 1 Doug. 407. Lord Radnor v. 
 
 in respect to matters as to which they had Reeve, 2 B. & P. 391. 
 
 no authority. Attorney-general v. Loi-d (h) In strictness, the reason why tlie 
 
 Hotham, 1 Taunt. 219. adjudication of the commissioners in such 
 
 {(t) T. Raym. 404-G ; 2 Sid. 359. cases is not obligatory, is, that it is merely 
 
 (fe) B. N. P. 247 ; 1 Sid. 359. Noel v. an ex parte proceeding, and partakes no 
 
 Wells, 1 Lev. 135, per BuUer, J.; 3 T. R. more of the nature of a judgment than 
 
 131 ; 5 Rep. 30. the finding a bill of indictment by a grand 
 
 (c) But upon an indictment for forging J^^'y- 
 a will, it may be proved that the will was (i) R. v. Grundon, Cowp. 315, The 
 a forgery, notwithstanding the probate. case was put on the same footing with a 
 R. v. Buttery and Macnamara, 1 Burn, decree in the Admiralty Court, whicli 
 by Chetwjnid, 771. In the case of an in- must stand till reversed. Note, the Court 
 ferior court not of record, the party may doubted whether Mr. Crawford, the pro- 
 show that the cause of action did not arise sccutor, was a member of Queen's College ; 
 within the jurisdiction. Herbert v. Cooke, but held, that even if he were, the sentence 
 Willes, 36, note (a). was not examinable but by appeal to the 
 
 (rf) Stirling's Case, 11 St. Tr. 223. visitor, and that the King's Courts could 
 
 (e) 1 Lev. 235 ; 2 Keb. 237. not interfere. As to the general principle 
 
 VOL. I. X
 
 306 WRITTEN evidence: judgment. 
 
 iiow re- upon an indictment for assaulting' a gentleman commoner, and 
 butted. expelling him from the gardens of a college, the defendant relied 
 upon a sentence of expulsion, it was held to be no answer, 
 that a sufficient number of members had not concurred in the 
 sentence. So it may be shown that Commissioners having 
 especial power by an inclosure act to make an award have not 
 pursued that power (h). Secondly, That it was fraudulent or 
 covinous, for strangers ought not to be bound by such a 
 proceeding. Accordingly, in the Duchess of Kingston's Case, 
 it was resolved that, even admitting the sentence in the Spi- 
 ritual Court to be conclusive, still the effect might be removed by 
 showing collusion (l). And in a much later case, it was held, that 
 a sentence of divorce from the first marriage, obtained in Scotland 
 by fraud on the part of the husband, would be no bar to a prosecu- 
 tion for bigamy (w). In an action for assault and wounding the 
 plaintiff, it may be shown that an acquittal upon an indictment 
 charging the injury as a felonious wounding, was fraudulent and 
 collusive (w). So where an executor pleads judgments recovered, 
 the plaintiff may reply that they are covinous (o). So a stranger 
 to a fine or recovery may avoid it by showing collusion (p). So 
 if it appear on the face of the proceedings that the party to be 
 affected by a foreign judgment, or by process of foreign attach- 
 ment, was never summoned, or never had notice of the proceed- 
 ing {q). But it is a general rule, that a person who was a party to 
 
 that a sentence by the members of a col- Cavan v. Stetcart, 1 Starkie's C. 625. It 
 
 lege, or by the visitor on appeal, is con- is against natural justice to convict a maa 
 
 elusive, see Phillips v. Bury, Skinn. 447 ; witliout a summons. R. v. Cotton, 1 Sess. 
 
 2T. R. 346. Dr. Patrick's Case, 1 Lev. C. 179; 1 Bott, 486; 1 Burn's J. 254, 
 
 65. Br. Widrington's Case, 1 Lev. 23. 23d ed. Doe v. Gartham, 1 Bing. 357. 
 
 Case of New Coll. 2 Lev. 14. j;. v. GasUn, 8 T. R. 209. Williams v. 
 
 {h) Bex v. Washhroolie, 4 B. & C. 732, ^""'''^ ^"•''''^' ^ B- & C. 772, in error. The 
 
 For the further consideration of the sub- ''"^'^'""1 "^cd not be summoned in case of 
 
 ject of jurisdiction, especially as regards ^ criminal proceeding against tlie wife. R. 
 
 the operation of a judgment or sentence ^- ^^^"' 2'«2/tor,3 Burr. 1681, In B. v. 
 
 to protect those who had jurisdiction to ^^'"SH' ^t""' *'^' ''^'^ «'"^«'" ^^ bastardy 
 
 pronounce it, see Vol. II. tit. Justices. "^^''<^ ^* sessions set out no summons, 
 
 but the Court said they would presume one. 
 
 (/) 11 St. Tr. 230. 202; 1 Ves. 159; In order to sustain a suit in England for 
 
 And 392 
 
 damages awarded by an admiralty court 
 
 (»rt) Martin Lolly's Case, Russ. & Ry. abroad, the transcript of the proceedings in 
 
 C. C. L. 237. the admiralty court should show expressly, 
 
 (n) Crosby v- Leng, 12 East, 409. and not by mere inference, the sentence of 
 
 (a) Lloyd V. Maddox, Moore, 91 7. ^^'"^ admiralty court, and that the defendant 
 
 was within its jurisdiction. Obicini v. 
 
 (p) 11 Str. 262. 
 
 (</) Buchanan v. Bucker, 9 East, 192. 
 
 BiiffJi, 8 Bing. 335.
 
 INQUISITIONS. 307 
 
 tlie proceeding (r), or who might have been a party (s) to it, cannot How 
 show colkision in order to repel the judgment. Tliirdly, That the 
 judgment has been reversed, as that letters of administration have 
 been revoked (t), or the probate repealed (m). But an appeal against 
 a sentence is no answer to the sentence (x) ; and an attainder stand- 
 ing unreversed, although founded upon an insufficient indictment, 
 is valid and pleadable in bar (?/). Other evidence to impeach the 
 truth of a record is inadmissible ; it is not competent to a party to 
 prove that a verdict was improperly entered by mistake (xr). 
 
 Secondly, inquests of office, depositions and evidence, taken in inquisi- 
 the course of a judicial proceeding. Such inquests as are of a '""^* 
 public nature, and taken under competent authority, to ascertain 
 a matter of public interest, are, vipon principles already announced, 
 admissible in evidence against all the world. They are very ana- 
 logous to adjudications in rem, being made on behalf of the public ; 
 no one is properly a stranger to them ; and all who can be affected 
 by them usually have the power of contesting them. In general, 
 where property is vested in the Crown upon an inquest of office, by 
 a coroner, escheator {a) or other officer of the Crown, the parties 
 affected by the inquest have a right of traverse reserved to them 
 or they may proceed by monstrcms de droit. Upon a finding of 
 felo de se, the executor or administrator may remove it into the 
 Court of King's Bench, and traverse it (&) ; for it would be hard 
 that he should be concluded by an inquisition, which is nothing 
 more than an inquest of office, taken behind his back (c). By the 
 express provisions of many statutes, inquests of office before esche- 
 ators are required to be held in a public open place, and every one 
 is to be heard in evidence (d). And by the provisions of these sta- 
 tutes the remedy by traverse and monstrans de droit has been much 
 
 (r) Pi-udham v. Phillips, Str. 2 ; Am- ment against the husband for treason, not 
 
 bier, 763. reversed, sufficient to deprive tlie wife'of 
 
 (s) Mayo v. JBroivue, 11 St. Tr. 213. her dower; per Lawrence, J. ib. 
 
 (0 2 Sid. 359. (z) Reed v. Jackson, 1 East, 355. 
 
 (m) 3 Lev. 135; but note, such repeal (a) See as to the writ of esclieat, tlie st. 
 
 would not invalidate a payment to the 1 H. 8, c. 8. The inquisition on such a 
 
 executor. Allen v. Diindas, 3 T. R. 125. writ is evidence to show, according to the 
 
 (x) Hervey's Case, II St. Tr. 207. 212. finding of the jury, that tlie party died 
 
 Ann. 11. without heirs. 
 
 (y) 4 Co. 45; 2 Hale, 251. Price v. (b) 1 Hale, P. C. 416, 17. Barclay's 
 
 Oldfield, And. 222 ; 2 Sid. 359. An ex- Case, Easter, 45 Ed 3; but Ld. Coke held 
 
 ecution on an erroneous judgment is good otherwise, 3 Inst. 55. 
 
 till reversed, 1 Lord Ray. 546. An ac- (c) According to Lord Hale, 1 P. C. 
 
 cessory cannot take advantage of error in 416, 417. East's P. C. 389. 
 
 the judgment against the principal, 1 Hale, {d) 34 Ed. 3, c. 13 ; 36 Ed. 3, c. 13 ; 1 
 
 625. R. v. Baldwin, 3 Camp. 265; and H. 8, c. 8 ; 2 iSc 3 Ed. 6, c. 8; 3 Comm. 
 
 see Holmes v. Walsh, 7 T. R. 465. Judg- 260. 
 
 X 2
 
 308 WRITTEN evidence: judicial instruments. 
 
 Inquisi- enlarged (e). Upon the same principle, upon the execution of a 
 writ of extent, one who claims property in the goods which are in 
 possession of the defendant may assert his claim before the shcrifi", 
 and cross-examine the witnesses adduced by the prosecutor (/). 
 But still it seems that the finding of a. fug am fecit by the coroner's 
 inquisition against one who occasioned the death of another, is 
 conclusive (^), although a jury upon the trial find otherwise (/^) ; 
 yet, upon jjrinciplo, a traverse ought to be admitted in that case as 
 well as upon the finding a party /eZo de se (i). 
 
 Since then the usual effect of such inquest of office is to vest the 
 property in the Crown, reserving to the party affected, in most 
 instances, a right of traverse, the consequence seems to be, that 
 such inquisition, standing undisputed and unreserved, would be 
 conclusive as to the right of property, not only as between any 
 claimant and the Crown, but also, as in the case of Toomes v. 
 £therington (k), between any other parties. 
 
 The plaintiff in that case sued as administrator of Toomes, upon 
 a judgment recovered by the intestate against the defendant; the 
 defendant pleaded that the intestate was felo de se, whereby the 
 judgment was forfeited ; the plaintiff replied a subsequent statute 
 of pardon, to which the defendant demurred, and the judgment 
 was given for the defendant ; because by the finding of the inquest 
 the debt and damages were vested in the king, and the statute 
 contained no words of restitution. 
 
 Upon an issue devisavit vel non, the question was, whether the 
 inquest of the coroner, super visum co7yoris, finding the testator 
 lunatic, was admissible : and the Court was divided upon the 
 point (Z) ; two oi the Judges deeming it to be inadmissible, because 
 the parties were not the same, the one being a civil and the other 
 a criminal proceeding. But in that case the dissentient Judges 
 expressed their opinion that an inquisiiio post mortem would be 
 admissible, because it was a civil proceeding, and because of the 
 antiquity of it, to prove a pedigree (w) ; and the Chief Justice cited 
 JLord Derby's Case, where an inquisiiio post mortem had been 
 admitted («)• 
 
 (e) 3 Conim. 360. {I) The inquest was read at the instance 
 
 (y") M. V. Bickley, 3 Price, 454; and of Pratt, J., although he was of opinion 
 
 the sheriff having refused to permit such that it was not, in strictness, admissible ; 
 
 interrogatories to be put, the Court set because it was an issue out of Cliancery, 
 
 aside the inquisition. and merely to inform the conscience of the 
 
 {rj) 1 Will. Saund. 362, n. I. Chancellor. Str. 68. 
 
 (/i) Ibid. (m) Jones v. White, Sti-. 68. 
 
 (i) See 1 Saund. 362, n. 1. {n\ And see B. N. P. 228; and per 
 
 (k) 1 Saund. 361. 'H.axdL\\.C,'mSirHughSinithson''sCase.l\).
 
 INQUISITIONS. :)Ui) 
 
 In Sergeason v. Sealy (o), Lord Hardwicke said tliat inquisitions iiKiuisi- 
 of lunacy, Wic^wi^iiiow^ post mortem, and others, were always admis- '^"^"''' 
 sible, though not conchisive. In the case of" Burridge v. The Earl 
 of Essex (j)), an inquisition post mortem, setting out the tenor of 
 a deed, was held to be evidence of the deed. 
 
 An inquisition of lunacy may be considered to be in the nature inquisition 
 of a proceeding in rem, since it is instituted by the direction of the " "'"'^'-■y- 
 Lord Chancellor, to whom, by special authority from the king,, 
 the custody of idiots and lunatics is entrusted (q), to inquire into 
 the state of the party's mind. In the case oi Faulder v. Silk{r), 
 Loid Ellenborough, upon a plea of non est factum to a declaration 
 on a bond, admitted proof of an inquisition taken on a commission 
 of lunacy, against the obligor (to whom the defendant was executor), 
 upon which he had been found to be a lunatic ; but held that it was 
 by no means conclusive. So such an inquisition has been received as 
 evidence in a criminal case, to show the insanity of the prisoner (s). 
 
 In the case of The Queen v. Sutton and others (t), upon an indict- 
 ment against the defendant for the non-repair of Kelm bridge 
 (under an alleged obligation ratione tenurce,) the Defendants 
 gave in evidence a presentment against the vill of Kelm, in the 
 reign of Edward the Third, upon which the defendants had been 
 acquitted, the jury upon that presentment finding, in answer to 
 questions put -by the Court, that the bridge had been built within 
 60 years of report of the men of the county passing that way ; 
 and as to the question, who of right ought to repair the bridge, 
 having answered that they were ignorant: and it was held 
 that the presentment and finding, which had been removed into 
 Chancery, together with a grant of pontage for the repairs of the 
 bridge, soon afterwards granted by the Crown, were admissible in 
 evidence on the part of the defendants to negative the alleged 
 immemorial liability to repair the bridge. 
 
 From the judgment in this case, the Court appear to have been 
 of opinion that the inquest was admissible as a public proceeding, 
 in which the jury might properly inquire, not only whether the 
 persons charged, but also in general who, and whether any one, 
 were liable to the repairs (m). 
 
 (o) 2 Atkins, 412. Faulder v. Silk, 1 {s) R. v. Bowler, O. B. June 1812 ; 
 
 Collinson, 3<JG; 2 Madd. Ch. 576. cor. Le Blanc and Gibbs. Js. See Vol. II. 
 
 {p) 2 Lord Rayra. 1292. An inquisitio tit. Will. 
 
 post mortem, and traverse thereon, is evi- (0 -'^'l* '^ E^'- ^'^• 
 
 dence, although it be voidable. Le'ujhton (") Bmjley v. Wrjlic, G Esp. C. 85. 
 
 \. Leighton, Str.80S; ib. 1151. Vicar of KUUngton v. Trin. Coll.,\\Ti\s. 
 
 (q) 3 P. "VVms. 108. - 170. In Bowe v. Brr.ntnn, 8 B. & C. 747, 
 
 (r) 3 Camp. 12G. an inquisition taken uuder the stat. 4 Ed. 1, 
 
 X 3
 
 aiO WRITTEN EVIDKNCIi: JUDICIAL INSTRUMENTS. 
 
 Inquisi- Where an inquisition has been taken without legal authority it 
 
 *'°"^' is inadmissible ; as in Latliow v. Earner {x), where it was held, that 
 
 an inquisition by the sherift" to ascertain to whom the goods seized 
 under an execution against A. belonged, was not evidence for -4. 
 in an action brought by A. against the sheriff. 
 Deposi- Depositions {y) of witnesses {z), although made under the sanc- 
 
 adudssTble" ^^*^" ^^ ^" oath, are not in general evidence as to the facts which 
 they contain, unless the party to be affected by them has cross- 
 examined the deponents, or has been legally called upon, and had 
 the opportunity to do so; for otherwise one of the great and 
 ordinary tests of truth would be wanting («). Since evidence of 
 this kind is of a weak and secondary nature, it is not admissible, 
 unless it be, first, the best evidence, and also unless the party 
 against whom it is offered, or the party under whom he claims, has 
 had the power of cross-examination, and has been legally called on 
 so to do ; which must be proved by showing, secondly, that he 
 was a party to the proceeding; thirdly, that it was a judicial pro- 
 ceeding ; fourthly, that he cross-examined, or might have done so. 
 There are some exceptions where the proceeding is of a public 
 nature, or the evidence falls within the general scope of the rule 
 as to reputation. 
 Witness ^^ ^^ ^^^ incontrovertible rule, that when the witness himself may 
 
 must be be produced, his deposition cannot be read, for it is not the best 
 absent. evidence {h). But the deposition of a witness may be read not only 
 where it appears that the witness is actually dead, but in all cases 
 where he is dead for all purposes of evidence ; as where diligent 
 search has been made for the witness, and he cannot be found (c), 
 
 was received, although the commission tioned by name in the information. Att.' 
 
 could not be found. And see Hardcastle Gen.y. Ch-iffiths, 1 Kenyon, 126. 
 
 V. Sclater, 2 Gwill. 787. Anderton v. (a) Supra, 24, 
 
 Magaicly, 2 Bro. P. C. (b) Str, 920; Godb. 193. 320; Salk. 
 
 (.t) 2 H. B. 437. Glossop v. Poole, 3 278. 281. 286; 4 Mod. 146; Hob. 112; 
 
 M. & S. 175. Hardr. 232 ; 5 Mod. 9. 163. 277 ; T. Raym. 
 
 (y) As to depositions taken before Jus- 170, 335. 336. Fry v. Wood, 1 Atk. 45. 
 
 tices, see Vol. II. tit. Depositions. Colter \. Farewell, 2 P. W. 563; B. N. P. 
 
 (z) The oral testimony of a witness 239. 
 
 on a former trial stands upon the same (c) Godb. 326; L. Ev. 106; 2 Str. 920. 
 
 grounds. B. N. P. 242. Sherwin v. Clarges, Benson v. Olive, 2 Str. 920. If the party 
 
 12Wil. 3; 1 Ld. Raym. 730. A deposi- cannot find a witness, tlien he is as it were 
 
 tion by an interested Avitness is not admis- dead to him ; and his deposition may be 
 
 sible any more than his testimony would read, so as the party make oath he did 
 
 be. Depositions of parishioners tending to his endeavour to find him, but that he 
 
 charge the defendant with costs, on an in- could not see him, nor hear of liim. Godb. 
 
 formation for money received by him for the 326 ; 12 Vin. Ab. A. b. 36.' To entitle a 
 
 use of the parish, are admissible in evidence, party to read a deposition taken upon in- 
 
 wherc the witnesses arc not relators jneu- terrogatories, it is not sufficient to show
 
 DEPOSITIONS, JMJOor OF. 
 
 311 
 
 where he resides in a phice beyond the jurisdiction of the court (d), WitncAs 
 
 or where he has become lunatic or attainted. "'"^•^ ^'^ 
 
 ... . dead or 
 
 It has even been said, that if a witness, having been subpoenaed, absent, 
 falls sick by the way, his deposition may be read (e). So if the 
 witness has been kept out of the way by the adversary (f), or labour 
 under any infirmity which incapacitates him as a witness (^). So 
 the deposition of a party absent in Ireland has been admitted (h). 
 According to the practice of the Court of Chancery in directing an 
 issue at law, an order is made that the depositions of witnesses 
 shall be read on the trial, on satisfactory proof that they are unable 
 to attend in person (i). The principal object of the order is con- 
 venience in dispensing with the ordinary preparatory proof (A). 
 Where depositions have been taken in perpetuam rei memoriam, and 
 a witness afterwards becomes a party to the suit, his deposition 
 cannot be read, for the intent of the deposition was to perpetuate 
 testimony in case of the death of the witness (l). And so it was 
 
 that the witness was a seafaring man, and 
 tliat he lately belonged to a vessel in the 
 Thames, without proving for what port the 
 vessel was bound, or that any inquiry had 
 been made for the witness. 
 
 (d) Lord Altham v. Earl of Anglesey, 
 Gil. Eq, Cas. 16. 18; Rep. temp. Holt, 
 736. 
 
 (e) Mod. 283, 284; Ld. Raym. 729; 
 P. Will. 288, 289; 12 Mod. 215. 231; 
 Bac. Ab. Ev. 625; Vin. Ab. A. b. 31, pi. 
 10; 1 Ves. & Beames, 22. Jones v. Jones, 
 1 Cox's Cas. 184. In R. v. Hogrj, C. C. & 
 P. 176, the deposition of an old and bedrid- 
 den woman was allowed to be read, there 
 being no probability that she would be 
 able to attend at a future assizes. But 
 Patteson, J., in R. v. Savage, 5 C. & P. 
 143, held that although the illness of a 
 prosecutor might be a good ground for 
 putting off the trial, it was not so for the 
 purpose of receiving his depositions. A 
 deposition in Chancery cannot, without a 
 special order, be read, on the ground 
 that the witness cannot attend by reason 
 of sickness. And see Harrison v. 
 Blades, 3 Camp. C. 445, and Vol. II. 
 tit. Deposition. It seems, on the whole, 
 to be clear that the courts will not, at all 
 events, admit the deposition of a witness 
 in evidence whilst any reasonable hope 
 remains that the witness may be able to 
 attend on some future opportunity. 
 
 (/) Green v. Gatcivicie, B. N. P. 243. 
 
 (g) B. N. P. 239; Ld. Raym. 1166. 
 Fry V. Wood, 1 Atk. 145. So it has been 
 said, if the witness be unable to travel. 
 But see the case of Harrison v. Blades, 3 
 Camp. 445. And see Vol. II. tit. Depo- 
 sitions. 
 
 (A) 11 Mod. 210; 2 East. 251. Hod- 
 nett V. For man, 1 Starkie, 90 ; Gil. Eq. R. 
 16. 18; but see Tr. p. Pais, 7th ed. 385, 
 386, where a distinction is taken between 
 Ireland and a place out of the king's do- 
 minions. 
 
 (i) Corbet w. Corbet, 1 Ves. & Beames,340. 
 
 {Ti) Palmer v. Lord Aylesbury, 15 Ves. 
 176. 
 
 (?) Tilley's Case, Lord Raym. 1009; 1 
 Salk. 286. Depositions having been taken 
 in perjjetuam rei memoriain, the inheri- 
 tance afterwards descended to the person 
 who was sworn as a witness; and the 
 Judges of the C. P. and of the Court of 
 K. B. held, that the depositions could not 
 be read; and Holt, C. J., said, that such 
 depositions could not be read in any case 
 until the death of the witness, much less 
 in a case where the witness was himself a 
 party ; see Holcroft v. Smith, Eq. Cas. Ab_ 
 224; Trin. 1702; Vin. Ab. Ev. A. b. 31, 
 pi. 42. Baher v. Lord Fairfax, Str. 101 ; 
 B. N. P. 242. Where a plaintiff in equity 
 appointed a witness his executor, who re- 
 vived the suit, his deposition was ordered 
 X 4
 
 312 wuiTTiiN kvidence: judicial instruments. 
 
 Witness held, vvlicrc a deponent became interested after his examination in 
 ."rdor^ a court of equity, but was no party to the suit(m); and yet if the 
 «ik-ent. witness become interested by operation of law, the case seems, with 
 respect to the question of evidence, to be just the same as if he had 
 become blind or lunatic ; and in equity depositions have been 
 admitted under such circumstances (w). Where a witness has 
 been examined on interrogatories by consent, on account of his 
 expected absence, yet if he be not absent at the time of the trial 
 his deposition cannot be read (o) ; but it is not necessary that he 
 should be actually on his voyage when the trial comes on ; if he be 
 on board and ready to sail, or if the ship has been compelled to put 
 back (/>) upon a temporary exigency, the deposition is still evidence. 
 Reasonable proof must be adduced by the party who offers the 
 deposition in evidence, to show the necessity of resorting to it {q). 
 The statement in the deposition itself is insufficient (r). Upon an 
 application by the defendant, a trial for a misdemeanor has been 
 postponed, upon his consenting, by writing under his own hand, to 
 the examination of a witness for the Crown upon interrogatories (s). 
 Irientityof Secondly, a deposition is not admissible unless the parties be the 
 parties. game ; for a stranger to the former suit had no opportunity to cross- 
 examine, and therefore cannot be affected by the depositions (^); 
 and he cannot use them against one who was a party, because he 
 could not have been prejudiced by them, and therefore, for want 
 of mutuality, ought not to take advantage of them (m). 
 
 to lie read on such trial. Andretcs v. Beau- that several months ago he belonged to a 
 
 champ, 7 Sim, 65. vessel lying in the River Thames, without 
 
 (wi) Baker v. Lord Fairfax, Str. 101. showing the nature of the vessel, or whither 
 
 (??) 2Ves.42. Glyn \ . Bank of Eng- she was bound. Falconer v. Hanson, 1 
 
 hind, Holcroft v. Smith, Eq. Cas. Ab. Camp. 171. 
 
 2-24. Goss V. Traci/, 2 Vernon, GOO; 1 (r) Proctor \ . Lainson, 1 C & P. 629. 
 
 P. Wnis. 287; 2 Vernon, 472. Haws {s) Highfeld v. Pealte, M. & M. 110. 
 
 V. Ikmd, 2 Atk. 615. In Glyn v. Bank B. v. Morphew, 2 M. & S. 602. The same 
 
 of England, 2 Ves. 42, Lord Hardwicke thing was done upon the trial of Mr. 
 
 said such evidence was allowable on good Hastings; see 2 M. & S. 603. 
 
 reason, for the evidence was to be taken as {t) B. N. P. 242. Cooke v. Fountain, 
 
 it stood at the time of the witness's exami- 1 Vern. 413; 2 Rol. Ab. 679; Hob. 155. 
 
 nation, which should not be set aside unless (m) Bac. Ab. Ev. 626. Rushworth v. 
 
 it could be supplied by other evidence. Countess of Pembroke, Hardr. 472 ; Gil. 
 
 (o) Proctor v. Lainson, 7 C. & P. 629; Ev. 55; but see Vin, Ab. Ev. A. b. 31 ; 
 
 2 Salk. 691 ; 2 Tidd's Pr. 854. For it is pi. 47. Tliis principle seems to liave been 
 
 an implied condition that the attendance extended to a case where the party against 
 
 of tlie witness is not practicable. whom the depositions were offered in evi- 
 
 (p) Fonsick v. Agar, 6 Esp. 92. Ward dence had himself read the depositions in 
 
 v. Wells, 1 Taunt. 462. a former cause. Atkins v. Humphreys, 1 
 
 {q) Proctor v. Lainson, 7 C. & P. 629. Mood. & R. 523. On an issue from Chan- 
 It has been Jield to be insufficient to show eery between A. Sc B., it was h(^ld, that 
 that the witness was a seafaring man, and depositions produced by B. in Cliancery, in
 
 DEPOSITIONS, ADMISSIBILITY OF. 
 
 313 
 
 Accordingly on an appcul of murder iin uppellunt could not <2,ive 
 in evidence an indictment for the same murder, and what a witness 
 had sworn upon the trial (x) ; and as the evidence on the indict- 
 ment was not evidence for the appellant, neither was it for the 
 appellee (?/). J., preferred his bill against i^., and B, exhibited 
 his bill touching the matter against A. and C; on a trial at law 
 it was held, that C. could not use the depositions in the same 
 cause between A. and B., but that the whole must be tried as 
 res nova (z). The depositions or evidence of a witness in one cause 
 cannot be evidence in another, where the verdict would be inad- 
 missible ; for the oath cannot be given in evidence without first 
 giving the verdict in evidence («) ; for otherwise it would not appear 
 that the oath was more than a voluntary affidavit. But it is not 
 necessary that the depositions should have been made, or the evi- 
 dence given in the same proceeding, providing the parties be the 
 same ; in the Court of Chancery, depositions in one cause are 
 frequently read in another; and in courts of law the evidence 
 which the witness gave on a former trial may be read after his 
 death in a subsequent one (b). 
 
 But although the parties are the same, yet if the same matters 
 were not in issue in the former cause, the depositions, it is said, are 
 not evidence (c) ; this rule, however, at all events, does not apply to 
 cases where depositions are offered against those who were not 
 
 Identity of 
 liarties. 
 
 Identity of 
 
 subject- 
 
 nuitter. 
 
 a suit of C. against B., were inadmissible. 
 Qii. And see the observations on this sub- 
 ject. Phill. on Ev. 571, 8th ed. 
 
 (x) 1 Sid. 235; 2 Haw. 430 j 2 Roll's 
 Rep. 4G0j 2 Keb. 384 ; Bac. Ab. Ev. 629. 
 The reason assigned is, that an indictment 
 is not evidence on an appeal, and that ap- 
 peal is a new cause, and therefore it is 
 necessary to have the parties face to face. 
 
 (y) B. N. P. 243 ; 1 Sid. 325. 
 
 {z) Law of Evid. 108; Hard. 472; 
 12 Vin. Ab. 109, pi. 24. 
 
 (a) B. N. P. 242; 1 Sid. 325; but see 
 253, n. (t). It seems to be sufficient to 
 give the postea in evidence. 
 
 (6) Per Lord Kenyon, 4 T. R. 290. 
 Pyie v. Crouch, Lord Raym. 730. Pitton 
 V. M^alter, Str. 162. Green v. Gatewicke, 
 B. N.P. 243; 12 Mod. 319; Barnard, 213. 
 243. Lcyrd i* aimer ston's Case, cited by 
 Lord Kenyon, 4 T. R. 290, where upon a 
 trial at bar it was held, on all hands, that 
 what Lord Palmerston swore upon a for- 
 mer trial was evidence, the witness having 
 died in the iutcrim , but the evidence was 
 
 ultimately rejected, because the witness 
 could not give the words, but only the 
 fact. In Chancery, depositions taken 
 thirty years ago have been admitted to be 
 read, although the parties were not the 
 same; because they related to the same 
 land, and the tenants were parties to it, and 
 the plaintiff's title did not then appear. 
 B. N. P. 240; Chan. Cas. 73; Bac. Ab. 
 Ev. 627 ; Eq. Ca. Ab. 627. If ^., claim- 
 ing two estates, M. and N., convey N. to 
 B., and bring ejectment against C, who has 
 recovered M.from liira in ejectment, the evi- 
 dence of witnesses examined for ^.is not 
 admissible for B. in an ejectment brought 
 by B. against C, Avho has recovered the 
 estate N. from him. Doe d. Foster v. 
 Lord Derby, 1 Ad. & Ell. 783. Formerly 
 depositions in perpetuam rei inemoriam 
 were not published till after the death of 
 the witnesses, wliich was attended with 
 inconvenience, because they swore with 
 impunity. Bac. Ab. Ev. 627. 
 
 (c) Allibone v. the Attorney-general, 
 Vin. Ab. Ev. A. b. 31, pi. 45.
 
 314 
 
 WRITTEN evidence: JUDICIAL INSTRUMENTS. 
 
 matter. 
 
 Privity of 
 Claun. 
 
 Identity of parties to tlic former suit, as matter of reputation, for there the 
 ^" ■'"'^ " very circumstance that the same matter was litigated, has been 
 urged as an objection to the evidence id). 
 
 Neither does the objection apply in criminal cases ; a deposition 
 made upon a particular charge may frequently be read upon the 
 trial of th eprisoner for another. A deposition taken upon a charge 
 of assault and robbery may be read upon a trial for murder, the 
 transaction being the same (e). 
 
 Depositions in a former cause cannot in general be read against 
 one who does not claim under the party with whom such deposi- 
 tions were taken ; but in equity, if a legatee bring a bill against 
 the executor, and prove assets, it is said that another legatee, 
 although no party, may have the benefit of those depositions (/) ; 
 at law they may be read where the defendant claims in privity 
 with the defendant in the former ^mi{g). 
 
 Thirdly, in order to admit a deposition, or the oral testimony of 
 a witness in a former cause, it is necessary to show that such a 
 cause or proceeding legally existed, for otherwise it would not 
 appear that the deposition was anything more than a mere volun- 
 tery affidavit of a stranger {Ji). It seems to be a general rule, that 
 the depositions or evidence in a former cause are never admissible 
 in evidence unless the verdict or judgment would in itself be 
 evidence (i). 
 
 It is also a rule, that no extra-judicial deposition can be used 
 in evidence ; for the party was not bound to take any notice of 
 
 and payment of the consideration ; held? 
 
 In a legal 
 proceeding. 
 
 (fZ) Infra, 319. 
 
 (e) B. V. Smith, 2 Starkie's C. 208. 
 And see Radburn^s Case, 1 Leach, 457 ; 
 and Vol. II. tit. Depositions. 
 
 (/) Cole V. Fountain, Yern. 415; 12 
 Vin. Ab. 160, pi. 27. A party executed a 
 power of appointing funds in settlement in 
 favour of children, after the death of one, 
 the mother and the survivors executed a 
 voluntary conveyance in favour of children 
 of the deceased, and subsequently con- 
 veyed the premises to a purchaser, who 
 filed a bill to set aside the voluntary con- 
 veyance, and a bill was also filed to 
 establish the sale, by a partner of the 
 purchaser, alleging the consideration to 
 have been paid in part with his money, 
 and a suit was afterwards filed against the 
 two latter parties to establish the convey- 
 ance, and set aside the sale as fraudulent 
 and collusive, in which suit an issue was 
 directed as to the bom fides of the sale, 
 
 that on tlie trial the depositions taken in 
 the first suit by the purchaser were pro- 
 perly rejected. Humphreys v. Pensam, 
 1 Myl. & Cr. 580. 
 
 {g) Earl of Bath v. Battersea, 5 Mod. 
 9; 12 Vin. Ab. Ill, pi. 31. 
 
 (A) B. N. P. 242, Sherwin v. Clarges, 
 12 Will. 3 ; Lord Raym. 730. 
 
 (i) B. N. P. 242. Because the giving 
 the verdict, &c. in evidence is a prepara- 
 tory step ; but it seems that the production 
 of the postca would be sufficient to warrant 
 the reception of such evidence, since it 
 would show the fact that a trial was had 
 between the same parties. It should seem, 
 however, that where a new trial is granted, 
 and one of the witnesses dies in the mean- 
 time, his evidence on the former trial 
 would be admissible, although the verdict 
 itself would be inadmissible. 4 T. R. 290.
 
 DEPOSITIONS, ADMISSIBILITY OF. 315 
 
 the proceeding. Accordingly, upon an indictment for a libel, Extra-jiidi- 
 
 depositions before a magistrate were not admitted in evidence, as mtssible"*^" 
 
 they would have been under the statutes of Ph. k Mary, in cases 
 
 of felony (j). Nor are they so in any case where the proceeding is 
 
 coram nou judice (k) ; as, where a voluntary affidavit is made before 
 
 the Master (Z), such an affidavit would not be evidence, unless the 
 
 admission of the party who made it would be evidence (m). So if 
 
 the bill has been dismissed on account of the irregularity of the 
 
 complaint (n), as if the depositions are taken in a revived suit, where 
 
 a bill of revivor does not lie (o), for in such a case there is no 
 
 complaint before the court in which depositions can regularly be 
 
 taken. But if the bill be dismissed merely because the matter is 
 
 not proper for a decree in equity, although within the jurisdiction 
 
 of the court, the depositions may be read in another cause between 
 
 the same parties (p). Where the proceeding is merely voidable, it 
 
 seems that the depositions may be read ; but it is otherwise where 
 
 it is absolutely void (q). But in some instances where depositions 
 
 have been irregularly taken, a Court of Equity will order that they 
 
 shall stand (r). Depositions before justices cannot be read on an 
 
 indictment for treason, or for a misdemeanor, or upon the trial of an 
 
 appeal, or in a civil action (s), for they are extra-judicial. It was 
 
 held, that depositions in the Court of Wards were not evidence in 
 
 the King's Bench to prove the same title (t). 
 
 It has frequently been held, that depositions taken in a Spiritual 
 Court cannot be used, even by consent {u), in a Court of Common 
 Law (x), because it is not a court of record. Yet the same objec- 
 tion applies to depositions in Chancery. \i\ Breedon v. GiU(y), 
 Lord Holt expressed an opinion that depositions before commis- 
 sioners of excise might, if the witnesses died, be afterwards read 
 before the commissioners of appeals. And depositions under the 
 statutes of Philip & Mary, and 7 Geo. 4, c. 64, are read upon trials 
 for felony, although they are not of record (z). And it is to be 
 
 0") R. V. Paine, 5 Mod. ; 12 Vin. Ab. (q) Str. 308. 
 
 Ev. A. b. 31. (r) Murray v. Wise, cited Str. 308, 
 
 (A) Stock V. Beneio, Vin. Ab. Ev. A. b. («) 2 Hale's P. C. 286 ; Lord Raym. 
 
 31, pi. 16. 730. 
 
 (I) Sty. 446; May v. 3Iay, K. B. at (0 2 RolI.R. 212. 
 
 Bar ; Bac. Ab. Ev. 628. (m) March, 120. 
 
 (m) Ibid. (ar) Litt. R. 167 ; B. N. P. 242 ; 2 Roll. 
 
 (n) 1 Ch. Ca. 175; Backhouse v. Mid- Ab. 079; Bac. Ab. Ev. 628; 2 Hale, 285; 
 
 dletoti, Gil. Ev. 56. March, 120 ; 1 Haw. c. 42 ; Vin. Ab. Ev. 
 
 (o) 1 Ch. C. 175. A. b. 31. The power of taking depositions 
 
 (p) Smith V. Veale, Lord Raym. 735 ; has since been enlarged. See Vol. II. tit. 
 
 Ch. C. 175; 3 Ch. Rep. 72; 12 Vin. Ab. Depositions. 
 
 109, pi. 15. Noyder v. Peacock, ib. 112, (y) Lord Raym. 222. 
 
 pi. 41. {z) See 2 Hale, 284.
 
 316 
 
 WRITTEN EVIDENCE : JUDICIAL INSTRUMENTS. 
 
 ciiil not ad- 
 luissible 
 
 Extra-judi- observed, that these statutes do not expressly direct that these de- 
 positions shall be evidence ; they were, indeed, originally intended 
 for a different purpose, and they become evidence as authorized 
 proceedings in the course of the same prosecution. In Welsh's 
 Case (a), Lord Hale assigns two reasons why, upon an indictment 
 ^or a forcible marriage with Mrs. Puckring, the deposition of Mrs. 
 Puckring before commissioners appointed to dissolve the marriage, 
 if they thought fit, should not be read : First, because it was a pro- 
 ceeding according to the civil law, in a civil cause ; secondly, 
 because she was interested ; and does not hint that it was an ob- 
 jection that the court was not a court of record. With respect to 
 depositions in the Ecclesiastical Court, C. B. Gilbert lays it down 
 that they may be read when taken in a cause over which they have 
 jurisdiction, as far as relates to that cause, since they are lawful 
 oaths, and a man may be indicted for violation of them (6). When, 
 indeed, they are taken in a cause over which they have no autho- 
 rity, as where the realty is concerned, they clearly are not admis- 
 sible (c). Where depositions have been taken in an ancient suit to 
 perpetuate testimony, it cannot be objected that the answers were 
 given to leading interrogatories, since the party to the proceeding 
 might have objected to them, and have had them expunged, instead 
 of which he allowed publication to pass, and the evidence to be 
 exemplified (c?). 
 
 Neither, where interrogatories and cross-interrogatories have been 
 exhibited by the parties, can the answers of the deponent be ob- 
 jected to on the ground that the witness was interested (e). 
 
 Fourthly, a deposition is not evidence against one who had not 
 the power or liberty to cross-examine the witness, and does not 
 claim under one who had that power (/). Accordingly, depositions 
 
 Power to 
 cross- 
 examine. 
 
 (a) 2 Hale, 285. 
 
 (b) Gil.Ev.60, 
 
 (c) Gil. Ev. GO; 2 Roll. Ab. 679; Litt. 
 R. 167 ; March, 120. 
 
 (tZ) Williams v. Williams, 4 M. & S. 
 497. See Examination in Equity, p. iv. 
 There was a presumption, in the above 
 case, that publication passed in the life- 
 time of the witnesses. See the observations 
 of Bayley, J., 4M.&S.5G3. 
 
 (e) Ogle v. PalesJd, Holt's C, 485. 
 
 (/; Hardr. 472. 215; 2 Jones, 164; 
 Wils. 214, 215; Hob. 155; 2 Roll. Ab. 
 679 ; 1 Vem. 413. Where barrack com- 
 missioners, acting under 47 Geo. 3, c. 1, in 
 taking public accounts, examined wit- 
 nesses, and put their depositions in 
 
 writing ; and an information having been 
 filed against the defendant relative to cer- 
 tain contracts, the matters were referred 
 to arbitration; held, that the arbitrators 
 could not receive such depositions, having 
 been taken without the defendant having 
 had an opportunity of being present, or of 
 cross-examining the witnesses. Attorney- 
 general V. Davison, 1 M. & Y. 160. The 
 examination of a witness taken before 
 commissioners on an inquiry, cannot be 
 read as evidence on a petition to expunge 
 the proof of a creditor who was not a party 
 to that inquiry. Ex parte Coles, Buck, 
 242; Cooke, B. L. 552, 8th ed. Ex i)arte 
 Campbell, 2 Moore, 51.
 
 DEPOSITIONS, ADMISSIBILITY OP. 
 
 317 
 
 cross- 
 cxuiiiiiio. 
 
 token before commissioners of bankrupt, being ex parte, were not Power to 
 evidence previous to the statutes (^) by v/hicli tliey are made 
 evidence in ])articular cases {h). In Chancery, the witness was 
 examined de bene esse ; an answer was put in ; but the witness was 
 so ill, that he could not be cross-examined, and before the end of 
 three weeks he died, and all the Judges held that the deposition 
 was not evidence (i). So if before the coming in of the answer, the 
 defendant not being in contempt, the witness die (It). Where, 
 however, the defendant is in contempt for refusing to answer, the 
 objection ceases, for it was his own fault that he did not cross- 
 examine the witnesses (Z). And in genei-al, where the party has 
 had an opportunity to cross-examine in the course of a regular legal 
 proceeding, and has neglected to do so, the case is the same in 
 effect as if he had cross-examined {in). 
 
 (g) 5 G. 2, c. 30, s. 41, which directs 
 that the proceedings under a commission 
 may, upon petition, be entered of record, 
 and that true copies, signed and attested 
 as tlierein directed, shall be evidence in 
 case of the death of the witnesses. And the 
 Stat. 49 G. 3, c. 12], s. 10. And now see 
 the Stat. G G. 4, c. 86, ss. 90 & 92, which 
 make depositions in bankruptcy, in certain 
 cases, conclusive; also the stat. 2 & 3 
 Will. 4, c. 44, s. 7, which makes such de- 
 positions evidence in certain cases, the 
 deponents being dead. See also the stat. 
 59 G. 3, c. 12, as to the examinations of 
 prisoners touching their settlements ; and 
 see tit. Bankruptcy — Examination — 
 Settlement. 
 
 (h) 1 Lev. 180; Lord Raym. 220; T. 
 Jones, 53. Janson v. Wihon, Doug. 244. 
 Boicles V. Langioorthy, 1 T. R. 306; 2 
 Roll. Ab. 679 ; B. N. P. 242. The depo- 
 sitions of deceased witnesses taken before 
 commissioners of bankrupt, on the opening 
 of the commission, and cancelled by the 
 assignees afterwards appointed, are not 
 evidence against the assignees in an action 
 by the bankrupt. The assignees in such 
 a case have no opportunity of cross-exa- 
 mining the witnefses at a meeting which 
 is strictly private. Chambers v. Bernasconi, 
 1 C. M. & R. 352. 
 
 (i) Brow)i's Case, Hardr. 315. Button 
 V. Colt, Sir T. Raym. 335. But see Ch. R. 
 90; Vin. Ab. Ev. A. b. 31, pi. 8. A depo- 
 sition is not admissible before answer put 
 in, or party is in contempt, unless he had 
 the opportunity of cross-examining. Cazc- 
 
 nove v. VaugJian, 1 M & S. 4. So if the 
 witness be examined without service of 
 the order so to do. Mulvany v. Dillon, 
 1 Ball&B. 413. 
 
 (k) Hard. 215; 2 Jon. 164; 2 Wils. 563; 
 for there the defendant had not an oppor- 
 tunity of cross-examining. In such case, 
 the party, it is said, may apply to the 
 Court of Chancery that the deposition 
 may be read, and if the Court see cause, 
 they will order it ; and this order, it is 
 said, will bind the parties to assent, but 
 will not bind the Court of Nisi Prius. Gil. 
 Ev.57; B.N. P. 240; 2 Jon. 164. 
 
 (I) Gil. Ev. 66. And see Cazenove v. 
 VangJian, 1 M. & S. 4. The observations 
 of Le Blanc, J., ib.; B. N. P. 240; Com. 
 Dig. Ev. C. 4. 
 
 (in) Cazenove V. Vanghan, 1 M. & S. 4. 
 The plaintiffs filed a bill in Chancery for 
 the examination of a witness de bene esse, 
 and the defendant did not put in any an- 
 swer. The plaintiffs gave notice to the 
 defendants of an order ol)tained from the 
 Court for the examination, and of the 
 questions intended to be put, and examined 
 the witness the same evening, who set off 
 the next day, and never returned. The 
 plaintiffs obtained a further order for pub- 
 lication of the deposition, in order tliat it 
 might be read at the trial, and the deposi- 
 tion was admitted in evidence. See Gil. 
 Ev. 62. 64, 4th ed.; 4 Mod. 146. Hoivard 
 V. Tremaine, Hardr. 315, semb. contra. 
 1 P. Wms. 414. Copeland v. Stanton, 
 B. N. P. 240; Com. Dig. Ev. C. 4.
 
 cross- 
 examine 
 
 318 WRITTEN EVIDENCE : JUDICIAL INSTRUMENTS, 
 
 Power to Evidence given by a witness on the trial of an issue directed by 
 
 the Court of Chancery is evidence in an action upon the trial of 
 an ejectment after the death of the witness against the lessor of 
 the plaintiff, who was the plaintiff in equity (w). For the lessor 
 had the power of objecting to the competency of the witness, the 
 same right of cross-examination, and of calling witnesses to dis- 
 credit or contradict the testimony of the Avitness. 
 
 Depositions taken de bene esse, before the answer of the defen- 
 dant, are not admissible in a Court of Law, since they are taken 
 before issue joined (o). But a Court of Equity will sometimes 
 direct them to be read {p) ; such an order, however, is not bind- 
 ing in a Court of Law {q). Where, upon a bill to perpetuate tes- 
 timony, the defendant was in contempt, and would not answer, 
 and the plaintiff had a commission, and examined witnesses de 
 bene esse, and the defendant joined in the commission, and cross- 
 examined some of the witnesses produced for the plaintiff, and 
 before the coming in of the answer the witnesses died, it was held, 
 after much debate, that the depositions were admissible between 
 the parties on a trial at law, for otherwise a bill to perpetuate testi- 
 mony would be of no use (r). There the defendant joined in com- 
 mission, and cross-examined, but the principle seems to extend to 
 all cases where the defendant refuses to answer {s), for otherwise 
 he might wait till all the witnesses were dead, having in the mean- 
 time prevented his antagonist from perpetuating their testimony {t). 
 Where the adverse party has had liberty to cross-examine, and has 
 not chosen to exercise it, the case is the same in effect as if he 
 had cross-examined (m). 
 
 (n) Wriyht v. Doe d. Tatham, 1 Ad. & {q) Ibid, svpra, 317 (A). 
 
 Ell. 3. Note, that in the suit in equity (r) Show. 363, 264 ; Carth.265 ; 4 Mod. 
 
 others than the defendant in the ejectment 147 ; Salk. 278 ; 12 Vin. Ab. 1 10. 
 
 were co-defendants. In the above case it {^s) But great stress was laid upon that 
 
 was said that the lessor of the plaintiff had fact by Grey, J., Carth. 265. 
 
 the same opportunity, on both occasions, of {t) See JBrown's Case, Hardr. 315 ; Vin. 
 
 calling witnesses for the purpose of contra- Ab. Ev. A. b. 31, pi. 23. Dutton's Case, 
 
 diction. Other parties being opponents in T. Raym. 335 j Law of Evid. 114; Vin. Ab. 
 
 the former suit, this may not perhaps be Ev. A. b. 31, pi. 12 ; and the observations 
 
 strictly true ; but it seems to be sufficient in Cazenovev. Vaughan, 1 M. & S. 4. 
 
 to warrant the reception of such evidence, (m) Cazenovew Vaughan, 1 M. & S. 4. 
 
 that the party against whom it is offered The defendant not having put in any an- 
 
 liad the opportunity to cross-examine and swer to the bill, the plaintiiFs obtained an 
 
 to contradict the testimony by adverse order for the examination of the witness, 
 
 proof. and gave notice to the defendant, and of 
 
 (o) 2 Jones, 164 ; Vin. Ab. A. b. 31, pi. the interrogatories intended to be put; and 
 
 12. 22. Button's Case, Sir T. Rayni. 335 ; on the same evening examined the witness, 
 
 Hardr. 315 ; 2 P. W. 162. Hull v. Hod- who left London the next day for a foreign 
 
 desdon, 12 Vin. Ab. 108. country, and never returned. The plain- 
 
 {p) 2 Jones, 104. tiffs obtained a further order, that the de-
 
 depositions: admissibility. 319 
 
 Depositions relating to a custom, or prescription, or pedigree, Depositions 
 where reputation would be evidence, are admissible asainst "'"^■"''7'- 
 
 A _ . . ' & ut'iice to 
 
 strangers ; for as the traditionary declarations of persons dead piove repu- 
 would be admissible, a fortiori, their declarations on oath are "^ '""' 
 so (x). Where, however, depositions relate precisely to the same 
 issue (y), or are made post litem motam, they cannot be re- 
 ceived {z). On the trial of a question between the lord of a WJien ad- 
 manor and a copyholder, as to a custom insisted upon by the lord 
 in respect of copyholds granted for two lives, that the surviving 
 life should renew, paying to the lord such fine as should be set by 
 the homage, to be equal to tvi'O years improved value, it was held, 
 that depositions in an ancient suit, instituted against a former lord 
 of the 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 fine, 
 to be set by the lord or his steward, and which depositions were 
 made by witnesses on behalf of the copyholder, were admissible 
 evidence for the lord, as depositions of persons standing pari 
 jure with the new copyholders ; it was not proved that the per- 
 sons making such depositions were copyholders, but it appeared 
 from the depositions themselves that they were such, or that they 
 were persons acquainted with the custom of the manor. And it 
 was held that their depositions, supposing them to be admissible 
 only as declarations of persons deceased, were not inadmissible 
 on account of their having been made post litem motam, because 
 the same custom was not in controversy in the former suit as in 
 the latter (a). Where, however, the lis mota was on the very 
 point, the depositions and declarations of persons in respect of it 
 would not be evidence, since it is doubtful whether the deposition 
 
 positionof the witness should be published; grind at mills, as in the case of the Settle 
 
 and, upon the trial, it was held that the Mill.* Depositions of this kind have ever 
 
 deposition miglit be read, since the defend- been received. I have heard tliem read 
 
 ant might have cross-examined, if he had twenty or thirty times on the circuit which 
 
 been so inclined. I used to go, without objection ; and I re- 
 
 (x) B. N. P. 230. Cort v. BirkbecJi, member particularly, that in the case of 
 
 Doug. 219; 4 M. & S. 491, where Lord the Leeds Mill, they were admitted as the 
 
 EUenborough said, " These depositions, depositions of persons standing in pari 
 
 made by persons standing in pari jure or jure" 
 
 in eodem jure, I consider to be evidence, {y) Case of the Berkeley Peerage, 4 
 
 and so they have been considered in all Camp. 401. Case of the Banbtiry Peerage, 
 
 times. The depositions furnish evidence infra, S3l. B. v. Cotton, 3 Camp. 444; 
 
 not only against the parties making them, 4 M. & S. 486. 
 
 but against all persons who stand in the {z) 4 M. & S. 48G. 
 
 same relation, in the same manner, in all (a) Freeman v. Phillips, 4 M. & S. 
 
 cases of customs, such as the custom to 480. 
 
 * See Cort v. Birkbeck, Doug. 219.
 
 320 WRITTEN EVIDENCE : JUDICIAL INSTRUMENTS. 
 
 Depositions of witnesses selected and brought forward, to support one side of 
 mSwe." tl^e question, and who partake of the fcehngs and prejudices l)e- 
 longing to that side, can be depended upon as those of fair and 
 impartial witnesses (b). 
 
 In the case of Tooher v. The Duke of Beaufort, tlie depositions 
 as well as the return to the Exchequer under a commission to 
 inquire whether the Prior of St. Swithin or the Crown was seised 
 of certain lands upon the dissolution of the priory, were held to 
 be admissible in evidence, and the depositions seem to have been 
 considered as standing on the same footing with the return itself (c). 
 A deposition between any parties is evidence to contradict a 
 witness {d), but it is not evidence to support the testimony of a 
 witness ie). 
 
 of witnesses Where a witness is likely to be abroad at the time of the trial, 
 
 resident w^q party who requires his testimony may move the Court in term 
 abroad i j t. j j 
 
 time, or apply to a Judge in vacation, for a rule or order to have 
 
 him examined on interrogatories de bene esse, before one of the 
 
 Judges of the Court, if he reside in town, or if in the country, or 
 
 abroad, before commissioners specially appointed, and approved 
 
 of by the opposite party, whose consent is essential. The Court, 
 
 in furtherance of the application, where it is necessary, will put 
 
 off the trial (/) at the instance of the defendant, if the plaintiff 
 
 will not consent ; and if the defendant refuse, the Court will not 
 
 give him judgment as in case of a nonsuit (g). Where a witness 
 
 (b) See the observations of Bayley, J., has sworn at one trial can never be given 
 
 4 M. & S. 495. '" evidence at another to support him, 
 
 because it is no evidence of the truth ; 
 
 ^ "^ " ' for if a man be of that ill mind to swear 
 
 (d) 12 Mod. 318; 4 St. Tr. 265; 2 wisely at one trial, he may do the same 
 Haw. 430, s. 9. 12; 2 Keb. 384; Bac. ^^ another, on the same inducements, 
 Ab. Ev. 629. See R. v. Buclnoorth, ^ p^ p_ 242. It is added that what a 
 Raym. 170. An examined cojjy is suffi- j^^n says in discourse, without premedi- 
 cient for this purpose. Hig/ificld v. Peake, Nation or expectation of the cause in ques- 
 1 M. &M. 110. A former deposition of tjo^^ j^ ^^^^ evidence to support him, 
 the witness may be used to impeach liis because that shows that what he swears 
 testimony, by showing omissions or vari- jg ^^^ f^.^^^ ^ny undue influence. But if 
 anceswhicli affect his capacity or honesty, ^ man has sworn at one trial different 
 but according to The Queen's Case, and the f^om what he has sworn at another, this 
 recent resolutions of judges, the deposition jg ^^^^ evidence to his discredit. 
 
 must be produced and shown to the witness, (j^ p^^^j^^ ^ Neicnham, Doug. 419. 
 
 and is to be considered as evidence given CalUard v. Vaughan, 1 B. & P. 211. 
 
 for the prisoner. Qu. whether a deposi- (^^ Tj^j-g pj-^c. 852. The application, 
 
 tion may not be shown to witness to refresh i„ ^j^^ g^st instance, is for a rule or sum- 
 
 his memory without making the deposition ^^^^ ^^ gj^Q^ cause, upon an aftidavit, 
 
 evidence. stating that the witness is material, and 
 
 (e) What a man himself who is living that he resides or is going abroad. If tlie
 
 OF WITNESSES ABROAD. 
 
 321 
 
 was unable from illness to attend the trial, and was not likely to Depositions 
 recover, leave was refused to examine him upon interrogatories, as «*^^'^"';sse8 
 to his attestation of a deed, althouoh it was sworn that the defen- abroad. 
 dant had at one time admitted the execution of the deed ; and the 
 Court also refused to dispense with the attendance of the witness 
 upon the trial on such grounds (A). 
 
 The Stat. 13 Geo. S, c. 03, s. 40 &: 44, directs, that where an India : 
 action is brought in any of the courts at Westminster, upon a cause ^^n^fwU- 
 of action arising in India, the Court may award a mandamus nesses in. 
 to the Judges of the courts of India for the examination of wit- 
 nesses ; and that the depositions, duly taken and returned, shall 
 be deemed as good and competent evidence as if the witnesses 
 had been sworn and examined viva voce (^). 
 
 adversary consent, the Court will make 
 the rule absolute, or the Judge will make 
 an order upon the summons. The inter- 
 rogatories are then prepared, and are 
 signed by counsel, and ought not to con- 
 tain leading questions. A copy of the in- 
 terrogatories is then given to the opposite 
 attorney, with notice of the time when the 
 witness is to be examined, in order that he 
 may file cross interrogatories if he think 
 proper. At the time appointed, the wit- 
 ness is taken, together with the interroga- 
 tories, to the Judge's chambers, or before 
 the commissioners appointed by the rule 
 or order, where he is examined ; and his 
 depositions being sworn to, copies are made 
 out, and delivered to the party requiring 
 them. And as the depositions are only 
 taken de bene esse, they cannot be made 
 use of, if the witness should happen to be 
 in this country at the time of the trial. 
 The party succeeding is not entitled to the 
 costs of examining witnesses on interroga- 
 tories, or taking office-copies of the depo- 
 sitions, but each party pays his own ex- 
 penses, unless it be otherwise expressed in 
 the rule. Stephens v. Crichton, 2 East, 
 259. And this holds with regard to wit- 
 nesses examined abroad, as well as in this 
 country. Taylor v. Exchaiuje Assurance, 
 8 East, 392. Muller v. Hartshorne, 
 3 B. & P. 53G. The reason is, that by 
 the practice of the Court of Chancery, a 
 party applying for a commission to exa- 
 mine witnesses in his behalf must pay the 
 expenses ; and unless the other Courts 
 adopted the same rule with respect to the 
 party applying for leave to examine wit- 
 VOL. I. 
 
 nesses abroad on depositions, which cannot 
 be done without the other party's consent, 
 such consent would never be given, but the 
 applicant would be driven to the expense 
 of applying for a commission. The costs 
 of the commission to examine witnesses 
 abroad, were not allowed to the party who 
 obtained the commission, although suc- 
 cessful, the examination being peculiarly 
 for his benefit. Bridijes v. Fisher, 1 
 Bing. N. C. 510. A commission for the 
 examination of witnesses in a foreign 
 country, directed the commissioners to 
 examine the witnesses on interrogatories, 
 and to reduce the examinations into writ- 
 ing in the English language, and send 
 the same to England ; and to swear and 
 interpret the depositions of such witnesses 
 as did not understand the English lan- 
 guage. It appeared by the return, that 
 the depositions in the first instance were 
 reduced into writing in the foreign lan- 
 guage, and translated by the interpreter 
 into the English language, within an in- 
 terval of six weeks. Held, that the com- 
 mission was well executed by the commis- 
 sioners returning the depositions so trans- 
 lated into the English language. Atkins 
 v. Palmer, 4 B. & A. 377. The costs of 
 examining witnesses, whether at home or 
 abroad, are usually to be paid by the party 
 who obtains the rule. Stephens v. Crich- 
 ton, 2 East, 259. Taylor v. Exchange 
 Assurance, 8 East, 393. Muller v. Harts- 
 home, 3 B. & P. 556. 
 
 (/*) Jones V. Brewer, 4 Taunt. 4G. 
 
 (i) See Francisco v. Gilnwre, 1 B. & 
 P. 177. See also the case oi Atkins \, Pal- 
 Y
 
 322 
 
 WRITTEN evidence: DEPOSITIONS, 
 
 Bill to pci'- 
 'petuate. 
 
 Where a subject-matter is likely to be litigated in future, but 
 cannot be made the subject of inmiediate investisfation, a bill in 
 equity lies to perpetuate the testimony of witnesses, in order to 
 prevent the hardship which might accrue to a party from an inves- 
 
 vier, 4 B. & A. 377. Supra, note (g), and 
 see the provisions of the late stat. 1 W. 4, 
 c. 22, by which the provisions of the stat. 
 13 Geo. 3, c. 63, s. 40 & 44, are extended 
 to all actions depending in any of his Ma- 
 jesty's courts of law at Westminster, 
 wherever the cause of action may have 
 arisen. Where .d., the captain of an In- 
 dian country trader, contracted in India 
 with B. for a crew, according to the cus- 
 tom of the country, and A. arrived in 
 England with the crew, and then made a 
 voyage with them to the West Indies and 
 back again, on an action being brought by 
 one of the crew for wages due on the 
 West India voyage, it was held, on a motion 
 for a mandamus under the stat. 13 Geo. 3, 
 c. 68, s. 44, that the cause of action did 
 not arise in India. Francisco v. Gilmore, 
 1 B. & P. 177. Where the witnesses for 
 a defendant indicted for a misdemeanor 
 resided in Scotland, the Court obliged the 
 prosecutor to consent to the examination 
 of the witnesses before one of the Courts 
 there. Per Lord Mansfield, Mostyn v. 
 Fabrigas, Cowp. 174. It has been seen, 
 that the objection which may be taken to 
 depositions made in a cause then pending 
 at the trial, that the questions were leading 
 ones, is not applicable where the adverse 
 party might have had them expunged, but 
 has not done so, but has allowed the 
 evidence to be exemplified. Williams v. 
 Williams, 4 M. & S. 497. By the stat. 1 
 Geo. 4, c. 101, provision is made for ob- 
 taining the evidence of witnesses in India, 
 to support a bill of divorce. Where pro- 
 secutions are founded on offences com- 
 mitted abroad, by persons employed in the 
 public service, the evidence of witnesses 
 may be obtained under the provision of 
 the stat. 42 Geo. 3, c. 85. See E. v. Jones, 
 5 East, 31. See also the stat. 54 Geo. 3, 
 c. 15, made for the purpose of facilitating 
 the recovery of debts in the courts of law 
 in New South Wales. 
 
 The Court of Exchequer has the same 
 right as the Court of K. B. to issue com- 
 
 missions for examining witnesses in India, 
 under 13 Geo. 3, c."63, s .44. Savage v. 
 Blnmj, 2 Dowl. (p. c.) 643. 
 
 The commission for examination of wit- 
 nesses in India under 13 Geo. 3, c. 63, s. 
 44, ought to recite the pleadings at length. 
 Murray v. Lan-ford, 7 Sim. 139. 
 
 The defendant having, under the 13 
 Geo. 3, c. 63, s. 44, obtained depositions 
 in India, the plaintiff is entitled to take 
 copies of them at his own expense. Davis 
 V. Nicholson, 7 Bing. 358 j 5 M. & P. 
 185. 
 
 A party was refused leave to examine a 
 co-plaintiff as a witness, on a reference to 
 inquire what was due on a bond, upon 
 giving security for costs. Benson y. Ches- 
 ter, Jac. 677. 
 
 The motion to examine de bene esse, is 
 of course wliere the witness is above 70, is 
 the only witness, or in a dangerous state, 
 {seciis where he is in a state of mere in- 
 firmity) ; — but the Court refused to shorten 
 the time of notice (three days) of the 
 intention to examine. Tomkins v. Har- 
 rison, 6 Mad. 315. Where a witness re- 
 sides abroad, at such a distance as would 
 occasion great delay if a commission to 
 examine were granted, it must be made 
 out very clearly and satisfactorily to the 
 Court, not only that the witness is expected 
 to give evidence material and necessary, 
 but also that it is admissible. Lloyd v. 
 Key, 3 Dowl. 253. In ordinary cases the 
 affidavit in support of the application for 
 an examination of witnesses abroad need 
 not state that the evidence was admissible, 
 nor that the application was made bonA 
 fide, and not for delay, nor that there were 
 merits, nor will the Court impose terms 
 upon the party applying. Baddeley v. 
 Gilmore, Cr. M. & R. 55 ; and 1 Tyrw. 
 & Gr. 369. The affidavit in support of 
 a commission to examine witnesses abroad 
 must name or otherwise describe in some 
 way the parties intended to be examined. 
 Gunter v. 31' Tear, 3 Cr. M. & R. 201 ; 
 1 Tyrw. & Gr. 245; and 4 Dowl. 722.
 
 PROOF OF. 323 
 
 ligation at a remote period, when death iiad deprived liim of liis Bill to 
 
 witnesses (Z). perixtuatc. 
 
 Where an old witness has been examined, it is sometimes made 
 part of the rule for a new trial that the Judge's note of his evidence 
 shall be read upon the new trial {rri). 
 
 A bill for a commission to examine witnesses abroad in aid of a 
 trial at law, where a present action may be brought, is demurrable, 
 unless it aver that an action is pending (w). 
 
 The Court will not grant a mandamus to justices of the peace to 
 produce depositions taken on a charge of felony, in order to ground 
 a prosecution for perjury (o). But the magistrate may be sub- 
 poenaed before the grand j ury, who may found a presentment on 
 his evidence (jt?). 
 
 By the stat. 1 Will. 4, c. 22, reciting that it is expedient to General 
 extend the powers and provisions of the stat. 13 Geo. 3, c 63, it is onhe'sT* 
 enacted, sec. 1, that the powers of that Act shall be extended to ^ w. 4, 
 all colonies, islands, plantations and places under the dominion of 
 his Majesty in foreign parts, and to the Judges of the courts 
 therein, and to all actions depending in any of his Majesty's 
 courts of law at Westminster, wherever the cause of action may 
 have arisen, whether within the jurisdiction of the court, &c. or 
 elsewhere, when it shall appear that the examination of wit- 
 nesses iq), under a writ or commission (r) issued in pursuance of 
 the authority thereby given, will be necessary or conducive to the 
 due administration of justice (s). 
 
 By sec. 2, the Judge or Judges to whom any such writ or com- 
 mission shall issue, shall have like power to compel and enforce the 
 
 (Z) See Angell v. Angell, 1 Sim. & St. without requiring an oath from tlie com- 
 
 89. The bill will be defective unless it missioners, authorizing tlicm to apply to 
 
 state tliat the matter in question cannot the local tribunal, to compel attendance 
 
 be made the subject of immediate investi- of witnesses, to render such commission 
 
 gation- Ibid. See also Dew v. Clarke, effectual ; but refused to make any special 
 
 1 Sim. and St. ] 14. order as to the costs of such a rule. Clay 
 
 (m) Shillito v. Claridge, 2 Ch. 426. v. Stephenson, 5 Nev. & M, 318. 
 
 (w) Angell v. Angell, 1 Sim. & St. 91. (s) It is no ground for staying a com- 
 
 But seeMoodalayY. Mo7-to7i,2 Dick. 652; mission to examine witnesses abroad, that 
 
 1 Bro. P. C. 469 ; Dub. Phillips v. Careio, the costs of a suit in equity relating to the 
 
 1 P. Wms. 117. same matter are unpaid. Oughnan v. 
 
 (o) 1 Chitty, 627. Parish, 4 Dowl. P. C. 29. Qua^-e, wliether 
 
 (^p) Ibid. pregnancy and imminent delivery be a 
 
 {q) The Court, on application to examine cause for the examination of a witness 
 
 witnesses abroad, refused to direct the by the prothonotary under the statute, 
 
 plaintiff to produce certain bills at the ex- If so, it must be shown by affidavits of 
 
 amination. Cunllffev. Whitehead,^ Dowl. competent persons, that the delivery will 
 
 P. C. 634. probably happen about the time fixed for 
 
 (r) The Court permitted a commission the trial of the cause. Abraham y . New- 
 
 to examine foreign witnesses to be issued ton, 8 Bing. 274. 
 
 Y 2
 
 324 
 
 WRITTEN evidence: DEPOSITIONS, 
 
 Examina- 
 tion iiiuler 
 the Stat. 
 1 W. 4, 
 c. 22. 
 
 How 
 proved. 
 
 Existence 
 of cause. 
 
 attendance and examination of witnesses, as the court whereof they 
 are Judges does for that purpose, in causes depending in that court (0- 
 
 Sec. 3. Costs of every such writ or commission are to be in the 
 discretion of the court issuing the same. 
 
 Sec. 4. Witnesses may be ordered by the courts and the Judges 
 thereof, upon apphcation of the parties to the suit, to be examined 
 upon interrogatories before any of the officers of the court, if within 
 the jurisdiction, otherwise by commissioners. 
 
 Sect. 5. The court making any such order may compel the 
 attendance of witnesses and production of documents ; disobedience 
 of order to be deemed a contempt of court. Witnesses entitled to 
 expenses. No document to be produced but such as would be 
 produceable on trial. 
 
 Sec. 6. The court may issue a habeas corpus for the examination 
 of prisoners. 
 
 Sec. 7. Examinations to be taken on oath. Persons giving false 
 evidence to be guilty of perjury. 
 
 Sec. 8. A special report to be made by commissioners as to the 
 conduct or absence of witnesses, if necessary. 
 
 Sec. 9. Costs of every order and proceedings thereupon (except 
 as before provided for) to be costs in the cause, unless otherwise 
 directed by the Judge or court. 
 
 Sec. 10. No examination to be read without consent of the 
 party against whom the same may be offered, unless the witness be 
 beyond the jurisdiction of the court, dead, or unable to attend ; in 
 which cases the examination, certified by the commissioner, shall 
 be read in evidence, saving all just exceptions. 
 
 Sec. 11. No order shall be made by a single Judge of the county 
 palatine of Durham who shall not also be a Judge of one of the 
 courts at Westminster. 
 
 The preparatory facts must first be proved which warrant the 
 reception of the evidence, as that the witness is dead, insane, or 
 absent, unless lapse of time negative his existence (u). Where a 
 deposition, 39 years old, represented the witness to be 60, it was 
 held that it could not be read without proof of his death {x). Next 
 it must be proved that such a cause existed, and between the same 
 parties, in order to show the admissibility of the oath of the wit- 
 ness ; for if no legal cause existed, the oath was nothing more than 
 
 {t) A commission to examine witnesses 
 directed to the members of the Court of 
 Commerce at Hamburgh without the usual 
 clause requiring the commissioners to be 
 
 sworn, was allowed. {LittJedule, J. duh.) 
 Clay V. Stephenson, 3 Ad. & Ell. 807. 
 
 (u) Benson v. Olive, in Scacc. Str. 920, 
 where the deposition was 60 years old. 
 
 (x) 1 Ford's MSS. 14G ; Str. 920 ; qu. et vid. supra 310.
 
 PROOF OF. 32r) 
 
 a voluntary affidavit (?/). Although the bare production of the ExiHtence 
 postea, without proof of final judgment, be no evidence of the ver- |.'^u'^'" 
 diet, for judgment may have been arrested, or a new trial granted, 
 yet it is good evidence that a trial was had between the same par- 
 ties, so as to introduce the evidence of a witness (who is since 
 dead) at the trial {z). And so it is on an indictment for perjury (a). 
 
 Where a rule of Court had been made, by consent of the parties, 
 that the Judge's notes, and the shorthand writer's notes of the 
 evidence given at the trial of a former issue between the same 
 parties of witnesses, since dead, should be read at the trial of the 
 (then pending) ejectment, the Court {h) held, that the lessor of the 
 Plaintiff was precluded from objecting that the evidence of Mr. 
 Bleasdale, an attesting witness to the will under which the de- 
 fendant claimed, and who was since dead, should be read in evi- 
 dence ; and that such evidence being admissible, was direct and 
 immediate evidence sufficient to prove the will, although another 
 witness to the will was present at the trial, but was not called as a 
 witness in the cause (c). 
 
 Where the deposition has been taken in Chancery it is neces- 
 sary to prove the bill and answer (J), in order to show the exist- 
 ence of a lawful cause, and that the depositions relate to the same 
 matter. And therefore, exemplified depositions in the Duchy 
 Court were held to be inadmissible, because the answer was not 
 exemplified (e). But where the Court of Chancery makes an order, 
 on directing an issue at law, that the depositions shall be read, 
 proof of the bill and answer are unnecessary {f). And where the 
 bill and answer have been lost, they may be supplied by other 
 memorials {g). And ancient depositions have been admitted with- 
 out proof of the bill and answser, because formerly they were not 
 
 (2/) B. N. P. 242; 1 Ray. 730; 12 Vin. 4 Gwill. 1619. Byam v. Booth,2 Price, 
 
 Ab. Ev. A.b. 61, PI. 16. 234,n. ^a^er v, S'?/;eeif, Bunb. 91. If the 
 
 (r) B. N. P. 243; 1 Str. 162. bill is dismissed for informality, see 2 P. 
 
 (a) B. N. P. 243. B. v. Ilei, M. 14 G. 2, Wms, 162. 
 
 cor. Raymond. (e) Clay 9 ; Vin. Ab. Ev. A.b. 31. 
 
 (b) Wright v. Doe d. Tathan, in tlie (/) But the order is not made for the 
 Exchequer Chamber, in error. 2 Ad. & Ell. 3 purpose of making that evidence in a court 
 See tit. Best Evidence, and Vol. II. of law, which would not otherwise be ad- 
 tit. Will. missible. Palmer v. Lord Aylesbury, 15 
 
 (c) Note, that it was not contended at Ves. 176. Corbet v. Corbet, 1 Ves. & 
 the trial, or afterwards on the part of the Beames, 340; and therefore proof that the 
 lessor of the plaintiff that the evidence was witnesses themselves cannot attend is ne- 
 not admissible ; but that although admis- cessary. Where there is no such order the 
 sible, it did not dispense with calliug the bill and answer must be proved, as in or- 
 surviving witness. dinary cases. 
 
 {d) Button's Case, Trial at Bar, Ray. {g) Barly's Case, 5 Mod. 210; Vin. Ab.. 
 
 335 ; Vin. Ab. Ev. A. b. 31, pi. 12 ; Gilb. Ev. A. b. .36, pi. 33. 
 Ev.56;B.N.P.240. Illingtvort\T. Leigh, 
 
 y 3
 
 326 
 
 WRITTEN EVIDENCE : DEPOSITIONS. 
 
 Existence 
 of lawful 
 causi'. 
 
 Identity of 
 deponent. 
 
 Proof by 
 coj)y, kc. 
 
 enrolled, and were liable to be lost (h). The depositions may be 
 used although the bill has been dismissed, on the ground that the 
 Court considered the matter unfit for a decree in equity (i). Where 
 evidence has been given upon the trial of an issue directed by a 
 court of equity, upon a bill filed by a party, it is no objection to 
 the receiving the evidence of a witness examined on the trial of that 
 issue upon the trial of an ejectment between the same parties, that 
 the bill has since been dismissed {k). Depositions taken by order 
 of Queen Elizabeth, on petition, without bill and answer, were 
 allowed to be read (l). 
 
 In ordinary cases, it seems to be sufficient to prove that the 
 deposition was signed by the Master; but upon an indictment 
 for perjury the identity of the deponent must be strictly proved (m), 
 A deposition may be proved by an examined copy (n); office 
 copies, though admissible in equity, are not admissible in a court 
 of law. Upon the trial of an issue directed by the Court of Chan- 
 cery to try the validity of an alleged deed of gift, it was held 
 that an office copy of a deposition made by the plaintifF^s brother 
 in the suit in equity, and which was proved to have been ex- 
 amined with the original, was admissible to contradict the wit- 
 ness (o). The party reading the deposition must, as part of 
 his own case, read also the answers to the cross interroga- 
 tories (p). And he cannot read part of a series of interrogatories, 
 abandoning the rest (9). Upon a trial of an issue at law, directed 
 (h) 2 Keb. 31 ; Law. Ev. 113. 65, 2d ed. aininer that the depositions were taken on 
 Byam v. Booth, 2 Price, 231. Illingioorth the day of their date. 
 
 T. Leigh, 4 Gwill. 1015. It. v. Countess 
 of Arundel, Hob. 112. Depositions taken 
 under a commission issuing out of the Ex- 
 chequer, cannot be I'ead without producing 
 the commission, unless they are of so long 
 standing as to afford a presumption that 
 tlie commission is lost. Bailey v. Wylie, 
 C Esp. 85. But per Lord Ellenborough, if 
 the commissiou be produced, it is not ne- 
 cessary to produce tlie bill and answer 
 upon which the commission was granted. 
 Ibid. Answers to interrogatories may be 
 used as admissions, although some of the 
 answers are not intelligible of themselves. 
 Howe V. Brenton, 8 B. & C. 762. 
 
 (i) Hall V. Hoddesdon, 3 P. W. 162. 
 
 {K) Wright v. JDoe d. Tut ham, 1 Ad. & 
 Ell. 3. 
 
 (Z) Hob. 112. 
 
 {m) 3 Mod. 116, 117. See tit. Perjury. 
 Ld. Holt, in one case (Ld. Raym. 734), 
 held that it should be jiroved by the cx- 
 
 (n) Gilb. Ev. 21 ; B. N. P. 229; Starkie'a 
 C. 13. 
 
 (0) HighJieUl v. Peake, 1 M. & M. 
 C. 109, cor. Littledale, J., who said, that 
 this being an issue out of Chancery might 
 be considered as a proceeding in that court, 
 and therefore that the office copy, according 
 to the case of Dunn v. Fulford, 2 Burr. 
 1179, might be considered to be good evi- 
 dence. In the case of Hees d. Hoicell v. 
 Brown, 1 M. & Y. 383, the Court of Ex- 
 chequer is reported to have held that aa 
 examined copy of an affidavit, made for the 
 purpose of obtaining an injunction, was not 
 admissible; but see 1 M. & M. C. 111. 
 Ewer v. Ambrose, 4 B. & C 25 ; Hennel v. 
 Lijon, 1 B. &A. 182. 
 (j)) Timperly v. Scott, 5 C. & P. 341. 
 {q) Wheeler v. Atkinson, 5 Esp. C. 246. 
 Even althougli the answers state the con- 
 tents of writings inadmissible in evidence. 
 M'lntyrc v. Luyard, R. & M. 203.
 
 PROOF OF. 327 
 
 by the Court of Chancery, depositions will be allowed to be read, Proof by 
 under an order of the Court of Chancery, without proof of the bill "'^'^''^ 
 and answer (r). Such an order is not made for the purpose of 
 making that evidence whicli would not otherwise be admissible (s) ; 
 and depositions under such an order are not admissible without 
 proof at the trial that the deponents cannot attend in person. 
 Where the evidence of a witness upon a former trial is adduced, the 
 evidence itself must be proved on oath (t). And in Lord Valmer- 
 storis Case the evidence was rejected, because the witness could 
 give the effect only of the evidence, and not the words («)• Where 
 a witness on a former trial of an issue out of Chancery died, and a 
 new trial was granted, parol evidence of what such witness had 
 sworn, was held to be admissible, notwithstanding an order for 
 reading the depositions in equity of such witnesses as had died 
 since the first trial (x). The copy of the deposition of a person 
 examined upon interrogatories at the Chief Justice's chambers, 
 signed by the Chief Justice, and received from his clerk, must be 
 taken prima facie to be a correct copy of what has been sworn by 
 such witness; and the original examination need not be produced 
 until some suspicion of forgery is thrown upon the signature of the 
 deponent {y). Where the deposition has been taken under the 
 statute 7 Geo. 4, c. 64, it must be shown that the requisites of the 
 statute have been complied with {z). 
 
 It is no objection that the interrogatories were leading ones, 
 where the party might have objected (a). 
 
 Where the interrogatories to certain tenants at assize session 
 courts, upon proper search could not be found, it was held that the 
 answers might be read, subject to the consideration, whether their 
 effect would not be destroyed by any ambiguity which might arise 
 from the want of those questions (6). 
 
 Depositions taken in ecclesiastical causes before courts of com- 
 petent jurisdiction are admissible on the same principles which 
 
 (;•) Palmer v. Lord Aylesbury, 15 Ves. the witness deposing as to what the de- 
 
 \1Q; Corbet y. Corbet, 1 Ves. & B. 340. feudant swore on a trial, stated that he 
 
 (s) 15 Ves. 176. But see Doe\. Wright, could not swear he had stated all whicli 
 
 2 Ad. & Ell. 3, supra 325. fell from theprisoner, but would swear that 
 
 (t) 1 Sid. 325 ; Law of Ev. 31 ; Bac. Ab. he had said nothing to qualify it ; it was 
 
 Ev. 629. The evidence of a witness upon held to be sufficient. Rowley's case, 1 Ey. 
 
 the former trial may be proved either by & M. 111. 
 
 the Judge's notes, or on oath, by the notes (x) Tod v. Harl of Winchelsca, 3 C. Sc 
 
 or recollection of any person who heard it. P. 387. 
 Mayor ofDoncaster v. Bay, 3 Taunt. 262. {y) Duncan v. Scott, 1 Camp. 169. 
 
 (m) But qu. whether so great exactness (c) See tit. Admissions. 
 
 is necessary ; even an indictment for per- (a) TFiiZia?;w v.^-'t/Ziams, 4 M.& S. 497. 
 
 jury sets out the substance only. Where {b) Bowe v. Brenton, 8 B. & C. 765. 
 
 Y 4
 
 328 
 
 WRITTEN EVIDENCE : WRITS. WARRANTS, &C. 
 
 Proof by 
 copy, &c. 
 
 Writs, 
 warrants, 
 &c. when 
 evidence. 
 
 For what 
 purposes 
 admissible. 
 
 warrant the receiving such evidence in other cases (c). There are 
 indeed several cases to the contrary, but as these are founded prin- 
 cipally upon the objection that ecclesiastical courts are not courts 
 of record, and partly on the objection that their proceedings are 
 governed by the rules of the civil law, it seems to be unnecessary 
 to discuss them at length. The reception of depositions in equity 
 is an answer to the first objection ; and, as to the second, it may be 
 answered, that the principles on which depositions in other causes are 
 held to be receivable in courts of common law, are quite independ- 
 ent of the use to be made of such depositions. It is sufficient that 
 the court possesses jurisdiction (<i) such as to warrant the punish- 
 ment of one who swears falsely, and that the adverse party had 
 due notice and opportunity to be at all the examinations and cross- 
 examine the witnesses. Upon the same principles, it seems that a 
 deposition before commissioners of excise having power to inquire 
 as to forfeitures, is admissible upon an appeal, in case of the death 
 of the deponent (e). 
 
 Thirdly, as to writs, warrants, pleadings, and bills and answers in 
 Chancery, and other documents incidental to judicial proceedings. 
 Writs and warrants are in general evidence to show the mere 
 fact of their existence, whenever it becomes material, against all 
 the world ; for the issuing or existence of a writ is a^ mere fact. A 
 writ is evidence to prove the commencement of the action, in oppo- 
 sition to the memorandum or title of the record. Thus where the 
 proceeding was by original, or in the Common Pleas, the writ was 
 evidence to show that the action was commenced earlier than it ap- 
 peared to have been by the record, which was intitled of the term in 
 which issue was joined (/). Accordingly, where in an action on an 
 attorney's bill in that court, it appeared that the bill had been deli- 
 vered September 30th, 1797, and the record was entitled of Hilary, 
 1798, it was held to be incumbent on the defendant to show by 
 the writ that the action had been in fact commenced before the ex- 
 piration of the month {g). So the plaintiff, in order to save the 
 statute of limitations, or a tender, might give in evidence a bill of 
 Middlesex, or latitat (h). Where the cause of action appeared in 
 
 (c) Gilbert's Ev, GO. 
 
 (d) Depositions in a cause, in the 
 Spiritual Court relating to land cannot 
 be read, because they are no oath at all, 
 inasmuch as the Spiritual Courts have no 
 authority to take depositions relating to 
 lands. Gil. Ev. p, 60. 
 
 (e) According to the opinion of Lord 
 Holt in Breedon v. Gill. 1 Lord Ray. 219. 
 
 (/) 3 B. & P. 263. 
 
 {g) Wehb v. Pritchett, ibid. 
 
 (h) 1 Sid. 53. Daaj v. Church, ibid. 
 60. Welden v. Grey, 1 Str. 550. Hollister 
 v. Coulson, 2 Str. 736. Crokatt v. Jones, 
 2 Burr. 961. Johnson v. Smith, 2 Burr. 
 1243. Morris v. Pugh, Cowp. 445. And 
 see Vol. II. tit. Limitations — Timk,
 
 rORCE AND EFFECT. 329 
 
 evidence to have arisen after the first day of the term, and there For what 
 was no special memorandum, the plaintiff might show by the pro- ajin^asibie. 
 duction of the writ that it was issued after the cause of action 
 had in fact accrued (i) ; for in general a latitat might be consi- 
 dered by the plaintiff either as the commencement of the action 
 or as process (k). In the Common Pleas the production of the 
 capias ad respondendum proved the commencement of a penal or 
 of any other action (Z). Where to a plea of tender, or the statute 
 of limitations, the plaintiff replied an original sued out within 
 the time, the production of the capias ad respondendum was held 
 to be evidence of it, for the Court would presume it (m). 
 
 Where goods are seized under a Jiej'i facias, if the defendant Effect of 
 himself bring an action, it will be sufficient for the bailiff to prove evidence. 
 the writ; but if the action be brought by a person claiming by 
 virtue of a prior execution, or a sale which was fraudulent, the 
 bailiff must prove the judgment as well as the writ ; for, in the first 
 case, by proving that he took the goods in obedience to a writ 
 issued against the plaintiff, he shows that he has committed no 
 trespass ; but in the latter cases, they are not the goods of the 
 party against whom the writ issued, and the officer is not jus- 
 tified in taking them unless he can bring the case within the stat. 
 13 Eliz., for which purpose it is necessary to show a judgment (re). 
 Accordingly, where A . brought an action of trespass against the 
 sheriffs, who proved a fieri facias against the goods of S., but did 
 not prove a copy of the judgment; after a verdict for the plaintiff 
 upon the point reserved, the Court held that the judgment ought 
 to have been proved ; but because it appeared that the goods were 
 in fact the goods of JB., and that his conveyance of them to A., 
 B. himself remaining in possession of them, was fraudulent, the 
 Court granted a new trial (o). 
 
 Where in ejectment the lessor of the plaintiff claimed under a 
 sale upon a fieri facias, in an action by himself against the defend- 
 ant in ejectment, the Court held that he was bound to prove the 
 
 (i) 3 Burr. 1241 ; 1 31.312. justification for seizing the goods of the 
 
 {k) Woodv. Newto7i, 1 Wils. 141. defendant; but if those goods be claimed 
 
 (I) 2 Bl. R. 924, 925. Leader v. Moxon, by another under a colourable title, the 
 
 3 Wils. 461 ; 1 Lord Raym. 434 ; Willes' officer must show that the act of transfer 
 
 R. 255. Karver v. James, contra. 1 Lord was fraudulent, and therefore void as 
 
 Raym. 553. 3Iors y. Benerton, 2 Lord against a judgment-creditor; and there- 
 
 Raym. 880. Gosling v. Witherspoon, Sitt. fore must show that a judgment existed, 
 
 after Mich. 1788. (o) Martyn v. Podger, Burr. 2631 ; and 
 
 (7/1) Gosling v. Witherspoon, per Lord sec Lake v Billers, Lord Raym. 733. 
 
 Kenyon, Sitt. after Mich. 1788. See also Ackwortli\. Kemp, Doug. 40. 
 («) B. N. P. 234. The writ itself is a
 
 330 
 
 WRITTEN EVIDENCE : WKITS, WARRANTS, &C. 
 
 Effect of 
 tlie writ in 
 evidence. 
 
 Sheriff's 
 return on 
 a writ. 
 
 Writs, 
 proof of. 
 
 judgment as well as the writ(^>). In order to prove the crime of 
 murder against a party who kills an officer in the execution of 
 civil mesne process, it is necessary to prove the writ of as 
 well as the warrant from the sheriff {q). And so it is in case 
 of a justification by an officer in the execution of such pro- 
 cess (r). Upon issue taken on a plea of plene administravit, proof 
 of the execution is not evidence without the judgment, for without 
 it there appears to be no authority for the execution (s). 
 
 As the sheriff is a public officer and minister of the Court, credit 
 is given to the statement upon his return, as to his official acts. 
 Thus in the case of Gyfford v. Woodgate if), in an action for mali- 
 ciously suing out an alias fieri facias, after a sufficient levy under 
 the first, it was held, that the sheriff's return upon the two writs 
 which had been produced in evidence by the plaintiff, as part of 
 his case, in which the sheriff 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 himself, were prima facie 
 evidence of the facts so returned. So if the sheriff return a rescue, 
 the Court will so far give credence to such return as to issue an 
 attachment in the first instance ; though upon an indictment for a 
 rescue it would be open for the defendant to show that the return 
 was false (m). The sheriff's return is no proof that he has paid over 
 the money levied to the execution creditor (a:) ; his indorsement on 
 the writ is evidence against himself (?/). 
 
 The writ either has been returned, or it has not ; if it has been 
 returned, it is a record, and should be proved in the same manner 
 as any other record (^). If the writ has not been returned the ori- 
 ginal should be produced. 
 
 A writ, if not returned, is proved by the mere production ,• when 
 it has been returned, it may be proved by an examined copy (a). 
 The judgment-roll is incontrovertible evidence of all the proceed- 
 ings which it sets forth, therefore it is evidence of the issuing an 
 elegit, and of the return to the writ, in an action for use and occu- 
 pation, by the plaintiff claiming under an elegit (b). When the 
 
 (p) Doe on dem. Bland v. Smith, 2 
 Starkie's C. 199. For the effect of writs 
 and icarrants, &c. in evidence, as a justifi- 
 cation of the ofhcer, &c., see Officer, 
 Homicide, &c. 
 
 {q) B. V. Mead, cor. Wood, B. 2 Star- 
 kie's C. 205. 
 
 (r) 3 Lev. 63. 
 
 {s) Per Holt, J., Tri. per Pais, 227. 
 
 {t) 11 East, 296. 
 (m) B. v. ElUns, 4 Burr. 2129. 
 (a;) Cator v. Stokes, 1 M. & S. 599. 
 (?/) See tit. Sheriff, anA Martin v. 
 Bell, 1 Starkie's C. 413. 
 (») Vide p. 224, et seq. 
 
 (a) Supra, 22i. 
 
 (b) Bamsbottom v. Buckhurst, 2 M. & 
 S. 567.
 
 BILL IN EQUITY, 
 
 331 
 
 writ is mere matter of inducement, it may be proved by the pro- writs, 
 duction of the writ itself (c), without a copy of the record; for P^oofof. 
 possibly it may not have been returned, and then it is no record • 
 but where a record is the gist of the action a copy from the record 
 is necessary, because tliat is the best evidence. To prove an alle- 
 gation, that the defendant issued a writ against J.. J5,, it is not 
 sufficient for the plaintiff to show the entry of a prcecipe in the 
 filazer's book, and after proving notice to the defendant to produce 
 it, to give in evidence a copy ; it should be shown that scarcii was 
 made for it in the Treasury, and that after the return of the writ, it 
 was in the hands of the defendant {d). 
 
 A bill in equity is always evidence for the purpose of proving Bill -a 
 as a fact, that such a bill has been filed. But a bill in equity is '^^i""^^' . 
 
 ... . . T J wiieij evi- 
 
 not admissible, as it seems, in any case, even against the plaintiff deuce. 
 himself, or those who claim through him, as to any facts alleged 
 in the bill, even although they relate to matters of pedigree (e). In 
 the case of the Banhury Peerage, all the Judges held that, gene- 
 rally speaking, a bill in Chancery cannot be received as evidence 
 in a court of law to prove any fact, either alleged or denied in such 
 bill, although it relate to matter of pedigree, and be of considerable 
 antiquity, whether the object of the bill be to perpetuate testimony 
 or to obtain relief (/). 
 
 (c) B. N. P. 234; Gil. Law Ev. 34. 
 
 (rf) Edinonstone v. Plalsted, 4 Esp. C. 
 160. The sheriff's book is uot evidence of 
 the contents of a writ. Russel v. Dichson, 
 
 6 Bing. 442. 
 
 (e) Case of the Banbury Peerage, 23 
 Feb. 1809, 2 Sel. N. P. 712. JDoe v. Sy- 
 hourn, 7 T. R. 3 ; see Taylor v. Cole, 
 
 7 T. R. 3, n., where Lord Kenyon, at the 
 sittings after Hil. Term, 1799, is stated to 
 have held, that a bill in Chancery, filed by 
 an ancestor, was evidence to prove a fa- 
 mily pedigree, in the same manner as an 
 inscription on a tombstone, or in a Bible. 
 But see Com. Dig. Ev. C. 2. Devon v. 
 Jones, 2 Anst. 50-5. It was formerly held, 
 that a bill in equity was admissible evi- 
 dence against the plaintiff in equity where 
 his privity could be proved, although the 
 bill had not been acted on, and without 
 proof of privity if the bill has been acted 
 on. Ch. C. 64, 65. Snoio v. Philips, 
 1 Sid. 221 ; Eq. Ca. Ab. 227, pi. 1 ; B.N. P. 
 235 ; Fitzg. 196. Bowerman v. Syhourn, 
 7 T. R. 3. 
 
 (/) In the case of the Banbury claim of 
 Peerage, D. P. 23d Feb. 7, 1809 (cited 
 2 Sel. N. P. 712), the counsel for the pe- 
 titioner stated, that he would offer in evi- 
 dence certain depositions taken upon a bill 
 (seeking relief), filed in the Court of 
 Chancery on the 9th February 1640, by 
 Edward, the eldest son of the first Earl of 
 Banbury, an infant, by his next friend. 
 This evidence having been objected to, and 
 the point argued, the following questions 
 were proposed to the Judges : 
 
 Upon the trial of an ejectment brought 
 by E. F. against G. H. to recover the 
 possession of an estate, E. F., to prove 
 that C. D., from whom E. F. was de- 
 secended, was the legitimate son of .4. B., 
 offered in evidence a bill in Chancery, 
 purjiorting to have been filed by C, D. 
 150 years before that time, by his next 
 friend, such next friend therein styling him- 
 self the uncle of the infant, for the purpose 
 of perpetuating testimony of the fact that 
 C. D. was the legitimate son of A. B., 
 and which bill stated him to be such legi-
 
 332 
 
 WRITTEN evidence: ANSWER IN EQUITY. 
 
 Answer in 
 Chancery, 
 when evi- 
 dence. 
 
 An answer in Chancery is evidence as an admission upon 
 oath ig), but it is not evidence except against the party who made 
 it, or to contradict his testimony in another cause (/^); for with 
 respect to others, it is res inter alios {i). If a man make an 
 answer in Chancery which is prejudicial to his estate, it is not 
 evidence against his ahenee {k) ; unless, indeed, the plaintiff make 
 
 timate son (but no persons claiming to be 
 heirs at law of yl. B., if C. D. was illegi- 
 timate, were parties to the suit, the only 
 defendant being a person alleged to have 
 held lands under a lease from A. B., re- 
 serving rent to A. B. and his heirs ) ; and 
 also offered In evidence depositions taken 
 in the said cause, some of them puqrortiug 
 to be made by persons styling themselves 
 relations of A. B., others styling them- 
 selves servants in his family, others styling 
 themselves to be medical persons attendant 
 upon the family ; and in their respective 
 depositions stating facts, and declaring 
 that C. D. was the legitimate son of A. B , 
 and that he was in the family, of which 
 they were respectively relations, servants, 
 and medical attendants, or reputed so 
 to be. 
 
 First question : Are the bill in equity, 
 and the depositions respectively, or any, 
 and which of them, to be received in the 
 courts below upon the trial of such eject- 
 ment {G. H. not claiming, or deriving in 
 any manner, under either the plaintiff or 
 defendant in the said Chancery suits), 
 either as evidence of facts therein (alleged, 
 denied, or) deposed to, or as declarations 
 respecting pedigree ; and are they, or any, 
 and which of them, evidence to be received 
 in the said cause, that the parties filing 
 the bill and making the depositions, re- 
 spectively sustained the characters of 
 uncle, relations, servants, and medical 
 persons, which they describe themselves 
 therein sustaining? 
 
 Answer : Neither the bill in equity, nor 
 the depositions, are to be received in evi- 
 dence in the courts below, on the trial of 
 the ejectment, either as evidence of the 
 facts therein (alleged, denied, or) deposed 
 to, or as declarations respecting pedigree ; 
 neither are any of them evidence that the 
 parties iiling the bill, or making the depo- 
 sitions respectively, sustained the charac- 
 ters of uncle, relations, servants, and me- 
 
 dical persons, which they describe them- 
 selves therein sustaining. — The Judges 
 further added, that it would not make 
 any difference in their opinion, if the bill, 
 stated to have been filed by C. D., by 
 his next friend, had been a bill seeking 
 relief. 
 
 Second question : Whether any l)ill in 
 Chancery can ever be received as evidence 
 in a court of law, to prove any facts either 
 alleged or denied in such bill ? 
 
 Answer: Generally speaking, a bill in 
 Chancery cannot be received as evidence 
 in a court of law, to prove any fact, either 
 alleged or denied in such bill. But whe- 
 ther any possible case might be put which 
 would form an exception to such general 
 rule, the Judges could not undertake to 
 say. 
 
 Third question : Whether depositions 
 taken in the Court of Chancery, in conse- 
 quence of a bill to perpetuate the testi- 
 mony of witnesses, or otherwise, would be 
 received in evidence to prove the facts 
 sworn to, in the same way and to the 
 same extent as if the same were sworn to 
 at the trial of an ejectment by witnesses 
 then produced ? 
 
 Answer : Such depositions would not be 
 received in evidence in a court of law, in 
 any cause in which the parties were not 
 the same as in the cause in the Court of 
 Chancery ; or did not claim under some or 
 one of such parties. From 2 Sel. N. P. 
 712. 
 
 {g) Gil. L. E. 106; Godb.326. 
 
 {h) Ewer V. Ambrose, 6 D. & R. 127. 
 An examined copy of the evidence is in 
 such case sufficient. Ibid. 
 
 (i) Goodright v. JMoss, Cowp. 591. 
 
 {k) Salk. 286 ; B. N. P. 2-38 ; although 
 it be made before alienation. Ford v. 
 Lord Grey, 6 Mod. 44. But see Countess 
 of Dartmouth v. Roberts, 10 East, 344, 
 ii\fra, 286. An answer in Chancery re- 
 lating to an advowson, filed by a person
 
 ADMISSIBILITY. 333 
 
 it evidence by producing it first (/). As where in an issue out of when 
 Chancery to try the terms of an agreement which was proved by ^ ""®®' ®" 
 one witness, but denied by the defendant, the witness being dead 
 before the trial, the plaintiff' was under the necessity of produc- 
 ing the bill and answer in order to read his deposition, and by that 
 means made the whole answer evidence, and it was read for tlie 
 defendant (m). So the answer of an infant by guardian cannot be 
 read against him on a trial at law (w), for the law out of tenderness 
 to infants will not permit them to be prejudiced by the oath of a 
 guardian (o) ; but it seems that the answer of the guardian for the 
 infant may afterwards be used as evidence against himself, for it is 
 the answer of the guardian and not of the infant {p). The same 
 objection does not seem to apply to an answer made by a woman 
 during coverture, if offered in evidence after the death of the hus- 
 band. In the case of Wrottesly v. Bendish (rj), the Lord Chancellor 
 said that he would give no opinion on the point, whether such an 
 answer would be evidence or not (?•). But in the case of Hodson 
 V. Merest (s), it w^as held that the joint answer of the husband and 
 wife could not be read against the wife. The ground of objection 
 to admitting such an answer seems to be, that the wife was at the 
 time under the dominion of the husband, and not a free agent ; but 
 if the answer was adverse to the interest of the husband, a pre- 
 sumption of duress cannot arise. An answer by one defendant is 
 not evidence against another, for no one is bound by the acts or 
 declarations of another without his privity {t). But an answer by 
 
 formerly seised of it, and through whom read against the mother in a cause which 
 
 the party against whom it was sought to slie defends in a different capacity. Beas- 
 
 be used, but made twenty years after the ley v. Magrath, Schoales & Lefroys Rep. 
 
 former liad conveyed away his interest, 34. 
 
 held inadmissible. Gully v. Bishop of (o) Gil. L. Ev. 51 ; 2 Vent. 72 ; 3 Mod, 
 
 Exeter, 5 Bing. 171, and 2 M. & P. 266. 259 ; Carth. 79 ; Salk. 350 ; Vern. 60. 109, 
 
 See Deady v. Harrison, 1 Starkie's C. 60. 1 10. 
 
 The distinction seems to be between mere {])) 3 P. Will. 237 ; Carth. 7. 9. Beas- 
 
 collateral representations and those which ley v. Magrath, supra, note (r). 
 
 possess a legal effect and operate in law, or (<?) 3 P. Wms. 235. 
 
 are acts accompanying the possession, for (/•) It was objected, that an answer by 
 
 such, as in the case of tenants, &c. seem to the wife, whilst under the power of the 
 
 be always admissible. husbauil, would be of uo more use than the 
 
 (/) B. N. P. 238. answer of an infant. 
 
 (/«) Bourne v. Sir T. Whitmore, Salop, (s) 9 Price, 556. See Barroiv v. Guil- 
 
 1747. lard, 3 Ves. & Beames, 166. 
 
 (n) 2 Vent. 72 j 3 Mod. 259. Eccleston (^) Vide tit. Admissions — Partners. 
 
 \. Petty, Carth. 79. As to an admission Wych v. Meal 3 P. Wms. 311; 12 Ves. 
 
 by guardian, see Cowling v. Ely, 2 Star- 361. Upon a question of the right of a 
 
 kie's C. 366; but see Str. 548. But an lord of a manor to wreck, held that the 
 
 answer purporting to be the answer of a answers of persons, some tenants of the 
 
 minor by his mother and guardian, may be manor, to a commission issued by a former
 
 334 
 
 WRITTEN EVIDENCE : ANSWER IN EQUITY. 
 
 When 
 
 admissible. 
 
 The ichole 
 of an an- 
 swer is 
 evidence. 
 
 one partner is evidence against anotlier as to partnership liabilities, 
 since there is a privity and community of interest, and each, for 
 such purposes, is the agent of the other ; since, however, this de- 
 pends on the privity of interest, the partnership must be proved. 
 aliunde (u). So the answer of a party is evidence against one who 
 claims under him. Thus, in an action for not setting out tithe, 
 copies of a bill and answer, in a suit by the vicar for tithe-hay 
 against S. L., then owner and occupier of the close, and from whom 
 the defendant purchased, denying the vicar's right, and setting up 
 a right in the ancestor of the plaintiff, were held to be evidence 
 against the defendant (x). 
 
 It is a general rule, that the party who reads an answer makes 
 the whole of it evidence (y) ; for it is read as the sense of the 
 party himself, which must be taken entire and unbroken. Hence, 
 if upon exceptions taken, a second answer has been put in, the 
 defendant may insist upon having that read to explain what he 
 swore in his first answer {z). But where the evidence of a witness 
 is read merely in order to show that he is incompetent, the whole 
 is not evidence, but only so much as will show that he is incompe- 
 tent (a). Although the whole of an answer must in general be 
 read, the rule decides nothing as to the credibility of any fact 
 
 lord, stating the title of the lord, were 
 inadmissible, the right being of a private 
 nature, and the parties making the declara- 
 tions possessing no peculiar me.ans of know- 
 ledge. Talbot V. Leicis, 1 Cr. M. & R. 
 495 ; 5 Tyrw. 1 ; and 6 C. & P. 605. 
 
 (m) See tit. Admissions — Partners ; 
 and Wood v. Braddicke, 1 Taunt. 104. 
 Lucas V. De la Cour, 1 M. & S. 250. 
 Grant v. Jackson, Peake's C. 203. 
 
 (x) Countess of Dartmouth v. Roberts, 
 16 East, 334 J although the vicar aban- 
 doned the suit, and no decree was made. 
 Lord Ellenborough in that case observed, 
 " This appears to me not to be res inter 
 alios, but inter eosdem acta, and was not 
 only evidence, but strong evidence against 
 the defendant, who stood in the same place 
 by derivation of title and legal obligation 
 as the former occupier of the same land ; 
 and that former owner, on 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, the present owner, who 
 purchased of the former owner the very 
 lands over which tithes are now claimed), 
 
 is decrying the title of the rector in favour 
 of the vicar." See also Benson v. Olive, 
 2 Gwill. 701. Earl of Sussex v. Temple, 
 1 Lord Ray. 310. Travis v. Chaloner, 3 
 Gwill. 1237. AsJd>!/ v Power, ib. 1259; 
 and tit. Depositions. 
 
 (y) Barne v. Whitmore, Bac. Ab. Ev. 
 622. JSarl of Bath v. Battersea, 5 Mod. 
 9. Lyncli v. Clarke, 3 Salk. 153. See 
 Bermon v. Woodbridge, Doug. 757, supra. 
 And Partington v. Butcher, 6 Esp. C. 66. 
 and tit. Limitations. Earl of Montague 
 V. Lord Preston, 2 Vent. 170. Handle v. 
 Blackburn, 5 Taunt. 245. Pennell v. 
 Meyer, 2 M. & R. 99. Where the plain- 
 tiff iti equity reads a passage in tlie answer 
 as evidence of a particular fact, the de- 
 fendant cannot read subsequent matter, al- 
 though connected by conjunctive fiarticles, 
 unless it be explanatory of the passage read 
 by the plaintiff. Davis \. SpurUng,\ Russ. 
 & M. 68. See also B. N. P. 238 j 2 Vent. 
 194; I Ch. Ca. 194; Gil. Ev. 44. 
 
 {z) B. N. P. 237. R. V. Carr, 1 Sid. 
 418. 
 
 (a) Sparing v. Drax, 27, c. 2, C. B. 
 Trial at Bar, Bac. Ab. Ev. 622.
 
 ADMISSIBILITY. 335 
 
 which it contains, and this nmst dcjiend upon circunistances. TluMcfiole 
 Where tlic answci" chames the defendant by the achnission of one "*"''" !"'■ 
 fact, and also discharges him by the statement of a distinct and evidence, 
 further fact, the rule has been said to be, that what is achuitted 
 need not be proved by tlie plaintiff, but the defendant must mak^ 
 out his fact in discharge (Z») ; and therefore where the executor, in 
 an answer to a bill by creditors for an account of the personal 
 estate, admitted the receipt of 100/., but alleged that it had been 
 given to him by the testator, for his trouble in the testator's busi- 
 ness, it was held, that the defendant was bound to make out, by 
 proof, that which he insisted upon by way of avoidance ; since it 
 was probable that he admitted the fact out of apprehension that 
 it might be proved, and therefore it ought not so far to profit the 
 party as to give credit to the statement in avoidance. But the dis- 
 tinction was taken, that if the admission and discharge had been 
 one entire fact, as, if the defendant had said that the testator had 
 given him 100 L, it ought to have been admitted, unless disproved, 
 because nothing of the fact charged was admitted (c). In courts 
 of law, however, the rule is, that if a party read the defendant's 
 answer, the effect is to waive the objection which might otherwise 
 have been made on the score of competency, and to submit the 
 credibihty of all the facts stated to the consideration of the jury (fZ) ; 
 but it will not, it seems, operate to make a statement evidence 
 which is in itself inadmissible ; as, where it rests upon mere hear- 
 say by the party who made the answer (e). 
 
 A copy of a letter written by the plaintiff's agent, and referred 
 to in an answer by the plahitiff to a bill of discovery filed by 
 another party, in which suit the original letter was not filed, but 
 the copy in question was delivered by the plaintiff's solicitor to 
 the plaintiff's solicitor in the suit for discovery, may be read in 
 evidence without reading the plaintiff's answer (/). 
 
 (h) In Equity, B. N. P. 237. Where a (d) Boe d. Pellatt v. Ferrars,^ B. & P. 
 
 party (in equity) reads a passage from the 542. 
 
 defendant's answer, he reads all the facts (e) See Boe d. Pellatt v. Ferrars, 2 B. 
 
 stated in that passage ; if it refer to any & P. 542, and the observations of Chambre, 
 
 other passage, or facts stated in any other J., 2 B. & P. 548 ; Gil. Ev. 44. 
 
 passage, that must be read, l)ut only for jf (/) B., an underwriter, filed a bill of 
 
 the purpose of explaining the former; and discovery against A.; an assured, and IF., 
 
 if new facts are stated in the passage so his agent, who had effected the insurance ; 
 
 referred to, which must in grammatical A. and IF. put in their answers, in which 
 
 construction be read for the purpose of ex- they referred to a letter written by W. on 
 
 planation, the facts and circumstances so the subject of the insurance. The original 
 
 introduced are not to be considered as read. was not produced, but to save time and 
 
 Bartlett v. Gillard, 3 Russ. 157. expense it was agreed that a copy should 
 
 (c) B. N. P. 237. Per Cowper, C. Hil. be inspected, which was done, and a copy 
 
 Vac. 1707. taken by the underwriter. On an action
 
 33G 
 
 WRITTEN evidence: ANSWER IN EQUITY. 
 
 Proof of 
 bill and 
 answer. 
 
 An answer is proved by producino; the bill and answer (g), 
 or by proof of examined copies (A) ; and the answer should be proved 
 to be that of the party, by proof of his hand-writing, or by some 
 acknowledgment by him. In civil cases (it is said) it will be 
 presumed that the answer was upon oath {i) ; but since the answer 
 in civil cases operates merely by way of admission, it is sufficient 
 to prove it to be the answer of the party. The bill and answer 
 may be proved by means of examined copies, although the answer 
 be offered in evidence in a cause between different parties and it is 
 not necessary in civil cases to produce the original answer, and to 
 prove it to have been signed by the defendant {j). If on proof of 
 the copies, the names and characters of the parties correspond, 
 that is sufficient jorma facie proof of the identity of the parties, 
 and the burthen of repelling the presumption lies on the objecting 
 party {k) ; but it is otherwise in a criminal proceeding on an indict- 
 
 brought by ^.against another underwriter, 
 it was held that the latter was entitled to 
 read the copy in evidence without reading 
 ^.'s answer. For whether it be or be not 
 necessary to read an answer in Chancery 
 for the purpose of making documents evi- 
 dence which may be annexed to it, the rule 
 would not apply to the case in question, 
 for the letter was not before the Court of 
 Chancery. And Lord Tcnterden observed, 
 " I should at present think it a very strong 
 proposition to say that the answer must at 
 all events be read, though having no con- 
 nexion with the case in which the docu- 
 ments are produced ; but here, at least, we 
 think the copy in question was admissible 
 without the answer." Long v. Chmnpion, 
 2 B. & Ad. 284. In an action against the 
 sheriff for a false return of iiuUa bona to 
 an execution issued against the goods of 
 JE., the latter having filed a bill in Chan- 
 cery, in which suit an order had been that 
 all letters written by E. inter alia, should 
 be brought into court ; held, that although 
 the defendant might give in evidence the 
 order as an act of court not affecting the 
 right of either parties, yet that the letters 
 of E. were inadmissible without the bill 
 and answer ; it not being proposed to put 
 in with them any letter written by the 
 plaintiff in reply, the answer might ex- 
 plain or wholly neutralize the effect of such 
 letters. Hewitt, v. Hcjott 5, C. & P. 77. 
 (^y) Bac. Ab. Ev. 623. The bill ought 
 
 to be produced, because it may be material 
 to explain the answer. 
 
 {h) Ewer v. Ambrose, 4 B. & C. 25. 
 Hennel v. Lyon, 1 B. & A. 182. Rees v. 
 Botoen, 1 M'Cl. & Y. 383. 
 
 {i) Bac. Ab. Ev. 623. B. N. P. 238, 
 239. See Crooke v. Bowling, Doug. 77. 
 James's Case, 1 Show. 327. 
 
 (j) Lady Dartmouth v. Roberts, 16 
 East, 334. Hodgklnson v. Willis, 3 
 Camp. 401. Ewer v. Ambrose, High- 
 field y.Peake, 1 M. & M. 109; svpra. 
 Studdy V. Saunders, 2 D. & R. 147. 
 Rees v. Boiven, 1 M'Cl. & Y. 383. In 
 the case of Dartnall v. Howard, 1 R. & 
 M. 169, it was held that for the purpose 
 of identifying the original answer, of which 
 an examined copy was produced, as the 
 answer of the defendant, a witness who 
 had seen the original was allowed to prove 
 that it was in the handwriting of the de- 
 fendant, though it was not produced. 
 Although the bill be lost, the answer will 
 still be evidence, as an admission under 
 the defendant's hand. 1 Ford's MSS. 
 145. 
 
 (A) Hennel v. Lyon, 1 B. & A. 182. 
 See 1 Lord Raym. 154 j 2 Bl. 1190. 
 Note, that the defendant in Hennel v. 
 Lyon was Charles Lyon, sued as the ad- 
 ministrator of Mary Lyon, and by his 
 plea he had admitted himself to be such 
 administrator, and the copy of the answer 
 showed that the bill was filed against
 
 pleadings: effect of, as evidence. 
 
 ;J37 
 
 ment for perjury, or an action for a malicious prosecution, wiiich is 
 in the natiu'e of a criminal proceeding (/). 
 
 But it is sufficient to produce the examined copy of the answer 
 of the witness in equity, in order to contradict his testimony, for 
 it cannot be regarded as a criminal proceeding (;«). On proof of 
 search for the bill by the officer in the proper office, and that it 
 cannot be found, the answer has been allowed in evidence without 
 proof of the bill («). 
 
 A man's voluntary affidavit is admissible against himself, and 
 if offered as an affidavit, must be proved to have been sworn (o) ; 
 but proof of the party's signature makes it admissible as a note 
 or letter, without further proof (^). Where an affidavit has been 
 made in the course of a cause, proof that such a cause was de- 
 pending, and that such affidavit was used by the party, would be 
 sufficient evidence to prove the affidavit in a civil suit {q). A copy 
 of a voluntary affidavit is not admissible in evidence, for it has no 
 relation to a court of justice (r). In order to prove an affidavit of 
 the defendant in the same court in which the action is tried, it is 
 sufficient to prove an examined copy, without proving the hand- 
 writing of the party, or that he was sworn (s). 
 
 Next as to pleadings in an action at law. Where there are 
 several counts in the same declaration, or several distinct pleas, 
 an allegation in one count or plea cannot be insisted upon by the 
 adversary as an admission of a fact, for a purpose distinct from 
 the proof of that count, or of the issue upon the plea ; for every 
 issue is to be distinctly tried. Thus upon a declaration in assumpsit, 
 by a landlord against a tenant for breach of good husbandry, 
 Charles Lyon as administrator of Ma?-y 508. i?. v. Morris, 2 Burr. 1189. The 
 
 Proof of 
 bill and 
 answer. 
 
 Lyon. The Judges relied on the coinci- 
 dence of description, and Lord EUenbo- 
 roiigh seems to have considered it as a 
 matter of public convenience to receive 
 such evidence in civil cases without further 
 proof. Identity may be evidenced where 
 necessary by proof of the party's hand- 
 writing. See i2. V. Benson, 2 Camp. 508. 
 B. V. Morris, 2 Burr. 1189. See further, 
 Bartnell v. Hoicard, Ry. & M. 169. 
 Scott V. Lewis, 7 C. & P. 349. Price's 
 Case, 1 Leach, 323. Bendy's Case, ib. 
 330; and tit. Handwriting— Perjury. 
 (Z) 16 East, 348. R. v. Morris, 1 B. & 
 A. 182. B. V. Benson, 2 Camp. C. 508. 
 See Vol. II. tit. Perjury. The fact of 
 swearing may be proved by evidence of the 
 Master's handwriting to the jurat, without 
 calling him. jR. v. Benson, 2 Camp. 
 
 VOL, I. 
 
 .Vflidavits. 
 
 Pleadings 
 in an action 
 at law. 
 
 jurat is evidence of tlie place where the 
 oatli was taken. R. v. Spencer, 1 Ry. & 
 M. 97 ; but not conclusive. Einden's 
 Case, 9 East, 437. 
 
 (w) Ewer v. Ambrose, 4 B. & C. 25. 
 
 (m) Gilb. Ev. 49. 
 
 (o) B. N. P. 238. 
 
 {p) Ibid. 
 
 {q) Ibid, and Show. 397 ; and perhaps 
 in a criminal proceeding. 
 
 (r) B. N. P. 338. And therefore a copy 
 of an affidavit made by the defendant in 
 Chancery, of his being worth 2,500 L, was 
 rejected by Lord Raymond, when offered 
 for the purpose of increasing the expenses; 
 and the plaintiff was obliged to send for 
 the original. Chambers v. Bobiuson, 
 B. N. P. 238. 
 
 (a) Cameron v. Lhjhtfoot, 2 Bl. R.1190. 
 z -j-
 
 338 
 
 WRITTEN evidence: MIXED DOCUMENTS. 
 
 Pleadincrs 
 in an action 
 at law. 
 
 Protesta- 
 tions. 
 
 Mixed 
 documents. 
 
 wliere there is one count which professes to be founded on a spe- 
 cial '.vritten agreement, and a second upon an impHed contract^ 
 the defendant cannot insist upon the first count as evidence that a 
 written contract exists, so as to impose upon the phtintiff the neces- 
 sity of producing it{t) ; and besides, every different count professes 
 to be founded upon a distinct ground of action. So in trespass, a 
 plea of justification does not supersede the necessity of proving the 
 trespass, where the general issue is pleaded (m). A protestation is 
 defined to be a saving to the party who takes it, from being con- 
 cluded by any matter alleged or objected against him on the other 
 side, on which he cannot take issue (x). According to Lord 
 Coke (?/), it is an exclusion of a conclusion that a party may by 
 pleading incur ; it is a safeguard to the party, which keepetli Iiim 
 from being concluded by the plea he is to make, if the issue be 
 ibund for him. 
 
 A protestation was of no use to the party who took it, unless 
 either the issue was found for him (z), or unless the matter could 
 not have been pleaded (a). Protestations are now excluded by the 
 new rules, but a party is to have the same advantage as if a pro- 
 testation had been made. 
 
 A demurrer to a plea in equity is not such an admission of the 
 facts charged, as to be evidence of those facts against the party 
 demurring, in a subsequent action between the same parties (b). 
 
 Secondly, documents which are partly of a public and partly of 
 a private nature, are court rolls, corporation books, and perhaps 
 also within the same class may be included the books of some 
 private companies. These, with respect to a particular class of 
 society, may be considered as public documents, because they pro- 
 
 {t) By Le Blanc, J., Lancaster Sp. Ass. 
 M SS. C. The plain tifl' cannot use one plea 
 of the defendant for the purpose of proving 
 a fact which the defendant denies in an- 
 other plea, nor can he use a notice of set- 
 off as evidence of the debt on the issue of 
 non assumpsit. Harrington v. Macmor- 
 ris, 5 Taunt. 228 j 1 Marsh, 53. Vol. III. 
 tit. Particulars. 
 
 (u) In trespass for throwing down and 
 carrying away stalls, as to all the trespass 
 but the throwing them down, the defend- 
 ant pleaded not guilty ; and as to the 
 throwing them down, a special justifica- 
 tion ; and therein justified both the throw- 
 ing down and carrying away ; and on the 
 issue joined, the Judge at tlic assizes would 
 not try whether the defendants were guilty 
 
 or not of carrying away the stalls, because 
 they had confessed that by their justifica- 
 tion ; and on motion for a new trial it was 
 denied, because the jury could never find 
 the defendants not guilty, contrary to their 
 own confession upon the record, though in 
 another issue. B. N. P. 298. Note, that in 
 the margin it is observed, that this case was 
 before the statute enabling the defendants 
 to plead double. 
 
 (a;) Plowd. 276, b. GrnijsbrooJt v. Fox, 
 Finch, 359. 3GI ; 2 Will. Sauud. 103, a. 
 
 (y) Co. Litt. 124. 
 
 (z) Bro. Prot. 14; Co. Litt. 124; 
 Plowd. 276, b. 
 
 (a) Ibid, and 2 Will. Saund. 103, a. 
 
 (b) Toinkins v. Ashby, 1 Mood. & MaJ. 
 C. 32.
 
 COURT ROLLS. 339 
 
 ceed from an authority which it recognizes ; but, with respect to 
 the rest of the community, they may be nothing more than mere 
 private documents, resulting from no acknowledged authority. 
 
 Court rolls and customaries of manors are evidence between the f"'>»''t rolls. 
 lord and the tenants, for they are the public rolls by which the 
 inheritance of every tenant is preserved ; and they are the rolls of 
 the Manor Court, which was formerly a court of justice (c). Such 
 documents, handed down from remote times, and kept in the muni- 
 ments of the manor, are not, as far as regards the tenants of the 
 manor, to be regarded as res inter alios actce; they are documents 
 to which all are privy. Custom is of the very essence of a copy- 
 hold tenure ; and as reputation is evidence to prove a custom {d), 
 so are those documents which contain the solemn adjudications or 
 opinions of the homagers or tenants themselves, as to customary 
 rights, or which have been handed down from one generation to 
 another, and reputed to contain a true account of the manorial 
 customs (e). Hence entries upon the court rolls are evidence to 
 prove the mode of descent, although no instances of persons having 
 taken according to that mode be proved (/) ; so they are to prove 
 that proclamations have been made(^). A customary of a manor, 
 which has been handed down from steward to steward with the 
 court rolls, is evidence of the mode of descent within the manor, 
 although not signed by any one (li). 
 
 The examined copy of a court roll (i) is admissible in evidence? 
 upon the same principle as the chirograph of a fine or enrolment of 
 
 (c) Gil. L. Ev. 235 ; 4 T. R. 670. See evidence, either as a presentment, the ho- 
 tit. Judgments. Ancient presentments mage having no right to decide upon a 
 are not evidence for the lord, unless signed claim made by an individual to the free- 
 by a party in privity of estate with the hold, or as an award, the party not ap- 
 person against whom they are produced. pearing to have submitted himself, or as 
 Benett v. Coste)', Burrough, J., Wilts evidence of reputation, being post litem 
 Sum. Ass. 1817. Presentments by ho- motem; and semble reputation could not 
 mage, restricting the lord's right, in affect a question of private right. Richards 
 respect of parcel of his demesne land, to v. Bassett, 10 B. & C. 657. 
 turn so many cattle only on the waste, not {d) Vid. Vol. II. tit. Custom. 
 acted on, have no weight against an uni- (e) See Lord Kenyon's observations. Roe 
 form contrary usage. Arundell v. Lord v. Parker, 5 T. R. 26; 2 M. & S. 92 ; and 
 Falmouth, 2 M. & S. 440. Where the CMpmmi v. Cowlan, 13 East, 10. Doc v. 
 plaintiff claimed a right in the soil of land Mason, 3 Wils. 63. 
 adjoining his farm, it being contended that (/) 5 T. R. 26 ; 2 M. & S. 92. 
 he had only a commonable right, held that {g) Doe v. Hellier, 3 T. R. 1 62. 
 an ancient instrument in the nature of a (h) Denn v. Spray, 1 T. R. 466. See 
 presentment at the manor-court by the tit. Copyhold. 
 
 freeholders, finding that the then owner of (i) Doe A. Bemiington v. Ilall, 16 East, 
 
 the farm, and those claiming the right of 208; 5 Esp. C- 221 ; Comb. 157. R. v. 
 
 the soil, had no separate right, but only a Haines, ib. 137. The originals are evi- 
 
 right thereon, as the other freeliolders, for dence, although unstamped. 16 East, 208; 
 
 commonable cattle, was inadmissible in 4 B. & Ad. 617 ; B. N. P. 247. 
 
 z 2
 
 ;mo 
 
 wiiiTTEN evidence: mixed documents. 
 
 CDiirt rolls, a deed {k). So a copy of a court roll under the hand of the 
 steward is good evidence to prove the copyholder's estate (/), 
 
 An examined copy of a particular entry in the court rolls of a 
 manor, is evidence without producing* the original, even where it 
 may be presumed that the books themselves contain other entries 
 connected with the point in issue (m). 
 
 A surrender of copyhold lands by deed out of court is evidenced 
 by the copy, although the stat. 48 G. 3, c. 149, requires the deed 
 and not the copy to be stamped («). See further on this subject. 
 Vol. II. tit. Copyholds. 
 
 The books of a corporation, containing a register of their public 
 acts, are evidence as between the members of the body, or against 
 the body, for they contain the rules and regulations to which they 
 are all subject, and to which all are privy (o). But they are not 
 evidence for the corporation against a stranger {p). 
 
 In the case of Marriage v. Lawrence (q), where in an action for 
 
 Corpora- 
 tion hooks.* 
 
 (k) Per Ilolroyd, J., in Appleton v. 
 Lord Brayhroohe, 6 M. & S. 38. 
 
 (/) B. N. P. 247 ; 16 East, 208. 
 
 (m) Doe d. Churchwardens of Croydon, 
 V. Cook, 5 Esp. C. 221. And see Style, 
 450. B. V. Shelley, 3 T. R. 141. R. v. 
 Allfjood, 7 T. R. 746. B. v. Lucas, 10 
 East, 235. Bateman v. Phillips, 4 Taunt. 
 162. Court rolls, containing licences to 
 fish, granted in the 1 7tli century at cer- 
 tain rents, are admissible to prove a pre- 
 scriptive right to a several fishery, claimed 
 as appurtenant to a manor, without show- 
 ing the actual payment of those rents, 
 where it appears that during the last cen- 
 tury leases have been granted of the 
 fishery, and that for the last forty years 
 the rents under the leases have been regu- 
 larly paid, or that other acts of ownership 
 have been acquiesced in. Rogers and 
 others v. Allen, 1 Camp. C. 109. As to 
 the right of inspecting court rolls, see 
 Vol. II. tit. Inspection. The right to 
 inspect does not depend on the pendency 
 of a suit. R. v. Lucas, 10 East, 235 ; but 
 see R. V. Allgood, 7 T. R. 746, contra. 
 An inspection will be granted on a pri?n& 
 facie title, 10 East, 235, as to ascertain a 
 right (to cut timber, e. gr.) which the lord 
 disputes. R. v. Tower, 4 M. & S. 162. 
 Where a lord of a manor is indicted for a 
 
 nuisance in not repairing the bank of a 
 river, the Court will not compel him to 
 allow the prosecutor, even though he is a 
 tenant of the manor, to inspect the court 
 rolls for the purpose of obtaining evidence 
 in support of the prosecution. R. v. Earl 
 of Cadogan, 5 B. & A. 902. 
 
 (w) Doe V. Jfee, 4 B. & Ad. 617. 
 
 (o) See thecaseof r^e^ybrtZ, 12 Vin.Ab. 
 90, pi. 16 ; and R. v. Motliersell, Str. 93. 
 
 {}}) Mayor of London v. Lynn, H. Bl. 
 214, in n. Mayor of Kingston-ujwn- 
 Hull V. Horner, Cowp. 102. Entries in 
 corporation books in order to show that- 
 the curate had been appointed by the cor- 
 poration, held inadmissible as evidence to 
 establish their right against the vicar. 
 Attorney-general v. Warwick Corp. 4 
 Russ. 222. 
 
 {q) 3 B. & A. 142. See the Mayor of 
 Kingston-upon-Hull v. Horner, Cowp. 
 1 03, where, in an action by the corporation 
 for tolls, entries from the corporation books 
 of the particulars of the tolls receivable to 
 the use of the mayor, &c. were read. 
 Copies of an ancient schedule produced 
 from the muniments of the corporation, 
 delivered to the toll-collectors, and by 
 which they collected, held admissible for 
 the corporation, although it would have 
 
 been 
 
 * For further details of the evidence respecting corporations, see Vol. II. tit. 
 
 CORPOBATIONS.
 
 CORPORATION BOOKS. 341 
 
 trespass the issue was upon the right of the corporation of" Maiden Corporn- 
 to take certain tolls, it was held that an entry from the books of 
 the corporation, dated 18th H. 8, purporting to contain the pro- 
 ceedings of the corporation against the masters of two ships who 
 had refused to pay tolls, the seizure of the ships, and the submis- 
 sion of the masters to the payment of a fine, and to have been 
 signed by the corporation clerk, was inadmissible, because the 
 entry was not of a public nature. But it was said that if the sub- 
 ject of the entry had been of a public nature, the case would have 
 been different. 
 
 A customary, found in a book amongst the records of a corpo- 
 ration, was held to be evidence against the corporation. But in 
 general, unless papers relate to the proceedings of the corporation 
 as a corporate body, they aie not evidence ; and therefore, a letter 
 found in a corporation-chest, in which A. B. was described to be of 
 another place, was held to be inadmissible on a question whether 
 A. B., at the time he did a corporate act, was an out-burgess or 
 not {r). 
 
 Upon the same principle, the books of public companies, or Books 
 copies of them, are evidence between those who aie interested in J|" 'aaies 
 them, as against each other, or against the company ; as the books &c- 
 of the East India Company, in a cause between the parties having 
 stock there (5). So the Bank books, or copies from them, are 
 evidence to prove a transfer of stock in the public funds {t). 
 
 To establish the book of a corporation in evidence, it should be Proof of 
 shown to have been publicly kept as such, and that the entries ^ooks!^'' '"° 
 were made by the proper officer {u). But an entry made by one 
 
 been otherwise if not sliown to have been See Vol. II. tit. Inspection. By the stat. 
 
 so delivered from the corporation, however 12 Geo. 3, c. 21, s. 2, freemen and burgesses 
 
 accurately corresponding. Brett v. Beales, of corporations are entitled to inspect the 
 
 1 Mood. & Mai. C. 417. records of any city, corporation, borough 
 (r) B. Gicyn, Str.401. or cinque port, and to take copies and ex- 
 («) Gearjj v. HosJmis, 7 Mod. 129. See tracts from them. By tlie stat. 32 Geo. 3, 
 
 2 Str. 1005; 1 Wils. 240; 1 Bl. R. 40; c. 58, s. 4, every mayor, &c. or other officer 
 1 T. R. 689 ; Doug. 593; 3 Salk 154. of any corporation having the custody of 
 
 {t) Bretton v. Co/je, Peake's C. 30. or power over the records, shall, upon the 
 (tt) R. V. Mothersell, Str. 92; 12 Tin. demand of any person, being a member of 
 Ab. 90, pi. 16. The usual mode of pro- the corporation, permit such person (except 
 curing an inspection of corporation books on particular excepted days) to inspect the 
 is by rule, where an action is pending ; by books and papers wherein the swearing in 
 m(mda7>ius in other cases. A rule can only of the freemen, burgesses, or other mem- 
 be granted where a cause is pending, and bers or officers of such corporation, shall 
 only then of a limited inspection. For an be copied, and to have copies or minutes of 
 unlimited inspection, the course is by man- the admission, or the entry of swearing in 
 damns. R.v.Babb,QT.n.510. LynnCor- of any one or more of such freemen, bur- 
 poration v. Benton, 1 T. R. 689. Barn- gesscs or other members or officers, on 
 staple Corporation v. Lather,, 3 T. R. 303. payiu? 6 d. for every 100 words, for wrUia- 
 
 Z 3
 
 342 
 
 PRIVATE WRITINGS : ADMISSIONS, 
 
 Corpora- 
 tion liooks, 
 proof of. 
 
 who acts for the officer pro tempore, as during the illness of the 
 town-clerk, is evidence, if the fact be proved {x). On this ground, 
 upon a quo warranto, it was held that minutes of the proceedings 
 of a corporation, taken several years before by the prosecutor's 
 clerk, and not kept as a public book, had been properly rejected 
 at the trial (?/). 
 
 The seal of a public corporate body need not be proved, as the 
 seal of an individual, by means of a witness who saw the seal 
 affixed, &c. to the instrument ; it is sufficient to show that the 
 seal is the official seal of the corporate body {z). As public seals are 
 of a permanent nature it seems that they are not within the prin- 
 ciple of the rule which dispenses with the proof of private seals 
 affixed to documents 30 years old {a). The documents must be 
 proved to have come from the proper place of deposit. But in an 
 action for a false return to a mandamus (b) , it was held that a cor- 
 porator was capable, as a depositary of the muniments, of being 
 brought forward for the purpose of producing them, subject to 
 cross-examination by the adversary, as to the custody of the 
 document (c). And it seems that if the party objecting wish to 
 inquire as to the custody, the corporator may be examined on the 
 subject {d). 
 
 the same, under a penalty, in case of refusal, 
 of 100 Z., payable to the informant. If 
 two are bailiffs, both are suable jointly, 
 Shculdam v. Bunniss, Cowp. 192. The 
 Stat, does not oblige him to grant inspec- 
 tion of books containing the orders for, and 
 memoranda of, admissions and swearing 
 in. Davis v. Humphreys, 3 M. & S. 223. 
 By the stat. 3 Geo. 3, c. 15, s. 4, candidates 
 on elections of members to serve in Parlia- 
 ment for corporations, &c. and their agents, 
 are entitled to inspect the books and papers 
 of the corporation, i&c. wherein the admis- 
 sions of freemen shall be entered, and to 
 have copies on payment, &c. This statute 
 extends to all books, papers, &c. containing 
 entries of admissions of freemen. Shculdam 
 V. Bunniss, Cowp. 192. See Vol. II. tit. 
 Inspection. 
 
 (x) R. V. Mothei-scU, Str. 92; 12 Vin. 
 Ab. 90, pi. 16. 
 
 (y) Str. 92; 12 Vin. Ab. 90, pi. 16. 
 
 (z) Moises V. Thornto7i,S T. R. 307. 
 Chadioick v. Bujiting, Ry. & M. 306. It has 
 been held that the seal of the city of London 
 proves itself, by Lord Kenyon. Woodmass 
 \. Mason, 1 Esp. C. 63, The production 
 
 of a sealed instrument purporting to be a 
 diploma of a decree conferred by the Uni- 
 versity of St. Andrew's, and proof that a 
 person calling himself the university libra- 
 rian, had shewn in a room which he called 
 the University Library a seal correspond- 
 ing with the instrument produced, was held 
 to be sufficient evidence. Collins v. Car- 
 negie, 1 Ad. & Ell. 695. 
 
 (a) B. V. Bathtoiclte, 2 B. & Ad. 648. 
 Where it was also held that the seal of a 
 bishop to an ordination was not to be re- 
 garded as his corporate seal. 
 
 {})) B. v. Nethertlmuj, 2 M. & S. 238. 
 
 (e) As to the means of procuring an in- 
 spection of such documents, see tit. In- 
 spection. 
 
 (d) Per LordEllenborough,J?.v.iVe<Aer- 
 thong, 2 M. & S. 337, citing a case in 
 which Lord Kenyon had so acted in an 
 action for a false return to a mandamus. 
 In the principal case it was held that a 
 certificate produced by a rated inhabitant 
 overseer, by which the appellant parish 
 admitted the settlement of the pauper in 
 the latter parish, was admissible.
 
 BY A PARTY. 343 
 
 Private writings and entries may, with a view to their operation Private 
 in evidence, be distinguished into those, First, to which the person ^^""^"'S**- 
 against whom they are offered was party or privy. Secondly, 
 Entries made by third persons (e). And they may be considered, 
 first, with respect to their natm-e, admissibihty and effect in evi- 
 dence; and, secondly, with respect to the means ot" proof. Docu- 
 ment offered in evidence against one who was a paity or privy to 
 them, are either, 1st, under seal, or 2dly, not under seal. All 
 documents to which a person was party {f) or privy are in general 
 admissible in evidence against him, since they operate as acknow- 
 ledgments or admissions on his part, or that of another through 
 whom he claims, that the facts contained in them are true, par- 
 ticularly if the admission was against the interest of the party so 
 making it(^). All written contracts are made for the express 
 purpose of being afterwards used as evidence of the contract, the 
 only difference between sealed and parol contracts in this respect 
 being this, that the former are more solemnly authenticated, and 
 not so easily revoked. So essential is it that the rights of men 
 should be evidenced by documents of this nature, that the law 
 itself requires, in many instances, the evidence of a deed to notify 
 and establish the particular facts, and in many others renders a 
 contract, or memorandum in writing, essential for the same pur- 
 pose. Thus incorporeal rights, as to fairs, markets, and advowsons, 
 cannot be transferred except by grant (A), and the provisions of 
 the statute of frauds in many instances render a note or memo- 
 randum in writing necessary to the proof of the contract (i). 
 
 In general, an admission under seal is conclusive upon the Express 
 obligor, and estops him from asserting or proving the contrary. J^'^'p''^""' 
 Thus, if a condition in a bond recite that a particular suit is 
 depending in the court of King's Bench, the obligor is estopped 
 from saying that there is no such suit there (k). So if the condition 
 of a bond be to perform the covenants in a particular indenture, he 
 
 (e) And the declarations made by third {g) See Vol II. tit. Admissions. Upon 
 
 persons frequently stand upon the same a question touching the right of presenta- 
 
 fountlation. In one instance, Serle v. tion by the bishop, a case stated by a former 
 
 Lord Barrington, Str. 826, infra 356, bishop for counsel's opinion, and found 
 
 nn entry was admitted as evidence for the among the family muniments of the latter's 
 
 party who made it. descendants, is admissible in evidence 
 
 (/) Letters written by a party are evi- against the former. Bishop of Meath v. 
 
 dence against him without producing the Marquis of Winchester, 'AB'm^. N. C. rJ3. 
 
 answers to such letters. Lord Bai-rymore, (h) See Gil. L. Ev. 8S ; Vol. II. tit. 
 
 Administrator v. Taylor, 1 Esp. C. 326. Prescription. 
 
 Kenyon, C. J. 1795. And see Smith \- (i) 29 Car. 2, c. 3. 
 
 Young, 1 Camp. 439. Eandle v. Black- (k) Cro. Eliz. 750 ; Com. Dig. Estoppel, 
 
 Jjiirn, 5 Taunt. 24.[>. A. 2. 
 
 z 4
 
 ;J44 PRIVATE WRITIlfCS : ESTOPPELS. 
 
 Express is estoppccl iroiii saying that there is no such indenture (/). So a 
 by a party, grantor is estopped by his deed from saying that he had no interest 
 in the thing granted (m). But a deed-poll does not estop a lessee 
 or grantee, for it is the deed of the lessor or grantor only (n). 
 Estoppel to In general, however, in order to conclude the party by his deed 
 vvhen?* ^ ' ^y ^^y ^^ estoppel, it should be pleaded, for if his adversary does 
 not rely upon the estoppel, the Court and jury are not bound by 
 it; but the jury may find the matter at large according to the 
 fact, and the Court will give judgment accordingly. Where, 
 however, the title of the party is by estoppel, and he has no oppor- 
 tunity of pleading it, the jury cannot find against the estoppel. 
 Thus in debt for rent on an indenture of lease, if the defendant 
 plead ?iil debet, he cannot give in evidence that the plaintiff had 
 nothing in the tenements, because if he had pleaded that specially, 
 the plaintiff might have replied the indenture, and estopped him ; 
 but if the defendant plead nihil hahuit, &c., and the plaintiff, 
 instead of relying on the estoppel, reply hahuit, &c. he waives the 
 estoppel, and leaves the matter at large, and the jury are to find 
 the truth, notwithstanding the indenture (o). 
 
 But when an estoppel creates an interest in lands, the Court 
 will adjudge accordingly upon the facts found by the jury. As if -4. 
 lease land to B. for six years, in which he has no interest, and then 
 purchase a lease of the same lands for twenty-one years, and after- 
 wards lease to C. for ten years, and these facts are found by verdict, 
 the Court will adjudge the lease in B. to be good, though it was 
 so only by the conclusion (p). 
 
 So in other cases, where the party who might have relied upon 
 the estoppel, in pleading, waives it, and gives the deed in evidence? 
 although the jury are not bound by the estoppel from finding 
 
 (Z) 1 Rol. 872, 1.30. Com. Dig. Estoppel, toppel., C; Ibid. Pleader, S. 6. So in 
 
 A. 2. For other instances, see tit. Ad- general, although the parties are estopped 
 
 MISSIONS. to say the truth, thejury are not. B. N. P. 
 
 {m) 2 T. R. 171. But the principle does 298. 
 
 ' not apply where the grantor is a trustee (ja) Com. Dig. Estoppel, E. 10. See also 
 
 for the public, and grants that which he Pol. 68. So if the plaintiff in ejectment 
 
 was not authorized by the Act from which make title by a judgment in a scire facias, 
 
 he derives his authority. Ibid. on a judgment in Trinity term, where the 
 
 (n) Co. Litt. 363, b. A lessee by inden- judgment was in fact of Michaelmas term, 
 
 ture, in an action of covenant for ploughing the jury cannot find that the original judg- 
 
 up Laines Meadows, without paying at a ment was of Michaelmas term. Trevivan 
 
 certain sum per acre, was held not to be v. Lawrence, Salk. 276. So if a woman 
 
 estopped from averring that Laines Mea- sue or be sued as sole, and judgment be 
 
 dows were not meadow ground, although against her as such, though she was covert, 
 
 they were described as meadows in the the sheriff shall take advantage of the 
 
 lease. Skipwith\. Green, ^iv.GlO. estoppel. 1 Rol.860, 1. 50; 1 Salk. 310; 
 
 {n) P.C. Salkeld, 277; Com. Dig. Es- Com. Dig. Estoppel, B, D.
 
 ENTRIES BY THIRD PERSONS. 345 
 
 according to the truth of the fact, yet it seems they would not Estoppel to 
 be warranted in finding a verdict contrary to the solemn admission when." '^ ' 
 of the party, without the strongest evidence of fraud. As for 
 instance, in an action of assumpsit, where the defendant pleads 
 the general issue, and gives in evidence a release which he might 
 have relied upon as an estoppel ; although he has waived the 
 estoppel, still the release seems to be conclusive evidence for the 
 defendant, in the absence of fraud. There are also numerous 
 instances in which a party, by his admissions and representations, 
 is concluded from showing the contrary in evidence, although the 
 fact could not have been pleaded by way of estoppel. For in- 
 stance, where a man has represented a woman to be his wife, in an 
 action for necessaries supplied to her, he would in general be con- 
 cluded by that representation, which would operate as a kind of 
 estoppel in pais{q). 
 
 It is a general rule that all privies, whether in blood as the Privies. 
 heir (?•), in estate as the vendee (s), or in law as the lord by 
 escheat (t), or one who claims under another by act of law, or in 
 the post(M), tenant in dower, or by the courtesy (x), are bound by 
 an estoppel. 
 
 The effect of deeds and written contracts, not under seal, will The sense of 
 be hereafter more fully considered under the several heads to which ^^^H^^l 
 they belong, as bonds, covenants, agreements, bills of exchange, altered by 
 policies of insurance, &c. It may be observed here, that since in dence. 
 all these cases these documents have been framed by the parties 
 themselves as the authentic evidence of the facts which they con- 
 tain, and of their own intentions, no other evidence can in general 
 be admitted to alter the obvious sense and meaning of the terms 
 which they have used ; to admit this would be to deprive them of 
 all effect as permanent memorials for the purposes of evidence, for 
 they could no longer be so considered if their meaning could be 
 altered and subverted by extrinsic and collateral evidence. Since 
 this is a fundamental rule, applicable to written evidence in gene- 
 ral, its nature and application will be more fully discussed here- 
 after {y). 
 
 Secondly, Entries and declarations made by third persons (for Entries by 
 the latter stand upon the same footing with the former) are not *'"''*' ^"^'' 
 
 (g) See Vol. II. tit. Admission. (0 Co. Litt. 35'i, a. 
 
 (r) Co. Litt. 352, a.; Pol. 61. 60. Com. ('^) ^o. Litt. 352. b. 
 
 Dig. Estoppel, B. 3 T. R. 365. (•^) P°^- ^^ 3 Co. Litt. 352. 
 
 (s) 1 Salk. 276. (2/) See tit. Parol Evidenck
 
 346 
 
 PRIVATE writings: ENTRIES BY THIRD PERSONS, 
 
 Entries by jn ordinary cases admissible ; they usually fall within the descrip- 
 
 sous. tion of rea inter alios acta (z). 
 
 Whether the declaration by a third person be oral or written^ 
 the general objection applies, that it was not made under the 
 sanction of an oath, and that the party against whom it is offered 
 had no opportunity to cross examine. Such a declai'ation or entry 
 is therefore, on principles already adverted to, inadmissible, unless 
 its admissibility be warranted by some special rule of law applica- 
 ble to the particular circumstances (a). 
 
 Entry by rpj^g entry or declaration of a mere third person may be admissi- 
 
 third per- -^ . . . 
 
 son, adniis- ble as Original evidence, where it accompanies and is explanatory ot 
 sible when, ^j^^ nature and quality of a material fact, or as secondary evidence, 
 where it is admissible on a principle of necessity, warranted by 
 particular circumstances, which afford a reasonable assurance that 
 the party whose testimony is no longer attainable knew the fact, 
 and communicated it faithfully. 
 
 The considerations which warrant the reception of such evi- 
 dence are principally these : 
 
 That the entry or declaration should have been made in the 
 course of office duty or business, and that it was against the 
 interest of the party to make it. 
 
 It seems to be clear that such an entry, when made in the 
 ordinary course of profession or business, and when it might 
 
 {z) Seeabovet.it. Res inter Alios, &c. 
 As to those which operate by way of ad- 
 mission, see Vol. II. tit. Admission. 
 
 («) In trover for taking goods by defen- 
 dant under colour of distress, the question 
 beingwhether the defendant or J". jB. was the 
 plaintiff's landlord, the latter having been 
 shown by the plaintiff to have been the 
 party to whom he and his father had always 
 paid the rent ; held, tbat the defendant, in 
 order to show that he received it merely as 
 agent, could not give in evidence accounts 
 rendered by that party in which he de- 
 scribed himself as agent, as the party being 
 alive might have been called, and that they 
 were therefore properly rejected. Spurgo 
 V. Brotcn, 9 B. & C. 935. In assumpsit 
 for two-fifths of a loss recovered by the 
 defendants as agents for S., an invoice 
 sent by S. to the defendants, to enable 
 them to recover from the underwriters, was 
 held to be evidence of the plaintiffs interest. 
 
 Mendham and another v. Thompson and 
 another, I Stark. 316; Ellenborough, C.J. 
 1816. But an invoice made out by S. and 
 not shewn to have been so sent, was re- 
 jected as merely S.'s, declaration. In an 
 action against underwriters, the bill of 
 lading, signed by the captain, is not evi- 
 dence of the shipment of the goods. Dick- 
 son v. Lodge, I Starkie'sC.226. A banker's 
 ledger is admissible to show that a cus- 
 tomer had no funds in the banker's hands. 
 Furness v. Cope, 5 Bing. 114. Semble, 
 more properly to show that no entry was 
 made in that ledger. — Note, that one of 
 the clerks stated that it was the book to 
 which all the clerks referred to see whether 
 they should pay the cheques presented to 
 the house; and Best, C.J. held tliat it was 
 admissible in order to obviate the necessity 
 for calling a multitude of checks, and that 
 it was evidence merely to negative the fact 
 of the trader having money in the house.
 
 WHEN ADMISSIBLE. 347 
 
 operate against the interest of the party making it, is sufficient to Entry by- 
 warrant the admission of the evidence. ^''''''' P*^""" 
 
 soii,a(liiiis- 
 
 And it seems that some connexion between the entry with some sibie when, 
 fact to which it relates, such as the possession of land, or with 
 the performance of some ordinary duty or course of business, is 
 essential to its admissibilty ; but whether that alone would be 
 sufficient, or whether it is also essential that the entry should be 
 such as might operate against the interest of the party making it, 
 is not clearly settled. 
 
 It may however be observed, that the consideration that the 
 entry was made in the course of discharging a professional or 
 official duty, or even in the ordinary course of business in which 
 the party was engaged, seems both in reason and upon the autho- 
 rities, to afford a much safer warrant for giving credit to sucli 
 evidence, than is svipplied by the consideration that the entry or 
 declaration might possibly have been used to the prejudice of the 
 party ; and in many instances the doctrine of admissibility on that 
 ground has been pushed to an extraordinary, if not untenable 
 extent. 
 
 It may further be remarked, that the mere circumstance of an 
 entry having been made which might operate against the interest 
 of the party making it, would not in itself, and independent of 
 some support from its connection with the exercise of some duty, 
 or with the ordinary course of dealing, be sufficient to warrant the 
 admission of the entry in evidence. Suppose, for instance, that a 
 party were to make an entry in his pocket-book that he had laid 
 a wager with another as to the existence of some fact, and that he 
 had lost the wager, the entry would be to a certain extent against 
 his interest, for it might by possibility be used as evidence against 
 him ; yet it seems to be clear that the entry would not be evidence 
 as to the fact against a stranger. The above remarks are supported 
 by the case of Doe v. Turford, {b). It was proved to be the 
 usual course in an attorney's office for the clerks to serve notices to 
 quit on tenants, and to indorse on duplicates of such notices the 
 fact and time of service. On one occasion the attorney himself 
 prepared a notice to quit to serve on a tenant, and took it out 
 with him, together with two others prepared at the same time, 
 and returned to his office in the evening, having indorsed on the 
 duplicate of each notice a memorandum of having delivered it to 
 the tenant, and two of them were proved to have been delivered ; 
 after his death the indorsement is evidence of the service of 
 such notice. For (per Lord Tenterden) the indorsement having 
 
 (b) 3 B. & Ad. 890.
 
 348 PRIVATE writings: entries by third PliRSONS, 
 
 Entry by been made in the discharge of his duty, was, according to the 
 til! Ju7'. autliorities, admissible evidence of the fact of service. Parke, J. 
 
 son, tKiiiiis- ' ' 
 
 sibie when, held that it was admissible evidence, not on the ground that it was 
 an entry against the interest of the party, but because, being an 
 entry made at the time of his return fiom his journey, it was one 
 of a chain of facts from which the delivery of the notice might be 
 inferred. Taunton, J. because it was made at the time of the 
 recorded fact in the ordinary course of business, and the fact was 
 corroborated by circumstances. 
 
 Lord Ellenborough, in the case of Doe v. Rohson (c), in giving 
 judgment as to the admissibility of entries of charges made by an 
 attorney in his books, lays no stress on the fact that it appeared 
 that such charges had been paid ; he says expressly, " the ground 
 upon which their evidence has been received is, that there is a total 
 absence of interest in the persons making the entries to pervert 
 the fact, and at the same time a competency in them to know it." 
 And in the case of Higham v. Ridgway {d), Le Blanc, J. observed, 
 " I do not mean to give any opinion as to the mere declarations or 
 written entries of a midwife who is dead, respecting the time of a 
 person's birth, being made of a matter peculiarly within the know- 
 ledge of such a person ; it is not necessary now to determine that 
 question ; but I would not be bound at present to say that they 
 are not evidence." 
 
 Lord Eldon, in the case of Barker v. Ray, observes, " the cases 
 satisfy me that evidence is admissible of declarations made by per- 
 sons who have a complete knowledge of the subject to which such 
 declarations refer, and where their interest is concerned ; and the 
 only doubt I have entertained was, as to the position that you are 
 to receive evidence of declarations where there is no interest. At 
 a certain period of my professional life, I should have said that the 
 doctrine was quite new to me ; I do not mean to say more than 
 that I still doubt concerning it." 
 
 It is observable, that the great object of the rule is, to guard not 
 against /raMc?, but negligence and carelessness; the slightest sus- 
 picion of fraud would be sufficient at once to exclude such evidence • 
 and the imposing the limitation, that the entry, to be admissible, 
 should be apparently against the interest of the party making it, 
 would afford no security against fraud ; the forger of a false entry 
 would take care to obviate any objection of this description, by 
 admitting payment or some other fact apparently against the inte- 
 rest of the supposed author of the document. The consideration 
 
 (c) 16 East, 31. (rf) 10 East, 109.
 
 WHEN ADMISSIBLE. 349 
 
 that the entry is against the interest of tlic party is tliereforc prin- Admissible, 
 cipally material, as it afibrds reason for supposing that a person ^^ ""* 
 would not be hkely to commit any error or mistake which might 
 afterwards turn to his prejudice. When, however, it is considered 
 that in many instances such entries remain in the private custody 
 of the parties who make them, it is not probable that the conside- 
 ration that the document might be published by accident or mis- 
 take, and might, in some possible state of circumstances, be turned 
 to the prejudice of the party, would cause him to exercise a degree 
 of exactness and caution, so far beyond that which he would have 
 used in the common course of professional or official duty, or ordi- 
 nary habits of business, as to supply a sound and useful test, ope- 
 rating to the admission of the former, the rejection of the latter. 
 In the absence of all suspicion of any motive to the contrary, it is 
 fairly presumable that all entries made in the ordinary routine of 
 business are truly made : the same motive which induced a party 
 to use the pains and trouble of making an entry at all, would 
 usually induce him to make a true entry ; a false one would be of 
 no value, and the making it would frequently be more troublesome 
 than to make a true one ; it would require the additional trouble 
 of invention; and although the sparing of trouble might, in many 
 instances, induce a party to state particulars without sufficient ac- 
 curacy, it would seldom cause him to invent and state a transaction 
 which never happened. 
 
 Whatever weight therefore be due to the consideration, that in 
 a particular case the entry of a fact contained an admission by the 
 party making it, which, if untrue, was against his interest ; it may 
 be doubted whether that circumstance be of so strong and decisive 
 a nature as to afford a sufficient test for the admission of such 
 entries, and the rejection of all others which do not contain an 
 admission against the interest of the maker. Upon a question like 
 this, the rule of law, unless some collateral inconvenience would 
 follow, ought to depend on the intrinsic weight of the evidence 
 admitted or excluded ; and it would be advisable, for the sake of 
 adherence to principle, as well as on grounds of convenience, to 
 avoid an arbitrary rule, founded on a casual circumstance, which 
 affects at most the weight of the evidence, not its value or quality, 
 and which would, in many instances, operate to exclude the stronger 
 and admit the weaker evidence. 
 
 Let it, by way of illustration, be supposed, that an attorney has 
 in the same book two accounts, in one of which are contained the 
 items in detail relating to the marriage settlement of A., in the 
 other a similar detail relating to the marriage settlement of B. ;
 
 350 
 
 PRIVATE WRITINGS : ENTRIES BY THIRD PERSONS. 
 
 Entries by 
 tliird per- 
 sons, ad- 
 missible 
 when. 
 
 that the first appears to have been paid, the other does not ; it may- 
 be asked, is any man's mind so constituted, that whilst he believed 
 the former entries to be all true, he could withhold his belief as to 
 the latter : could any one, in the absence of all suspicion of fraud, 
 believe that a professional man would mis-spend his time by in- 
 venting a string of falsities, asserting that he took such and such 
 instructions, and prepared this or that conveyance, without aim or 
 object? If any one could conceive to himself, in the absence of 
 any evidence to justify such a supposition, that the latter account 
 was invented for some sinister purpose or other, would it not occur, 
 that the admission of payment, tacked to the other, could not repel 
 a similar suspicion as to its truth ? What warrant could the ad- 
 mission of payment afford to obviate such a suspicion? How 
 could the party be prejudiced by admitting that he was paid lor 
 business never done ? On the same ground, therefore, that credit 
 was given to the former, viz. the improbability of invention for 
 some unknown sinister purpose, some, if not the same, degree of 
 credit would also be given to the other. 
 
 A presumption arises from the usual course of affairs, that an 
 entry made by a professional man was made at the time, or nearly 
 so, of the date ; such an entry is certainly not to be considered as 
 equal in force to direct evidence of the fact, the tests of an oath 
 and of cross-examination being wanting ; but it is impossible to 
 say that it is not evidence which in itself affords a reasonable pre- 
 sumption as to the truth of the fact to which it relates, because it 
 would be contrary to the usual course of human affairs, and to the 
 experience of mankind, that a person who must have known whe- 
 ther the fact which he recorded was true or false, should have wan- 
 tonly, and long before the importance of such a document could 
 have been foreseen, and therefore without any conceivable motive, 
 have stated that which was false rather than that which was true. 
 If, indeed, such evidence could not be admitted without breaking 
 down a strong and necessary bulwark for the protection of truth, 
 and letting in hearsay evidence in general, it might be worth while 
 to sacrifice such evidence to principles of general policy ; this how- 
 ever would not be the consequence, since the limitation of such 
 evidence to entries made by a person possessing peculiar means of 
 knowledge, and unaffected by any temptation to deceive, in the 
 usual course of his business or profession, would be, as it seems, 
 sufficiently definite to distinguish those entries from the mere un- 
 authorized entries or declarations of strangers. 
 
 In the first place, an entry or declaration accompanying an act 
 seems, on principles already announced, to be admissible evidence
 
 ACCOMPANYING ACTS. 351 
 
 ill all cases where a question arises as to the nature and quality of i^-"try or 
 
 1 i rri 1 ii i- • 1 1 • (Icc'liiratioii 
 
 tliat act. Inus where the question is, whether a promissoi'y note accom- 
 was originally void for usury, letters written by the payee to the r''"y'"S an 
 maker, and which are contemporary with the note, are admissible 
 to prove that the consideration was usurious (e). 
 
 Such evidence is also admissible on the same principle, to show Entries, i:c. 
 the intention with which an act was done, where the intention is ^Uh'^acts 
 material (/). Thus, on questions of bankruptcy, declarations made 
 by a trader, contemporary with the fact of absenting himself from 
 his place of residence or business, are constantly admitted in proof 
 of the real nature and quality of the act (g). 
 
 In the case of Aveson v. I.07'd Kinnaird{h), on an insurance 
 effected on the life of the wife, the question was whether she was 
 in an insurable state at the time ; and declarations by her, as to the 
 state of her health, made a few days after the certificate of her 
 health had been obtained, as to the state of her health at the time 
 when the certificate was obtained, and down to the time of the con- 
 versation, were held to be admissible in evidence, both to show her 
 own opinion as to the state of her healthy as well as with a view to 
 contradict the evidence of the surgeon who had been called as a 
 witness for the plaintiff. In an action of trespass, what the wife 
 said immediately on receiving the injury, and before she had time 
 
 (e) Kent v. Lowen, 1 Camp. 177. Walsh in an action after her death, treating him 
 
 V. StocMale, Vol. II. 181. A letter in- as executor de son tort, a list of creditors 
 
 closing a promissory note, may be read as made out by friend of trader under her 
 
 evidence, by the writer, to show the pur- direction about the time of the execution 
 
 pose for which the note was sent. Bruce of the assignment, was held to be evidence 
 
 and others v. Hurley, 1 Starkie's C. 23. to shew that the assignment was ioimfide. 
 
 </) Supra, Gl, 62; Vol. II. tit. Inten- Lewis v. Rogers, 1 C. M, & R. 48. 
 Tiox— Malice. (/t) 6 East, 293. Where the plaintiff had 
 
 (g) Supra 35,36. 62,63; Vol. II. tit. received in the lifetime of the owner certain 
 
 BAJfKRUPTCV. \Mien an act has been done notes as an alleged gift, and after the death 
 
 to which it is necessary to ascribe a motive, of the party, the defendant having inquired 
 
 what the person has said at the time is as to what property of the deceased the 
 
 admissible, for the purpose of explaining plaintiff was possessed, she voluntarily 
 
 the act. Bateman v. Bailey, 5 T. R. 512. produced the notes, stating at the time 
 
 Statements made by the bankrupt showing how she had received them, and the de- 
 
 his knowledge and opinion of the state of fendant had refused to deliver them back; 
 
 his affairs at the time ofthe acts in question, held that her account, as part of the res 
 
 held to be receivable although not accom- gesta, was admissible to go to the jury 
 
 panying any other act done ; so letters re- as to the way she became possessed, which 
 
 ceived by him in answer to applications for with other circumstances might induce the 
 
 advances are evidence to shew the refusal to jury to believe it correct or not. Hay- 
 
 render him such assistance, but not as to any slip v. Gtjmer,! Ad. & Ell. 162; and 3 
 
 facts stated in them. Vacher v. Cocks, 1 N. & M. 479. The declaration of the 
 
 Mood. & M. C. 353. A trader in embar. defendant's wife in delivering money to a 
 
 rassed circumstances made an assignment witness to be paid over to the plaintiff in 
 
 of all effects, &c. for the benefit of creditors: payment for sheep, is evidence in an action
 
 352 PRIVATE WRITINGS, ScC.t ENTRIES BY THIRD PERSONS. 
 
 jEiitrios, to devise anything for her own advantage, is also evidence (^). So 
 nected with i^ the complaint made by a person in case of rape, or an attempt to 
 acts. commit a rape, immediately after the injury(^). 
 
 To this head also the admissibility of declarations by tenants 
 has sometimes been referred, and it seems that such declarations 
 are clearly referable to this principle in all cases where the nature 
 and quality of an act of ownership or dominion, or of the posses- 
 sion, is questioned and requires explanation, or when the nature 
 and quality of the possession are questioned, and the contemporary 
 declaration of the party doing the act or of the party in possession 
 serves to elucidate and explain the nature and quality of such act 
 or possession. 
 
 The application of the general principle already announced stands 
 thus : In the absence of direct documentary proof of the title to 
 lands, or to an easement or right arising out of lands, acts of pos- 
 session and enjoyment must be resorted to as indirect evidence of 
 the right (Z). Where such possession and enjoyment have been 
 of long continuance, the law in many instances makes that pos- 
 session and enjoyment conclusive as to the right, and in all cases 
 renders such evidence admissible, on the reasonable presumption 
 that unless those acts and possession had been founded in right, 
 they would have been resisted by him whose right was violated. 
 But the admission of such acts of possession and enjoyment in 
 evidence, frequently introduces a question as to their nature and 
 quality, for on this must depend the question, whether they furnish 
 any inference of acquiescence in an adverse enjoyment. This again 
 must be decided by the mode and circumstances of enjoyment, and 
 for this purpose the contemporary declarations of the parties con- 
 cerned are necessary and essential evidence. If, for instance, the 
 question be whether A. has a right of way to his house over the 
 
 for the price. Walters \. Lewis, 7 C. & which would be better proved by title-deeds 
 
 P. 344. or possession. Acts of ownership, where 
 
 (i) Thompson and his Wife v. Tre- submitted to, are analogous to admissions 
 
 vanion, Skinn. 402. or declarations, by the party submitting to 
 
 (k) Brazier's Case, 1 East, P. C. 444. them, that the party exercising tliem has 
 
 B. V. Clarke,^ Starkie's C. 243. Trelaimy a right to do so, and that he is therefore 
 
 \. Caiman, ibid. 191. In an action for the owner of the property upon which they 
 
 libel of plaintiff, as surgeon of a poor-law are exercised. Per Best, J. in Hollis v. 
 
 union, for neglecting patients, held that the Goldfinch, 1 B. & C. 220. On an indictment 
 
 entries which the plaintiff was required to for shooting at the prosecutor, Patteson, 
 
 make by sect. 15 of the Act could not be j. held that evidence was admissible to 
 
 read as evidence on an issue whether the shew that prosecutor, immediately after 
 
 plaintiff neglected those patients. Meyrick the injury, had made communication of the 
 
 V. Wakley, 8 C. & P. 283; and 3 N. &P. fact to another, but that the particulars 
 
 284. could not be given in evidence. Rex v. 
 
 (0 Acts of ownership can only prove that Midsdale, York Spring Assizes, 1837.
 
 ACCOMPANYING ACTS. 353 
 
 close of B., and evidence be given that on a particular occasion Kntries, 
 the occupier of J..'s house used the close as a way, the whole force Verted"' 
 and efficacy of the evidence may depend on what was said at the ^^'♦'i 'icts. 
 time. If, on the one hand, it w^ere proved that at that time the 
 occupier of A.'fa house asked the permission of the owner or occu- 
 pier of the close to use the way, the fact, instead of affording evi- 
 dence of an adverse right, would be strong to negative the right ; 
 if, on the other hand, the right to use was asserted and acquiesced 
 in, the fact would afford evidence of acquiescence on the one hand, 
 and of right on the other. The case oi Doe d. Human v. Pettit(ni) 
 may be cited in illustration of these remarks. 
 
 Human was the purchaser of lands ; after his death, which was 
 30 years ago, his widow continued in possession for more than 
 20 years, and died ; the question between the heir-at-law of the 
 husband and the heir-at-law of the wife was, whether the possession 
 by the wife was an adverse possession ; and it was held, that her 
 declarations during her possession that she held for her life only, 
 and that after her death the premises would go to her husband's 
 heir-at-law, were admissible to rebut the statute of hmitations. 
 They were not used to show the quantum of her estate, but only to 
 explain the nature of her possession. 
 
 Upon similar grounds, title-deeds and testaments are admissible Title-deeds, 
 evidence of the rights of property (n). 
 
 (7n) 5 B. & A. 223. And see Came v. by-gone fact, the nature and terms of the 
 
 NicJioll, I Bing. N. C. 430. In the case original entry. In some instances, the 
 
 of Doe V. Rickarby, 5 Esp. C. 4, which admissibility of declarations by former oc- 
 
 was an action of ejectment on an alleged cupiers, on the ground that they were 
 
 forfeiture of a lease for breach of a co- against tlie interest of tlie declarants at the 
 
 venant not to injure or underlet, by time, have been carried to a great length. 
 
 underletting ; it appeared, that after the See WalJwr v. Bradstock, 1 Esp. C. 458. 
 
 house had been for some time empty, Mrs. Upon the trial of an indictment for obstruct- 
 
 Luthman was found in possession ; and it ing a highway, the question was, whether 
 
 was held, that the plaintiff was at liberty the road was j)ublic or private ; and it was 
 
 to prove that a witness on his behalf had held, that the declaration of a deceased oc- 
 
 inquired of Mrs. Luthman in what way she cupier at the time of planting an alleged 
 
 occupied it, and to give her answer in evi- boundary willow, was inadmissible, either 
 
 dence. This case, however, goes to a great as a declaration accompanying an act, or 
 
 length : it is difficult to say that such an as contrary to the party's interest, or as 
 
 answer can be admissible as original evi- evidence of reputation. Reg v. Bliss, 2 
 
 deuce during the life of the declarant, N. & P. 464. And see Tickle v. Broion, 
 
 except on the ground that she was the 4 Ad. & Ell. 378. 
 
 agent of the party to be affected, or that (n) 5«jt;ra,p.67,68.181;andseethecases 
 
 the declaration was evidence, as accom- there cited. A counterpart of a feoffment 
 
 panying the fact of possession. But there by a corporation, produced from their mu- 
 
 was no sufficient proof of agency to let in niments, without proof of rent ever liaving 
 
 such declaration, and the declaration was been received in respect of the property, is 
 
 not admitted as explanatory evidence of a inadmissible. Lancumy. Lovell, 6 C. & P. 
 
 contemporaneous act, but rather to prove a 437 ; 9 Bing, 465. Tlie defendant justified 
 
 VOL. I. A A
 
 354 PRIVATE writings: entries by third persons. 
 
 Title-deeds, Even modern deeds are also evidence to show the title of a party 
 to a particular estate, when a sufficient ground has been laid by 
 proof of the ownership of the party from whom the title is derived. 
 Thus it is every day's practice to prove the title of A, JB. to an 
 estate, by proof of the execution of a conveyance by C. D. a for- 
 mer owner in possession of the estate. In such cases the evidence 
 does not come within the objection of " res inter alios ;'' the deeds 
 are nothing more than solemn declarations and admissions of the 
 parties, accompanying and evidencing the nature of the act of 
 transfer, and do not affect or conclude the rights of any stranger, 
 any more than the mere fact of delivering the possession would 
 conclude him. It is evidence of the same nature, as if a plaintiff 
 in trover were to prove his ownership of a horse, or other chattel, 
 by showing that he bought him for a particular sum at a fair. 
 Such evidence, as a mere fact, and part of the res gestce, is admis- 
 sible against all the world ; it operates to the conclusion of no one 
 without his assent, but merely so far as in its own nature it affects 
 the transaction itself. For its force and effect, the evidence depends 
 entirely upon its connexion with the acts of ownership and posses- 
 sion ; proof of the execution of deeds by parties wholly unconnected 
 with the estate would avail nothing to prove a title. 
 
 Surveys Maps and surveys of estates are also evidence to show the extent 
 
 maps. ^^ ^ man's estate, when it appears that they have been made with 
 the privity and consent of the owners of the adjoining lands. A. 
 being seised of the manors B. and C, during his seisin caused 
 a survey to be taken of i?., which was afterwards conveyed to E. ; 
 and upon a dispute between the lords of JB. and C, it was held 
 that the survey was admissible in evidence (o). 
 
 But it is clear that no entry or survey taken by an owner would 
 be evidence either for himself, or for one who claimed through him, 
 against a party who did not claim in privity, since it might encou- 
 rage persons to include in surveys more than belonged to them (^) ; 
 and therefore, survey-books of a manor, although ancient, unless 
 signed by the tenants, or unless they appear to have been made at a 
 court of survey, are not evidence ; they are mere private memorials (5-). 
 
 breaking floodgates, as lessee of the Bishop an action for breaking down floodgates, 
 
 of W., old leases were produced from the a map of the owner's and of adjoining lands 
 
 registry, and admitted. Walieman v. West, is not admissible to show the course of 
 
 7 C. & P. 479. the stream to the plaintiff" 's mill. 'Wake- 
 
 (0) Bridgmanv. Jennings,! LordRaym. man v. West, 7 C. & P. 479. 
 734. The only case, it is said, where a map is (p) Str. 95. 1 Lord Raym.734. Outram 
 
 receivable in evidence, is when at the time v. Morewood, 5 T. R. 123. 
 it was made the whole property belonged (q) 12 Vin. Ab. 90, pi. 12; per Bacon, 
 
 to the person from whom both parties E.\on Summ. 1719. 
 claim. Due v. Lakin, 7 C. & P. 481. In
 
 BY THIRD PERSONS. (if);') 
 
 So it lias been said, that an old map of lands has been allowed Ancient 
 in evidence, where it came along with the writings, and agreed with mapsj'&c. 
 the boundaries adjusted in an ancient purchase (?•)• It does not 
 clearly appear under what circumstances this old map was held to 
 be evidence, but it seems that one ingredient essential to its admis- 
 sibility was its agreement with boundaries as adjusted in an ancient 
 purchase, that is with some other instrument ; and the term adjusted 
 seems to imply some privity on the part of the owners of adjoining 
 property, if the vendor was not himself the owner. A map annexed 
 to a deed seems to stand on the same footing as the description 
 contained in the deed itself. 
 
 It is an established principle of evidence, that if a party who has Entries 
 peculiar knowledge of the fact, by his written entry, or even decla- a^^ainst. the 
 ration concerning it, charges himself, or discharges another upon interest of 
 whom he would otherwise have a claim, such entiy is admissible 
 evidence of the fact after the death (s) of the party (#). 
 
 Where A., a, tenant for life, with a limited power of leasing, 
 reserving the ancient rent, received a letter from his confidential 
 agent, containing an account of the tenants and rents, on which 
 the tenant for life indorsed the words, " a particular of my estate," 
 and handed it down to S., the succeeding tenant for life, who had 
 a like limited power of leasing, by whom it was preserved, and 
 handed down, amongst the muniments of the estate, to the first 
 tenant in tail, it was held, that the document was evidence for the 
 first tenant in tail against the lessee of i?., in order to show that the 
 rent reserved by £., the tenant for life, was less than the ancient 
 rent which was reserved at the time to which the paper referred, 
 the paper having been accredited by the then owner of the estate, 
 who had the means of knowing the fact, and who had an interest 
 the other way ; viz. to diminish the rent, in order to increase his 
 fine upon a renewal under the power (u). 
 
 (r) Gil. Ev. 78. been examined as to it, had he been living. 
 
 (s) Wliere entries were made against the Per Bayley, J., in Higham t. Ridgway. 
 
 interest of a party who had quitted the It is however observable, that in that case 
 
 kingdom, there being charges of a criminal three of the Judges lay down the rule with- 
 
 nature against him, but was still living, it out this quahfication ; and in the case of 
 
 was held, that it was not sufficient to entitle Short y. Lee, 2 Jac. & Walker, 489, the 
 
 his declarations to be read. Stephen v. Master of the Rolls held , that an entry by 
 
 Gwennap, 2 M. & M. 128. Smith v. Whit- a deceased person was admissible, although 
 
 tingham, 6 C. & P. 78. Spargo\. Brown, he could not, in his life-time, have been 
 
 9 B. & C. 935. examined to the fact. See also Glcadow 
 
 (0 Higham v. Bidgicay, 10 East, 35 ; y. Atkin, 1 C. & M. 424. 
 
 infra, 362. It has been said that an ad- (») Bee dem. Brunc v. Baxclings, 7 
 
 ditional circumstance is necessary, viz. that East, 279. 
 the party who made the entry might have 
 
 X A 2
 
 350 
 
 WRITTEN evidence: PRIVATE ENTRIES. 
 
 Entries by 
 persons, 
 since de- 
 ceased, 
 against 
 their in- 
 terest. 
 
 In the case of Searle v. Lord Barrintjion {x), the Court is said 
 to have extended this principle so far as to hold, that in an action 
 upon a bond, a receipt for interest indorsed upon it by the obligee 
 himself, is evidence to go to a jury to rebut the presumption of 
 payment arising from lapse of time. If this case is to be taken as 
 an authority for the general position, that an indorsement of the 
 receipt of interest on a bond bearing date within the space of twenty 
 years from the date of the bond, shall in itself, and without any 
 proof that it was actually made within that space of time, or with 
 the privity of the obligor, be evidence to rebut the presumption of 
 payment, it seems to be difficult to support it upon principle ; for 
 it amounts to this, that in this particular case the party shall have 
 an opportunity of making evidence in his own closet, in order to 
 rebut a presumption which would otherwise arise against him. If 
 this be so, the case must be regarded as anomalous, and as an 
 exception to the plain fundamental rule, that a man shall not be 
 permitted to make evidence for himself (?/). If, on the other hand, 
 this further limitation is to be applied to the reception of such 
 evidence, that reasonable proof shall be adduced to show that the 
 
 (.r) Str. 826. The bond was dated June 
 24, 1G97 ; tlie indorsement of interest on 
 tlie bond, under tlie hand of the obligee, 
 was dated in 1707, being tliree years before 
 the death of the obligor; and the cause was 
 first tried Trin. 1724. Pratt, C. J. was of 
 opinion tliat this indorsement was not evi- 
 dence ; but tlie three other Judges were of 
 opinion that it ought to have been left to 
 the jury, for they might have reason to 
 believe that it was done with the privity 
 of the obligor; because it was the con- 
 stant practice for the obligee to indorse 
 the payment of interest, and that for the 
 sake of the obligor, who is safer by such an 
 indorsement than by taking a loose receipt. 
 Upon a second trial, Lord Raymond, C. J. 
 admitted tlie evidence, and a bill of excep- 
 tions was tendered, and after judgment in 
 the King's Bench for the plaintiff, a writ of 
 error was brought in the Exchequer Cham- 
 ber ; and upon argument, five of the Judges 
 were of opinion to affirm, and two to re- 
 verse, the judgment. The judgment was 
 afterwards affirmed in the House of Lords. 
 In Barnes v. Hanson, 1 Barnard, 432, a 
 similar indorsement seems to have heen 
 admitted, though made after the presump- 
 tion of payment had taken place. See Mr. 
 
 Nolan's note to the former case, in his ed. 
 of Strange, 826. In a copy of select cases 
 of evidence, there referred to, it is stated, 
 that at the sittings after Michaelmas term 
 at Westminster, 6 Geo. 3, Lord Camden 
 said that he was never much pleased with 
 the determination of Searle v. Lord Bar- 
 rington ; however, he said , it was law. See 
 Vol. II. tit. Bond. In Gleadow v. AtMn, 
 
 1 Cr. & M. 428, an action on a bond, 
 there was proof of payment of interest to a 
 third person, and to connect that with the 
 bond an indorsement on the bond by the 
 obligee, stating that the bond was for trust 
 money for that third person, of even date 
 with the bond, was held to be admissible. 
 An indorsement of the receipt of interest 
 on a promissory note made by the payee, 
 since deceased, is admissible to repel Statute 
 of Limitations. Gale v. Capern, 1 Ad. & 
 Ell. 102. See the st. 9 Geo. 4, c. 14, s. 3, 
 Vol. II. tit. Limitations. 
 
 (?/) See Lord Hardwicke's observations 
 in the case of Glyn v. the Bank of England, 
 
 2 Ves. 43, and Lord Kenyon's,.5 T. R. 123 ; 
 and Lord Ellenborough's in Rose v. Bryant, 
 Camp. 323.
 
 BY THIRD PERSONS. 
 
 357 
 
 indorsement existed before the presumption of satisfaction luid 
 arisen, the doctrine seems to be more consonant with the principle 
 above stated ; a presumption arises that the obHgee would not falsely 
 and wantonly make an indorsement prejudicial to his own interest 
 at the time (z), from which he could derive no benefit. 
 
 It seems to be clear, at all events, that such evidence would be 
 inadmissible, if the indorsement appeared to have been made after 
 the presumption had arisen («). 
 
 Where the question was as to the property in a horse seized by 
 the defendant under a heriot custom, a declaration hy A. B., a 
 third person, that he had given up his farm and all his stock to the 
 plaintiff, was held to be admissible for the plaintiff for the purpose 
 of proving that the horse belonged to the plaintiff before the 
 deathof^. i^. (6). 
 
 Entries by which receivers, stewards, bailiffs, and other agents, 
 charge themselves with the receipt of money, are in general ad- 
 missible in evidence to prove the fact after they are dead, for (as it 
 is said) it is reasonably to be presumed that a man would not wan- 
 tonly charge himself with any responsibility (c) ; and evidence to 
 show that the party making the entry had knowledge of the fact 
 is unnecessary (d). 
 
 Entries by 
 |)ers()ns 
 since de- 
 ceased, 
 against 
 their inte- 
 rest. 
 
 Entries by- 
 receivers, 
 stewards, 
 &c. charg- 
 ing them- 
 selves. 
 
 (z) In the case of Glyn v. the Bank of 
 England, 2 Ves. 42, Lord Hardwicke said 
 (of this case) he took it that the indorse- 
 ments were made and bore date within 
 twenty years. And in Turned' v. Crisp 
 (2 Str. 827), it was said, the indorsement 
 appeared to have been made before it could 
 be thought necessary to make evidence to 
 encounter the presumption. It does not 
 appear, liowever, from the report that any 
 such evidence was given. 
 
 (a) Turner v. Crisp, Str. 827. 2 Ves. 43. 
 Lord Raym. 1370. 
 
 (6) Ivatt V. Finch, 1 Taunt. 141. Tlie 
 evidence was rejected at the trial j but the 
 Court of C. P. on a motion for a new trial, 
 held that the evidence ought to have been 
 admitted. Note, that in this case the de- 
 fendant claimed througli A. B., upon whose 
 death he became entitled to a particular 
 portion of his personal property as a 
 heriot. — A. had taken the goods oi B. in 
 execution, and the sheriff having executed 
 a bill of sale to him, B. was permitted to 
 remain in possession, and the sheriff after- 
 wards took the same goods in execution at 
 
 the suit of another creditor of B. ; in an 
 action by A. against the sheriff for the 
 goods, it was held, that the declarations of 
 B. as to the property of the goods, and that 
 ^.'s execution was merely colourable, were 
 admissible for the sheriff. Wilkes v. Farley, 
 3 C. & P. 395. See Gully v. Bishop of 
 Exeter, b Bing. 171. 
 
 (c) In an action by the lord for copy- 
 hold fines, the book kept by the steward 
 of all fines assessed, wliether paid or not, 
 was offered in evidence to prove the pay- 
 ment of fines by remainder-men, as it was 
 accessible to all the copyholders, and had 
 been received by the steward from his pre- 
 decessor; but it appeared that tlie steward 
 made up a second book at the end of each 
 year, in which he entered all fines which 
 had been paid ; and it was held that the 
 evidence was inadmissible. Ely, Dean, S^c. 
 V. Caldecott, 7 Bing. 433. 
 
 {d) Crease v. Barrett, 1 C. ic M. 925. 
 Where it is said that the absence of such 
 knowledge goes to tlie weight not the ad- 
 missibility of the entry. 
 
 A A 3
 
 3r>8 WRITTEN EVIDENCE : PRIVATE ENTRIES. 
 
 By persons Accordingly it has been held (e), that an entry in the parish 
 since dc- books, made by the officers of one township, of the receipt of a 
 against proportion of the church-rates from the officers of another township, 
 their into- ^yas evidence to charge the latter with the payment of the same 
 sums in future ; and that the title at the head of the page, stating 
 the customary proportion to be so paid, was also evidence. 
 
 In an action of trespass, entries by the steward of a former owner 
 of the locus in quo, in his day-book, of sums received from dif- 
 ferent persons in satisfaction of trespasses, are evidence; and it 
 was held, that whatever would have charged the steward would be 
 admissible evidence (/). A private book kept by a deceased col- 
 lector of taxes, containing entries by him, acknowledging the re- 
 ceipt of sums in his character of collector, was also held to be 
 admissible evidence in an action against his surety, although the 
 parties who had paid them were alive, and might have been 
 called {g). 
 
 So old rentals, by which bailiffs have acknowledged the receipt 
 of monies, are evidence of the payment of such rents, and of the 
 right to receive them if the baihff or receiver be dead {h). But 
 although the account of a bailiff or steward, who by marking par- 
 ticular items of receipt appears to have collected them, be evi- 
 dence, it must appear from the subscription of his name, or other- 
 wise, that it was part of the account of the steward or bailiff; for, 
 in the absence of such evidence, it may be nothing more than a 
 leaf drawn out of a book by the lord of the manor himself (i). 
 
 (e) .S^e«(Zv. iymfo/j, 4T. R. 669. 2Ves. duty as such clerk. And it was held that 
 
 42. Lill. Pr. R 552. Bunb. 184. Outram v. such entries were admissible, not altogether 
 
 Morewood, 5 T.B,. 121. 3 Wood 332. Old (according to Lord Tenterdeu) as declara- 
 
 rates made by the parish officers of B. on tions made by him against his interest, but 
 
 the occupiers of land as parcel of £., and an because the entries were made by him in 
 
 account containing an overseer's account, those very books which it was his duty as 
 
 in which against the sum for which the such clerk to keep : and per Bayley, J. the 
 
 occupier had been assessed crosses were case of Goss v. WatKngton,3 B. & B. 132, 
 
 made, were held to be evidence that the sum was decided on the same principle, 
 
 assessed had been paid by the occupiers. (h) Manning v. Zechinere, 1 Atk. 458. 
 
 Plaxton V. Bare, 10 B. ScC. 17. Entries in a deceased agent's accounts, 
 
 (/) Barry v.Bebbingion, 5T. R. 514. charging him with receipts, although not 
 
 (g) Middleton v. Milton, 10 B. & C. in his handwriting, but signed by him, are 
 
 317. See also Doe v. Cartwright, R. admissible Doe v. Stacey, 6 C. & P. 139. 
 
 & M. 62; and App. 358. In the case {i) Frankes v. Cary, 1 Atk. 140. 
 
 of Whitnash v. George, 8 B. & C. 556, A book in the handwriting of A. B., 
 
 it was held that entries made by a clerk purporting to contain accounts of tithes 
 
 to bankers, in books kept by him in his collected by him 70 years ago, cannot be 
 
 capacity as clerk, were admissible in evi- read in evidence without proof that A. B. 
 
 dence after his death, in an action by the was collector of tithes at the time. Slwrt 
 
 bankers against his surety, on a bond con- v. Lee, 2 Jac. & W. 464. The statutes of 
 
 ditioned for the faithful discharge of his an ecclesiastical corporation aggregate
 
 BY THIRD PKRSOKS. 359 
 
 Upon a question, whether certain ancient rentals, preserved in By persom 
 the archives of the dean and chapter of Exeter, were entries made "'"'^'^ ?^' 
 
 . censed, 
 
 by their receivers, charging themselves with the receipt of rents, it against 
 was held, that the books of modern receivers were not evidence l^^i^ '"*^" 
 for the purpose of laying a foundation by comparison, and of show- 
 ing that the ancient books kept in the same manner, and contain- 
 ing similar entries of receipts and payments, were also receivers' 
 books, and entitled to be read in evidence as such (k). But if from 
 the inspection of such ancient books, and the language of the 
 entries, it appear probable that they were in fact receivers' books, 
 it seems that they are admissible in evidence (Z). 
 
 A book of accounts, kept by an executor and trustee of an 
 estate directed to collect and apply the rents for the benefit of the 
 cestui que trust, is admissible as charging himself, to prove seisin 
 in a writ of right (m). 
 
 So the book of a bursar of a college is said to be evidence as to 
 money paid by him or received to the use of a stranger (n). 
 
 Where a bill of lading had been signed by a master of a vessel, 
 since deceased, for goods to be delivered to a consignee or his 
 assigns, on his paying freight, the document was held to be evi- 
 dence to show that the consignee had an insurable interest in the 
 goods (o) ; but if in such case the master should guaid his acknow- 
 ledgment by saying, " contents unknown," so that he does not 
 charge himself with the receipt of any goods in particular, the bill 
 of lading, it is said, would not be evidence either of the quantity 
 of the goods, or of property in the consignee(p). 
 
 In Loi'd Torringtoiis case (</), the evidence was, that according By agents 
 to the usual course of the plaintiff's dealings, the draymen came course of 
 
 trade. 
 
 enjoying the appointment of collectors, 10 East, 206, the language of several 
 
 together with the internal evidence of the entries imported that N. W. was therein 
 
 documents and their coming out of the accounting to the Dean and Chapter for 
 
 proper custody, amounts to sufficient proof money paid to himself, with the receipt of 
 
 that the parties were really collectors. lb. which he debited himself by the words 
 
 In case for disturbance of the plaintiffs solvit mild, and solvit per me; and the 
 
 market, accounts signed by a party styling Court of King's Bench were of opinion 
 
 himself the steward's clerk, without any that the books which had been rejected 
 
 evidence to show that he was such, dehors at the former trial ought again to be sub- 
 
 the papers themselves, and not purporting mitted to the consideration of the Judge, 
 
 to charge the party whose signature they (/«) Sinres v. Morris, 9 Bing. 694. 
 
 bore, were on motion held to be inadmis- (w) Anon. Lord Raym, 745. Qu. 
 
 sible; and the Court not being satisfied under what circumstances. The report 
 
 that such evidence might not have weighed is a very loose one. 
 
 with the jury, granted a new trial. De (o) Per Lawrence, J., Haddow v. 
 
 Batzen, Baron, v. Farr, 5 Nev. & M. 617. Ptm-y, 3 Taunt, 303. 
 
 (k) Doe V. Thynne, 10 East, 206. {p) Ibid. 
 
 (0 In the case of Doe v. Thynne , {q) B. N. P. 282. 
 
 A A 4
 
 3G0 
 
 WIUTTEN EVIDKNCE : PRIVATE ENTRIES. 
 
 By agents 
 in tlie 
 course of 
 business. 
 
 every niglit to the clerk of the brcwhouse, and gave him an ac- 
 count of the beer delivered out, which he set down in a book to 
 which the draymen set their hands, and that the draymen were 
 dead, and that the entry was in his handwriting ; and it was held 
 to be good evidence of a delivery. 
 
 In the case of Clerk v. Bedford (r), where the plaintiff, to prove 
 a delivery, produced a book which belonged to his cooper, who 
 was dead, but his name set to several articles, as wine delivered to 
 the defendant, the evidence was rejected by Lord Raymond, who 
 distinguished it from Lord Torrington's case, because there the 
 witness saw the draymen sign the book every night. 
 
 In the case of Pitman v. Maddox (s), in an action upon a tai- 
 lor's bill, a shop-book was produced, written by one of the plain- 
 tiff's servants, who was dead ; and upon proof of the death of the 
 servant, and that he used to make such entries, it was allowed to be 
 good evidence of the delivery of the goods (t). From these cases 
 it may be inferred that some evidence ought to be given to show 
 that such entries were made in the usual routine of business ; but 
 perhaps it may not be necessary, as in Lord Torringtons case, to 
 prove the signature by one who saw it written. 
 
 In Chambers v. Bernasconi {v), the action was brought by the 
 plaintiff to try the validity of a commission of bankruptcy issued 
 against him. He had been arrested on the 9th of November 1825, 
 and it was a question material to the act of bankruptcy, whether 
 he had been arrested in Southmolton-street, or at his cottage, 
 Maida-hill, Paddington. In order to establish an act of bankruptcy 
 by keeping house, &c. at Paddington, the officer who arrested the 
 plaintiff being dead, his follower was called, who swore that the 
 arrest took place at Paddington. The plaintiff, to establish an 
 arrest in Southmolton-street, offered in evidence, from the files of 
 the office of the under-sheriff of Middlesex, a paper annexed to 
 the writ, signed by the deceased officer, and addressed to the under- 
 sheriff of Middlesex, as follows : 
 
 " 9th Nov. 1825. I arrested H. Chambers in Southmolton- 
 street, at the suit of W. B."" 
 
 By the course of office the officer was required, immediately after 
 the arrest, and before taking a bail-bond, to transmit to the sheriff's 
 office a memorandum or certificate of the arrest ; and for the last 
 few years (but, according to one report of the case {w), not, as it 
 
 (»•) 1 Salk. 285; Ld. Raym. 875. 
 («) Lord Raym. 732 ; 2 Salk. 690. 
 (0 See B. N. P. 242. 
 
 (y) 1 Tyrw. 335. 
 {w) 1 C. & J. 451.
 
 BY THIRD PERSONS. 3G1 
 
 seems, at the time of arrest) an account of the place of arrest liad ny agontg 
 also been required from them. On such returns the officer and his '" *'"^ , 
 
 course 01 
 
 sureties are charged by the sherm, and returns are made upon business. 
 them ; the evidence was admitted, and the plaintiff had a verdict. 
 Upon a motion for a new trial it was contended, on the part of 
 the plaintiff, that the document was admissible, as being a written 
 declaration of a fact made by a person peculiarly cognizant of the 
 fact, and against his interest. The Court of Exchequer held, that 
 the evidence was inadmissible. Lord Lyndhurst, C. B., was of 
 opinion that the principle contended for went beyond the former 
 cases. Bayley, B., was of opinion that the instrument was not 
 admissible in evidence at all, inasmuch as the entry could not be 
 said to militate against the interest of the officer : and he also inti- 
 mated his further opinion, that although the instrument was ad- 
 missible, it would not be admissible to prove the circumstance of 
 the place where the arrest occurred, as it was no part of the officer's 
 duty to state the place where the caption took place. 
 
 In the case of Dighy v. Stedman (x), an entry made by a de- 
 fendant himself in the course of business, and contemporary with 
 the fact, was received as confirmatory evidence to prove the deli- 
 very of a watch. Again, in Hagedorn v. Reed {y), the entry 
 by a deceased clerk of a merchant, in the letter-book, of a letter, 
 with a memorandum, stating that the original had been sent 
 to a particular person, was held to be evidence of the fact ; proof 
 having been given that it was the invariable course of that mer_ 
 chant's office, that the clerk who copied any letter sent it off 
 by the post, and made a memorandum on the copy that he had 
 done so. 
 
 In the following case the principle seems to have been carried 
 much farther. Upon an issue out of Chancery, to try whether 
 eight shares of Hudson's Bay stock, bought in the name of Mr. 
 Lake, were bought in trust for Sir S. Evans, his assigns (the plain- 
 tiffs ) showed, first, that there was no entry in the books of Mr. 
 Lake relating to this transaction ; secondly, that six of the receipts 
 
 (ar) 1 Esp. C. 129. admissible in evidence to prove the terms 
 
 ( y) 3 Camp. 379. See also Pritt v. of the contract ; because the entry did not, 
 
 Fairclough (3 Camp. 305), where similar as in the case of Price v. Lord Toi-rington, 
 
 evidence was received. Champneys v. charge the clerk. It does not appear that 
 
 PecTi, 1 Starkie's C. 404, tJifra. In the in this case, the clerk, in making the 
 
 case of Calvert v. The Archbishop of memorandum, professed to have made it 
 
 Canterbury, 2 Esp. C. 645. Lord Kenyon personally with the defendant, or his agent ; 
 
 held, that an entry made in the plaintiff's and he might, for anything that appeared 
 
 books, by a servant since deceased, of a to the contrary, have made it on hearsay 
 
 contract made with the defendant, was not from the plaint4ff himself.
 
 362 
 
 WRITTEN evidence: PRIVATE ENTRIES. 
 
 Entry in 
 tlie usual 
 course of 
 profession- 
 al business. 
 
 were in the handwriting of Sir S. Evans, and there was a refer- 
 ence on tlie back of them by Jeremy Thomas, Sir S. Evans's book- 
 keeper, to the book B. B. of Sir S. Evans ; J. Thomas was proved 
 to be dead, and the Court of K. B., on a trial at bar, admitted 
 the book so referred to, not only as to the six, but likewise as to 
 the other two in the hands of Sir Biby Lake, the son of Mr. 
 Lake (z). 
 
 In the case of Smartle v. Williams, where the question was 
 whether certain mortgage-money had really been paid, a scrivener's 
 book of accounts (the scrivener being dead) was held to be good 
 evidence of payment (a). 
 
 Upon a trial at bar, where the question was, whether a surren- 
 der of the mother's estate for life had been made when the son 
 suffered a common recovery, the Court admitted in evidence the 
 debt book of an attorney (deceased), in which he had made 
 charges for suffering the recovery, and for drawing and ingrossing 
 a surrender of the mother, which had been paid ; and the Court 
 held, that this was a material cu'cumstance upon the inquiry into 
 the reasonableness of presuming a surrender, and could not be 
 suspected to be done for that purpose ; and that since the attorney 
 was dead, this was the best evidence (b). So in the case of Hig- 
 liam V. Ridgway (c), it was held, that an entry made by a man- 
 
 (z) B. N. p. 282. And here it may be 
 remarked, that although the statute 7 Jac. 
 1, c. 12, enacts that a shop-book shall not 
 be evidence after the expiration of a year, 
 it does not tlierefore make it evidence 
 within the year, except under special cir- 
 cumstances (2 Salk. G90); and that in 
 some cases it is evidence after the expira- 
 tion of the year. 
 
 («) B. N. P. 283. In this case it does 
 not appear that the attorney, by the entry 
 in his book, had admitted the payment of 
 the money. Where the house of the party 
 in wliose custody marriage articles ought 
 to have been, was proved to have been oc- 
 cupied and pillaged by rebels, and that 
 after diligent search amongst his other 
 papers, they could not be found, it was held 
 that a recital of them in a case submitted 
 to counsel at the time, and charged for and 
 entered as paid by the family attorney, 
 was admissible as secondary evidence. 
 Lord Lorton v. Gore, 1 Dow,N. S. 190, 
 
 (6) Warren v. Grenville, Str. 1128. 
 Note, this was forty years after the time 
 of the surrender, and the Court said that 
 
 they would have presumed a surrender 
 after such a length of time, without this 
 additional evidence. In Goodtitle v. 
 Duke of Chandos, 2 Burr. 1072, Lord 
 Mansfield says, that the Court did rely 
 upon the entry ; but he also states from his 
 own note, that the Court said, that after 
 forty years they would, without any other 
 circumstances, presume a conditional sur- 
 render. See also the last preceding note. 
 In Doe V. Wright, Lancaster Summer 
 Assizes, 18.36, Coleridge, J., admitted a bill 
 of costs by an attorney, stating facts and 
 business done, and which had been paid, on 
 the same footing as original entries in the 
 book. 
 
 (c) 10 East, 109. The evidence seems 
 to have been received in this case princi- 
 pally upon the ground, that the entry was 
 made of a fact within the peculiar know- 
 ledge of the party, against his interest ; 
 and Le Blanc, J., seems to have founded his 
 assent, partly at least, on the particular na- 
 ture of the fact, as being matter of pedigree. 
 
 See the observations of Littledale, J., in 
 Doe V. Votvks, 1 Mo. & R. 61. App. 362.
 
 BY THIRD PERSONS. 363 
 
 midwife in his book, of having dehvered a woman of a child on a Entry in 
 particular day, referring to his ledger in which he had made a course of 
 charg-e for his attendance, which was marked as paid, was evi- P.io*cs- 
 
 ~ . . . sional bu- 
 
 dence upon the trial of an issue as to the age of such child at the siness. 
 time of his afterwards suffering a recovery. 
 
 It was held, in the case of Doe v. Rohson (d), that entries of 
 charges, made by an attorney in his books, showing the time 
 when a lease prepared for a client of his was executed, which 
 charges, it appeared, had been paid, were evidence after the 
 attorney's death to show the time of the execution, which was 
 a material fact in issue. And in this case it is observable, that 
 the ground of receiving the evidence was expressly stated by 
 Lord Ellenborough to be the total absence of interest in the per- 
 son making the entry to pervert the fact, and at the same time a 
 competency in him to know it, without laying stress upon the 
 fact that the charges had been paid (e). 
 
 In the case of Skipwith v. Shirley (f), a decree was made for 
 raising money under a deed of appointment, although the only 
 copy produced did not appear to be executed, upon recitals of it 
 in a deed of settlement as a subsisting effectual deed, and evi- 
 dence from the books of a deceased solicitor of charges for the 
 preparation and execution of it, although there was no evidence 
 that these had been paid. 
 
 So in Champneys v. Peck ( g), the plaintiff, in order to prove 
 the delivery of his bill as an attorney, proved the death of Daw- 
 ling, who had been his clerk, and produced the bill, with an 
 indorsement on it in the handwriting of the deceased clerk, 
 " March 4th, 1815, delivered a copy to Mr. Peck." The plaintiff 
 further proved that the indorsement existed at the time when, 
 according to its purport, the bill had been delivered ; that it was 
 the business of Dawling to deliver the bill ; and that such an 
 indorsement was usually made in the common course of business 
 upon the copy kept. Lord Ellenborough held this to be prima 
 facie evidence of the delivery of the bill, and the plaintiff had a 
 verdict {h). 
 
 (d) 15 East, 31. proof of his death such entry was admis- 
 
 (e) Bayley, J. adverted to that fact ; sible. Poole v. Dicas, 1 Bing. N. C. 649. 
 see the observations of Le Blanc, J. in And see Doe d. Pattishall v. Turford, 
 Higham v. Ridgioay, 10 East, 109. 3 B. & Ad. 890. 
 
 (y) 11 Ves. 64. (h) The cause was undefended. The 
 
 (</) 1 Starkie's C. 404. Where the ruling of Lord Ellenborough in this case 
 
 notary's clerk, who presented a bill dis- has been questioned more than once, but 
 
 honoured, made an entry at the time, in the seems to be now confirmed. Vide supra, 
 
 usual course of business, held that upon note (g).
 
 364 WRITTEN evidence; private entrie-;s. 
 
 In the case of Pyke v. Crouch (i), it was held, that a letter writ- 
 ten by a stranger to a testator, acknowledging tlie receipt of a will, 
 was evidence to show that such a will had been sent by the testator. 
 Entry by a -^'^ entry by a rector of his receipt of tithes is evidence for his 
 rector. successor ; for the entry could not have been of any benefit to 
 
 himself ( J ). Lord Kenyon, however, considered this as an ex- 
 cepted case, since, in general, a man's private entry cannot affect 
 the rights of third persons {k) ; and therefore, in Outram v. More- 
 wood (Z), where the question was, whether a particular close was 
 part of an estate which formerly belonged to Sir J. Zouch, it was 
 held, that entries of the receipt of rents, made by one from whom 
 the defendant derived his title to the rent of this close, but nothing; 
 more, was not evidence for the defendant in order to prove the 
 identity of the close, and to establish his title to the coals, on the 
 ground that the entries were no more than the private memoran- 
 dum of the party, not upon oath, which ought not to bind third 
 persons ; and that it was distinguishable from the case of Barry 
 V. Behhington, since there the steward charged himself with the 
 receipt of the money. It appears, therefore, to be clear, that a 
 man's own private entry, as to his own rights, which admits no 
 liability to another, is not evidence either for himself or those who 
 claim under him. The case of an entry of the receipt of tithes by 
 the rector stands upon very peculiar grounds ; he has no personal 
 interest in making the entry with a view to any claim made by 
 himself, since the entry would not be evidence for him ; and the 
 incumbent for the time being, and not his heir or personal repre- 
 sentative, would afterwards derive benefit from such entry. 
 
 Lord Hardwicke observed, that it was going a great way to 
 admit the books of a deceased rector as evidence for his succes- 
 sor (m), but that it had been allowed, because the rector knew that 
 the entry could not benefit either himself or his representative, 
 who had nothing to do with the living {n). The admissibility of 
 
 (i) Ld, Raym. 730. signed by the rector, and headed, " notifi- 
 
 0") 5T. R. 123; Bunb. 46; 2 Ves. 43. cation of the tithes of the parish," al- 
 
 So in a suit for tithes by the lessee of an though not coming out of the proper rcpo- 
 
 eeclesiastical corporation aggregate, to sitory of a terrier, was lield to be admis- 
 
 wliom the rectory belonged, ancient docu- sible evidence against a succeeding rector, 
 
 ments in their possession, and purporting as tlie admission of one of liis predecessors, 
 
 to be accounts furnished by some of their and upon the same principle as a receipt, 
 
 members employed to collect the tithes, Maddison v. Nuttall, 6 Bing. 226. 
 
 and appearing to be offered and settled, (A) 5 T. R. 123. 
 
 are admissible in evidence. Short v. Lee, {I) Ibid. 
 
 2 Jac. & W. 464. The admissibihty in (m) 2 Ves, 43 ; and see lUingworth v. 
 
 this case seems to rest on tlie principle Leigh, 4 Gwill. 1618. Woodnoth v. Lord 
 
 just adverted to. An entrjiby a deceased Cobham, 2 Gwill. 653. 
 
 rector is also evidence by way of admission {n) Such evidence has, however, been 
 
 against a successor. An ancient document received in favour of his successor where
 
 ceased. 
 
 BY THIRD PERSONS. 30.') 
 
 such evidence seems to rest upon the principles (o) lately an- 
 nounced. 
 
 The declarations of (p) deceased tenants have in some instances Declara- 
 been admitted in evidence, on matters connected with their tenan- tenantJ 
 cies, principally, as it seems, upon the ground that their declara- since de- 
 tions were made against their own interest. 
 
 In Doe V. Williams (q), the question was, whether Mrs. Galton 
 (from whom the defendant claimed) was in possession of the pre- 
 mises at the time when she levied a fine ; and evidence was ad- 
 mitted by Lord Mansfield of a conversation between Mrs. Galton 
 and Mrs. Pearce (who was hving, but interested as being the pre- 
 sent tenant), in which the one admitted that she had paid rent to 
 the other as her landlord, and the other admitted that she had 
 received the rent (r). In Davies v. Pearce (s), which was an action 
 of replevin, the question was, whether the locus in quo was parcel 
 of the tenement S. ; evidence was offered by the plaintiff of decla- 
 rations by deceased tenants of the locus in quo, which was part of 
 X., that they rented L. of Mr. Evans, who was never the owner of 
 JB. ; that one tenant had said, that he paid Mr. Evans five shillings 
 yearly, and a quarter of mutton, for Z., and that he was then going 
 to pay the said rent to the said J. Evans for the said L. ; and that 
 he had ordered his servant to herd some cattle at Z., saying, that 
 otherwise he could not afford to pay Mr. Evans his rent. And that 
 another tenant had prevented a person from cutting rushes on X., 
 and threatened that he would tell Mr. Evans, his landlord, of his 
 
 the entries have been made by an impro- (q) Cowp. 621. 
 
 priate rector, although there tlie party (;.) it jg observable that the verdict, 
 
 who made tlie entries might benefit his notwithstanding the admission of the evi- 
 
 own inheritance. Burr. 46 j 4 Gwill. 1618 ; dcnce, was for the plaintiff; consequently, 
 
 2 Gwill. 653; Bunb. 180; but see Le no question was afterwards made before 
 
 Gross V. Zovemoor, 2 Gwill. 527. Peri- the Court as to the admissibility of this 
 
 gal V. Nicholson, 1 Wightw. 63. Lord evidence. Tlie evidence itself appears to 
 
 Kenyon's observations, Outra7n v. More- have been extremely loose, the witness not 
 
 ivood, 5 T. R. 123. stating either the occasion or the terms of 
 
 (o) Suiwa, 346; and see Lord Ellenbo- the conversation, but merely that he re- 
 rough's observations in Boe v. Bawlins, membered a conversation, in which the 
 7 East, 282, n. one admitted that she had paid the other 
 
 (p) Oral declarations depend partly rent as her landlord, and the other that 
 
 upon the same principles with written she had received rent from her as tenant, 
 
 entries, but are far weaker in degree ; Much in such a case would depend on the 
 
 they are usually made with less delibera- object of the conversation, as well as the 
 
 tion, are more likely to be loosely and terms: a settlement of account between 
 
 wantonly made, and are usually uncon- the parties as landlord and tenant, as it 
 
 nected with any regular course and routine ^ould bind both, would weigh in evidence 
 
 of business. The declarations of tenants as an act done, in the same manner as 
 
 are not evidence against reversioners al- payment and rent, 
 though their acts may be. Per Paterson, (s) o ^ -d rn 
 
 J. in Tlchle v.Broivn, 4 Ad. & Ell. 378.
 
 3G6 
 
 AVRITTEN evidence: PRIVATE ENTRIES. 
 
 By tenants 
 since de- 
 ceased. 
 
 cutting tlie said rushes ; and once took tlie said rushes from tliat 
 person, and told him that they belonged to Mr. Evans. And that 
 forty years ago T. H. rented L. for one year, and said that he paid 
 rent either to Mr. Evans or his mother; this evidence was re- 
 jected at the trial, and a bill of exceptions was therefore tendered; 
 and the Court of K. B. was of opinion that the evidence was ad- 
 missible (0. Ashurst, J., observing that the fact of cutting rushes 
 was decisive, and Buller, J., adding, that the other question, re- 
 lating to the tenant's declaration that he had paid rent for the 
 premises, had been decided in the cases of Holloway v. Rakes, and 
 Doe V. Williams (u). 
 
 In the case of Holloway v. Rakes (w), cited by Mr. J. Buller, 
 the question was, whether the devisor of an estate twenty-seven 
 years ago, of which there had been no possession, was seised ; and 
 a declaration of a tenant in possession at that time, that he held 
 as tenant to the devisor, was admitted. And the Court afterwards 
 held that it had been properly admitted (x). 
 
 In the case of Peaceable v. Watson (y), it was held, that the 
 declaration of a deceased tenant, of his holding the land of a par- 
 ticular person, was evidence to prove the seisin of the latter, upon 
 the ground (as it seems) that the declaration was against his own 
 interest, since it might have been made use of as evidence against 
 him. 
 
 In the case of Walker v. Bradstock {z), where the plaintiff 
 claimed a prescriptive right of common, pur cause of vicinage, as 
 appurtenant to his messuage, it was held that a declaration by a 
 
 (f) It was not essential, in this case, 
 that the Court should give a decided 
 opinion on the mere declarations of the 
 tenants, since other evidence had been 
 rejected; viz. of the fact of cutting dovvn 
 the rushes, and the accompanying declara- 
 tion which rendered it incumbent to award 
 a venire de 7iovo. 
 
 Mr. J. Ashurst seems to have founded 
 himself upon that point only; Mr. J. Bul- 
 ler indeed went farther, and intimated his 
 opinion upon the bare declarations. It is, 
 however, to be observed, that the case of 
 Doe V. Williajiis does not support that 
 opinion to the full extent; for there the 
 evidence did not rest as a mere declaration 
 to a stranger, but occurred in the course 
 of conversation between the parties, as to 
 a supposed account between them as land- 
 lord and tenant ; it was of the same na- 
 
 ture, though weaker, with evidence of an 
 actual payment ; and if the letting was by 
 parol, it would have been difficult to have 
 given other evidence of the relation be- 
 tween the parties than their actual deal- 
 ings and communications on the subject. 
 
 (u) Supra, 3G5. 
 
 (to) 2 T. R. 55. 
 
 (x) It is to be remarked, that the 
 Court seem to have doubted upon the 
 propriety of admitting such evidence in 
 general, since they resorted to another 
 principle to support the admission in that 
 case, namely, the probability that the de- 
 fendant derived title from the tenant who 
 made the admission, and was therefore 
 bound by it. See, however, Doe v. Green, 
 1 Gow. 227. 
 
 (?/) 4 Taunt. IG. 
 
 {z) G Esp. C. 458,
 
 BY THIRD PERSONS. 367 
 
 former occupier of the plaintiff's messuage, forty years ago, since iiy tenants 
 
 since de 
 ceased. 
 
 dead, that his cattle had been impounded on Corfe Lown (where ^"^^^' ^'^ 
 
 common was claimed), was admissible ; and also that declarations 
 by another occupier, though still living, of his opinion tliat he had 
 no such right of common appurtenant to the messuage, were ad- 
 missible, on the general ground that the declarations of tenants 
 against their own rights are evidence. It cannot but be remarked 
 that such evidence, to say the least, is exceedingly weak : the de- 
 clarations were not used as explanatory of any fact, and seem to 
 be scarcely warranted on the ground of being against interest. 
 
 In the case of Barker v. Ray, an issue was directed by the 
 Court of Chancery, to try whether Edmund Barker the elder, by 
 his will (since his death succeeded, &c. by Edmund Barker, his 
 nephew), devised certain estates, &c. ; upon the trial evidence was 
 offered of declarations made by Elizabeth Barker, the widow of 
 Edmund the nephew, both before and after the death of Edmund 
 the nephew, tending to show that her husband and the other nephews 
 were only tenants for life. The evidence was rejected, and the 
 jury having found for the defendants, the Lord Chancellor, on 
 an application made by the plaintiff for a new trial, on the 
 ground (amongst others) that the evidence ought to have been 
 received, refused it, without deeming it to be necessary to give any 
 opinion as to the admissibility of the evidence. Here it is ob- 
 servable, that the declarations offered in evidence were neither 
 coupled with any act, nor made in the discharge of any office or 
 duty, but were the mere voluntary declarations of the wife on her 
 husband's affairs. 
 
 In some instances, as will afterwards be more particularly con- 
 sidered under the head of admissions, the declarations of a former 
 owner are evidence in respect of the subject-matter of ownership (a). 
 And such declarations are admissible as original evidence, although 
 
 (a) See Vol. II. tit. Admissions. In admitting such evidence, is to explain a 
 
 Woolway v. JRoive, 1 Ad. & Ell. 114, the negative, i. e. the omission to enclose, 
 
 question was whether Scorhill was parcel of An act of enjoyment, or of right exercised, 
 
 plaintiff 's estate, or part of the waste of a is admissible; an accompanying declara- 
 
 manor, the plaintiff having no other interest tion is also evidence to explain the nature 
 
 than right to turn on cattle ; and evidence of the act. And semble, a declaration may 
 
 was admitted of a declaration by a former be also evidence to explain why the party 
 
 owner and occupier of plaintiff 's estate, that abstained. Declarations by persons holding 
 
 he had no right to enclose the down (the negotiable security, under the sa))ie title, 
 
 L, I. Q.), the evidence was admitted, al- are admissible ; but the right of a party 
 
 though the former owner was alive, and in holding under a good title is not to be cut 
 
 Court, on the ground of identity of bite- down by the acknowledgment of a former 
 
 rest ; and, consequently, as an admission. owner that he liad no title. Per Parke, J., 
 
 Semhle, that the principle, such as it is, of 1 Ad, & Ell. 116.
 
 368 
 
 WRITTEN evidence: PRIVATE ENTRIES. 
 
 Proof of 
 ]trivate in- 
 striiiuL'iits. 
 
 Production. 
 
 the person who made them be still hving(Z»); declarations, how- 
 ever, made after such interest has ceased are not admissible (c). 
 
 ^ext, as to the proof" of private instruments. The proof of a 
 deed, agreement, or other instrument, is eitlier. First, by witnesses ; 
 Secondly, by admission ; or, Thirdly, by enrolment. If by wit- 
 nesses, the instrument must be produced {d), or be proved to have 
 been lost, or destroyed, or legally unattainable (e), or to be in the 
 possession!/) of the adversary {g), or in the custody of the Court 
 of Chancery, &c. If produced, it is either attested or not attested (A). 
 If attested, the attesting witness must be called ii), or his absence 
 must be accounted for {k), and his handwriting proved (/) ; or it 
 must appear that the instrument is thirty years old {in), and came 
 out of the proper custody (w). If it be not attested, the hand- 
 writing of the obligor should be proved (o). If it has been lost, or 
 destroyed, or so situated that its production cannot be enforced, proof 
 must be given of the fact ( p), and that it was regularly stamped 
 and executed {q), and then secondary evidence must be given of its 
 contents (r). If it be in the adversary's possession, proof must be 
 given of such possession (s), and of notice {t) to produce it, amd of 
 its regular execution (except in some particular instances), and of 
 its contents {u). 
 
 In order to prove a deed, agreement, or other private instrument, 
 it is necessary first to produce the deed, or to excuse the omission 
 by proof that it has been lost or destroyed, or is in the hands of 
 the adversary, who has had notice to produce it. For the best evi- 
 dence of the contents of a written instrument consists in the actual 
 production of the instrument ; and secondary evidence of it cannot 
 be admitted, until the impossibihty of producing it has been mani- 
 
 (&) Ibid. 
 
 (c) Doe V. Webber, 3 N. & M. 586. 
 Vol. II. tit. Admissions. 
 
 {(l) Infra, p. 368. 
 
 (e) Secondary evidence was held to be 
 inadmissible of a letter filed in the Court 
 of Chancery, it being in the power of 
 either party to produce it on application 
 to the Court. Williams v. Munnings, 
 Ry. & M. 18. 
 
 {/) If the instrument be in the custody 
 of a third person, its production is usually 
 enforced by means of a writ of subjjosna 
 duces tecum. For the proceedings upon 
 this writ, see the title, Subpoena Duces 
 
 TECUM. 
 
 (gf) In many instances the Court will 
 
 assist a party in obtaining an inspection or 
 copy of the instrument, on motion. See 
 tit. Inspection. 
 
 (h) Infra, i>. 370. 
 
 (i) Infra, p. 371. 
 
 (k) Infra, p. 375. 
 
 (?) Infra, p. 379. 
 
 (m) Infra, p. 381. 
 
 (n) Infra, p. 383. 
 
 (o) Infra, p. 386. 
 
 {!)) Infra, p. 387. 
 
 {q) Jrt//-a, p. 393. 
 
 {r) Infra, p. 393. 
 
 (s) Infra, p. 398. 
 
 (0 Infra, p. 400. 
 
 (?i) Infra, p. 393. 407.
 
 PROOF OF. 
 
 369 
 
 fested to the Court (x). Where tlie deed has been pleaded with a Produc- 
 profert, the production cannot be suppHed by proof of the party's *'°°' 
 inabihty to produce the deed (y). 
 
 If, upon production of a deed, any rasure or blemish appear 
 upon the face of the instrument, the party producing it ouoht to 
 explain how the defect arose (z), and to show that it was made 
 before the execution of the deed, or that it was made after the 
 delivery, by a stranger, if the rasure or interlineation has been 
 made in an immaterial point (a). If the deed appear to be muti- 
 lated, it is prima facie evidence of cancellation (Z>) ; but proof may 
 be given that the cancelling was by accident (c), or that it was 
 effected by fraud and improper practice (d). If in the course of 
 the inquiry the time of the delivery should become material, it 
 should be proved by the attesting witness, if there be one, and if 
 not, the date of the deed will be evidence of the time of delivery. 
 If the erasure existed previously, the fact may be proved by any 
 person who saw it ; but the state of the deed at the time of its 
 execution is best proved by an attesting witness, if he recollects 
 it. Where a deed operates as to different parties from the time 
 of execution by each, it will be binding on one who conveys by 
 that deed, if complete as to him at the time, although it has been 
 
 (x) In some cases, however, where the 
 deed has been enrolled, an examined copy 
 of the enrolment is evidence. See Enrol- 
 ment. And a duplicate original is evi- 
 dence, as in the case of an attorney's bill. 
 Anderson v. Mmj, 2 B. & P. 237. See also 
 Vol. II. tit. NoTicK. Jory v. .Orchard, 
 2 B. & P. 39. An acknowledgment of the 
 execution of a deed by the obligor is insuf- 
 ficient. Abbott V. Plumb, Dougl. 216. 
 Though made in an answer in Chancery. 
 Call V. Dunning, 4 East, 53. A bill of 
 exchange must be produced in order to 
 prove its identity with one admitted to 
 have been received by the defendant, and 
 paid into his banker's, although no other 
 has been received by the banker. Atkins 
 V. Ellis, 2 Ad. & Ell. 35. 
 
 {y) Smith v. Woodward, 2 East, 585. 
 In such case the party who has made the 
 profert should move to amend before the 
 trial. 2 East, 585 . It will be too late to 
 make the application at the time of the 
 trial. 1 Starkie's C. 74. 
 
 (~) Henman v. Dickenson, 5 Bing. 183; 
 B. N. P. 255 ; Gil. L. Ev. 89. See Ktiight 
 VOL. I. 
 
 V. Clements, App. Vol. II. 369, and tit. 
 Bill of Exchange — Deed — Policy 
 —Will. 
 
 (a) Ferrott v. Perrott, 14 East, 423. 
 
 {b) See as to the effect of cancellation, 
 Vol. II. tit. Deed. Doe v. Bingham, 4 B. 
 k, A. 672. The insertion by a stranger of 
 " hundred," between "one" and " pounds," 
 in the condition of a bond, consistent with 
 the obvious sense, is immaterial. Waugh 
 v. Russell, 1 Mars. 311; 5 Taunt. 707. 
 Semble, that a letter, a considerable part 
 of which appears obliterated, is not evi- 
 dence. 1 Anst. 227. 
 
 (c) Latch. 226; Palm. 403; 1 Mod. 11. 
 R. V. Skibthivaite. Certificate of 1774, 
 from the parish chest, one of the names 
 of the allowing justices was wanting ; the 
 certificate being in a torn and decayed 
 state, the Court held that the finding of 
 the justices below of the due making of the 
 certificate, was conclusive of the fact. 
 Mich. 1833. Or that it was done under a 
 mistake. Perrott v. Perrott, 14 East 
 423. 
 
 (d) Hetl. 138, Bucknow's case. 
 B B
 
 370 
 
 WRITTEN evidence: PRIVATE ENTRIES. 
 
 Stamp. 
 
 Proof by 
 attesting 
 witness. 
 
 executed by another party at a time when blanks were left which 
 were immaterial to that party (e). 
 
 It should appear, on the production of the instrument, that it is 
 properly stamped (/). And where a stamp is required, the objec- 
 tion for the want of one ought to be taken in that stage, and 
 before the document is read {g)- Although inrolment of the deed 
 be essential, it is not incumbent on the party who relies on the 
 deed to prove the inrolment ; it lies on the party objecting to prove 
 the negative (/(()• 
 
 The next step is to prove the legal requisites essential to the 
 existence of the document, as a deed, simple contract, bill of ex- 
 change (i), will (Jt), or other instrument (/). 
 
 If the deed or instrument produced purport to have been attested 
 by one or more witnesses, whose names are subscribed (m), the 
 
 (e) A mortgagee conveyed to the mort- 
 gagor the legal estate, on being paid the 
 mortgage-money, and the latter re-convey- 
 ed to trustees to secure the payment of an 
 annuity : at the time of execution by the 
 mortgagee, the deed contained blanks for 
 sums to be received by the mortgagee from 
 the grantees of the annuity, and these were 
 all filled uj) before the execution of the 
 deed by the mortgagor, but several inter- 
 lineations were made in that part of the 
 deed after the execution by the mortgagee. 
 It was held that the whole might be con- 
 sidered as one transaction, operating as to 
 the difierent parties from the time of exe- 
 cution by each, but not perfect till the 
 execution by all the conveying parties ; 
 and that the deed operated as a good con- 
 veyance of the estate from the mortgagor 
 to the trustees. Doe v. Bingham, 4 B. & 
 A. 672. Whore a blank was left in a com- 
 position deed at the time of execution, in 
 order to ascertain the amount, but filled up 
 the next day and signed, a re-execution 
 was presumed. Hudson v. Revett, 5 Bing. 
 368. 
 
 {/) See tit. Stamps, and tit. Bills of 
 Exchange, &c. As to compelling the 
 production of documents for the purpose of 
 inspection, or of procuring them to be 
 stamped, see Vol. II. tit. Inspection. 
 The general rule is that the Court will not 
 make such an order unless the applicant 
 be either an actual party to the instru- 
 ment, or a party in interest. lb. Osborne 
 V. Taylor, 4 Taunt. 159. 1G2. Brown v. 
 
 Base, 6 Taunt. 283. Bateman v. Phil- 
 lips, 4 Taunt. 157. Johnson v. Lewelh/n, 
 6 Esp. C. 101 ; 1 Taunt. 386. Nor then 
 where each has his own part. Batcliffe 
 V. Bleasby, 3 Bing. 148. Pickering v. 
 Noyes, 1 B. & C. 262. Street v. Broicn, 
 6 Taunt. 302. In an action between A. 
 and B., the Court refused a rule to compel 
 
 B. to produce, for the purpose of being 
 stamped, an agreement between B. and 
 
 C, although it appeared by an affidavit 
 of C.'s, that the act complained of by ^. 
 arose out of this agreement. Lawrence v. 
 Hooker, 5 Bingh. 6. 
 
 (gf) And the objecting party ought to be 
 prepared to support his objection, by pro- 
 ducing the Act. 
 
 (//) Doe V. Bingham, 4 B. & A. 672. 
 
 (t) See Bill of Exchange. 
 
 (k) See Will. 
 
 (?) In general, for the particular proof, 
 see the title of the instrument itself. Cir- 
 cumstances necessary to make a document 
 evidence must be proved aliunde, and not 
 from the document itself; in order, there- 
 fore, to make entries by a corporator evi- 
 dence, it must be first shown by other evi- 
 dence that he was a corporator. Davies 
 V. Morgan, 1 Cr. & J. 587. 
 
 (m) Where the seal of the Bank of 
 England had been affixed by a paper 
 wafered to an indenture, on which paper 
 was written, " sealed by order of the 
 Court of Directors of the Governor and 
 Company of the Bank of England, 12th 
 December 1833. A. B. secretary," it was
 
 ATTESTING WITNESS. 371 
 
 party must call at least one of the witnesses ; and in cases where Proof by 
 the instrument labours under any doubt or suspicion, he ought to witness. 
 call them all. The law requires the testimony of the subscribing 
 witness, because the parties themselves, by selecting him as the 
 witness, have mutually agreed to rest upon his testimony in proof 
 of the execution of the instrument, and of the circumstances which 
 then took place, and because he knows those facts which are pro- 
 bably unknown to others (n). So rigid is this rule (o), that it is not 
 superseded, in the case of a deed, by proof of any admission or 
 acknowledgment of the execution by the party himself (j?), whether 
 the action he brought against the obligor himself, or against his 
 assignees after his bankruptcy (9) ; nor by proof of an admission of 
 the execution, made by the defendant in his answer to a bill in 
 equity (r). The rule applies, whether the question be between the 
 parties to the deed, or strangers (s) ; whether the deed be the 
 foundation of the action, or but collateral {t) ; or whether it still 
 exist as a deed, or has been cancelled (m); and although the issue 
 be directed by a Court of Equity to try the date, and not the ex- 
 istence of a deed (a;). Upon an indictment against an apprentice 
 for a fraudulent enlistment, it was held that the indentures must 
 be proved in the regular way (y). And the same rule applies to all 
 written agreements and other instruments attested by a witness, as 
 
 held that it did not appear that A. J3. observations of Lawrence, J., on the case 
 
 was an attesting witness. Tlie statement of Abbott v. Plumbe, 1 T. R. 2G7 ; and of 
 
 was considered to be a mere memorandum Lord Ellenborough, B,. v. Harringtori, 
 
 that the party signing was the person de- 4 M. & S. 353. Jones v. Breicer, 4 Taunt, 
 
 puted to affix the seaL Doe d. Bank of 56. The attesting witness must be called, 
 
 England v. Chambers, 4 Ad. & Ell. 412. . although he be the real party in the cause. 
 
 (m) Doe V. Durnford, 2 M. & S. 62. Honeijwood v. Peacock, 3 Camp. 196. 
 
 a. V. Jones, E. P. C. 822 ; 1 Leach, 238, But payment of money into court on one 
 
 3d edit. B. v. Harringworth, 4 M. & S. of the breaches of covenant assigned, 
 
 350; Burr. 2275; Peake's C. 30 ; 2 Esp. amounts to an admission of the deed, al- 
 
 C. G97. The defendant would otherwise though non est factum has been pleaded. 
 
 be deprived of the opportunity of cross- Bandall v. Lynch, 2 Camp. 357. And 
 
 examinino- the witness as to the time of admissions are binding which are made by 
 
 execution. Per Ashurst, J., in Abbott v. a party or his attorney, with a view to the 
 
 PZwm&e, Doug. 205. trial of the cause. Infra. 
 
 (fi) Formerly (as has already been ob- {q) Abbott v. Plumbe, Doug. 205. 
 
 served, supra), it was the practice to try (r) Call v. Dunning, 4 East, 53. 
 
 the existence of a disputed deed per pa- Bowles v. LangwortMj, 5 T. R. 366. B. 
 
 triam et testes; that is, the witnesses to v. Middlezoy, 2 T. R. 41. 
 the deed were sworn as part of the jury. (s) 4 East, 53. 
 
 {p) Abbott V. Plumbe. Doug. 205; 2 {t) Manners v. Postan, 4 Esp. C. 239. 
 
 East, 187 ; 7 T. R. 267. Although the ac- (m) Breton v. Cope, Peake's C. 30. 
 
 knowledgment be made in court. Johnson {x) Edinburgh v. Crudell, 2 Starkie's 
 
 V. Mason, 1 Esp. C. 89. Absalon v. An- C. 284. 
 
 derton, 3 Leon, 84, note (n); vide etiam, (y) B. v. Jones, E. P. C. 822. B. v. 
 
 Laing v. Bainc, 2 B. & P. 85. See the Harringwm'th, 4 M. & S. 350. 
 
 B B 2
 
 372 WRITTEN EVIDENCE : DEED. 
 
 for instance, a notice to quit in ejectment (c), in wliicli case it was 
 held, that proof of the service of t)ie notice upon the tenant, and 
 that it was read over to him without his making any objection, was 
 not sufficient. 
 
 Where the plaintiff avers that the defendant was bound by an 
 indenture, the fact may be proved by the production and proof of 
 the execution of the part executed by the defendant (a). 
 Proof of Where the sujscribinp- witness is called to prove the execution 
 
 ofldeed" of the deed, the proof consists. First, of the sealing ; Secondly, the 
 delivery. First, the sealing need not be with the seal of the obligor, 
 and need not have been actually made at the time; it is sufficient 
 if the obligor acknowledge any impression already made to be his 
 seal(Z»); and it seems that one piece of wax will suffice for several 
 obligors, if they make distinct and several prints upon it (c). In 
 Lord Lovelaces case {d), it was said that if one of the officers of the 
 forest put one seal to the rolls by the assent of all the verderers and 
 other officers, it is as good as if every one had put his several seal ; 
 as in case divers men enter into an obligation, and they all consent, 
 and set but one seal to it, it is a good obligation of them all. And 
 if one partner, in the presence of the other, seal and deliver a deed 
 of sale for both, it is binding upon both (e). Where a deed is 
 executed under some special authority, which prescribes the mode 
 and form of execution, the execution will not be valid unless those 
 requisites be observed. Where a certificate under the statute 
 8 &; 9 W. 3, c. 30 (which requires 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 overseers, vvhere there 
 are no churchwardens), was signed by two churchwardens and one 
 overseer, but bore two seals only, the Court held that it was not a 
 valid certificate. They said that it was the case of an execution 
 of a power, and that in the execution of powers all the circum- 
 stances required by the creators of the power, however unessential 
 
 (z) Doe V. Dtirvford, 2 M. & S. 62. fendant out of the hands of a third person, 
 
 Stone V. Metcnlf, 1 Starkie's C. 53. See to whom he had assigned it over by a deed 
 
 also Higgs v. Dixon, 2 Starkie's C. 180, reciting the original lease. Burnett v. 
 
 where tiie same was held as to an attested Lynch, 3 B. & C. 589; and 8 D. &; R. 368. 
 
 warrant to distrain. It is not competent to a party, who has 
 
 (a) Burleigh v. Stibbs, 5 T. R. 465. taken under a deed all the interest which 
 
 In an action by the lessor against the it gives, to dispute its due execution. 
 
 assignee of the lessee, the plaintiiF having Ibid, 
 proved the execution of the counterpart, (fe) Com. Dig. tit. Fait. 
 
 and that the original had been delivered (c) Sheph. Touchst. 65; Perkins, c. 2, 
 
 over to the defendant, it was held that he s. 134. 
 was not bound to prove the execution of (rf) Sir W. Jones, 268. 
 
 the original, which was produced by the de- (e) Ball v. Dunsterville, 4 T. R. 313.
 
 DELIVERY. 373 
 
 and otherwise unimportant, must be observed, and can only be Deed, proof 
 satisfied by a strictly literal and precise performance (/). "* 
 
 In the case of Adam v. Ker, on an action on a bond alleged to 
 have been sealed, evidence w^as admitted to prove a custom in 
 Jamaica (where the bond in question had been executed), by sub- 
 stituting a mark with a pen for a seal. The Court of Common 
 Pleas, after a verdict for the plaintiff, subject to the opinion of the 
 Court, granted a rule nisi to set aside the verdict and enter a 
 nonsuit, but no decision was given ( g). 
 
 No particular form of delivery is requisite; it is sufficient if the Proof of 
 obligor, by any act, indicate his inLention to put the deed into the '^^^^'^^^ 
 possession of the other party, as by throwing it down upon the 
 table for the other to take it up. So if a stranger deliver it with 
 the assent of a party to the deed (/^). If the deed be made by a cor- 
 porate body, it is sufficient to prove that it was sealed by the cor- 
 porate or any other seal which was used for the occasion, without 
 proving a delivery of the deed {i). But if the corporation, by their 
 letter of attorney, have appointed an agent to deliver the deed, it is 
 not their deed till delivery (^). Where a deed is executed by virtue 
 of a power of attorney from the obligor, the power of attorney must 
 be proved (Z). Proof of the delivery of a sealed instrument will be 
 evidence that the party adopts and acknowledges the seal to be 
 Ills ; and proof that he wrote his name opposite to the seal affords 
 presumptive evidence of the sealing and delivery of a deed in which 
 it was affirmed that he sealed it(m). 
 
 Where there are several attesting witnesses, it is sufficient in Proof by 
 point of law to call one only (w), and that even in the case of a will, r°f "ttest-^" 
 provided he can prove the execution of the will by the testator, and ing wit- 
 that he and the rest of the witnesses subscribed their names in the 
 presence of the testator (o). But if any suspicion attach to the 
 execution, it is prudent to call all the witnesses (p). 
 
 (/) B.\, Austrey, Easter Term, 1817. sufficient execution. R.v. Longnor Inhab. 
 
 HmcUns v. Kemj), 3 East, 440. See tit. 4 B. & Art. 647. 
 
 Power, and Sir E. Sugden's Treatise on (i) Perli. c. 2, s. 132. The name used 
 
 Powers, where tlie whole subject of Powers must be the same in substance with the 
 
 is most skilfully treated. true name, but nc id not be the same in 
 
 ig) 1 B. & P. 360. words and syllables. Case of Mayor and 
 
 (k) Com. Dig. Ev. A.; Co. Litt. 36, a. Burgesses of Lynn, 10 Coke, 124. Croy- 
 
 Tlioroughgood's case, 9 Rep. 137, a. don Hospital v. Finley, 6 Taunt. 467. 
 
 Murray v. Earl of Stair, 2 B. & C. 82. (k) Co. Litt. 36, a. 
 
 A boy and his father went to execute an (l) Johnson v. Mason, 1 Esp. C. 89. 
 
 apprentice deed, binding the son, they (m) Talbot v. Hodson, 7 Taunt. 251. 
 
 desired a person to write their names op- (n) Str. 1254. 
 
 posite to two seals, which was done; they (o) B. N. P. 264; 1 P. Wms. 471. 
 
 took the instrument to the master, and (jo) 4 Burr. 2224. 
 
 left it with him. This was held to be a 
 
 B B 3
 
 374 WRITTEN EVIDENCE : ATTESTING WITNESS. 
 
 State of the It is not necessary that tlie witness who proves the seahng and 
 dehvery should also be able to prove the state of the instrument at 
 the time of execution, and that all the blanks were then filled up. 
 In practice, indeed, it seldom happens that a witness can prove 
 more than the sealing and delivery of the deed, and the identity of 
 the parties ( q). Where the subscribing witness to a bond stated 
 that he saw it executed by a person who was introduced by the 
 nameof Hawkshaw (the name of the defendant), but was unable to 
 identify him with the defendant in the action, the plaintiff was non- 
 suited {r). Where a bond had been executed and attested by a 
 witness in one room, and was then taken into an adjoining room, 
 and at the request of the defendant's attorney, and in the hearing 
 of the defendant, was attested by another witness, who knew the 
 defendant's hand-writing, it was held that the execution of the deed 
 was sufficiently proved by the latter witness, since the whole might 
 be considered as one entire transaction (5). 
 Proof on Although a party is under the necessity of calling the subscrib- 
 
 subscribino- i"g witness {t), he is not concluded by the testimony of that witness, 
 witness. if he cannot or will not declare the truth. If the witness refuse 
 to testify {u) the attestation may be proved by another witness {x). 
 Where one of the witnesses to a will would not swear to the sealing 
 and publication. Holt, C. J., held that it was sufficient to prove the 
 attestation of the witness {y). If the witness admit his signature 
 as attesting witness, but prove that he did not in fact see the instru- 
 
 {q) England v. Roper, 1 Starkie's C. very, and that the delivery was but con- 
 
 304; and see Talbot v. Hodson, 7 Taunt. ditional as an escrow. Johnson v. Baher, 
 
 251. 4 B. & A. 440. Where the attesting wit- 
 
 (r) Parkins v. HawTisJuno, 2 Starkie's ness stated that a bond was delivered by 
 
 C. 239; B. N. P. 271. Nelson v. Whittal, the obligor as his deed, but that both before 
 
 1 B. & A. 20. Middleton v. Sandford, and after the delivery it was agreed that 
 
 4 Camp. 34. But see below, p. 380. it should continue in the witness's hands 
 
 (s) Parlie v. Mears, 2 B. & P. 217. until the death of ^., J3. and C, and that 
 See also Powell v. Blucliett, 1 Esp. C. 97. it was given to him on that condition, it 
 A. informs B. that he has executed a was held to be a question for the jury 
 bond, and desires him to attest it ; ^. is a whether it was delivered to take effect 
 good attesting witness ; ibid. Secus, if from the time of delivery, or upon a con- 
 there be another attesting witness, who dition that it was not to operate till the 
 actually saw the deed executed. 3I'Craw death of A., B. and C. Murray v. Earl 
 V. Gentey, 3 Camp. 232. Wright v. o/5'tor, 2 B. & C. 82. 
 Wakeford, 4 Taunt. 220, Where it was (t) Jones v. Brewci; 4 Taunt. 46. 
 agreed at a meeting of creditors that a (?/) R. v. Harringworth, 4 M. & S. 
 composition-deed, when executed by the 353. Talbot v. Hodgson,"] Taunt. 251. 
 creditors present, should be void unless all (.r) Per Lord Mansfield, Burr. 2224, 
 the creditors executed it ; and the deed was 2225, where two of the witnesses to a will 
 delivered to one of the creditors to get it denied their handwriting, and it was 
 executed by the rest, it was held that tlie proved by the third, 
 conversation was part of the act of deli- {y) JJayicell v. Glasscucli, Skinn. 413.
 
 EXCUSE FOR ABSENCE OF. 375 
 
 merit executed, proof of the handwriting of the obhgor will be Proof on 
 sufficient (2). If the witness actually deny the due execution of subscribing 
 the instrument, other witnesses may be called to contradict him ; witness. 
 and circumstantial evidence is admissible to prove the contrary(a). 
 So a will may be proved by the evidence of one witness, although two 
 of the attesting witnesses swear that the testator was incompetent (J). 
 And where two witnesses to a will of lands swore that the testator 
 did not publish the will, and was incapable of doing so, the Court, 
 upon a trial at bar, admitted witnesses to contradict them (c). 
 
 In the celebrated case of Lowe v. Jollijfe ( </), the three sub- 
 scribing witnesses to the testator's will, and the two surviving 
 ones to a codicil made four years subsequent to the will, all swore 
 that he was incapable of making a will at the time of making the 
 will and codicil, or at any intermediate time ; and yet the will was 
 established upon the testimony of other witnesses. 
 
 Where the instrument purports to have been attested by a wit- Excuse for 
 ness, the party on whom the proof of the instrument lies must, ofthesub- 
 unless the instrument appear to be thirty years old (when it is to scribing 
 be inferred that the witnesses are dead), either call an attesting 
 witness, or show that the usual proof by means of the attesting 
 witness has become impossible. For this purpose he may prove 
 that the attesting witness is dead (e), has become blind (/), or in- 
 sane {g) : That he has since the attestation been convicted of an 
 offence, such as forgery, which renders him incompetent as a wit- 
 ness (A), which should be proved by the production of the record 
 of conviction, or by means of an examined copy of it(i); and then 
 if the conviction took place after the attestation, the handwriting 
 of the witness should be proved (7e) ; but if the witness was ren- 
 dered infamous by a conviction previous to the attestation, it is 
 the same as if he had not attested the deed at all : That the 
 
 {z) Grellier v. Neale, Peake's C. 47, (rf) 1 Bl. 365 ; and see Pike v. Bad- 
 
 i. e if no other attesting witness appear mering, Str. 1096, And. 224. 
 
 on the instrument; and see Talbot v. (e) Barnes v. Trompoivski, 7 T. R. 
 
 Hodson, 7 Taunt. 251. Burrows v. LocTt, 265. It seems that the ordinary presump- 
 
 10 Ves. 474. Lemon v. Bean, 2 Camp. tions as to the death of any party would 
 
 C. 636. Fitzgerald v. Elsee, 2 Camp. C. be acted upon. See Vol. II., tit. Death 
 
 635. Ley v. Ballard, 3 Esp. C. 173, n. —Pedigree. 
 
 Contra, Phipps v. Parker, 1 Camp. 412. (/) Wood v. JDrury, Ld. Raym. 734. 
 
 (a) And. 224, per Lord Mansfield, 
 Doug. 206. 
 
 12 Vin. Ab. T. b. 48, pi. 12. Pedler v. 
 Paige, 1 Mood. & R. 258. 
 
 (g) Per Buller, J. 3 T. R. 712; per 
 
 (b) Biggs's case, Skinn. 79. Ld. Kenyon, R. v. Eriswell, 3 T. R. 74; 
 
 (c) And committed the two witnesses Burnett v. Taylor, 8 Ves. 381. Currie 
 for perjury, taking security from tlie v. Chill, 3 Camp. 283. 
 
 plaintiff to prosecute them. Hudson's {h) Jones v. Mason, Str. 833. 
 
 case, Skinn. 49. (0 IMd. {k) Ibid. 
 
 B B 4
 
 376 
 
 WRITTEN evidence: ATTESTING WITNESS. 
 
 Excuse for 
 the absence 
 of the sub- 
 scribing 
 witness. 
 
 witness was interested at the time of the attestation, which 
 is therefore a nunity(/): That he has since the attestation be- 
 come interested {g), as where he has become the administrator of 
 the obhgee (A), even though he disquahfied himself voluntarily by 
 taking out administration (i) : That he has married the person to 
 whom the instrument was given (j): That the witness is abroad 
 and beyond the process of the Court, whether he be domiciled 
 there or not (A), as in Ireland (Z) : That he has been kept out of the 
 way at the instance of the adversary or party charged in the 
 suit {m) : That the witness cannot be found after diligent inquiry 
 made (w). The nature of this inquiry may be collected from the 
 
 (/) 5 T. R. 371. But if a party, 
 knowing that a witness is interested, 
 request him to attest the instrument, he 
 cannot afterwards insist upon the objec- 
 tion. Honeywood v. Peacock, 3 Camp. 
 C. 196. 
 
 (gr) Sivire v. Bell, 5 T. R. 371. See 
 also Goss V. Tracy, 2 P. W. 280. 
 Buckles V. Smith, 2 Esp. C. 697. 
 Godfrey v. Norris, 1 Str. 34. Honey- 
 wood V. Peacock, 3 Camp. 196. Where 
 the plaintiff in an action on a charter- 
 party had communicated an interest to 
 a witness to the charter-party after the 
 execution of the instrument, it was held 
 that evidence of his handwriting was 
 inadmissible. Hovill v. Steiihenson, 5 
 Bing. 493. 
 
 {h) Godfrey v. Norris, Str. 34 ; 2 Ves. 
 112. 
 
 (i) Str. 34; 5 T. R. 371. 
 
 {j ) Buckley v. Smith, 2 Esp. C. 697. 
 
 (A) Prince v. Blackburn, 2 East, 250. 
 Coghlan v. Williamson, Doug. 93. 
 Holmes v.Ponten, Peake's C. 99. Adams 
 V. Kerr, 1 B. & P. 360. Wallis v. Be- 
 lancy, 7 T. R. 266. Ward v. Wells, 1 
 Taunt. 161. Hodnett v. Forman, 1 
 Starkie's C. 80. ' That he went abroad 
 two years ago, and has not been heard 
 of since, Boe v. Paul, 3 C. & P. 13. 
 One of two subscribing witnesses was 
 dead, and tlie other had gone abroad twenty 
 years before the trial, and the witness who 
 proved the latter fact, stated that he had 
 not heard anything of him since, but that 
 he had applied to his brother, who informed 
 him that he did not know where he was, 
 whether in England or abroad. Tlie Court 
 held, that proof of his handwriting ought 
 
 to have been admitted ; and Lord Ellen- 
 borough observed, that proof of the fact of 
 the subscribing witness's going abroad 
 twenty years ago (so large a portion of a 
 man's life), and never having been heard 
 of since, was of itself sufficient. Boe d. 
 Johnson v. Johnson, K. B. Trin. T. 1818 ; 
 cited 1 Phillips on Ev. 474. In Boe v. 
 Poivell, 7 C. «Sc P. 617, it was proposed to 
 show that a subscribing witness had 
 stated where he resided ; and further, to 
 show that upon inquiry made at that 
 place, the answer was that he had gone to 
 America, and then to prove in substance 
 that some sea-faring men had said that 
 they had seen the witness in America, but 
 the evidence was rejected, 
 
 {I) Hodnett v. Forman, 1 Starkie's C. 
 90 ; S. P. per Grose, J., Aylesbury Lent 
 Ass. 1806; 1 Burn by Chetw. 780; see 
 also Burt v. Walker, 4 B. & A. 697. 
 
 (»i) Pytt v. Griffith, 6 Moore, 64. 
 See Boe v. Johnson, sujwa, note {k). 
 In case of evidence of inquiries made after 
 an attesting witness, answers made even 
 by strangers to inquiries duly prosecuted, 
 seem in general to be admissible, to show 
 that further inquiry would be hopeless, or 
 that such further inquiry has been made 
 as such answers warrant without success. 
 Declarations made by the attesting wit- 
 ness previous to his departure, or letters 
 from him since his departure, tending to 
 show that inquiry has been properly made, 
 or the impossibility of procuring the at- 
 tendance of the witness appear also to be 
 admissible. The evidence in such case is 
 oiFered to the Judge, not to the jury. 
 
 («) Cunliffe v. Sefton, 2 East, 183. 
 In the case of a warrant of attorney, to
 
 EXCUSE FOR ABSENCE OF. 377 
 
 following cases. There were two witnesses to a bond which had Proof in 
 
 excuse c 
 absence 
 
 been executed in America : it was proved that Rivington, one of ^^^^^^^ "^ 
 
 the witnesses, was in America ; and to show that William More- 
 ton, the other witness, was also abroad, it was proved that a man 
 of the name of Moreton had lived with Rivington, but it could 
 not be proved that his name was William, or that at the time of 
 trial he was not in England ; the handwriting of the other wit- 
 ness was proved, and Lord Kenyon held that it was reasonable 
 evidence to go to a jury (o). The clerk of the defendant was the 
 subscribing witness to a bond, and when he was subpoenaed, said 
 that he would not attend, and the trial had been put off twice in 
 consequence of his absence : search had also been made at the 
 defendant's house and in the neighbourhood, and upon receiv- 
 ing information at the defendant's that the witness was gone to 
 Margate, inquiry was there made without success ; it was held, 
 that under these circumstances, evidence of his handwriting was 
 admissible (p). After inquiry at the several places of residence of 
 the obligor and obhgee, where no intelligence could be procured as 
 to the witness, whom nobody knew, secondary evidence was held 
 to be admissible (q). And it was held that it was unnecessary in 
 such a case to advertise for the witness in the public newspapers (r), 
 inquiry having been made at the only places where it was likely 
 that the witness would be met with or heard of. Where the 
 attesting witness had left his office of business in London twelve 
 months before, but no inquiry had been made at the house at 
 Sydenham, where he had resided with his family, the evidence was 
 held to be insufficient (s) ; but on proof being given that a com- 
 mission of bankrupt had been sued out against the witness a year 
 before, to which he had not appeared, Lord EUenborough said that 
 
 dispense with the deposition of the attest- And Lord EUenborough in that case ob- 
 
 iflg witness, the nature of the search, served that the proof of search ought 
 
 where he had been last seen or known to to be watched very narrowly. Where 
 
 reside, and when he was last heard of, it was proved that the attesting witness 
 
 must be stated. Waring v. Boioles, 4 to an agreement had been inquired after 
 
 Taunt. 132; and see Crosby v. Percy, by a person who knew him, but who 
 
 1 Taunt. 365. Parker v. Hoskins, 2 had not seen him for eighteen months, at 
 
 Taunt. 223. Burt v. Walker, 4 B. & A. coffee-houses and other places where he 
 
 C97. Wardel v. Fermor, 2 Camp. C. thought he might hear of him, at the 
 
 282. request of the plaintiff's attorney, and 
 
 (o) Wallis V. Belancy, Sittings at without success, it was held that proof of 
 
 Westminster, Feb. 1809, 7 T. R. 266, the handwriting was admissible, without 
 
 in the note. proof that inquiry had been made of the 
 
 {p) Burt V. Walker, 4 B. & A. 697. parties to the suit, who had executed the 
 
 iq) Cunliffe v. Sefton, 2 East, 183. agreement. Evans v. Curtis, 2 C. & P. 
 
 (»•) 2 East, 183. 296. 
 
 {s) Warden v. Fermor, 2 Camp. 282.
 
 378 
 
 WRITTEN EVIDENCE : ATTESTING WITNESS. 
 
 Proof in 
 excuse of 
 abseuce. 
 
 he would presume that he was out of the kingdom, and that if he 
 had been at Sydenliam he would have surrendered to save himself 
 from a capital felony (t). Where inquiry had been made after the 
 witness at the admiralty, and it appeared from the last report that 
 he was serving on board some ship, but it did not appear what 
 ship, it was held to be sufficient {71) So it was where inquiry had 
 been made at the last place of residence of the witness, and the 
 answer from his father was, that he had absconded to avoid his 
 creditors, and was not to be found {x). In another case, the testi- 
 mony of the subscribing witness was dispensed with on evidence 
 given that the witness had expressed his intention to leave the 
 country, stating that he had reason for doing so, in order to avoid 
 a criminal charge, and that his relations had not seen him after his 
 expression of such intention (2). A fortnight before the trial 
 inquiry was made in vain from the clerk and agent of the attesting 
 witness, and five or six days before the trial inquiry was made from 
 his wife and servant at his house, who could give no information ; 
 a bailiff, from whom he had escaped, stated that he had searched 
 for him without effect ; it was held to be sufficient (a). If an attest- 
 ing witness has set out to leave the kingdom, his absence is suffi- 
 ciently accounted for, although in fact the vessel may have been 
 unexpectedly beaten back into an English port by contrary winds 
 at the time of trial (b). 
 
 It seems that the temporary illness of an instrumentary witness 
 would not be a sufficient ground for admitting secondary evi- 
 dence (c). 
 
 Where the plaintiff, in order to prove his possession of a house, 
 proposed to prove receipts for taxes given by the tax-gatherer, 
 who had attended under a suhpmia to give evidence, but had been 
 seized with an apoplectic fit, and taken home dangerously ill before 
 the trial came on, and it was proved that he was in extremis, the 
 secondary evidence was rejected {d). 
 
 (i) 2 Camp. C. 282; and see 12 Mod 607. 
 
 (m) Parker v. Hosliins, 2 Taunt. 223. 
 
 {x) Crosby v. Percy, 1 Taunt. 365. 
 Where the father of the witness proved 
 his having enlisted in a regiment, which, 
 upon inquiry at the War-office, lie was told 
 had sailed for India ; held sufficient to let 
 in proof of his handwriting. Wyatt v. 
 Bateman, 7 C. & P. 686. An inquiry of 
 the servant at the premises, held a suffi- 
 cient inquiry to let in evidence of the wit- 
 ness's handwriting, and tliat it is not 
 necessary to show that he is kept out of 
 
 the way by collusion. Willman v. Wor- 
 r«//,8 C. & P. 380. Semble, where grounds 
 are shown for suspecting that he is pur- 
 posely kept out of the way, proof of 
 stricter search is requisite. 
 
 {z) Kay V. Brochnan, 3 C. & P. 555. 
 
 («) Morgan v. Morgan, 9 Bing. 359. 
 
 (b) Ward V. Wells, 1 Taunt. 461. 
 
 (c) A tx'ial at the assizes may be put off 
 on an affidavit stating the illness of such a 
 witness. 
 
 (d) By Lord Ellenborough, Harrison v. 
 Blades, 3 Camp. C. 457. Mansfield, C. J.,
 
 SECONDARY EVIDENCE. 379 
 
 The party may also prove that the name of a person as attesting Proof in 
 witness was introduced as such without the knowledge or assent of ^bsence"^ 
 the parties ; for in that case he is not an attesting witness (<?), or 
 that the name was merely fictitious (/). But it is no excuse to 
 show that the witness has denied his attestation, without calling 
 him {g). 
 
 Where there is more than one attesting witness, and the ab- 
 sence of all but one is accounted for, the case seems to be the 
 same as if the latter had been the only attesting witness, and he 
 must be called to prove the execution, and no other evidence can 
 supply the place of his testimony. 
 
 Where there have been sufficient attesting witnesses, whose Secondary 
 absence is satisfactorily accounted for, the proper proof is by absence of 
 
 givino; evidence of the handwritino; of the attestino" witnesses • l"^'^ attest- 
 ^ P . . . ' ing witness. 
 
 and it has been usual in such cases to give evidence also of the 
 
 handwriting of the obligor (^). This however does not appear to 
 
 be necessary (i). The signature of an attesting witness, when 
 
 proved, is evidence of every thing upon the face of the instrument, 
 
 for it is to be presumed that the witness would not have subscribed 
 
 his name in attestation of that which did not take place ; and 
 
 where there are several attesting witnesses, all of whom are 
 
 accounted for, pz^oof of the handwriting of any one is sufficient, 
 
 without proving that of the rest {k). It has been held, indeed, in 
 
 some instances, that where the testimony of the attesting witnesses 
 
 cannot be had, owing to their death, absence, interest, or any other 
 
 disqualification accruing subsequently to the attestation, the sig- 
 
 ture of the party, as well as the witness (Z), must be proved ; and, 
 
 in many instances, an admission by the obligor (m) of the debt, or 
 
 in Jones v. Brewer, 4 Taunt. 40, says, (i) Kay v. Broohnan, 7 C ScV. 556. 
 
 " perhaps in some instances of sickness " (k) 1 B. & P. 360. Gough v. Cecil, 
 
 the handwriting of a subscribing witness 1 Sel. 516, n. Cunliffe v. Sefton, 2 East, 
 
 may be proved. See Doe v. Evans, 3 C 183. Prince v. BlacMmrne, ib. 240. 
 
 & P. 221. But in Hill v. Unett, 3 Madd. 370, it is 
 
 (e) 4 Taunt. 220. M'Craw v. Gentrij, said, that if tlie witness be alive, proof 
 
 3 Camp, 232. must be given of the handwriting of the 
 
 (/) Fasset Y. BroivnyVeake'sC^^. obligor. In such case, a parol acknow- 
 
 {g) Jonesy. _Bre?t'e/', 4 Taunt. 46. And. ledgment will not be sufficient to dispense 
 
 235. See Talbot v. Hodgson, 7 Taunt. with evidence of the handwriting. Ibid. 
 251. Fitzgerald v. Elsee, 2 Camp. 635. {I) 7 T. R. 260. Wallis v. Delancy, 
 
 Lemon v. Dean, 2 Camp. 636, n. Orel- 7 T. R. 266, n. Coghlan v. Williamson, 
 
 Her V. Neale, Peake's C. 145. Ley v. Doug. 89. 93. 
 
 Ballard, 3 Esp. C. 173. Boxe)- v. Ro- {m) Doug. 89. 93; 2 East, 183. In an 
 
 heth, Gow. 175. Contra, Pkippes v. action on a promissory note, the subscrib- 
 
 Parker, 1 Camp. 412. ing witness being dead, proof of his hand- 
 
 {h) IB. & P. 360; 2 East, 183. 250; writing, and that the defendant was present 
 
 2 Str. 833 ; 1 Str. 34. when the note was prepared, is sufficient.
 
 380 
 
 AVRITTEN EVIDENCE : ATTESTING WITNESS. 
 
 Secondary 
 proof in the 
 absence of 
 the attest- 
 ing wit- 
 uess. 
 
 of the execution of the deed, has been given in evidence. It seems, 
 however, to be now perfectly settled, for the reason already given, 
 that evidence of th e signature of one of the attesting witnesses 
 alone is sufficient (w) ; as in the case of Adams v. Kerr (o), where 
 it was proved, that one witness was dead, and that the other was 
 in Jamaica, and proof of the handwritins; of the deceased witness 
 was held to be sufficient, without proof of the handwriting of the 
 other witness, or of the obligor. Some doubt, however, has existed 
 upon the question, whether in such cases proof of the handwriting 
 of the witness was sufficient, he being dead, without any further 
 proof of the identity of the parties, except that of similarity of 
 name and description. Lord Tenterden acted on the opinion, that 
 no further evidence was necessary (p). But in the case of White- 
 loch v. Musgrove {q) evidence of identity was held to be necessary. 
 
 without proving the handwriting of the 
 defendant. Nelson v. Whittall, 1 B. 
 & A. 19. But see Page v. Mann, 1 M. 
 & M. 79. Where it was proved that 
 th e attesting witness had gone abroad two 
 years ago, and it was not known what had 
 become of him since, and the defendant 
 had been heard to say lie had sixteen years 
 to come of the term granted by the lease, 
 held that proof of the subscribing witness's 
 handwriting was sufficient, though the 
 party executing the deed was a marks- 
 man. Doe d. Wheeldon v. Paul, 3 C. 
 & P. 613. Where the attesting witness 
 cannot be produced, proof of his hand- 
 writing is sufficient evidence of execution 
 by the obligor, although only a marksman. 
 Mitchell V. Johnson, ] M. & M. 176. 
 Where the subscribing witness to the deed 
 of proprietors constituting a company, was 
 beyond seas, held that proof of his hand- 
 writing was sufficient, without further 
 proof of the handwriting or identity of the 
 parties. Kay v. Broohnan, 1 M. & M. 
 286 ; and3 C. & P. 555, overruling Nelson 
 V. Whittall, 1 B. & A. 19. 
 
 {n) Adams v. Kerr, 1 B. & P. 360. 
 Prince v. Blackhurne, 2 East, 250. Mil- 
 ward V. Temple, 1 Camp. 375. Gongh 
 y. Cecil, 1 Sel. N.P. 516. It is however 
 frequently desirable to give evidence of the 
 handwriting of the obligor, for the purpose 
 of proving his identity, some evidence of 
 whicli seems to be in all cases necessary. 
 See Parkins v. Hawkshaw, 2 Starkie's C. 
 239, tupra, 374. And see Nelson v. Whittall, 
 
 1 B. & A. 19. Middleton v. Sandford, 
 4 Camp. 24. Mancot v. Bates, B. N. P. 
 171. 
 
 (o) 1 B. & P. 360. Prince v. BlacTi- 
 burne, 2 East, 250. But see Hill v. Unett, 
 3 Maddox, 370, where the distinction is 
 taken between the case where a witness is 
 dead, and that where he is still living ; in 
 the latter case it was held, that proof of 
 the handwriting of the obligor was neces- 
 sary. 
 
 (p) Page v. Mann, 1 M. & M. 79, 
 cor. Lord Tenterden, C. J. Notwith- 
 standing the doubt expressed by Bayley, 
 J., in Nelson v. Whittall, 1 B. & A. 21, 
 referring to the opinion of Lord Kenyon, 
 in Wallis v. Belancy, 7 Tr. 266, n., that 
 the handwriting of the obligor of a bond 
 in such case ought to be proved. See 
 also Doe d. Wheeldon v. Paul, 3 C. & P. 
 13. Kay v. Brookman, 1 M. & M. 286; 
 3 C. & P. 555. Mitchell v. Johnson, 
 1 M. & M. 176. 
 
 (q) 1 Cr. & M. 521. That was the case 
 of an action on a promissory note made by 
 a marksman. Slight evidence of identity 
 appears, however, to be sufficient. Nelson 
 V. Whittall, 1 B. & A. 19. Gough v. 
 Cecil, Sel. N. P. 516. And altliough proof 
 of the parties' signature would usually be 
 the most satisfactory evidence of identity, 
 such evidence does not, according to the case 
 of Whitelock y. Musgrove, 1 C. &. M. 511; 
 3 Tye. 541, appear to be necessary. Proof 
 t]iat the defendant was present when the 
 instrument was executed, that he resided
 
 PROOF BY — WHEN UNNECESSARY. 381 
 
 Where one of the attesting witnesses, after dihgent inquiry made Secondary 
 
 could not be found, and the other had become interested since the P™°* "'*'i^ 
 ' . al)sciice 01 
 
 attestation, it was held, that evidence of the handwriting of the the attest- 
 
 latter witness was sufficient proof (r). So where the witness since "'f^^^'*"*^^^- 
 
 •the attestation had been convicted of forgery (^). Where one of 
 
 two witnesses was dead, and the other denied his signature, Lord 
 
 Holt admitted evidence of the handwriting of the former (u). By 
 
 the 20 Geo. 3, c. 57, s. 38, as to deeds executed in the East Indies, 
 
 and attested by witnesses resident there, it is sufficient to prove by 
 
 one witness the handwriting of the parties and of the witnesses, 
 
 and that the latter are resident in India. These provisions seem 
 
 to have been superseded by the rules of evidence already stated. 
 
 Where it appears that one or more of those whose names ap- 
 pear on the face of the instrument to be attesting witnesses, never 
 were so in fact ; as where, upon being called, they prove that they 
 never did attest the execution of the instrument ; or where they 
 were incompetent at the time of its execution to attest it, either from 
 being interested, or from infamy of character, the effect seems to 
 be the same as if their names had not appeared at all on the face 
 of the instrument (x). In such case, if there be other attesting 
 witnesses they must be called, or their absence accounted for, and 
 their handwriting proved in the manner already stated. 
 
 If the deed, or other instrument, when produced, appear to be Proof of, 
 thirty years old, no further proof is required ; since after that years oW. 
 time it is to be presumed that the attesting witnesses are all dead (y). 
 And it seems to be clearly established, that this is not a 
 
 at the place, or any other circumstance, or Tri. P. P. 339. 346 ; Co. Litt. 6. Doe d. 
 
 observations made by him tending to prove Spilshury v. Burdett, 4 A. & E. 19 ; 
 
 identity, would be admissible for the pur- 2 T. R. 471. Doe v. Walley, !i B. & C. 
 
 pose. Ibid. And see Nelson v. Whittall, 24. So in case of a will thirty years old, 
 
 1 B. & A. 19. Gough v. Cecil, cited Sel. reckoning from the time of execution. See 
 
 N. P. 516, n. Will, and Doe v. Walley, 6 B. & C. 22. 
 
 (r) Ciin;(#e V. S'e/i'on, 2 East, 1 83. In JfiZZer v. Jfi^er, 2 Bing. N. C. 76. And 
 
 this case there was also proof of the ac- Vol. II. tit. Will. The rule applies ge- 
 
 knowledgment of the debt. See also I Str. nerally to deeds concerning lands, bonds, 
 
 34 ; 1 P. W. 289. Swire v. Bell, r>T. R. 372. and other specialties. Governor of Chel- 
 
 (t) Jones v. Mason, Str. 833. sea Watertvorks v. Cowper, 1 Esp. C. 275. 
 
 (m) Burton v. Tooii, Skinn. 639. Entries in stewards' books. Wynne v. 
 
 (a?) Vid. siq)ra, 375. The attesting Tyrichitt, 4 B. & A. 376. Letters and 
 witness to a bond declared that he did not other written documents. lb. For the 
 see it executed by the obligor ; held that rule is founded on the antiquity of the 
 it was the same as if there had appeared instrument, and the great difficulty, nay 
 to be no attesting witness, and that the the impossibility, of proving the hand- 
 execution was sufficiently proved by show- writing after such a lapse of time. See 
 ing the handwriting of the obligor. Boxer B. v. Ryton, 5 T. R. 229. Fry v. Wood, 
 V. Rabeth, 1 Gow's C. 175. Sel. N. P. 535. Dean and Chapter of 
 
 iy) B. N. P. 255 ; Bac. Ab. Ev. F. C47 ; Ely v. Stewart, 2 Atk. 44. Mauley v.
 
 382 
 
 WRITTEN INSTRUMENT : ATTESTING WITNESS. 
 
 Proof of, 
 when thirty 
 years old. 
 
 mere prima facie presumption that tlie witnesses are dead, which 
 is Hable to be rebutted by proof that the attesting witnesses are 
 still alive, so as to render it necessary to call them : but that it 
 is a peremptory rule of law, founded upon general convenience, that 
 such proof, after a lapse of thirty years, shall be unnecessary (z). 
 Where, however, the deed labours under any suspicion, arising 
 from any rasure or interlineation, it is a matter of prudence and 
 discretion to prove it in the usual way by means of" an attesting 
 witness, if any be still living, or by proof of the handwriting of an at- 
 testing witness, where they are all dead (a), in order to rebut the un- 
 favourable presumption arising from an inspection of the deed ; and 
 
 Curtis, 1 Price, 232. Bet-tie v. Beau- 
 mont, 2 Price, 308. Where a letter, dated 
 in 1748, was found in the possession of the 
 representative of the defendant's attorney, 
 it was held to be jwimA facie evidence to 
 prove that the letter had been written to 
 him, although it was without address, the 
 envelope having been lost. Femvick v. 
 Meed, 6 Mad. 8. It was also held, in the 
 same case, that a letter found among his 
 papers, and appearing, from its contents, 
 to have been written by the attorney's 
 London agent, was admissible in evidence. 
 Ibid. In Beer v. Ward, on the trial of an 
 issue as to the legitimacy of a particular 
 person, a very old letter, purporting to 
 bear the signature of the head of the fa- 
 mily, and brought from among the title- 
 deeds kept at the family seat, was admitted 
 without proof of the handwriting, by 
 Dallas, C. J., Mich. 1821, and by Lord 
 Tenterden, 1823. In favour of an ancient 
 certificate, recognised by the certifying 
 parish, it will be presumed that the 
 churchwarden who executed the certifi- 
 cate, was duly sworn. R. v. Whitchurch 
 Inh., 7 B. & C. 573. 3Iarsh v. Colnett, 
 2 Esp. C. 665. And see R. v. Farring- 
 don, 2 T. R. 466. 3Iackey v. Newbolt, 
 4 T. R. 709. In the case of The King v. 
 Netherthong, 2 M. & S. 337, it was held, 
 that a certificate by the appellant parish 
 (60 years old), might be read in evidence 
 when produced by a rated inhabitant of 
 the respondent parish, without any ac- 
 count given of its custody ; and the Coui't 
 intimated that he might, if necessary, be 
 examined by the appellants as to the cus- 
 tody. A bond, 30 years old, found amongst 
 the papers of a corporation, who were the 
 
 obligees, is admissible without proof of 
 the handwriting of the obligor or attest- 
 ing witness. The Governor and Company 
 of the Chelsea Waterworks v. Cotoper, 
 1 Esp. C. 275. Rees v. Mansell, Selw. 
 N. P. 51 7. On a question, whether cer- 
 tain lands, which had been approved from 
 a waste, were subject to a right of com- 
 mon, several counterparts of old leases, 
 kept among the muniments of the lord of 
 the manor, by which the land appeared to 
 have been demised by the lord free from 
 any such charge, were allowed to be evi- 
 dence for the plaintiff claiming under the 
 lord of the manor, though possession under 
 the leases was not shown. Clarkson v. 
 Woodhouse, 5 T. R. 412, n. 
 
 {z) Doe V. Walley, 5 B. & C. 24. Lord 
 Tenterden, C. J., in that case observed, 
 that the allowing the presumjjtion of the 
 death of the attesting witness to be rebutted, 
 would be but a trap for a nonsuit. And see 
 B. N. P. 255. Marsh v. Colnett, 2 Esp. C. 
 665. In Rees v. Maxwell, Sel. N. P. 402, 
 Baron Perrott is stated to have ruled to 
 the contrary, on the ground that the lapse 
 of tune afforded mere presumptive evidence 
 of the death of witnesses. But another 
 case was cited to Mr. B. Perrott upon tliat 
 occasion, in which Mr. J. Yates, for the 
 sake of the practice, would not allow a 
 witness to prove an old deed, although he 
 attended for the purpose. And see Doe v. 
 Burdett, 4 Ad. & Ell, 1. In the Law of 
 Evidence, 2d edit. 105, 40 years is stated 
 as the age when a deed becomes admissible 
 without the usual proof. 
 
 (a) Chettle v. Pound, B. N. P. 255 ; 
 Bac. Ab. Ev. F. C48.
 
 PROOF BY, WHEN UNNECESSARY. 
 
 383 
 
 this ought more especially to be done if the deed import fraud ; 
 as where a man conveys a reversion to one, and afterwards con- 
 veys it to another, and the second purchaser proves his title ; be- 
 cause in such case, the presumption arising from the antiquity of 
 the deed is destroyed by an opposite presumption ; for no man 
 shall be supposed guilty of so manifest a fraud (b). The same rule 
 applies to other old writings, such as receipts (c) and letters (d). 
 Where an indenture of apprenticeship had been executed tliirty 
 years ago, and the parish in which the pauper had resided had 
 treated him as a parishioner for twelve years, it was presumed 
 that the indenture had been lost, and that it had been properly 
 stamped, although it was proved by the deputy registrar and comp- 
 troller of the apprentice duties, that it did not appear to have 
 been stamped with a premium-stamp from 1773 to 1805 (e). 
 
 It has been said, that where an old deed is given in evidence, 
 without proof of its execution, some account ought to be given of 
 the place where it has been kept(/"); or evidence should be 
 given so as to afford a presumption that the party has been in 
 possession under the deed (g). In ordinary cases, however, where 
 the instrument is produced by one who has an interest in it, it is 
 not necessary to show where the instrument has been kept ; it is 
 sufficient to produce a parish certificate thirty years old, without 
 showing whence it came (h). So it was held to be sufficient for a 
 rated inhabitant of a respondent parish, to produce a certificate 
 above thirty years old, by the appellant parish (i). 
 
 It has already been observed, that in order to give authenticity 
 to an ancient instrument which does not admit of proof by the 
 
 Proof of in- 
 strunicnt 
 thirty years 
 old. 
 
 (b) B. N. P. 255; Bac. Ab. Ev. 648. 
 
 (c) Bertie v. Beaumont, 2 Price, 308. 
 Buller V. Michell, 2 Price, 399 ; 4 Dow. 
 297. Wynne v. Tynehitt, 4 B. & Aid. 
 376. Dean and Chajiter of Ely v. Stew- 
 art, 2 Atk. 44. Martin v. Curtis, 1 Price, 
 232. 
 
 {d) In Beer v. Ward, cor. Dallas, C. J,, 
 Sitt. after Mich. 1821 ; and cor. Ld. Ten- 
 terden, C.J.,K. B. Sitt. after Trin. 1823, 
 on an issue as to the legitimacy of A. B., 
 an old letter, purporting to be signed by 
 the head of the family, and brought from 
 among the title-deeds at the family seat, 
 was admitted to be read. 
 
 (e) R. V. Long Buckby, 7 East, 45. 
 The binding being in the year 1774 or 
 1775. 
 
 (/) B. N. P. 255. 648. 
 
 (g) Bac. Ab. Ev. F. 644; B. N. P. 254. 
 
 As to such writings, some evidence should 
 be given as affords a reasonable presump- 
 tion that they were honestly and fairly 
 obtained, and preserved for use, and are 
 free from suspicion of dishonesty. Vin. 
 Ab. tit. Evidence, A. 6; 7 East, 291; 
 4 B. & A. 376 ; B. N. P. 255. Forbes v. 
 Wale, 1 Bl. 532. 
 
 {h) R. v. Ryton, 2 T. R. 259. See also 
 Bean and Chapter of Ely v. Stewart, 
 2 Atk. 44. Fry v. Wood, Sel. N. P. 535. 
 
 (i) R. v. Netherthong, 2 M. & S. 337. 
 Lord Ellenborough, C. J., intimated that 
 the rated inhabitant being brought forward 
 as the mere depositary of the instrument, 
 if the party objecting wished to inquire 
 into the custody, he might. This was 
 before the stat. 54 Geo. 3, c. 170, which 
 made rated inhabitants competent. 
 
 Proof as to 
 the custody 
 of ancient 
 documents.
 
 384 
 
 WRITTEN INSTRUMENT : ANCIENT. 
 
 ancient 
 documents 
 
 Custody of ordinary tests (k), it is essential to show tliat it has been brought 
 from the natural and legitimate repository (/) ; as in the case of 
 terriers (m), ancient grants (n), an inspeximus (o), an endow- 
 ment by a bishop (])). 
 
 Upon the trial of an issue to ascertain the boundary between 
 two parishes, where a box containing old terriers and other parish 
 documents was produced, proof that they had been received from 
 the son of the last rector of the parish, and had been transferred 
 to the plaintiff, the present incumbent, was held to be sufficient 
 evidence as to their custody (q). Where, however, a book which 
 purported to be the book of a former rector, came out of the 
 hands of the defendant, being the grandson of the former rector, 
 the proof of custody was held to be insufficient (r). In the case 
 of Michell v. Rahhetts {s), a grant to an abbey, contained in a 
 manuscript entitled " Secretum Abbatis,'' in the Bodleian Library 
 at Oxford, was rejected as not coming from the proper custody; 
 and for the same reason an old grant of a priory, brought from 
 the Cottonian Manuscripts in the British Museum, was also re 
 jected, for want of showing that the possession of the grant was 
 connected with any person who had an interest in the estate (t). 
 Where a writing, purporting to be an endowment of a vicarage, 
 and another purporting to be an inspeximus of the former, under 
 the seal of the Bishop of Norwich, had been purchased at a sale, 
 as part of a private collection of manuscripts, it was held, that 
 coming out of the custody of a private person, unconnected with 
 the matters contained in them, they were inadmissible (u). But 
 in a tithe-suit, a book which purported to be the book of a former 
 collector of tithes, and seventy years old, in the hands of the 
 successor to such collector, was admitted (x). 
 
 In the case of The JBishop of Meath v. The Marquis of Winches- 
 ter, it was held {in quare impedit) that a case stated by a former 
 bishop for the opinion of counsel, and preserved with his private 
 papers and family documents, was admissible. For although the 
 
 (ft) Supra, 239, 240 j and see 1 Esp. C. 
 278. Forbes v. Wale, 1 Bl. 532; and 
 Vin. Ab. Ev. A. b. 5. 
 
 (Z) Supra, 240 ; as to ancient licenses 
 by a lord of a manor to fish, 340 ; to prove 
 a right in the lord to places within the 
 manor cleared of turbary, ibid ; and Clark- 
 son V. Woodhouse, 5 T. R. 412. 
 
 (m) Supra, 239, 240. 
 
 (n) lb. Grants of abbey lands should 
 be shown to be in the possession of those 
 connected with the estate. Lygon v. 
 
 Strutt, 2 Anst. 601. And see Buller 
 V. Mitchell, 2 Price, 405. 
 
 (o) Supra, 239, 240. 
 
 ip) lb. 
 
 (q) Earl v. Lewis, 4 Esp. C. 1. 
 
 (r) Randolph v. Gordon, 5 Price, 512. 
 
 (a) 3 Taunt. 91. 
 
 (t) Swinnerton v. Marquis of Stafford, 
 3 Taunt. 71. 
 
 (m) Potts V. Durant, 3 Ans. 789. 
 
 (x) Jones V. Walker, 3 Gwill. 117.
 
 PROOF OF CUSTODY. 385 
 
 document in some respects related to the see, it might more reason- Custody of 
 ably be expected to be found among the bishop's private papers and cuments. 
 family documents than in the public registry of the diocese (y). 
 
 Where the defendant, in a suit by the rector for tithe, offered 
 in evidence a paper purporting to be a receipt given by a former 
 rector, to a person of the same name with the defendant, forty- 
 five years ago, it was held to be admissible, without proof of the 
 handwriting of the rector, and without any proof as to the cus- 
 tody further than that it came out of the hands of the defendant ; 
 for none but an occupier could have acquired such a receipt (z). 
 But where Curtis, the defendant in a similar suit, produced a 
 paper purporting to be a receipt from Smith to one Curtis fifty 
 years ago, but there was no evidence to show who Smith was, 
 or where the paper had been kept, the evidence was rejected (a). 
 
 In the case of Bullcn v. 3Iichell {b), the question was between 
 a vicar and occupier, whether a farm modus had existed imme- 
 morially ; and after proof that search had been made in the pro- 
 per registries for the original endowment of the vicarage by the 
 abbey of Glastonbury, it was held, that a book purporting to be 
 the ledger-book and chartulary of that abbey, and preserved 
 amongst the muniments of the Marquis of Bath, the owner of 
 some estates which formerly belonged to the abbey, although not 
 of the farm in question, was sufficiently connected with the abbey 
 as to be admissible in evidence as a genuine document which had 
 belonged to the abbey (c). It was also held, that two documents 
 contained in the book were evidence ; the one being in the form 
 of an appropriation, dated 1269, made by the Bishop of Salis- 
 bury to the abbey of Glastonbury, of the profits of a rectory, 
 
 (y) 3 Bing, N. C. 203. It appeared ports to be, usually contains a description 
 
 upon the evidence there was only one eccle- of all the estates of the abbey, and all the 
 
 siastical record preserved in the registry of transactions relating to them. When tlie 
 
 tlie diocese of so early a date, whilst on abbey was dissolved, those estates went 
 
 the other hand the document was found to the Crown, and the Crown afterwards 
 
 in the same parcel with several papers be- granted tliem to different persons. Tlie 
 
 longing to the see, and in the same room book, when the abbey was dissolved, would 
 
 several visitation books of the diocese, and go to the officers of the Crown, and when 
 
 other papers relating to the same. For the Crown portioned out and made over 
 
 the very learned and elaborate judgment the possessions of the abbey to other per- 
 
 of Tindal, C. J., in the above case, seethe sons, the book could go to one only of 
 
 Appendix. these grantees ; and the only possible way 
 
 (z) Bertie v. Beaumont, 2 Price, 303. of connecting it with the abbey is by show- 
 
 (a) Manby v. Curtis, 1 Price, 225. ing a connection between the possessor 
 
 Wood, B. dissent. and tlie Crown, and by raising a probability 
 
 {h) In D. P., 2 Price, 299, supra. that the Crown may have handed over the 
 
 (c) It was observed by Gibbs, C. B. book to its present possessor. 
 
 2 Price, 410, that such a book as this pur- 
 
 VOL. I. C C
 
 : witness. 
 
 386 WRITTEN INSTRUMENT : PROOF OF. 
 
 ri'sto.'yof reserving to the bishop a power of ordaining a vicarage in the 
 autient same church, of a specified yearly value, and the other containing 
 a list of ditlerent articles of endowment of the said vicarage (d). 
 It was also held, that the accounts of the rents of the abbey, also 
 found among the same muniments, and containing the allowances 
 and acquittances of the abbey, were admissible. Copies from an 
 ancient schedule, produced from the muniments of a corporation, 
 and delivered to the toll collectors, by which they collected the 
 tolls, are admissible for the corporation, although it would have 
 been otherwise if not shown to have been delivered to the col- 
 lectors by the corporation, however accurately corresponding (e). 
 
 In some instances the party who offers the instrument in evi- 
 dence is the proper depositary, and then no proof of custody is 
 necessary ; as where, in a settlement case, a litigant parish pro- 
 duces a certificate, above thirty years old, granted to them ( /). 
 
 Proof Where no name of any attesting:; witness is subscribed, or where 
 
 wliere there . . . . 
 
 is no attest- there are names subscribed which are proved to be fictitious (^), 
 
 or of real persons who either did not actually witness the execution 
 of the deed or other instrument (A), or vv^ho were in point of law 
 incompetent to attest it (i), the execution may be proved by the 
 testimony of any witness who was present when the deed was exe- 
 cuted (k) ; or it will be sufficient to prove the handwriting of the 
 obligor, from which the sealing and delivery may be presumed (Z), 
 or his acknowledgment of the instrument. 
 
 (d) Wood, B. dissented from the other (A) ChreUier v. Neale, Peake's C. 146. 
 Judges of the Court upon this point: he il/'Craio v. CeM^ry, 3 Camp. 232 ; 4Taunt. 
 admitted that the book had been sufR- 220. In the case of Phipps v. Parker, 
 ciently connected with the abbey to make 1 Camp. 412, where the party whose name 
 it evidence as a copy of the endowment, appeared as the attesting witness negatived 
 supposing such evidence to be relevant ; the attestation by him, Lord Ellenborough 
 but he was of opinion that it was not rele- held, that the deed could not be proved by 
 vant evidence upon that point, since the evidence of the handwriting of the sup- 
 endowment was not disputed ; and that posed obligee, or of an acknowledgment 
 for any other purpose these entries were by him : but this case is overruled by sub- 
 res inter alios, and mere memorandums of sequent authorities. Fitzgerald v. Elsee, 
 an executory project. See his observations 2 Camp. G35, cor. Lawrence, J. Lemon 
 at length, 2 Price, 425. v. Dean, lb. 636, cor. Le Blanc, J. 
 
 ^ \ -D « T, } 1 TIT e nT ^iT (i) Com. Dig. Ev. B. 3. 
 
 (e) Brett v. Beales, 1 M. & M. 417. ^ ^ „' _, 
 ^ (A) Ibid. Fitzgerald v. JSlsee, 2 Camp. 
 
 (/) R. V. Ryton, 5 T. R. 259. In such 635, Lemon v. Dean, 2 Camp. 636. 
 
 a case it is sufficient if the certificate is '/\ Com. Di"-. Fait B. 4. 1 Lev. 25. 
 
 produced by a rated inhabitant of the Passett v. Browne, Peake's C. 23; 2 
 
 parish. R w Nethcrthong, 2 M. & S. T. R. 41. Grellier v. Neale, Peake's C. 
 
 337. So it is sufHcient that a corporation 146. Talbot \. Hodgson, 7 Taunt, 
 
 produce corporation documents. 2M. &S. 251; the subscribing witness having de- 
 
 333. nied tliat he saw the execution, a co- 
 
 {y) Fa sett v. Browne, Ptake's C. 23. obligor having been released^ swore that
 
 WHERE NOT ATTESTED. 387 
 
 Where the deed has been lost(w,) or destroyed, the fact must be Proof of in 
 proved; if positive proof of the destruction cannot be had, it must ^^^'^"of'o*^. 
 be shown that a bona fide and diligent search has been made for it 
 in vain wliere it was hkely to be found (?^). 
 
 The degree of dihgence to be used in searching for a deed must 
 depend on the importance of the deed and the particular circum- 
 stance of each case(o). 
 
 It is not absolutely necessary that the search for the original 
 document sliould be made for the purpose of, and shortly before the 
 cause : where it had been made recently after the death of the 
 party in whose possession it had been, although three years before 
 the action, it was held to be sufficient to let in the secondary 
 evidence ( p). 
 
 Inquiry was made after an indenture of apprenticeship at the 
 house of the deceased master ten years after his death, in which 
 house his son and widow still resided, and his goods and effects 
 remained, and the son said that he could not find it, and some 
 parol evidence was given to show that a deed of apprenticeship 
 existed ; the Court held, that the proof of binding was not suffi- 
 cient iq). Where there were two parts of an indenture of appren- 
 ticeship, one which was proved to have been destroyed, and the 
 other had been delivered to Miss Taylor, of Bomford, to whom the 
 apprentice had been assigned ; evidence was given that application 
 had been made to Miss Taylor, who had ceased to reside at Bom- 
 ford, for the part delivered to her, and that she had said that she 
 could not find it, and did not know where it was, but Miss Taylor, 
 though still living, was not called as a witness, the Court held, that 
 
 there was a seal on the bond when the it was shown that every person had been 
 
 defendant wrote his name opposite, but applied to and called, in whose possession 
 
 that the defendant did not seal it, nor they might reasonably be expected to be 
 
 put his hand to the seal, or deliver it found ; held, that it was such due diligence 
 
 in the witness's presence. The jury, on as entitled the secondary evidence to be 
 
 the evidence being left to them, found for let in. R. v. Earl Farleigh, 6 D. & R. 
 
 the plaintiff; and the Court afterwards 146. 
 
 held that this had been properly left to the (o) Per Best, C. J., in Gully v. The 
 
 jury. For proof of handwriting, see tit. Bishop of Exeter, 4 Bing. 298. 
 
 Hand-writing, Vol. II. (p) Fitz v. Bohbetts, 2 Mood. & R. 60. 
 
 (m) A document sent abroad and ne- {q) R. v. St. Helens in Abingdon, 
 
 gotiated by the defendant on the plaintiff's B. S. C. 292. 375; 2 Bott. 449; but in 
 
 account, may be considered as a lost bill. this case the evidence seems to have been 
 
 Hunt v. Alewyn, 1 M. & R. 433. insufficient to prove a binding, indepea- 
 
 (n) Goodier Y.Lake, 1 Atk. 446. Lord dently of the objection, that the proof of 
 
 Peterborough v. Mordaunt, 1 Mod. 94. loss was insufficient for the purpose of 
 
 Where after a lapse of thirty-six years admitting secondary evidence; and the 
 
 since the indentures were executed, and circumstances of the case ratlier negatived 
 
 which had been long since functi officio, the existence of a valid indenture. 
 
 C C 2
 
 388 WRITTEN instrument: proof of. 
 
 Proof in the part so delivered had not been sufficiently accounted for ; it had 
 case of loss, ^^g^j^ traced into the hands of Miss Taylor, but no further evidence 
 had been given to show wluit had become of it {q). But where one 
 part only of an indenture of apprenticeship had been executed, and 
 both the pauper and master were dead at the time of the trial, and 
 it appeared on the evidence, that on inquiry made from the pauper 
 shortly before his death, he said that the indenture had been given 
 Evidence of up to him after the expiration of the apprenticesliip, and that he 
 search. YiQ,A burnt it; and inquiry had also been made of the daughter and 
 executrix of the master, who said that she knew nothing about it, 
 and no further search was made, the Court held the proof to be 
 sufficient, since here, if the declaration of the pauper was admissible 
 so as to show a possession by him, it also showed that further search 
 was unnecessary ; and on this ground it was distinguished from the 
 case of The King v. Castleton, for there the evidence showed that a 
 further search was necessary (r). 
 
 The master of an apprentice having the indentures in his posses- 
 sion failed ; an attorney took the management of his estate and the 
 custody of his papers, which he inspected without finding the deed ; 
 this was held to be sufficient evidence of loss, though the widow 
 was still living, and no inquiry had been made from her : such an 
 inquiry would have been useless after such evidence as to the 
 master's papers (s). But where on an appeal against an order of 
 removal the appellants relying on a settlement of a person deceased 
 by apprenticeship, called the widow of the deceased, who proved that 
 her husband, in his last illness, told her that he had received the 
 indentures from his master at the end of the apprenticeship, and 
 had worn them out in his pocket, it was held that without further 
 
 (q) R. V. Castleton, 6 T. R. 236. See given a similar answer, it would have been 
 
 also Williams v. Younghusband, 1 Star- sufficient. It was like a non-production 
 
 kie's C. i;39. on request, and the party accounts for it; 
 
 (r) R. V. Morto7i, 4 M. & S. 48. The and that this was distinguishable from the 
 
 Court of King's Bench held that in such case of R. v. Castleton, for there the an- 
 
 a case it was sufficient for the parties to swer given was a reason for making further 
 
 show tliat they had used reasonable dili- search. — Where a person to whom letters 
 
 gence ; that these were terms ajjplicable to had been written which were required to 
 
 some known or proljable place or person in be produced, said that he had searched for 
 
 respect of which diligence may be used ; them in a particular box in which he had 
 
 that what the pauper said was admissible, put them, without being able to find them, 
 
 and although it might not amount to proof but added that he thought they were some- 
 
 of the fact that the indenture had been where in his possession, but that he had not 
 
 destroyed by him, it was so far evidence searched in any other place, it was held 
 
 as to afford a reason why further search that enough had not been done to let in 
 
 •was not made with him. That if such an secondary evidence. Bligh v. Welledey, 
 
 inquiry had been made of a merchant for 2 Carr & P. C. 400. 
 some commercial purpose, and he had (*) iJ. v, Pjdd/e/<tn^(»J,3 B. & Ad.4G0.
 
 PROOF OF LOSS. 
 
 38<J 
 
 inquiry evidence of the conversation was inadmissible. And the 
 case was distinguished from that of Rex v. Morton on the ground 
 that in that case inquiry had been made from the master's exe- 
 cutrix {t). 
 
 In the case of a parish apprentice, after reasonable proof has 
 been given of a delivery of the indenture to the parish officers, 
 proof should be given of a search in the parish chest, which is the 
 proper place of deposit {u). 
 
 An agreement for a lease had been deposited in the hands of 
 the landlord, who upon application to him by the lessee refused to 
 produce it ; ten years after this, and three after the death of the 
 lessor, the tenant, upon an appeal, swore that he did not know in 
 whose possession the agreement was, and no inquiry had been 
 made after it ; and yet it appears that parol evidence was held to 
 be admissible (a:) ; and Buller, J. observed, that if it had been in 
 proof that the executor of the lessor had been in possession of the 
 instrument, it might have varied the case. After the expiration of 
 the lease, the lessee, the pauper, was entitled to it in strictness, but 
 he neither had it, nor knew whether it existed ; and it was then 
 nine years after its expiration {y). But in general it must be shown 
 that inquiry has been made after the deed (2), and the loss of it 
 
 Evidence of 
 search. 
 
 {t) R. V. Bmmlen, 1 A. & E. 156. The 
 Court observed, that the evidence was of a 
 dangerous kind, and to be received with 
 caution. 
 
 (u) Where the mother of a parish pauper 
 stated that she had received money from, 
 the officers of B. to put her son out as an 
 apprentice ; that she accordingly put him 
 out, and delivered the indenture to the wife 
 of a market gardener, who was dead, hav- 
 ing survived her husband, to be delivered 
 to the overseers of B., and that search had 
 been made in the parish chest of B. for 
 the indenture without success ; it was 
 held that parol evidence was admissible, 
 the parish chest being the proper place of 
 deposit. R. v. Stourbridge, 8 B. & C. 96. 
 M'Gahey v, Alston, 2 M. & W. 214, in- 
 fra. So where search has been made in 
 the parish chest of the binding parish for 
 the indenture, which had been proved to 
 have been delivered to N. Badger, the 
 mother of the apprentice, to be delivered 
 to the overseer, and the husband being 
 dead, his eveciitor was called to negative 
 the existence of any such instrimient 
 among his paperg. R. v. Broimgrove, 
 
 East. T. 1828.— Where the indentures 
 were proved to have been delivered by a 
 parish apprentice to his master, who was 
 still living, it was held that the master's 
 declaration, on application by the appren- 
 tice at the end of the term, that he had 
 delivered the indenture to the parish officer, 
 was not admissible to let in parol evidence 
 of the contents ; and proof that a fruitless 
 search had been made among the papers 
 of the parish for the indenture, was held 
 to be insufficient to let in parol evidence. 
 R. V. Benis Inh. 7 B. & C. 620. R. v. 
 Castleton, 6 T. R. 236, cited by Bayley, J. 
 as directly in point ; and see Williams 
 V. Younghusband, 1 Starkie's C. 139. 
 
 (a,-) R. V. North Bedburn, Caldecot, 452. 
 
 {y) Qu. whether, inasmuch as the docu- 
 ment had been proved to be once in the 
 possession of the lessor, who had refused 
 to deliver it up, a presumption did not 
 arise that it was in the hands of the repre- 
 sentative? In fact no inquiry had been 
 made after the deed, and there was no 
 proof that it was not still in existence. 
 
 (z) R. V. St. Sepulchre, 2 Bott. 362. 
 Nolan, P. L. 465. 
 C C3
 
 390 WRITTEN EVIDENCE : DEED, &C. 
 
 Evidci.ceof must be proved by the person in whose hands it was at the time of 
 March. ^jjg ij^gj,^ ^y i^y vvhose custody it is traced (a), if that person be hving; 
 and if he be dead, apphcation should be made to his representative, 
 and search should be made amongst the documents of the deceased. 
 Where the appointment of overseers for the year 1802 could not 
 be found in the parish chest, and search had been made among the 
 papers of^. deceased, who had acted as executor of the party who 
 acted as overseer for that year ; it was held to be sufficient to let in 
 parol evidence of the contents of that appointment, as being of a 
 single overseer for that year(Z'). 
 
 Where the publisher of a weekly paper, upon an indictment for a 
 libel, swore that he believed that the original had been destroyed, it 
 washeld to be sufficient proof to let in secondary evidence (c). Where 
 a licence to trade with an enemy, granted by a governor of a colony, 
 had been returned, after being used, to the secretary of the governor, 
 who swore that it was his custom to put aside such licences amongst 
 the waste papers in the office, as being of no further use ; that he 
 supposed that he had disposed of the licence in question in this 
 manner ; and that he had searched for it, but did not recollect 
 whether he had found it or not, though he did not think that he 
 had found it ; the Court were of opinion that the evidence satisfied 
 what the law required in respect of search, and established, with 
 reasonable certainty, the fact of the licence being lost. It was not, 
 the Court observed, to be expected that the witness should be able to 
 speak with more confident certainty to a fact to which his attention 
 was not particularly drawn at the time, on account of any import- 
 ance being supposed to belong to it (d). Where a loss had been 
 settled upon a policy of insurance against fire, in the year 1813, 
 and upon a trial in 1819, the plaintiff, in an action for libel, charg- 
 ing him with having made fraudulent claims upon the insurance 
 company with respect to such loss, called their agent, who stated 
 that the policy was returned to him after the fire, and that he had 
 it in possession then, and afterwards, when the plaintiff made a 
 larger insurance with the company, that upon the loss having been 
 
 (a) R. V. Castleton, 6 T. R. 236. Where (&) JR. v. Witherhy, 4 M. & Ry. 725. 
 
 policies of insurance had been delivered to (c) R. v. Johnston, 7 East, 65. 339. It 
 
 the assignees of a bankrupt, one of whom may be presumed that an useless instru- 
 
 was since dead, proof of an application to ment has been destroyed. See the obser- 
 
 the solicitor under the commission, who vations of Bayley, J. in R. v. Farleigh, 
 
 answered, that he did not know what was 6 D. & R. 153. See also Kensington v. 
 
 become of them, was held to be insufficient. Jnglis, 8 East, 273, infra. 
 
 Williams v. Youngkusband,l Starkie's C. {d) Kensiyigton v. Inglis, 8 Eaat, 273. 
 139.
 
 PROOF OF LOSS. 391 
 
 settled, the old policy became an useless paper, that he did not know Evidence of 
 
 sGiircli 
 
 what had become of it, but he believed he had returned it to the 
 plaintiff"; the clerk to the plaintiff" 's attorney then proved, that 
 within a few days of the trial he went to the plaii)tiff''s house to 
 search for the policy, when the plaintiff" showed every drawer where 
 he usually kept his papers, that he examined such drawers, and 
 every other place he thought it likely to find sucln a paper, without 
 finding it. Held, that this was sufficient to entitle the plaintiff" to 
 give secondary evidence of the contents of the policy (e). 
 
 A check having been drawn on account of a parish, was 
 delivered to the paying clerk of the parish, the bankers of the parish 
 on the same day paid a sum of the same amount ; the course was 
 to return the cancelled check to the paying clerk to be deposited in 
 an apartment of the workhouse. The paying clerk having gone 
 out of office, application had been made (by a witness called) to his 
 successor for an inspection of the checks, he handed to the witness 
 several bundles which were searched unsuccessfully for the checks 
 in question, it was held that secondary evidence was admissible {f). 
 
 Where it appeared that the magistrate who took the informations 
 had returned them to the clerk of the peace, and the clerk to the 
 latter stated that it was the practice where bills had been ignored 
 to throw away the papers as useless, and that after searching, the 
 informations could not be found ; it was held, in an action for a 
 malicious prosecution, that this was sufficient to let in secondary 
 evidence of their contents, without calling the clerk of the peace to 
 show they were not in his possession : for if the information was 
 delivered to the deputy, it was delivered to him as the agent of the 
 clerk of the peace, and not for his own purposes ; it was therefore 
 to be presumed that the document was not among his private papers, 
 but rather among those in the custody of the clerk of the peace {g). 
 The legal custody of a document appointing a particular person to 
 an office, such as overseer, is in that person ; for he is the party 
 
 (e) Brewster v. Seioell, 3 B. & A. 296. through the district supervisor, and proof 
 
 See also R. v. Earl Farleigli, 6 D. «Sc R. was given of search made by the auc- 
 
 146. tloneer among his own papers, and at the 
 
 (/) 3I'Galiey v. Alston, 2 M. & W.213. sheriff's office, but the supervisor was not 
 
 Where the warrant to the officer to seize called, nor was any search amongst his 
 
 under a^./rt. was not produced, nor was papers proved; held, that sufficient dili- 
 
 any notice given to produce it; it appeared gence was proved to let in secondary evi- 
 
 to have been given to the son of the officer, deuce of the warrant to connect tlie officer 
 
 who believed he had either returned it to with the warrant. Minshull v. Lloyd, 2 
 
 his father or to the sheriff's office, and the M. & W. 450. 
 
 officer stated that it was usual to deliver {(j) Freemmi v. Arkell, 2 13. k. C. 494. 
 
 it to the auctioneer, who transmitted it, 3 D. & II. 66D. 
 with the auction sheet, to the Excise Office, 
 
 C c 4
 
 liD-i 
 
 WRITTTN EVIDENCE : DEED, &C. 
 
 Evidence of most interested in the instrument, and requires its production as a 
 searc I. sanction for what he does under its authority (A). A presumption 
 therefore arises that such an officer has the custody of his appoint- 
 ment, consequently parol evidence cannot be given of such an 
 appointment without proof of application to him (i). 
 
 Where the witness applying to the vicar for the register of bap- 
 tism, is told that there were none prior to a particular date, the 
 vicar not being called, his declaration is not evidence of the loss of 
 such register, so as to let in secondary evidence (k) ; copies of the 
 returns filed in the bishop's registry prior to 55 Geo. 3, c. 146, 
 ss. 6, 7 ; are admissible as original evidence, and as public documents 
 copies are admissible. Where the production of the instrument is 
 on legal grounds impossible, the effect is the same in respect of 
 secondary evidence as if it had been lost or destroyed. As where 
 it is in a foreign country from whence it cannot be removed (Z). So 
 if the instrument on grounds of policy cannot be read (m). So if a 
 party objects to the production of a deed by one who has possession 
 as his trustee (w). 
 
 (h) Per Lord EUenborough, R. v. StoJte 
 Golding, 1 B. & A. 173. In replevin and 
 avowry by the defendants, as overseers, 
 for a distress for poor's-rates, evidence 
 that on one being applied to for his ap- 
 pointment, he said he liad lost it, was held 
 to be a sufficient search to let in secondary 
 evidence, the party not being capable of 
 being called. Bristol Governors of Poor 
 V. TFaiif, 6 C. & P. 591. 
 
 (i) 1 B. & A. 173 ; and as to the cus- 
 tody of a sheriffs warrant, see 1 Starkie's 
 C. 413. Where on a motion for a new 
 trial, a document had been handed up to 
 the judges, and could not afterwards be 
 found; it was held that no search was 
 necessary to be made at the judge's cham- 
 bers, as it was to be presumed to have been 
 returned to the party producing it. 
 
 {k) Walker v. Beauchamp, 6 C. & P. 
 555. 
 
 (?) Alivon V. Furnival, 1 Cr. M. & R. 
 277. But where a will, under which the 
 lessor of plaintiff claimed, was in the hands 
 of a mortgagee, who was subpcened to 
 produce it, but refused to do so, as being 
 part of his title ; held, that secondary evi- 
 dence of the contents was inadmissible. 
 (Per Abinger, L. C. B. denying Mills v. 
 Oddij, 6 C. & P. 728, to be law.) Uoe 
 V. Uu-en, 8 C. & P. 110. Dawson v. 
 
 Fuller, G C. & P. 74. In assumpsit for 
 money received, being the amount of a bill 
 which the defendant had obtained, and paid 
 into his banker's; held that the bill not 
 being produced, nor any account of it given, 
 the banker's clerk could not be asked as to 
 a bill paid in by the defendant, answering 
 to it in description, and credited to him; 
 it afterwards appearing that the bill was 
 in Scotland, and not within the jurisdiction 
 as that the plaintiff could compel the pro- 
 duction of it, a new trial was granted on 
 payment of costs. Atkiiis v. Owen, 2 Ad. 
 & Ell. 35 ; and 4 Nev. & M. 123. 
 
 (m) Starkie's C. So if a document lie 
 in the hands of an attorney, and out of re- 
 gard to the client's privilege, cannot be 
 read. Mills v. Oddij, 6 C. & P. 732. 
 Marston v. Downes, 1 Ad. & Ell. 31. 
 But see above, note (/), and the Append. 
 Vol. I. p. 392. 
 
 {n) Where the defendant called a party, 
 who as trustee held a deed of composition 
 between the plaintiff and other creditors 
 and the mother of the defendant, but the 
 latter was no party to it, and the plaintiff 
 objected to its being produced ; held, that 
 secondary evidence might be given of its 
 contents by a party who had made an e.x- 
 tract from it. (Per Gurney, B.) Cucla 
 V. Nush,QC.kV. 154.
 
 SECONDARY EVIDENCE. 
 
 393 
 
 "Wlien sufficient evidence has been given of the loss of the deed Evidence 
 or other instrument, of wliich it seems that tlie Court is to judge (p), tion^'^'^"" 
 it must be shown that the instrument existed as a genuine instru- 
 ment (q) ; that it was written on stamped (r) paper or parcliment ; 
 and in case of apprentice deeds, what sum was paid with the ap- 
 prentice, and that the deed bore an ad valorem stamp (s) ; for the 
 consciousness of a defect of this nature may have been a motive for 
 conceahng or destroying the instrument {t). Its execution must 
 be proved according to the nature of the instrument (m) ; if a deed, 
 by means of an attesting witness, or by proof of his handwriting 
 if he be dead, or that of the obhgor, if the deed be not attested, in 
 the manner already stated. 
 
 But where proof of the execution would have been dispensed with 
 in case the original had been produced, proof of execution is unne- 
 cessary (x) where the deed is lost. So where the want of the original 
 is occasioned by the default or misconduct of the adversary. 
 
 After proof of the due execution of the original, the contents p^oof b 
 should be proved by means of a counterpart (y), or other original, secondary 
 if there be one, it being an established rule that all originals must ^^'*^'^°^^- 
 be accounted for before secondary evidence can be given of any 
 
 (p) As also upon questions of the admis- 
 sibility of dying declarations, see 1 Starkie's 
 C. 522. 
 
 (q) Goodier v. Lake, 1 Atk. 246. R. 
 V. Sir T. Culpepper, Skinner, 677. But 
 where the terms of a licence require that 
 the time of sailing should be indorsed 
 thereon, and the license was burnt at the 
 Custom-house, a proper indorsement was 
 presumed. Butler v. Allnutt, 1 Starkie's 
 C. 222. 
 
 (r) Where the plaintiif had lost his part 
 of an agreement under seal, after it had 
 been duly stamped, and the defendant upon 
 notice produced his part unstamped, it was 
 held that it might be read in evidence. 
 Munn V. Godbold, 3 Bing. 292. See fur- 
 ther Vol. II. tit. Stamp; and see also 
 Garnons v. Swift, 1 Taunt. 507. Waller 
 V. Horsfall, 1 Camp. 501. 
 
 (s) See Goodier v. LaTie, 1 Atk. 446. 
 Burn, J. tit. Pook, p. 366. 
 
 {t) Where, however, a party in posses- 
 sion of an original deed or other instrument 
 withholds it, after notice to produce it, 
 may under the circumstances be presumed 
 that the instrument was properly stamped. 
 Crisp V. Anderson^ 1 Starkie's C. 36. 
 
 Waller v. Horsfall, 1 Camp. C. 501. 
 Pooly V. Goodwin, 4 Ad. k. Ell. 94. 
 
 {u) R. V. Ctdpepper, Skinner, 673, by 
 Lord Hardwicke, C. J. Goodier y. Lake, 
 1 Atk. 246. Where a note has been lost, 
 a copy is not evidence unless the note be 
 proved to be genuine. An indorsement on 
 a draft deed in the handwriting of one of 
 the defendants is not sufficient evidence of 
 the execution of such deed to let in second- 
 ary evidence of its contents. Doe v. White- 
 foot, 8 C. & P. 270. 
 
 {x) Goodier v. Lake, 1 Atk. 246. 
 
 {y) The counterpart of a lease purport- 
 ing to have been executed by the lessee of 
 a lease granted by the mortgagor in con- 
 junction with the mortgagee of certain 
 premises, cannot be read in evidence against 
 one who claims under the mortgagee, 
 without some evidence that the original 
 lease which has been lost was executed by 
 the mortgagee. Doe v. Trapaud, 1 Star- 
 kie's C. 281. But it was held, that proof 
 that the original lease was signed by the 
 mortgagee, the attesting witness not being 
 known, would be sufficient to warrant the 
 reading of the counterpart. lb.
 
 394 
 
 WRITTEN evidence: DILKD, &C. 
 
 Secondary 
 evidence. 
 
 one iy) ; no evidence of a mere copy is admissible until proof 
 has been given that the counterpart cannot be produced (2), even 
 although such counterpart was not stamped {a). If there be 
 no counterpart, a copy may be proved in evidence by any wit- 
 ness who knows that it is a copy, from having compared it 
 with the original (b). If there be no copy, the party may pro- 
 duce an abstract, or give in evidence a deed executed by the 
 adversary, in which the instrument to be proved is cited (c) > 
 or even give parol evidence of the contents of a deed(c?). It 
 has been said, that where possession has gone along with a 
 
 (t/) Pritchard v. Symonds, B. N. P. 
 254. B. V. Castleton, 6 T. R. 236. {Per 
 Parke, J. mAlivon v. Furnival, 1 Cr. M. ic 
 R. 292. Broicn v. Woodman, C. C.P. 200, 
 infra, note {(j). The contents of a tablet in 
 the church was admitted without produc- 
 ing an examined copy. Doe d. Coyles v. 
 Cole, 6 C. & P. 369. 
 
 (z) B. V. Castleton, 6 T. R. 236. 
 Thurston v. Delahay, Hereford Ass. 1744. 
 B. N. P. 254, semble. B. v. Kirby Stephen, 
 B. S. C. 664. VllUers \. Villiers, 2 Atk. 
 71. 1 Camp. 192. 501. Liebmajiv. Pooley, 
 1 Starkie's C. 176. Doxon v. Ha'ujh, 
 1 Esp. C. 109. Alison v. Furnival, 1 Cr. 
 M. & R. 292. 
 
 (a) Where it was proved that there 
 were two parts of a deed on whicli the 
 action was founded, that executed by tlie 
 defendant being lost, it was held, that the 
 counterpart executed by the plaintiff, and 
 not the draft, was the next best evidence, 
 and admissible in evidence as an authenti- 
 cated copy, although not stamped. Munn 
 V. Godbold, 3 Bing. 292. And see Villiers 
 V. Villiers, 2 Atk. 71 ; and B. N. P. 254. 
 
 (ft) B. N. P. 254. 1 Keb. 117. B. v. 
 Kirby Stephen, B. S. C. 664; supra, 
 note {g). An entry in the register-book at 
 the Custom-house, stating that a certifi- 
 cate of register was granted on an affidavit 
 by A. that he was an owner, is not admis- 
 sible as secondary evidence of the contents 
 of the affi lavit. Some person who has seen 
 the affidavit, and knows it was made by 
 A , must be called. Teed v. Martin, 4 
 Camp. C. 90. Where one writiiig isoitered 
 as secondary evidence of the contents of 
 another, it is not necessary to prove that 
 one was taken from the other, or that they 
 have been collated ; it is sufficient if both 
 
 were copied from the same draft, by a 
 person who believes them to be correct. 
 Medlicott v. Joyner, 1 Mod. 4. Where 
 there are several parts of a deed, of which 
 one is in the hands of the defendant, 
 who has notice to produce it, and the others 
 are inaccessible to the plaintiff", he may 
 give a copy in evidence. Doxon v. Haigh, 
 1 Esp. C. 409. 
 
 (c) See Burnett v. Lynch, 6 B. & C. 
 601. Com. Dig. tit. Ev. B. 5. Skipioith 
 V. Shirley, 1 1 Ves. 64. If proof can be given 
 of a complete copy, such proof is no doubt 
 preferable to a mere abstract, and it has 
 been doubted whether proof of an abstract 
 is sufficient where a copy appears to be in 
 existence. See Doe v, Wainwright, 1 
 Nev. & P. 81, and see Munn v. Godbold, 
 3 Bing. 294. As a general rule, however, 
 the law does not seem to recognise grada- 
 tions of mere secondary evidence after all 
 in the nature of original evidence has been 
 accounted for. See the observations of 
 Parke, J. in Brown v. Woodman, 6 C. & 
 P. 206. In that case the defendant having 
 given the plaintiff notice to produce a letter 
 of which he (the defendant) had kept a 
 copy, and the letter not being produced, it 
 was held that he might give parol evidence 
 of its contents, and that he was not bound 
 to put in the copy. 
 
 (rf) Sir E. Seymour's case, 10 Mod. 8. 
 R. V. Motheringham, 6 T. R. 556. In 
 trover against the sheriff by assignees, the 
 warrant to the officer having been lost, 
 parol evidence of its contents t ) connect 
 the officer with the sheriff was held to be 
 admissible, without calling for the entry in 
 the book at the sherifTs office. Moon v. 
 Raphael,! C. Si P. 115.
 
 SECONDARY EVIDENCE. 
 
 395 
 
 deed for many years, the original of which is lost or destroyed, Secondary 
 an old copy may be given in evidence, without proof that it evidence, 
 is a true copy, because it may be impossible to give better evi- 
 dence (e). The registry of a conveyance in a register county is 
 not evidence, unless the defendant has had notice to produce the 
 conveyance (/"). 
 
 After proof of ineffectual search for the deed of endowment of 
 a vicarage, a chartulary of an abbey to which the rectory formerly 
 belonged, stating the particulars of endowment, and found in the 
 possession of the owner of the abbey lands, is admissible as 
 secondary evidence {g). 
 
 (e) B. N. p. 254. Stile, 205. The reason 
 that it may be impossible to give better 
 evidence is by no means a satisfactory one; 
 and in general the contingent impossibility 
 of procuring better evidence will not war- 
 rant the admission of evidence which is in 
 itself otherwise defective. The reception 
 of evidence from necessity must be founded 
 on a general necessity, or probability of 
 the failure of all other and superior evi- 
 dence arising out of the nature of the 
 case; as in the instance of servants and 
 agents (see tit. Interest). Qu. whether 
 in the above case such a copy would be 
 evidence, without some proof of its being a 
 true copy of a lost original. See Bac. Ab. 
 Et. F. 646. 
 
 (/) Molton V. Harris, 2 Esp. C. 549. 
 An examined copy of the registry of a deed 
 in a register county, is admissible as secon- 
 dary evidence. Doe v. Kilner, 2 Carr. & 
 P. C. 289. 
 
 {g) Upon the trial of an issue, whether 
 a particular farm in the parish of S. N, 
 was discharged of tithes on payment of a 
 modus, after proof of an ineffectual search 
 for the original endowment and appropri- 
 ation, a book was produced, said to be an 
 old ledger or chartulary of the abbey of 
 Glastonbury, from the muniment-room of 
 the Marquis of Bath (the owner of the 
 abbey lands), containing entries, showing 
 that at the time of those entries the small 
 tithes were assigned to the vicar, no men- 
 tion being made of any money modus ; the 
 book contained also other entries relating 
 to the appropriation of the rectory and en- 
 dowment of the vicarage. This book having 
 been rejected on the trial, on a motion for 
 a new trial its admissibility waa objected 
 
 to on two grounds: 1st, that it had not 
 been shown to have belonged to the abbey 
 of Glastonbury ; and 2d, tliat the evidence 
 did not bear upon the facts in issue. But 
 upon the first objection, the Court was of 
 opinion, that search having been made, as 
 was admitted, iu every place where the 
 endowment itself might be expected to be 
 found, and none being found, a copy waa 
 evidence. That such a book, containing a 
 description of the estates of an abbey, and 
 the transactions concerning them, would, 
 on the dissolution of the abbey, go to the 
 officers of the Crown, and from them to 
 the grantees under the Crown ; and, con- 
 sequently, that the only pos>ible way of 
 showing the connexion between the book 
 and the abbey was by proving a connexion 
 between the possessor and the Crown, by 
 showing him to be in possession of lands 
 which passed from the abbey to the Crown, 
 and from the Crown to the grantee. That 
 supposing the book to have been traced to 
 the custody of the abbot, the account it 
 contained of the particular matters of en- 
 dowment was admissible, the endowment 
 itself not having been found after search 
 in the natural places of deposit. Bullen 
 v. Michel, 2 Price, 399. Judgment was 
 affirmed in the House of Lords,4 Dow, 298. 
 Lord Redesdale, in giving his judgment, 
 observed, that as the original instruments 
 would, if they could have been produced, 
 have been admissible in evidence, the only 
 question was, whether the entries in the 
 book were evidence of the license of ap- 
 propriation and endowment. That they 
 were admissible as the next best evidence 
 that could be produced. The two instru- 
 ments seemed, he said, to have been copied
 
 396 WRITTEN evidence: deed, Sec. 
 
 Of a letter After notice to the plaintiff to produce a letter, which he ad- 
 copied by tnitted to have received from the defendant, it was held, that 
 an entry by a deceased clerk, in a letter-book, professing to be 
 a copy of a letter from the defendant to the plaintiff, of the same 
 date, was admissible evidence of the contents, proof having been 
 given, that according to the course of business, letters of business 
 written by the plaintiff were copied by this clerk, and then sent off 
 by the post (h) ; and Lord Ellenborough observed, that if such 
 evidence were not to be admitted, the most careful merchant 
 would be unable to prove the contents of a letter after the death 
 of his entering clerk. 
 
 In proving the contents of a letter, it is not necessary to call the 
 clerk who wrote the letter, although his testimony may be had. 
 It is sufficient to prove it by any other witness who recollects 
 the contents; for it is merely contingent whether the clerk who 
 wrote the document would recollect its contents better than 
 another person (i). Where a secretary had made entries of the 
 licences granted by the governor of a colony, in a memorandum- 
 book, on proof of loss of the licence, it was held that parol evi- 
 dence might be given of the contents without producing the 
 book, and that if the book were to be produced it could not be 
 read in evidence, and would be of no use except to refresh the 
 memory of the witness (^). 
 
 Where a licence from the Crown has been lost, the contents 
 should be proved by the registry at the Secretary of State's 
 office (Z). 
 
 by a person employed for the purpose, glnal had been forwarded by him, was 
 
 probably one of the monks, and deposited admitted as evidence, upon proof that this 
 
 among the muniments of the abbey, that was his usual mode of transacting business, 
 
 the instruments might be preserved. And Hagedorn v. Reid, 3 Camp. C. 377-9. 
 
 for the same reason it might be presumed See also Robei'ts v. Bradshaw, 1 Starkie's 
 
 that they were faithful copies ; at least C. 28 ; Toosey v. Williams, Mood. & M. 
 
 there appeared to have existed no motive 129. Lord Melville's Case, 'i.Q. Howell's 
 
 to make them otherwise, and they were St. Tr. 734. 
 
 found in a situation where they were likely {i) Liebman \. Pooley, 1 Starkie's C. 
 
 to be kept. 187. 
 
 (7i) Pritt V. Fairclough, 3 Camp. 305. {k) Kensington v. Inglis, 8 East, 273. 
 In this case Lord Ellenborough laid stress In this case the entry in the memorandum- 
 upon the circumstance that the defendant book does not appear to have been a copy 
 had admitted the receipt of the letter, of the document which the witness could 
 and might rebut the evidence by producing have sworn to as such, but merely a 
 the original ; but even if there liad been memorandum of the fact that such a li- 
 no such admission, it seems that the evi- cense had been granted, 
 dence would have been admissible. So the {I) Bhind v. Williamson, 2 Taimt. 237. 
 copy of a letter, accompanied with a Upon the impeachment of Ld. Melville, 29 
 memorandum, in the handwriting of a Howell's St. Tr. 714, it was proposed to 
 deceased clerk, purporting that the ori- prove the contents of a letter of attorney.
 
 SECONDARY EVIDENCE. 397 
 
 In the case of Bullen v. Michell, it was held that an old ledger Secondary 
 or chartulary of the Abbey of Glastonbury was admissible as '^^■^*^'^"'=*^' 
 secondary evidence of a licence of appropriation and of the endow- 
 ment of a vicarage, as between the vicar and occupier of a farm, 
 upon the question whether the farm was discharged of tithes on 
 payment of a modus. And it being considered that the book 
 under the circumstances came from the proper repository, it was 
 held, that it afforded sufficient secondary evidence to prove the two 
 instruments. The Court said the 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, 
 because it was important for the interests of the abbey that the 
 instruments should be preserved. 
 
 Where it was proved that the house of a party in whose custody 
 marriage articles ought to have been, had been occupied and 
 pillaged by rebels and foreign troops, and that after diligent search 
 amongst his papers they could not be found, it was held that 
 a recital of them, in a case submitted to counsel at the time, and 
 charged for and entered as paid by the family attorney, was ad- 
 missible as secondary evidence (m). 
 
 Where the plaintiff, on being called upon to produce a grant, 
 
 under which it was alleged that Mr. was determined that the Managers had 
 
 Douglas had been directed by Lord Mel- not entitled themselves to read the paper : 
 
 ville to apply to the Treasury for monies upon this the managers proceeded further, 
 
 from time to time as his paymaster ; and and tendered in evidence, a certificate 
 
 for this purpose the Managers offered in signed by Mr. Douglas as paymaster, and 
 
 evidence an entry in a book kept in the given by him to the Navy-office, acknow- 
 
 Exchequer, which book contained copies ledging the receipt of money by him at the 
 
 of all the letters of Attorney for the receipt Exchequer. The Managers then produced 
 
 of money at the Exchequer. No such entries in the Bank books, signed by Lord 
 
 letter had been found after diligent search Melville and Mr. Douglas, in the common 
 
 among Mr. Douglas's papers shortly after form of opening an account; and afterwards 
 
 his death, but it was proved that an official called a witness, whose name and descrip- 
 
 order had been made out for Mr. Douglas tion corresponded with the name and de- 
 
 to receive the money under a letter of scription of one of the attesting witnesses 
 
 attorney ; and the fact of Mr. Douglas's in the proposed entry ; and this witness 
 
 appointment as paymaster was proved by stated that he had some recollection, thou"-h 
 
 a letter in Lord Melville's handwriting, very slight (for the entry bore date about 
 
 and the clerk of the office proved that he 24 years before this time), of providing a 
 
 had made the entry from an official letter stamp for the power of attorney from Lord 
 
 of attorney. After argument, the entry Melville to Mr. Douglas, and of attesting 
 
 was rejected. There is no legal proof (said it at tiie Navy Pay-office. Upon this evi- 
 
 the Lord Chancellor) of Lord Melville's dence the Lord Chancellor declared his 
 
 handwriting, and it does not appear opinion tliat the entry was admissible, and 
 
 whether the attesting witnesses are living the Lords allowed it to be read, 
 or dead ; nor does it appear that Mr. {m) Ld. Larton v. Gore, 1 Dow, N. 3. 
 
 Douglas ever received any money under 190. 
 that appointment. For tliese reasons, it
 
 398 
 
 ■VTUITTEN EVIDENCE : DEED, &C. 
 
 Secondary 
 evidence. 
 
 When in 
 the posses- 
 sion oftlie 
 adversary. 
 
 produced an ancient parchment, without either signatures or seals, 
 it was held to have been rightly received, as a document coming 
 out of the hands of the opposite party, and not as a deed, nor as 
 evidence of one (w). 
 
 Where an assicnment had been lost before it had been entered 
 of record, pursuant to the 6 Geo. 4, c. 16, s. 96, it was held that 
 secondary evidence of it was admissible (o). 
 
 In proving an examined copy, it is sufficient to prove that whilst 
 one read the original, the other read the copy (p). 
 
 If the deed or other instrument be in the possession of the adver- 
 sary in a civil, or of the defendant in a criminal case, proof must be 
 given of that fact {q) ; and it must next be shown that the adverse 
 party, or his attorney, has had notice to produce it (r). It has been 
 said that this rule applies even where there is evidence to prove the 
 destruction of the instrument (s). Proof of the delivery of a paper 
 to the servant of the defendant, without calling the servant, was in 
 a criminal case held to be insufficient proof of the possession of the 
 paper by the defendant (0- But proof that a deed came into the 
 hands of the defendant's brother, under whom the defendant 
 claimed, was held to warrant the reading of a copy(M), even 
 although the defendant had sworn, in an answer in Chancery, that 
 he had not got the original. Proof of this kind must depend much 
 upon the circumstances of the particular case (x). The fact of the 
 adversary's possession may be proved by circumstances, and for 
 this purpose the particular course of duty and office is admissible 
 to raise a presumption of such possession (y). Presumptive evi- 
 
 (n) Tyrwhitt v. Wynne, 2 B. & A. 
 654. It wa8 held to be entitled to but 
 little credit, since the acts of enjoyment 
 had been inconsistent with it. 
 
 (o) Giles V. Smith, 1 Cr. M. & R. 462 ; 
 1 Tyrw. 15. 
 
 (p) Bolfe V. Bart, 2 Taunt. 52. 
 
 (j) Where it was sworn that the ori- 
 ginal lease had been stolen from the plain- 
 tiff by a party, at the instigation of the 
 defendant, who either had it or knew 
 where it was, and there was no denial on 
 the part of the defendant, the Court made 
 a rule absolute for giving secondary evi- 
 dence of its contents. Doe d. Pearson v. 
 Ries, 7 Bing. 725. 
 
 (r) R. V. Stoke, Golding, 1 B. & A. 
 173. Even in penal actions and criminal 
 proceedings, notice to the defendant's 
 attorney is sufficient. Cater v. Winter, 
 
 3 T. R. 306. 2 T. R. 201 . R.v. Watson, 
 Leach, 214. 
 
 (s) Doe V. Morris, 3 Ad. & Ell. 50. 
 Tavien, qu. for after destruction of the 
 instrument it is no longer in the possession 
 of any one. 
 
 {t) R. T. Pearce, Peake's C. 75. Gor- 
 don's Case, Leach, 244. 
 
 (ii) Pritchard v. Symonds, Hereford 
 As. 1744. B.N. P. 254. 
 
 (z) Baldney v. Ritchie, 1 Starkie's C. 
 338. 
 
 iy) See Hetherington v. Kemp, 4 Camp. 
 C. 193 ; Starkie's C. Hagedom v. Reid, 
 3 Camp. 377. Tooscy v. Willia/ns, 1 
 Mood. & M. C. 129. The defendant's 
 clerk produced a letter-book, containing 
 the copy of a letter in his handwriting : 
 the course was, for the clerk to copy all 
 such letters (to India), which, when copied, 
 were delivered to the defendant to be
 
 POSSESSION BY THE ADVERSARY, 
 
 denoe having been given that defendant had obtained his certificate 
 under a commission of bankrupt, it was presumed that it was in 
 the defendant's possession (z). 
 
 An a])pointment of an officer as an overseer is presumed to be 
 in the possession of the officer (a). 
 
 Proof that a letter was sent purporting to enclose a bill, and that 
 a bill answering the description in the letter was shortly after in 
 the possession of the party, was held to be presumptive evidence 
 that he received both letter and bill (J). 
 
 Where an apprentice deed is cancelled by the master on pay- 
 ment of money, he is bound to deliver the indenture up to the 
 apprentice (c). Documents relating to an estate are presumed to 
 have been delivered to an assignee (rf). The fact of a letter having 
 been sent to a deceased party several years before her death, was 
 held to be insuflicient to found a presumption that it was in the 
 possession of her administratrix (e). 
 
 A party, after notice to produce a document, cannot get rid of 
 it by transferring the possession of the instrument to another 
 person before the trial, for this is infraudem legis (f). 
 
 Possession 
 by tlic ad- 
 versary. 
 
 sealed, and then carried by the witness or 
 another clerk to the India-house j there 
 was no particular place of deposit for such 
 letters in the office, for the letters to be so 
 carried ; both the clerks swore that they 
 always carried the letters delivered to 
 them for that purpose, but neither of them 
 had any recollection of the particular 
 letter. Lord Teuterden, with great reluct- 
 ance, rejected the evidence, observing, that 
 the practice differed from that in most 
 countiiig-liouses ; and that, if the duty of 
 the clerks liad been to see the letters so 
 copied carried to tlie post-office, it might 
 have done, but tliat there was some- 
 tliing else to be done, and that by the 
 defendant. 
 
 (c) Henry v. Leifjh, 3 Camp. C. 502. 
 
 (a) An indenture of apprenticeship, 
 made 1797, having been signed only by 
 one overseer of the appellant parish, the 
 respondent parish, to show that only one 
 had been appointed in that year, called 
 upon the appellants to produce the original 
 appointment (liaving given them notice to 
 produce all books and writings relating 
 thereto) ; one book only was produced, and 
 that was not for tlie year 1797. Held, 
 that the respondents not having taken any 
 
 means to procure the testimony of the 
 overseer himself (who must be presumed 
 to have the custody of the orignal appoint- 
 ment), were not entitled to give secondary 
 evidence of its contents. Rex v. Leicester, 
 1 B. & A. 173. 
 
 (b) Kieran v. Johnson, 1 Starkie's C. 
 109. 
 
 (c) R. V. Harberton, 1 T- R. 141. 
 
 (d) Goodtitle v. Saville, 16 East, 91, n. 
 
 (e) Drew v. Denborough, 2 Carr, Sc 
 P. C. 198. 
 
 (/) Knight v. Martin, 1 Gow. 26 ; and 
 see Leeds v. Cook, 4 Esp. C. 256, and 
 infra, 404. But where notice had been 
 given to the party, and upon a second 
 trial was served upon the attorney, who in- 
 formed the party serving it that the instru- 
 ment had been assigned to some one whom 
 he did not know, without his privity or 
 knowledge, it was held that the service 
 was insufficient without further inquiry 
 from the defendiint. Ibid. Where it was 
 sworn that tlie original L.'use hud been 
 stolen from the plaintiff by a party at the 
 instigation of the defendant, who eitlier 
 had it or knew where it was, a: id there was 
 no denial on the part of the defendant, the 
 Court made a rule absolute for giving
 
 400 
 
 WRITTEN evidence: DEED, &C. 
 
 When in jj^ some instances it is sufficient to show that the instrument 
 
 the posses- . • r ^ ■ ■ ■ • ^^ 
 
 eion of the IS in tlic actual possession or one who is in privity with a party, 
 adversary, f^j, ^j^gj^ ^^ possession of the one is in law the possession of the 
 other. Where the action was brought against the owner for goods 
 supphed for the use of the vessel, and proof was given that the 
 order for the goods was in possession of the captain, it was held 
 that the proof of possession was sufficient {g). So for this pur- 
 pose possession by the under-sheriff is possession by the sheriff (A). 
 Possession by the banker of the party is possession by the 
 latter (i). 
 
 A joint notice having been given to two executors, one of whom 
 has suffered judgment by default, secondary evidence is admissible 
 of a receipt proved to be in the possession of the latter {k). 
 
 This rule is inapplicable where the party to the suit has not a 
 
 right to retain as well as inspect the document, as where it is not 
 
 in the possession of a party in the cause, but of a stake-holder, 
 
 between him and a third person (Z), nor does it apply where the 
 
 party to the suit justifies it under another who has possession of 
 
 the paper in an independent character {m). 
 
 Notice to The instrument having been proved to be in the possession of 
 
 produce the the adversary, the next step is to prove the notice to produce it. 
 
 ' ' It is sufficient to prove service of notice to produce a deed or other 
 
 instrument, either on the party or his attorney, in criminal as 
 
 well as civil cases {n). This must appear to be a reasonable 
 
 secondary evidence of its contents. Doe 
 d. Pearson v. Bies, 7 Bing. 725. Where 
 a party had notice to produce an instru- 
 ment, and did not say he had not got it, 
 although, in fact, he had delivered it at 
 the Stamp-office, the adversary was per- 
 mitted to give secondary evidence. Sin- 
 clair v. Stephenson, 1 C. & P. 585. 
 
 (g) Baldney v. Ritchie, 1 Starkie's C. 
 338. 
 
 {h) Taplin v. Atty, 1 Ry. & Mo.C. 164. 
 
 (i) Seems where the writing is not traced 
 to the hands of the under-sheriff, Morrison 
 V. Bell, Starkie's C. 415. Partridge v. 
 Coates, 1 Ry. & Mood. C. 156. And see 
 Sinclair v. Stephenson, 1 C. & P. 782. 
 Burton v. Payne, 2 C. & P. 520. 
 
 {k) Beckwith v. Bonner, 6 C. & P. 
 682. 
 
 (0 Parry v. May, 1 Mo. & R. 279. 
 
 (nt) Evmis v. Sweet, R. & M. 83. And 
 fee Pritchard v. Symonds, B. N. P. 254. 
 It. V. Pearce, Peake's C. 76. Where a 
 
 party in possession of hooks, &c. belonging 
 to a committee, of which he had been a 
 member, had them delivered to him as a 
 member of another society, which had sub- 
 sequently occupied the same office; held 
 that he could not be deemed to be so con- 
 nected with the former as to let in se- 
 condary evidence of the contents, after 
 notice to the defendants, his former co- 
 adjutors, he holding them in a new cha- 
 racter, (per Tindal, C. J.) Whitford v. 
 Tntin, 6 C. & P. 228. 
 
 {n) Attorney-General\ . Le Marchand, 
 2T R. 201. R.\. Watson,ih. 199. Gates 
 V. Winter, 3 T. R. 306. Trist v. Johnson, 
 1 Mo. & R. 259. B. V. ElUcombe, ib. 260. 
 The notice it seems ought to be on the attor- 
 ney if there be one. Per Gurney, B. Hov^e- 
 man v. Boberts, 5 C. & P. 394. Where 
 the attorney has been changed, a notice 
 served on the first attorney is sufficient. 
 Doe V. Martin, 1 Mo. & R. 242. It is to 
 be presumed that a party who goes abroad.
 
 NOTICE TO PRODUCE. 
 
 401 
 
 notice (o). A notice to produce a written instrument is usually in Notice to 
 writino-, but it may, it seems, be by parol {])) ; and then it may ['j™' jged 
 be proved by any witness who heard the notice given (q). The &c. 
 usual course is, as well in the case of notices to produce docu- • 
 ments upon the trial, as in giving notice to quit, or notice of the 
 dishonour of a bill of exchange, to make out duplicate notices, 
 and the witness who serves one compares them with each other, 
 
 leaves with his attorney, who is to con- 
 duct the trial, all necessary papers. lb. 
 But it is for the judge to determine whether 
 the papers required to be produced were so 
 necessarily connected with the cause as to 
 render it probable that they would be de- 
 livered to the attorney. Per Lord Ten- 
 ter den, in Vice v. Lady Anson, M. & M. 
 97. And qu. whether the rule ought not 
 to be extended to cases of parties resident 
 in England. lb. A notice for the assizes 
 should be served before the commission- 
 day. Trist V. Johnson, 1 Mo. & R. 259. 
 Upon an indictment for arson, when the 
 commission-day was on the 15th, notice 
 was served on the prisoner in gaol on 
 the 18th, and the trial was on the 20th, 
 the notice was held to be too late. R. 
 V. Ellicombe, 5 C. & P. 522. Notice 
 to a prisoner to produce a deed after 
 the commencement of the assizes, at wliich 
 he was tried for felony, was held to be in- 
 sufficient. R. V. Haioorth, York Lent 
 Assizes, 1830, cor. Parke, J. Notice by 
 the plaintiff was served on Saturday, in 
 Essex, to produce a deed on a trial at the 
 assizes which commenced on the following 
 Monday ; the attorney went to London 
 and fetched the deed ; a notice was served 
 on the Monday evening to produce another 
 deed ; the attorney offered to procure it if 
 the plaintiff would pay the expense; no 
 offer of payment was made ; the trial 
 was on Thursday. Held that the plaintiff 
 was not entitled to give secondary evidence 
 of the latter deed. Doe v. Spitty, 3 B. &Ad. 
 182. For the defendant was not bound to 
 permit the deed to be sent by a coach, the 
 plaintiff refusing to pay for a special mes- 
 senger. See also as to service of notice at 
 the assizes, Hengist v. Fothergill, 5 
 C. & P. 303. In an action against part- 
 ners, the defence was that the bill had been 
 accepted by one for his private debt, witii 
 VOL. I. 
 
 the knowledge of the plaintiff. Held that 
 other bills accepted by that partner, and 
 paid, were not so connected with the sub- 
 ject of the trial as to render a notice on the 
 attorney to produce them (too late for him 
 to obtain them from his client) sufficient 
 to let in secondary evidence of them. 
 Afflalo V. Fourdrinier, 1 M. & M. 335. 
 
 (o) It seems that in a town cause, service 
 on the attorney the evening before the 
 trial is sufficient ; Atkins v. Meredith, 
 4 Dowl. P. C. 639, per Gurney, B. ; but 
 service on the party on Saturday evening 
 for Monday, was held to be insufficient. 
 Housman v. Roberts, 5 C. & P. 394. 
 Where, under the circumstances, it cannot 
 be presumed that the document (e. g. a 
 tradesman's book,) is in the possession of 
 the attorney, notice to the attorney on the 
 preceding evening is insufficient, although 
 the client reside in London. Atkins v. 
 Meredith, 4 Dowl. P. C.639. In a town 
 cause, service of notice upon the wife of 
 the attorney of the defendant, late in the 
 evening of the night before the trial, was 
 held to be insufficient. Doe v. Guy, I 
 Starkie's C. 283. So was service at seven 
 in the evening of the day before the trial, 
 at the office of the attorney, who had then 
 left his office. Sims v. Kitchen, 5 Esp. 
 C. 46 J S. P. Atkinson v. Carter, 2 Ch. 403. 
 So where the service was too late to enable 
 the attorney to communicate with his cli- 
 ent. Byrne v. Harvey, 2 Mo. & M. 89. 
 Notice to produce a paper, given to the 
 attorney on the evening of the second day 
 before the trial, the party being then 
 abroad, was held to be sufficient. Bryan 
 v. Wagstaff, 1 Ry. & M. 128. 
 
 (p) Smith v. Young, 1 Camp 440. If 
 both a written and oral notice have been 
 given,proof of either will suffice. Ibid. 
 
 («/) 4 Esp. C. 203. 1 Esp. C. 445. 
 
 D D
 
 402 
 
 WRITTEN EVIDENCE : DEED, &C. 
 
 Proof of 
 notice to 
 produce. 
 
 and upon the trial proves their correspondence, and the delivery 
 of one of them to the attorney of the opposite party (r). 
 
 It is a general rule that proof of notice to produce a notice is 
 not requisite ; if it were, the necessity would extend in infinitum, 
 as each additional notice to produce the preceding would require 
 the same proof (s). 
 
 The notice will be insufficient if it be intitled in a wrong cause. 
 In an action by the plaintiffs A. and B., assignees of C. (a bank- 
 rupt) V. JE., a notice to produce a document was intitled A. and B. 
 assignees of C and D. v. E., and this was held to be insufficient, 
 although A. and B. were in fact the assignees of C. and Z). under 
 a joint commission {t). 
 
 Where a document is produced in consequence of notice, and 
 part is read, the party who produces it is, in general, entitled to 
 have the whole read (m) ; but where notice was given to produce 
 a letter which expressed that it covered several enclosures, but 
 without referring to them particularly, it was held that the party 
 
 {r) Jory v. Orchard, 2 B. & P. 41. 
 Where, however, ia cases of bills of ex- 
 change, &c. the notice served is a sole ori- 
 ginal, notice must be given to produce it. 
 See Vol. II. tit. Notice. Where a great 
 number of impressions are printed at the 
 same time, they are in the nature of dupli- 
 cate originals. See i?. v. Watson, 2 Star- 
 kie'a C. 140, where it was held that a 
 number of copies of a placard having been 
 printed by order of the prisoner, who had 
 taken away twenty-five of them from the 
 printers, cue of the remainder might be 
 read without giving notice to the prisoner 
 to produce the twenty-five. And see H. v. 
 Pearce, Peake's C. 75. 
 
 (s) See Vol. II. tit. Notice. 
 
 (0 Harvey and others v. 3forgan, 2 
 Starkie's C. 17, cor. Lord Ellenborough, 
 and afterwards by the Court of King's 
 Bench, on motion for a new trial, on the 
 ground that the notice was sufficient, and 
 that secondary evidence ought to have been 
 admitted. In an action for work and labour 
 done as a singer, notice had been given to 
 the defendant to produce all letters, papers, 
 books, receipts, vouchers, memorandums, 
 and all other documents written by the 
 plaintiff to the defendant, or by the de- 
 fendant to the plaintiff or otherwise j and 
 it was held to be sufficient to warrant 
 parol evidence of a memorandum, signed 
 
 by the defendant, and delivered to a wit- 
 ness, and afterwards re-delivered to the 
 defendant, stating the terms of engage- 
 ment. Jones V. Hilton, Lancaster Sp. Ass. 
 1825, cor. Holroyd, J. Notice to produce 
 " letters and copies of letters, also all books 
 relating to this cause," was held to be too 
 general, and insufficient to let in secondary 
 evidence of the contents of letters. Jones 
 Edwards, 1 M. & Y. 139. So a notice to 
 produce " all letters, papers, and documents 
 touching and concerning the bill of ex- 
 change mentioned in the declaration, is too 
 general, not pointing out the particular 
 letter required. France v. Lucy, R & M. 
 341. But a general notice to produce all 
 letters written by the said plaiidiff to the 
 said defendant relating to the matter in 
 dispute, was held sufficient to let in, as 
 secondary evidence, a particular letter, al- 
 though not specified as to date, because 
 the notice did specify the names of the 
 parties by and to whom the letters were 
 addressed. Jacob v. Zee, 2 Mo. & R. 33. 
 A notice to produce a letter, which letter 
 expresses that it covers several papers, 
 without particularly referring to them, 
 does not entitle the party to have the 
 enclosures read. Johnson v. Gilson, 4 
 Esp. C. 21 . 
 (u) Infra, 414.
 
 NOTICE, WHEN UNNECESSARY. 
 
 403 
 
 Notice to 
 
 jjroducc, 
 
 &c. 
 
 producing the letter was not entitled to liuve the enclosures 
 read {'w). 
 
 It is to be observed, that notice to produce a document in the 
 hands of an adversary does not make it evidence for him unless 
 the instrument be called for {x), although the omission to call for 
 it after notice may raise a presumption unfavourable to the party 
 who gave the notice (y). But if the party giving notice call for 
 it and inspect it, he makes it evidence, although he does not 
 read it {z). 
 
 It is also a general rule that a defendant, although he has given 
 notice to his adversary to produce a particular document, cannot 
 insist upon the production, or give parol evidence of the contents, 
 until the plaintiff's case has been closed (a). 
 
 The reason for giving notice, and the necessity for giving it, \yiien un- 
 cease when, from the very nature of the suit or prosecution, the 'lecessary. 
 party must know that he is charged with the possession of the 
 instrument. Consequently, in an action of trover for a bond or 
 note, parol evidence of the instrument may be given although no 
 previous notice be proved {b) ; and in a prosecution for stealing 
 such an instrument, the same rule applies (c). So also in trials 
 
 (to) Johnson v. Gilson, 4 Esp. C. 21 . 
 And where a shop-book was produced, in 
 pursuance of notice, it was held that the 
 party who produced it was not entitled to 
 read other entries in the book, which had 
 no reference to those which had been read 
 by the adversary. 
 
 (x) Saijer v. Kitchen, 1 Esp. C. 210. 
 Nor even although called for, unless it be 
 inspected or otherwise used. See below. 
 
 {y) Per Lord Kenyon, ib. In general, 
 however, there is little to presume in such 
 a case; it is usual in practice to give a 
 general notice to produce books, &c. but it 
 would be impolitic to call for them unless 
 something were known as to their con- 
 tents. 
 
 (z) Wharam v. Routledge, 5 Esp. C. 
 210. Calvert v. Floiver, 7 C. & P. 38G. 
 
 (a) Graham v.JDyster, 2 Starkie's C. 
 23. Sideways v. Dyson, ibid, 49. On the 
 cross-examination of one of the plaintiff's 
 witnesses, the defendant's counsel required 
 the production of the plaintiff's books, 
 notice having been given for that purpose. 
 The plaintiff refused to produce them in 
 that stage of the business, before the de- 
 fendant had gone into his case. The 
 
 defendant's counsel then proposed to give 
 parol evidence of the entries ; but Lord 
 Ellenborough said, that, in strictness, the 
 evidence could not be anticipated, although 
 it was rigorous to insist upon the rule, and 
 a close adherence to it might be productive 
 of inconvenience. 
 
 {b) Scott V. Jones, 4 Taunt. 865. Hoto 
 V. Hall, 14 East, 274. Jolley v. Taylor, 
 1 Camp. 143. Butcher v. Jarratt, 3 Bos. 
 & Pull. 143. Wood v. Strickland, 2 
 Mer. 461. Whitehead v. Scott, 2 Mood. 
 & M. 2. Colling v. Treveck, 6 B. & 
 C. 398. In equity, each party knows 
 previously what evidence has been given, 
 and therefore there is not the same necessity 
 for notice. Where usury is stated to have 
 been committed in discounting the bill 
 upon whicli the action is brought, and 
 another bill, in one undivided transaction, 
 no parol evidence is admissible as to the 
 contents of the latter, unless notice has 
 been given to produce it. Hattam v. 
 Withers, 1 Esp. C. 2o9. Cor. Kenyon, 
 C. J. 1795. 
 
 (c) R. V. Aickles, 1 Leach's C. 436. So 
 on an indictment for forging a bill of ex- 
 change, which the prisoner h d swallowed. 
 O D 2
 
 404 WRITTEN evidence: deed, (fee. 
 
 Notice to for treason, where the prisoner has been proved to be in possession 
 wheirun- ©f the original {g). In an action for breach of promise of mar- 
 necessary, riage, it appeared that a witness who had been served with a 
 subpoena duces tecmn to produce a letter written by the plaintiff to 
 the witness, had, since the commencement of the action, delivered 
 it to the plaintiff; and although no notice had been given to the 
 plaintiff to produce it. Lord Ellenborough admitted evidence of 
 the contents, since the document belonged to the witness, and had 
 been subtracted in fraud of the subpoena ; it was therefore admis- 
 sible as in odium spoliatoris (h). Where proof had been given 
 that a conspirator, in a case of high treason, had procured the 
 possession of certain printed placards, it was held that they were 
 duplicate originals, and that one might be read in evidence with- 
 out notice to produce the original (^). Where a party at a public 
 meeting dehvered to a person present a written paper as a copy 
 of the resolutions about to be read, and which corresponded with 
 the resolutions so read, it was held to be good evidence to prove 
 the resolutions, without previous notice to produce the paper from 
 which the resolutions were read (k). Notice is in general unneces- 
 sary, where a duplicate original can be proved (Z). Proof that the 
 adversary or his attorney has the deed or other instrument in 
 court, does not supersede the necessity of notice ; for the object 
 of the notice is not merely to enable the party to bring the instru- 
 ment itself into court, but also to provide such evidence as the 
 exigency of the case may require to support or impeach the instru- 
 ment {m). 
 
 R. V. Spragge, cor. BuUer, J. on the Nor- copy of a letter taken by a copying ma- 
 
 tliem circuit, cited by Lord Ellenborough chine, is not evidence without notice to 
 
 in How V. Hall, 14 East, 27G. Butler's produce the original. Nodin v. Murray, 
 
 case, 13 Howell's St. Tr. 1254. 3 Campb. 228. Holland v. Reeves, 7 C. 
 
 (gr) Francia's case, 15 Howell's St. Tr. & P. 38. 
 
 941. In R. V. Moors, 6 East, 421, n., (k) R. v. Hunt, 3 B. & A. 572. 
 
 upon an indictment for administering un- (?) See Vol. II. tit. Notice. Coiling v. 
 
 lawful oaths, a witness swore to the terms Treveck, 6 B. & C. 398, per Bayley, J. 
 
 of one spoken by the prisoner whilst he held Philipson v. Chase, 2 Camp. 110, per Lord 
 
 a paper in his hand, and it was held that Ellenborough. The copy of a bill delivered 
 
 notice to produce the paper was unneces ■ by an attorney to his client, is evidence, 
 
 Bary. And so it is generally, without re- without notice to produce the original, 
 
 sorting to the principle now under con- Anderso7i, administrator v. May, ^'Es^.C. 
 
 sideration, where evidence is given of what 167. And the Court of C. P. refused a rule 
 
 the party has said. And see R. v. Layer, for a new trial ; 2 Bos. & Pul. 237. Colling 
 
 6 St. Tr. 263. R. v. Ue la Motte, East, v. Trevecli , 6. B. & C. 394. But where no 
 
 P. C 124. The letters in the latter case such counterpart has been kept, and no 
 
 had been opened at the post-office. notice has been given, the plaintiff cannot 
 
 (/*) Leeds v. Cook, 4 Esp. C. 256. Doe state the items of the bill from his books. 
 
 V. Ries,l Bing. 724. Philipson v. Chase, 2 Camp. C. 110. 
 
 (i) R. V. Watson, 2 Starkie's C. 138. A (m) See Doe v. Grey, 2 Starkie's C. 283,
 
 PRODUCED BY THE ADVERSARY. 
 
 405 
 
 A counterpart, which is not a duplicate original, having been 
 executed by one party only, is admissible against the party who 
 executes it, to prove the execution of the other part which it 
 recites, although no notice has been given to produce the 
 original (n). But as against a third person, unless he claim in 
 privity (o), a counterpart cannot be read in evidence witliout 
 accounting for the want of the original, or proving it to be in tlie 
 possession of the party, and that he has had notice to produce 
 it ip). 
 
 After proof of notice, the adversary either produces the instru- 
 ment or he does not. If he does produce it, the execution must 
 be proved in the usual way, by means of the attesting witness. 
 This seems to be now settled (</), although it was formerly held> 
 
 Notifc to 
 produce, 
 wlieri un- 
 necessary. 
 
 Proof of 
 (leod com- 
 ing froiu 
 the adver- 
 sary's pos- 
 session. 
 
 and 4 Burr. 2484. In ejectment on the 
 separate demises of Haldane and of Urry, 
 Ilaldane proved her title under a will, but 
 a witness stated on cross-examination, that 
 she had conveyed the premises to Urry 
 before the time of the demise laid in the 
 declaration, and that the deed of convey- 
 ance was in court. Mr. J. Aston non- 
 suited the plaintiff, being of opinion that 
 he ought to bring better evidence ; and 
 afterwards, Lord Mansfield, and Willes 
 and Aston, Js., were of opinion that the 
 plaintiff had not proved his title. Yates, 
 J. dissent. It would probably be now 
 held, that the evidence was sufficient, since 
 it seems to be clear that the statement on 
 cross-examination was not admissible evi- 
 dence to prove a conveyance, and conse- 
 quently that the title under the will re- 
 mained undisturbed. In debt for rent by 
 the assignee of the lessor, against the 
 assignee of the lessee, the plaintiff's at- 
 torney being called to prove the execution 
 of the deed, having on cross-examination 
 admitted that, after the execution, some 
 other deed had been executed between the 
 original parties, but which he declined 
 producing, though in court ; held that there 
 having been no notice to produce, he could 
 not be required to state the contents of his 
 client's deeds. Sate v. Kinsey, 1 Cr. M. 
 & R. 38; 4 Tyrw. 663. In ejectment, the 
 defendant having admitted the title as 
 heir, and proved a will, duly executed, held, 
 that the plaintiff, not having given notice 
 to produce, could not ask a witness whether 
 the deceased had not a fortnight after, in 
 
 the presence of himself and others, signed 
 another paper, and declared it to be his last 
 will; and such latter paper having been 
 traced to the possession of the defendant, 
 the Court could not presume it to have 
 been lost or destroyed. Doe v. Morris, 4 
 Nev. & M. 598. 
 
 (h) Burleigh v. Stihbs, 5. T. R. 465. 
 The declaration alleged that A. B. put 
 himself apprentice to the defendant by a 
 certain indenture executed, &c. ; and it 
 was held that this was proved by the proof 
 of that part of the indenture executed by 
 the defendant, and in which it was recited 
 that yl. JS. had bound himself apprentice 
 to him. So in ejectment, on a clause of 
 re-entry for a forfeiture for non-payment of 
 rent, against an assignee of the lease, proof 
 of the counterpart, executed by the original 
 tenant, is sufficient evidence of his holding 
 on the same terms. Boe v. Davis, 7 East, 
 363. Mayor §-c. of Carlisle v. Blamire, 
 8 East, 487. 
 
 (o) 7 East, 363. 8 East, 487. 
 
 (jj)Salk.287. 6 Mod. 225. 12 Vin. Ab. 
 27, pi. 4, per Grose, J. R. v. Middlezoy, 
 2T.R. 41. 5«jJra, "9.3. 
 
 {q) Gordon v. Secrelan, 8 East, 548- 
 Doe v. Marquis of Cleveland, 9 B. & C. 
 869. Knight v. Martin, Gow, 26. An 
 instrument produced by the adverse party, 
 under a notice, cannot be given in evidence 
 as an agreement between such party and a 
 stranger, unless it be stamped. Doe d. St. 
 John V. Ilore, 2 Esp. C. 724. Where 
 ship's articles come out of the hands of the 
 adverse party upon notice, the subscribing 
 D D 3
 
 406 
 
 WRITTEN EVIDENCE : DEED, &C. 
 
 Proof of 
 
 deed com- 
 ing from 
 t!ic adver- 
 sary's pos- 
 session. 
 
 that where the deed or other instrument came out of the adver- 
 sary's possession, no proof of execution was requisite (r). In 
 Gordon v. Secretan (s), where the plaintiff in an action on a 
 policy of insurance produced an agreement between himself and 
 a stranger to the defendant, in pursuance of notice from the 
 defendant, in order to show that the plaintiff had no interest in 
 the subject-matter insured, it was held that the defendant was 
 bound to prove the execution of the agreement by means of the 
 subscribing vv^itness. In the subsequent case of Pearce v. Hooper 
 (t), it was held that if the party producing a deed upon notice 
 
 witness must be called, except in the case 
 of an action by a seaman for wages, for 
 which occasion the articles are made evi- 
 dence of themselves, by 2 Geo. 2, cap. 20 ; 
 2 Geo. 2, cap. 36, s. 2 & 8. Johnson v. 
 Zeivellin, 6 Esp. C. 101. And the rule 
 extends to agreements not under seal. 
 Wetherston v. Edghujton, 2 Campb. 95. 
 And see Coolie v. Stocks, Tidd, 505, 6. 
 Bateman v. PJdlips, ibid. 505. G20, and 4 
 Taunt. 157. Taylor v. Osborne, cited 4 
 Taunt. 159. 161, 162. In an action by a 
 lessee against the assigneo of a lease, the 
 plaintiiF having proved the execution of the 
 counterpart, is not bound to prove the exe- 
 cution of the original lease on its being pro- 
 duced by the defendant. Burnett v. Lynch, 
 5 B. & C. 589. In an action to recover 
 a deposit for the purchasing of an estate 
 the plaintiff need not prove the contract of 
 sale produced by the vendor. Bradshaw 
 V. Bennett, 1 M. & R. 143. See further 
 Doe V. Heming, 6 B. & C. 28. Doe v. 
 Wainwright, 1 Nev. & P. 8. The object 
 of the party who means to use the instru- 
 ment is not material. Carr v. Burdis, 
 1 C. M. & R. 785. 
 
 (r) R. V. Middlezoy, 2 T. R. 41. 1 Esp. 
 C. 1 09. Peake's L. Ev. 1 09. 
 
 (s) 8 East, 548. 
 
 {t) 3 Taunt. 60. Carr v. Burdis, 1 C. 
 M. & R. 785. So where the defendants, 
 assignees of a bankrupt, produced, under 
 a notice from the plaintiff (in an action for 
 use and occupation), the deed of assign- 
 ment of the bankrupt's p.Tects; it was held, 
 that the deed was admissible in evidence, 
 though not proved by the attesting witness, 
 it having been shown that the defendants 
 occupied under the deed. Mant v. Main.' 
 
 waring, 3 B. & B. 139. In an action for 
 work and labour, the defendant produced 
 an agreement, signed by the plaintiff only, 
 and attested, and Bayley, J. held, that 
 proof by the attesting witness was unne- 
 cessary. Mann v. Musgrave, York Sp. 
 Ass. 1828. In an action for use and occu- 
 pation, wliere the defendant holds under a 
 deed in his possession, proof of execution by 
 the plaintiff is unnecessary. Orr v. Mor- 
 rice, 3 B. & B. 139. And in Cooke v. 
 Tansioell, 2 Moore, 513, it was held, that 
 after notice to produce a deed in the de- 
 fendant's possession, and an omission to 
 jjroduce it, parol evidence of its contents 
 was admissible without proof of execution. 
 In an action by a lessee against his assignee 
 of a lease, the plaintiff having proved the 
 execution of the counterpart, the original 
 being in the defendant's possession, it was 
 held, that it was unnecessary for the plain- 
 tiff to prove the execution of the original 
 on its production by the defendant. Bur- 
 nett V. Lynch, 5 B. & C. 589. Where the 
 lessor of the plaintiff's attorney obtained 
 from a lessee and defendant, the lease to 
 the latter, in order to prevent the lease 
 from being set up as a defence, and after- 
 wards obtained an authority from that 
 lessee to detain the lease ; it was held, that 
 on the lease being produced at tlie instance 
 of the defendant, no proof was necessary. 
 For the lessors of the plaintiff were to de- 
 rive a benefit from the possession of the 
 lease, and the conduct of their attorney 
 amounted to a recognition of the lease as a 
 valid instrument. Doe v. Heming, 6 B. 
 & C. 28. On the sale of premises to the 
 defendant's landlord, a feoffment had been 
 delivered by the vendor, the question was
 
 IN TIIK ADVERSAUY b POSSESSION. 407 
 
 was possessed of a beneficial interest under it, proof of the exe- proof of 
 cution of the deed by his adversary was not necessary. In that ?^"^'^'^o"™- 
 case the defendant in trespass called for the deed which conveyed tiie adver- 
 an estate to the plaintiff, and which by its description of the ^r^'" P°*' 
 extent excluded the locus in quo ; and the Court held, that since 
 the plaintiff would have no interest in the estate if the deed did 
 not convey it, the production of the deed was, against himself, 
 good evidence of its execution. The Court, however, in this case 
 admitted the general doctrine expounded in Gordon v. Secretan, 
 and assented to the case put there by way of illustration, of an 
 heir at law w^ho produces a will upon notice given by a devisee 
 named in the will. So where both parties claim an interest under 
 the instrument so produced, such proof is unnecessary. As where 
 the plaintiff claims under the original lessee, and the defendant 
 under the assignment (u). An admission by the attorney of the 
 party in possession of the deed before the trial, that the party 
 claims under the deed, has been held to be sufficient {v). It does 
 not appear that a party has in any case been entitled to read a deed 
 in evidence without the usual proof, on the ground of its coming 
 out of the possession of the adversary, except where the deed is 
 produced by the adversary upon the trial of the cause {w). Where 
 a deed had been received from the possession of the adversary, 
 and remained in the possession of the party producing it for some 
 months previous to the trial, it was held that it could not be read 
 without the ordinary proof (x). A parchment coming out of the 
 adversary's possession without either signature or seal, may be 
 read as a document coming out of the adversary's possession, but 
 not as a deed (y). If the adversary does not produce it, proof 
 must then be given, as in case of the loss of the deed (z). But 
 
 as to the premises sought to be recovered an attorney, see Vol. II. tit. Attorney. 
 
 by the lessor of plaintiff being parcel of Admissions. Such an admission, ifun- 
 
 the premises so conveyed, notice had been true, would operate to the deception of the 
 
 given to produce the feoffment, which not party to whom it was made. 
 
 being done, an abstract thereof was ten- (,^) Vacher v. Cods, 1 B. & Ad. 144. 
 
 dered, there being no proof ofany copy ever And in Can- v. Biirdis, 1 C. M. & R., 
 
 having existed ; held, that it was admissi- Parke, B. observed that if the deed had 
 
 ble without calling the attesting witness; been given up before the action it might 
 
 and that it not being necessary to prove ijave made a difference. 
 
 the feoffment, neither was it necessary /^\ 1 B. & Ad. 144. 
 
 to prove the livery of seisin. Doe v. (y^ jy^y, ^^ Rawlins, 7 East, 279; 
 
 Waimvright, 1 Nev. & P. 8 ; 5 Ad. & Ell. Tyrwhitt v. Wynne, 2 B. & A. 554. 
 
 520. (~) The party seeking to prove the 
 
 (m) Knight v. Martin, 1 Gow. 2G. contents of a document in the adversary's 
 
 (v) Roe V. Wilklns, 4 Ad. & Ell. 8G. possession, cannot compel him to produce 
 
 Rfartin v. Gov', 26. As to admissions by it ; all he can do is to give notice to pro- 
 
 D D 4
 
 408 
 
 WRITTEN evidence: PROOF OF DEEDS, &C. 
 
 Proof of 
 deed, &c. 
 in the ad- 
 versary's 
 possession. 
 
 it has been said that shghter evidence will suffice where the deed is 
 in the hands of the adversary than where it is proved to have been 
 lost or destroyed (a). Another exception to the general rule is 
 that of a public officer, such as a sheriff, who produces an instru- 
 ment the execution of which he was bound to procure ; as against 
 him, it is presumed to have been duly executed (b). Where a party, 
 after notice, refuses to produce an agreement, it is to be presumed, 
 as against him, that it is properly stamped (c). Where the declar- 
 ation in covenant alleged that the deed was in the possession of 
 the defendant, and on non est factmn pleaded, it was proved that 
 the deed was in the hands of the defendant, to whom notice had 
 been given to produce the deed, and the plaintiff gave parol evi- 
 dence of the deed, the attesting witness being in court ; it was 
 held that the parol evidence was well received (d). Where two 
 parts of an agreement are signed by both parties, one of which is 
 stamped and is in the possession of the defendant ; if he refuse to 
 produce it upon notice, the unstamped part is receivable as secon- 
 
 duce the document, and if he omit to do 
 so, the only consequence is, tliat the party 
 seeking to give such evidence is entitled, 
 after proof of possession by the adversary, 
 to give secondary evidence of the con- 
 tents. See EnticTie v, Carrington, 19 
 Howell's St. Tr. 103. The Attorney- 
 general V. Le Marchant, 2 T. R. 201. 
 Cooper V. Gibbons, 3 Camp. 363. But 
 although it be true that the refusal of a 
 party to produce a document in his pos- 
 session does not authorize any direct in- 
 ference as to the contents of writing, 
 Laioson v. Sherwood, 1 Starkie's C. 315, 
 Cooper V. Gibbons, 3 Camp. C. 363, and 
 can in no case supply the defect of proof 
 where written proof is requisite ; as where 
 the action is brought on a bond of which 
 the defendant, the obligee, has obtained pos- 
 session, there seems to be no rule of law 
 which excludes, or which can exclude a 
 jury from taking this circumstance into 
 consideration, in connection with other 
 circumstances, in foi-ming their conclusion 
 on a matter of fact, to the proof of wliich 
 written evidence is not essential. It is 
 scarcely possible that an unfavourable pre- 
 sumption should not be made against a 
 trader, who upon the question whether par- 
 ticular goods had been paid for by a cus- 
 tomer, refused to produce his books, when 
 called for, to shew credit given. This prin- 
 
 ciple seems, in effect, to be admitted by 
 the authorities (see note a), which state 
 that slighter evidence will suffice to 
 prove a deed where it is in the hands 
 of the adversary, than when it is lost or 
 destroyed. See Rae v. Hervey, 4 Burr. 
 2484; Bate v. Kinzey, 1 C. M. & R. 41. 
 
 (a) 19 Mod. 8. 12 Vin. Ab. T. b. 65, 
 pi. 22. Carth. 80. Str. 70. See Pritt 
 V. Fairclough, supra, 342. In covenant 
 by a remainder-man for not repairing, 
 plea, that lessor was only tenant for life ; 
 held, that after notice on the plaintiff to 
 produce a specific deed, the steward might 
 be called to prove the existence and nature 
 of it; and although the possession of the 
 steward might be considered as the 
 possession of his principal, so as to 
 protect him from producing it imder a 
 spa. duces tecum, his knowledge of the 
 contents was not within the principle 
 of privileged communications, which ex- 
 tends not beyond counsel and attornies. 
 JTaj-Z of Falmouth v. Moss, 1 1 Pri. 455. 
 
 {b) Scott V. Waitman, 3 Starkie's C 
 168. Barnes v. Lucas, 1 Ry. & Mood. 
 C. 264. 
 
 (c) Crisp V. Anderson, 1 Starkie's C. 
 35; and see Pooley v. Goodwin, 4 Ad. 
 & Ell. 90. 
 
 (r/) Cooke V. Tanswell, 8 Taunt. 450.
 
 IN THE ADVERSARY S POSSESSION. 409 
 
 dary evidence of the contents of the otlier (e). So, although the Proof of 
 unstamped counterpart were not signed by the parties (/). If a a|jv|.'rf^^ry'8 
 party after notice does not produce a document in his cus- poasession. 
 tody, the party giving the notice, is entitled to give secondary 
 evidence of the instrument. And it has been held, that in such 
 case the party giving the notice, may give such secondary evidence 
 Vi^ithout calling the subscribing witnesses (g). Even although he 
 know the name of the subscribing witness {h). The party obliging 
 the adversary to give secondary proof, cannot by retracting or 
 producing the original, compel him to give the ordinary proof (A). 
 Nor can he put it into the hands of a witness, and examine as 
 to the time when an interlineation was made in it (/). Where a 
 party is proved to have destroyed a document which would have 
 been evidence against him, slight evidence will usually be suf- 
 ficient to supply it (m). The same principle applies where the 
 party for sinister purposes withholds the instrument. Where the 
 instrument is out of the power of the party, secondary evidence 
 is admissible. As where a will remains in Chancery by the order 
 of the Court (n). 
 
 A deed or other instrument may be read without proof of exe- pmof of 
 cution, by virtue of a rule of court to that effect (o) ; or where admission, 
 the party or his attorney makes the admission deliberately for the 
 purposes of the cause (p). If the admission be proved to be 
 
 (e) Waller v. Horsfall, 1 Camp. C. plaintiff was entitled to recover without 
 
 501. It seems, that where the instru- calling either of them. Keeling v Hall, 
 
 ment, if produced by the adversary on Peake's Ev. App. 82. 
 
 notice, would have been admissible in (h) lb. per Gibbs, C. J. 
 
 evidence without proof of execution, a (k) Jackson v. Allen, 1 Starkie's C. 74. 
 
 copy is also admissible in evidence without (I) Doe v. Cockrell, 6 C. & P. 5'2G. 
 
 proof of execution. Doxon v. Ha'ujh, 1 See Leiois v. Hartley, 7 C. & P. 405. 
 
 Esp. C. 409. In an action of covenant on (?/«) A small matter will supply it. Per 
 
 an indenture of apprenticeship, where the Holt, J., Lord Raym. 731. 
 
 defendant did not produce it after proof («) B.N. P. 254. 11 Co. 92. 
 
 of possession by him and notice, it was (o) 1 Sid. 269. Gilb. Ev. 91. Tr. per 
 
 held, that the plaintiff might give parol Pais, 347. 
 
 evidence of the contents, without calling (p) Griffiths v. Williams, 1 T. R. 
 
 the subscribing-witness. Cooke v. Tans- 610. 1 East, 568. Yoiukj v. Wright, 1 
 
 well, 8 Taunt. 450. Camp. 140. But mere statements made 
 
 {f) Garnons v. Smith, 1 Taunt. 507. by an attorney in the course of conversa- 
 
 (n) Cooke V. Tansicell, 8 Taunt. 450. tion arc not admissible. Parkins v. Hawk- 
 
 Where an instrument has been destroyed shaio, 2 Starkie's C. 239. 1 Camp. 140. 
 
 and the witness is known, he must be Wilson v. Ihirner, 1 Taunt. 398. And a 
 
 called, Gillard v. Smither, 2 Starkie's C. niere agreement to produce a particular in- 
 
 528. But where the phiintiff declared upon strument, does not dispense with the ne- 
 
 a lost bond, and a witness stated, that cessity of proof when produced. Whether- 
 
 there were attesting witnesses whose names ston v. Edgington, 2 Camp. 94. See 
 
 he did not know, it was held, that the Vol. ii. tit. Admissions.
 
 410 
 
 WRITTEN evidence: PROOF OF DEEDS, &C. 
 
 Admission, signed by the attorney on the record, it may be read ; but if he 
 be not the attorney on the record, further proof must be given to 
 show that he was the authorized agent of the party (q). So if the 
 attorney agree that the other party should act on the instrument, 
 as if the witness had been produced (r) ; or even merely agree to 
 admit the handwriting (5). But notwithstanding an agreement 
 by the attorney to admit the due execution of the specialty men- 
 tioned in the declaration, the defendant may still object on the 
 ground of variance (t). So the deed may be read where it is 
 admitted by the pleadings. In all these cases the consent of par- 
 ties supersedes the necessity of the usual proof {u), since it is 
 the office of the jury to decide upon those facts only which are 
 in controversy. It has been already seen that a mere parol ad- 
 mission, or even an admission in Chancery (x), by a party of his 
 execution of a deed, is not sufficient (y). 
 
 By the stat. 27 H. 8, c. 16, a bargain and sale of an estate of 
 inheritance or of freehold, must be enrolled (z). And since the law 
 
 Proof of by 
 enrolment. 
 
 (q) 2 Sid. 269. 
 
 (r) Laing v. Baine, 2 B. & P. 85. 
 
 (5) Milicard v. Temple, 1 Camp. C. 
 375. See B. N. P. 254. 
 
 {t) Goldle V. Shuttleworth, 1 Camp. 
 70. 
 
 {u) An admission signed by the obligor's 
 attorney, acknowledgmg the signature of 
 his client and of the attesting witness, is 
 presumptive evidence of delivery. Mil- 
 ward V. Temple, 1 Camp. 375. 
 
 {x) 4 East, 53. 5 T. R. 366. 
 
 {y) Supra, 371. In one case, where 
 the subscribing witness did not appear? 
 an indorsement by the obligor on the 
 deed was read, reciting a proviso witliia 
 the deed, that it should be void on pay- 
 ment of a sum of money, and acknow- 
 ledging the non-payment, and admitting 
 the deed ; and this was held to be proof 
 (B. N. P. 254) ; but note, that in this case 
 the witness did not appear, and qii. whe- 
 ther his absence was not accounted for. 
 
 (z) Deeds were also enrolled at common 
 law pro salvA custodici. 1 Salk. 389. 
 The enrolment of a deed under this sta- 
 tute, is a record. R. v. Hopper, 3 Price, 
 495. And therefore is not traversable in 
 any material part, such as the date of the 
 enrolment. 3 Price, 495. Hence an ex- 
 amined copy of a memorial of a deed re- 
 quired to be enrolled by an Act of Parlia- 
 
 ment, is evidence of the instrument. Tims 
 it has been held, that an examined copy 
 of the memorial of an assignment of a 
 judgment, which was required to be en- 
 rolled, was evidence of the fact of assign- 
 ment. See Hobhouse v. Hamilton 1 
 Schoales & Lefroy, 207. In the case of 
 BaiMe v. Chandless, 3 Camp. C. 17, in 
 an action against an attorney for negli- 
 gence in the purchase of an annuity, 
 which was void for want of a sufficient 
 memorial, in order to prove the memorial 
 a copy was offered in evidence, which had 
 been examined with the instrument at the 
 Rolls; upon the objection taken, that a 
 copy of the original memorial which the 
 defendant had carried in should be pro- 
 duced. Lord Ellenborough held, that the 
 copy proposed was admissible. The Act 
 required the memorial carried in to be 
 enrolled correctly ; and it was to be pre- 
 sumed that those concerned had done 
 their duty under the Act. The enrolment 
 was a sort of statutable record, and an 
 examined copy of it admissible. In the 
 case of Tinkler v. Walpole, 14 East, 226, 
 the case of a ship's register was distin- 
 guished from that of an enrolment under 
 a statute ; Lord Ellenborough observed, 
 " The case of enrolments stands on a par- 
 ticular statute : the statute of Anne pro- 
 vides, that copies of the instrument of
 
 ENROLMENT. 
 
 411 
 
 re(juires such enrolment, it has been liokl in many cases that enrol- 
 ment is sufficient evidence of the lawful execution of the deed («), 
 as against all parties. 
 
 The practice is admitted, but the principle doubted, in Buller's 
 Law of Nisi Prius (Z>), both because the authority relied upon in 
 support of such practice is the case of Sinartle v. Williams, where 
 the acknowledgment was by the bargainor, against whom the enrol- 
 ment was offered in evidence, and not by the bargainee, as stated 
 in the report in Salkeld (c) ; and besides, that the bargain and sale 
 in that case was of a mere term, and therefore was not within the 
 statute. But it seems that the enrolment of any deed upon the 
 acknowledgment of a party is evidence against himself, whether the 
 deed does or does not need enrolment, as in the case of Smartle v. 
 Williams (d), of a release, and this has been the practice (e). The 
 register of a conveyance in a register county, is not evidence, except 
 as secondary evidence, where the adversary has had notice to pro- 
 
 Enrolment 
 
 of deed. 
 
 indentures of bargain and sale, examined 
 with the enrolment, signed by the proper 
 officer, and proved on oath, shall have 
 the same force and effect as the original 
 indentures. But the Register Acts have 
 not attributed to the registers the same 
 effect as if the persons named therein 
 were proved to be the owners." 
 
 (a) 5 Co. 54. Stile. 455. 1 Keb. 117. 
 Salk, 280. B, N. P. 255, 256. An enrol- 
 ment of a deed is not a record, because it 
 is not the act of the Court, but only a 
 private act of the party authenticated in 
 court Gil. Law. Ev. 92. 5 Co. 74, b. 
 But see R. v. Hopper, 3 Price, 485. 
 where it was held that the enrolment of a 
 bargain and sale under the stat. of Hen. 
 8, was a record, that the date was a 
 material part of the record, and that proof 
 of a different date was not admissible. All 
 acknowledgments of deeds in K. B. are to 
 be made on the plea side, in open court (1 
 Salk. 389), and the enrolment is made cither 
 upon the acknowledgment or proof of the 
 delivery of the deed by the party. Com. 
 Dig. Bargain and Sale, B. 6. Godb. 270. 
 1 Salk. 389. 3 Leon. 84 ; for the bargainor 
 might die before acknowledgment. After a 
 deed had been enrolled, it seems that a 
 party could not plead non est factum, but 
 that he might avoid the effect of it by 
 pleading riens pasta par le fait. (Gil. L. 
 
 Ev. 93. 1 Leon. 184, 5.) And infants, 
 feme coverts (Com. Dig. Bargain and Sale, 
 R. 10), and strangers (ib. and Sav. 91), are 
 not concluded by the enrolment. The in- 
 dorsement of a registration in Ireland, on 
 a deed executed there, need not be proved, 
 Pijne v. Dm; 1 T. R. 55. See also Smartle 
 V. Williams, 1 Salk. 281. Garrick v. 
 Williams, 3 Taunt. 544. Taylor v. Jones, 
 1 Lord Raym. 746. 1 Keb. 117. Baikie v. 
 Chandless, 3 Camp. C. 17. 
 
 (6) B.N.P.259. 3 Lev. 387. 
 
 (c) 1 Salk. 281. 3 Lev. 387. Com. Dig. 
 tit. Evidence, B. 1. 
 
 {d) It was observed by Bayley, J., in the 
 case of Tinkler v. Walpole, 14 East, 230, 
 that in the case of Smartle v. Williams, 
 the deed was thirty years old; r;!id see B. 
 N. P. 255, where it is said that if the deed 
 need no enrolment, the enrolment will not 
 be evidence, 5 Co. 54. Stile, 445. 1 Keb. 
 117. Salk. 280. 
 
 (e) B.N. P. 256. In Lady Holcroft \. 
 Smith, 2 Freeman, 259, a distinction was 
 made between deeds of bargain and sale, 
 enrolled in pursuance of the statute, and 
 other deeds enrolled ; and the Court held, 
 that a copy of a deed enrolled for safe cus- 
 tody, would not be evidence otherwise than 
 against the party who sealed it, and all 
 claiming under him.
 
 412 
 
 WRITTEN evidence: DEED, ScC. 
 
 Enrolment 
 of deed. 
 
 When evi- 
 dence. 
 
 duce the conveyance (/). When the deed is enrolled, the indorse- 
 ment of the enrolment is evidence without further proof, because 
 the officer is entrusted to authenticate such a deed by enrolment (^). 
 But where a copy is used as secondary evidence, it must be proved 
 to have been examined with the enrolment {h). 
 
 A deed purporting to be the deed of several, may be enrolled on 
 the acknowledgment of one alone (i), and is sometimes enrolled 
 upon the aknowledgment of a mere nominal party, whose name is 
 introduced for the very purpose, the parties themselves residing 
 abroad {k). It would, therefore, be manifestly inconsistent with the 
 plainest principles of justice to admit such enrolments to be evidence 
 against those who have not acknowledged them, without proof of 
 the execution of the deeds ; as, for instance, to receive a deed 
 acknowledged by a bare trustee, without proof of execution by the 
 owner of the inheritance (/). And although it appears that an 
 opinion once prevailed to this effect, yet it seems to be so destitute 
 of principle, that it is not probable that it would now be acted upon. 
 
 By the stat. 10 Ann. c. 18, s. 3, {m), where in any pleading any 
 indenture of bargain and sale enrolled shall be pleaded with a 
 profert in curia, the person so pleading may produce a copy of the 
 enrolment of such bargain and sale ; and such copy, examined and 
 signed by the proper officer, and proved upon oath to be a true 
 copy, shall be of the same force as the indentures of bargain and 
 sale would be. 
 
 It is sufficient for a party in ejectment on an annuity deed to 
 prove the deed without proving the enrolment, and it lies on the 
 party who insists on the want of enrolment to prove the negative {n). 
 It seems that a bargain and sale and enrolment of lands conveyed 
 to a charity, will not be presumed from long enjoyment (o). 
 
 (/) Molton V. Harris, 2 Esp. C. 549. 
 An examined copy is evidence. White v. 
 Kilner, 2 C. & P. 289. 
 
 (g) Tlie production of a deed witli the 
 memorial indorsed, is sufficient proof of 
 the enrolment. Compton v. Chandlcss, 4 
 Esp. C. 18. B.N. P. 229. 
 
 (/() B. N. P. 220. Peake's Ev. 33. 
 
 (0 B. N. P.2G0. Thurle v. Madison 
 Sty. 462. 
 
 (A) Salk. 389. 
 
 (0 B. N. P. 256. 
 
 (in) This provision was made for sup- 
 plying a failure in pleading or deriving 
 title to lands, conveyed by such deeds of 
 bargain and sale, where the original in- 
 dentures are wanting, which often happens, 
 
 especially where divers lands, &c. are 
 comprised in the same indenture, and 
 afterwards devised to different persons. 
 See 14 East, 231, 1 Schoales & Lefroy 
 207. Before this statute an enrolment 
 could not have been pleaded, although a 
 deed had been exemplified under the great 
 seal; it was necessary to make a profert 
 of the deed itself under seal. Co. Litt. 
 225, b. ; and see Oliver v. Gwyn, Hard. 
 119; see the stat. 8 Geo. 2, c. 6, s. 22, 
 concerning Deeds of Bargain and Sale of 
 Lands in the North Riding of Yorkshire. 
 
 (n) Doe V. Bingham, 4 B. & A. 672. 
 Doe V. Wilde, 3 Camp. 7. As in the case 
 of a proviso in an Act of Parliament. 
 
 (o) Doe V. yVaterton, 3 B. & A. 149.
 
 ENROLMENT. 
 
 413 
 
 Although it has been held that a deed to lead the uses of a fine Deed to 
 requires no proof (p), on account of the strong presumption that 'j'"'^ ^''*; 
 the parties meant to convey the lands to some uses or other ; yet fine. 
 in a subsequent case all the Judges were of opinion that such a 
 deed must be proved (q). So it seems that the counterpart of such 
 a deed is not admissible in evidence without the usual proof (r). 
 
 It has been held that a recital of a deed in a subsequent deed is Recital in a 
 evidence of the former against a party to the latter. The recital of '^'^^^' 
 a lease in a deed of release is evidence of the lease against the 
 releasor, and those who claim under him (s) ; for it operates by way 
 of admission; and therefore such a recital is not evidence against a 
 stranger to the second deed (t). 
 
 No objection arising intrinsically from the contents of an instru- 
 ment can preclude the reading of it, for till it has been read the 
 Court cannot judge of the objection (m). The deposition of one preclude 
 Cowden was offered in evidence, and proof was given of the death ing. 
 of one Cowden who lived at Bow; and Reynolds, C. B. allowed the 
 
 An intrinsic 
 objection 
 will not 
 
 (p) B. N. B. 255. Glasscock v. War- 
 ren, B. N. P. 255. 
 
 {q) Griffith v. Moore, B. N. P. 255. 
 
 (r) B. N. P. 255 ; Salk. 287, contra. 
 
 («) Ford V. Lord Grey, 6 Mod. 44. 
 S. C. Salk. 285. Cragg v. JVorfolJi, 2 
 Lev. 108, 109. Fitzgerald v. Eustace, 
 Gilb. L. Ev. 100; Hardr. 123. Mr. 
 Peake, in his Law of Evidence, p. 109, 
 6th ed., states, that although in the above 
 cases it is laid down, that as against a 
 party to the reciting deed, such deed is 
 evidence of the deed recited in it ; yet 
 there are others in which this seems to be 
 considered as secondary evidence, and 
 admissible only when the first deed was 
 shown to be lost, or some reason given for 
 not producing the regular and best evi- 
 dence of it; and he adds, "such is now 
 the general received opinion of the Profes- 
 sion." See Vol. 11. tit. Admissions. — 
 Notice. — Recital. Com. Dig. Ev. B. 
 5. In Ford v. Grey, 1 Salk. 285, it was 
 ruled, that the recital of a lease in a deed 
 of release, is good evidence of the lease, 
 against the releasor, and those who claim 
 under him. It seems that a recital is 
 always evidence as against the party to a 
 reciting lease, where it operates by way of 
 estoppel, although not against another 
 party where it cannot so operate. See 
 Cragg v. Norfolk, 2 Lev. 108; 2 Vent. 
 
 171, 172 ; Roll. 678, 1. 40. And therefore 
 the recital, in a grant of an office, of a 
 former grant, on the determination of 
 which the present grant was to commence, 
 is no evidence in favour of the grantee of 
 the former grant. lb. But if one relies on 
 a patent to prove a former grant which it 
 recites, it is also evidence to prove a sur- 
 render which it also recites ; 2 Vent. 171 ; 
 Com. Dig. Ev. B. 5. An averment, in a 
 declaration against a master for not in- 
 serting the true consideration in an ap- 
 prentice deed, that A. B., by a certain 
 indenture, put himself apprentice to the 
 defendant, is proved by the production of 
 the part executed by the defendant, in 
 which it is recited that A. B. put him- 
 self apprentice, &c. Burleigh v. Stibhs, 
 5 T. R. 4G5. 
 
 {t) Ibid. 
 
 {u) Where an objection was taken to 
 the reading of an entry from a corpora- 
 tion-book, on the ground that it contained 
 many things not relating to the corpora- 
 tion. Lord Hardwicke said that as the ob- 
 jection was derived from the book itself, it 
 was impossible to say tliat it should not 
 be read; but that if any material objection 
 should appear to the book on reading, he 
 would mention it to the jury on summing 
 up. Moore v. Mayor of Hoitingt, 10 St. 
 Tr. App. 142.
 
 414 WRITTEN evidence: deed, &.C. 
 
 An intrinsic deposition to be read upon this evidence, because it did not appear, 
 objection otherwise than by the deposition, that Cowden lived elsewhere than 
 preciiidc at Bow, and therefore the objection, that the Cowden whose death 
 the reading. ^^^^ proved was not the Cowden who made the deposition, was 
 incomplete unless it was coupled with the deposition (x). But he 
 said he would leave it to a jury to determine whether the man 
 whose death was proved was the man who made the deposition (y). 
 If upon the reading it appear that some part is not properly admis- 
 sible in evidence, as if it rest upon mere heresay, or if an accomplice 
 in his confession charge a confederate, the Court will, upon sum- 
 ' ming up, advise the jury to leave the objectionable part out of their 
 
 consideration (2:). 
 
 It is also a rule that no intrinsic matter will obviate an extrinsic 
 objection to the reading of the document (a). 
 The whole It is also a general rule, that where any document is produced and 
 of an entire j-gg^^j ]^y q^^q party, the whole is to be read, if the adversary require 
 to be read, it (5) ; for unless the whole be read there can be no certainty as to 
 the real sense and meaning of the entire document. Upon the same 
 principle, where one document refers to another, the latter is, for the 
 purpose of such reference, incorporated with the former, and may 
 be read to explain it ; as where the deposition of the captain of a 
 ship refers to the log-book (c) ; or a letter produced upon notice 
 refers to other letters (d ) ; or an interrogatory upon the examina- 
 tion of a witness refers to a letter (e). A written answer made by a 
 
 (ar) Benson v. Olive, 1 Ford's MS. Johnson \. GilsorijiEsp. C. 21. Wheeler 
 
 146. V. Atkins, Esp. C. 246. 
 
 (?/) Ibid. (d) Johnson v. Gilson, 4 Esp. 21 ; 
 
 (2;) See Lord Hardwicke's observations, secus, if the letter merely state that others 
 
 10 St. Tr. App. 142. Moore v. The are enclosed under its cover. Where letters 
 
 Mayor of Hastings ; and of Wood, B. in are put in, bearing different dates, others 
 
 Bullen V. Mitchell, 2 Price, 405. part of the same correspondence, sent in 
 
 (a) 1 Ford's MS. 146. Adamthu-aite the interval, cannot be received, unless 
 
 V. Singe, 1 Starkie's C. 183. expressly referred to in those which were 
 
 (&) Earl of Bath v. Battersea, 5 Mod. put in. Sturge v. Buchanan, 2 M. &. R. 
 
 e; 3 Salk. 153 ; 1 Ford's MS. 146 ; Doug. 90. 
 
 757; Andr. 258; Supra, 334. In equity, (e) Wheeler v. Atkins, 5 Esp. C. 246; 
 
 when a passage is read from the defend- and note, if the interrogating party refuse 
 
 « ant's answer, all the facts stated in that to produce the letter, he must abandon the 
 
 passage must be read ; and if it refer to whole of the interrogatories. Where, 
 
 facts stated in any other passage, that however, a book of accounts, or shop-book, 
 
 must be read for the purpose of explana- !» produced in evidence at the request of 
 
 tion ; but if new facts be contained in such oue of the parties, the reading an entry 
 
 other passage, they are to be read for the from it does not entitle the other party to 
 
 purpose of explanation only. Bartlett t. read all the other entries in the book, but 
 
 Gillard, 3 Russ. 157. only such as relate to the same particular 
 
 (c; Falconer v. Hanson, 1 Camp. 171. subject-matter. By Abbott, L. C. }.,
 
 THE WHOLE TO BE READ. 415 
 
 party to a question proposed to him, cannot, it is said, be read with- Tlmwholoi' 
 out showing the question to which it relates (/), not as evidence of *•" ^^'■'^''*^- 
 the fact, but to explain the answer. 
 
 But letters written by a party are evidence against hira without 
 producing those to which such letters are answers ( cj) ; and a letter 
 written by the plaintiff 's agent to, a witness is evidence against the 
 plaintiff (/i), and does not make the answer of the witness evidence 
 for the plaintiff. 
 
 It is also a general rule, that whenever a party makes a state- 
 ment or admission, whether it be oral or written, which is after- 
 wards used against him as evidence of the stated or admitted fact, 
 the whole of the contemporaneous statement or declaration must be 
 received ; the part which operates for him, as well as that which 
 makes against him, is admissible evidence to prove the existence of 
 the fact. Thus where the defendant stated an account, in which 
 he admitted the plaintiff's claim to a certain extent, but stated also 
 a counterclaim for a sum specified, it was admitted that the plain- 
 tiff on this evidence was entitled to recover no more than the 
 balance (i). 
 
 The principle does not apply where another entry happens to be 
 made upon the same paper or parchment, wholly distinct from that 
 which the party reads in evidence ik). 
 
 Catt V. Howard, 3 Starkie's C. G ; but commissioners of bankrupt, signed by him 
 
 see Wharham v. Routledge, 5 Esp. C. is evidence, altliougli part only was taken 
 
 235. down. 3fihoard v. Forbes, 4 Esp. C. 
 
 (/) Rex V. Pict07i, Howell's St. Tr. 172. 
 vol. 30, p. 466. But an answer in Chan- (h) Where the plaintiiF's agent wrote to 
 eery is evidence as an admission under the a witness (living abroad and examined by 
 defendant's hand, where the bill is proved commission), the draft of which was shown 
 to have been lost. Hart v. Harrison, to and approved by his attorney; held, 
 Mich. 3 Geo. 2, 1 Ford's MS. 145. On an that the draft was admissible without pro- 
 examination before commissioners of bank- ducing the original, as evidence of an act 
 ruptcy, a machine-copy of a letter was done, but that the answer of the witness 
 produced by the witness, of which the to the agent was not admissible. Rawlins 
 solicitor to the commission took a copy, v. JDesborough, 8 C. & P. 321. 
 held, that in an action by the assignees, {i) Randle v. Blackburn, 5 Taunt. 245. 
 the latter copy was inadmissible against So where, in order to prove a sufficient 
 the party producing the machine-copy, memorandum of an order for goods, within 
 without reading his examination, although the 17th section of the Statute of Frauds, 
 notice had been given to produce the a letter of the alleged purchaser was read 
 machine-copy. Holland v. Reeves, 7 C. in evidence which admitted the order, but 
 & P. 36. which also asserted that the goods had not 
 
 ((/) Lord Barrymore v. Taylor, 1 Esp. been delivered in time ; it was held that 
 
 C. 326. The admission by a witness in parol testimony was inadmissible to prove 
 
 court is evidence against him, although he that no time was mentioned. Cooper v. 
 
 was prevented from entering into any ex- Smith, 15 East, 103. 
 planation. Collet v. Lord Keith, 4 Esp. {k) See Adey v. Bridges, 2 Starkie's 
 
 C, 212. So the examination of a party by C. 189, where, in an action against a
 
 416 WRITTEN evidence: deed, &c. 
 
 The whole The casc where a document is read in order to show the inca- 
 read, pacity of a witness furnishes an exception to this rule ; for the 
 
 testimony of the witness contained in an instrument which dis- 
 qualifies him as a witness altogether, is obviously inadmissible (l). 
 
 And the rule is also subject to the qualification that the addi- 
 tional statement must be so connected with that which has been 
 produced or read as tending to show its true nature and bearing {m). 
 Where a party is under the necessity of producing and proving 
 a writing in order to connect a defendant with the act of an agent, 
 the recital of the authority under which the principal assumes to act 
 will not relieve the latter from the necessity of proving that autho- 
 rity in his own justification by the proper evidence (re). 
 Jury to It is a rule equally general with the former, that in a court of 
 
 judge of Ij^^v it is for the jury to consider what credit is to be attached to 
 the credit 
 
 due to the the whole or part of any particular statement, whether oral or 
 whole or written (o), although a rule less flexible seems to have been 
 adopted in equity (jj). It has also been seen that this rule does 
 not make that evidence which has an insufiicient legal founda- 
 tion ; as for instance, where that which is stated in the document 
 professes to be the mere belief or opinion of the party, or nothing 
 more than hearsay. 
 
 sheriff for a false return, it was held by who reads part of the defendant's answer 
 Holroyd, J., that the plaintiff having given to show what the issues are, is not con- 
 in evidence a copy of the writ, the de- eluded by the depositions contained in 
 fendant was not entitled to have his return such answer. Kempson v. Yorke, 8 Price, 
 read, which formed no part of the docu- 13. 
 
 ment which the plaintiff gave in evidence. (o) In the case of Bernon v. Wood- 
 
 {l) Bac. Ab. Ev. 622. bridge, Doug. 757, the whole of the plain- 
 
 (ni) Siqyi'a, 334. Action for an assault, tiff's case rested on the testimony of one 
 
 a letter had been written by the plaintiff's witness. Lord Mansfield said that the 
 
 attorney, containing an apology; it was jury might credit what the witness said 
 
 held, that parts of it extolling his client's for the plaintiff, although they disbelieved 
 
 character for respectability could not be what he stated for the defendant; but 
 
 read, nor was the letter admissil)le at all, that if they did not believe his testimony 
 
 if expressed to be written " without pre- for the plaintiff, the rest of his testimony 
 
 judice." Healey v. Thatcher, 8 C. & P. was clearly immaterial, for he was not to 
 
 388. be believed at all, and so there was no 
 
 (n) Grey v. Smith, 1 Camp. 387. Vol. case proved by the plaintiff. Vide supra, 
 
 II. tit. Trespass. — Agency. Stanley 280, and Partington v. Butcher, 6 Esp. 
 
 V. Fielden, 5 B. & A. 425. So a plain- C. 60. Vol. II. tit. Limitations. 
 tiff in a tithe suit in the Exchequer, (o) Supra, 335. Doug. 757.
 
 proofs: onus probandi. 417 
 
 OF PROOFS. 
 
 Having thus touched upon the general principles which regn- Gonoral 
 late the admissibihty of evidence, and also upon the nature and '^"*'*'"- 
 qualities of the different instruments of evidence, a more interest- 
 ing branch of the subject, the application of these principles and 
 instruments to the proof of issues generally and particularly, is 
 now to be considered. 
 
 It is to be recollected that every verdict is compounded of law 
 and fiict: of the facts, as ascertained by the finding of the jury; 
 of the law, as expounded by the Judges, with relation to the evi- 
 dence, and applied by the jury to the facts ; and the trial is the 
 process by which the facts are thus ascertained and the law 
 apphed. 
 
 In this proceeding it is the business of the parties to supply the 
 necessary evidence ; it is the province of the Court to pronounce 
 on the legal effect of the evidence; and it is the duty of the jury 
 to decide upon the facts, and to apply the law (7?). Hence natu- 
 rally result three distinct subjects for consideration : and first, as 
 to the evidence to be supplied by the parties. 
 
 This branch of the division suggests two principal questions Onus pro- 
 for inquiry : first, upon whom the proof of an issue or fact is in- '^^""'• 
 cumbent ; secondly, as to the nature, quality, and quantity of the 
 evidence to be adduced, in general and in particular. 
 
 1st. Upon whom the proof is incumbent (5'). 
 
 (p) Or by a special verdict to find the having any opportunity of afterwards cora- 
 
 facts, so as to enable the Court afterwards menting on the variances between the facts 
 
 to apply the law. as stated and proved. Notwithstanding 
 
 (q) The question who shall begin is not the importance of the question whether the 
 
 merely material as a rule of form and one party or the other has the right to 
 
 order but as regulating the right to reply. begin, the decision of the point rests, at 
 
 It is considered in practice, and perhaps all events in tlie first instance, witli tlie 
 
 with reason, that it gives a party an ad- Judge at Nisi Prius, and it has been said 
 
 vantage to have the opening and reply, for that the Court above will not inteifere 
 
 the purpose of having the first and also the with such a decision. See Phill. on Ev, 
 
 latest opportunity of making an im- Vol. I. 833. Hare v. Nimn, M. & M. 
 
 pressioa on the jury. Much evidence no 241. Fotoler v. Coster, lb. Burrel v. 
 
 doubt is often sacrificed to their hearing Nicholson, 6 C. & P. 202; 1 M. &R. 304. 
 
 the counsel ; for a defendant is in general Williams v. Davies, 1 Cr. & M. 464. Scott 
 
 disinclined to give the opportunity for a v. iewis, 7 C. & P.347. But see Hucliinan 
 
 reply which may disturb the arguments v. Per?/ic, 3M.&W. 617; where it was held 
 
 which he has used, and also because he that the riglit to begin is not so entirely 
 
 may frequently doubt whether he can suf- at the disposal of the Judge at Nisi Prius 
 
 ficicntly depend on the evidence which he but that the Court would interfere if his 
 
 is required to state to the jury, without decision were clearly wrong. 
 
 VOL. I. E E
 
 418 
 
 PROOFS 
 
 Onus pro- 
 band!. 
 
 The general rule upon the subject is that which natural reason 
 and obvious convenience dictate ; that the party who alleges the 
 affirmative of any proposition shall prove it (r) ; for a negative 
 does not admit of the simple and direct proof of which an affir- 
 mative is capable. And this is conformable with the maxim of the 
 civil law, " ei incumhit probatio qui (licit, non qui negcU." The 
 operation of this rule is to be determined not by the mere form but 
 by the substance of the issue, for by a slight variation in the form 
 of pleading the issue may be made either affirmative or negative at 
 pleasure (s). The proof is obviously incumbent on the party who 
 would fail if no evidence were to be given on either side(0. 
 And therefore upon a penal action for sporting without a qualifi- 
 cation, it is incumbent on the defendant to prove his qualifica- 
 tion (u). 
 
 (r) B. N. P. 297. Tin. Ab. Ev. (S. a.) 
 Litt. R. 36. Gilb. L E. 148. Probatio 
 incumbit ei qui allegat negantis autem 
 per rerum naturani nulla est probatio. 
 Dig. Lib. 22, tit. Probat. See Cuther- 
 wood V. Chahaud, 1 B. & C. 150; where 
 it was held, that a defendant, who pleaded 
 an agreement between the plaintiffs and 
 defendant, conditional on its being assented 
 to by all the creditors of the defendant, 
 was bound to prove the assent of all the 
 creditors. On an agreement by defendant 
 to pay 100 1, if the plaintiff would not send 
 herrings for one twelvemonth to the 
 London market, and in particular to the 
 house of J. and A. M.; the plaintiff 
 proved he had sent no herrings during the 
 twelvemonth to the house of e7. and A.M.; 
 held sufficient to entitle him to recover ; 
 no proof being given that he had sent 
 herrings within that time to the London 
 market. Calder v. Ttutherford, 3 B. & B. 
 302. The question who ought to begin is 
 obviously identical with the question who 
 would be entitled to the verdict were no 
 evidence to be given on either side. In the 
 case of Amos v. Hughes, I M. & R. 464, 
 Alderson, B. observed, that " Questions of 
 this kind are not to be decided by simply 
 ascertaining on which side the affirmative 
 in point of form lies ; the proper test is, 
 which party would be successful if no 
 evidence at all were given. In that case 
 the declaration alleged a breach of contract 
 in not embossing calico in a workmanlike 
 manner, the plea, on which issue was 
 
 joined, alleged that the defendant did 
 emboss the calico in a workmanlike manner. 
 And it was held that the plaintiff ought to 
 begin, for if no evidence were to be given 
 on either side, the defendant would be 
 entitled to the verdict, as it was not to be 
 presumed that the work was badly exe- 
 cuted. In replevin, or in other cases 
 where the issue lies on the plaintiff, he is 
 compelled to begin, Curtis v. Wheeler, 
 1 M. & M. 493. Where the plaintiff in 
 his plea to cognizances stated facts amount- 
 ing to non-tenuit, yet the affirmative being 
 on him, it was held that he was entitled to 
 begin, Williams v. Thomas, 4 C. & P. 
 234. Upon an action of trover, brought 
 under an order of the Vice-Chaucellor, to 
 try the validity of a commission directing 
 the finding, and conversion to be admitted, 
 it was held that the plaintiff was never- 
 theless entitled to begin, T'urberville v. 
 Patrick, 4 C. & P. 557. 
 
 (i) See the observations of Lord Abin- 
 ger in Setcerv. Leggatt, 7 C. & P. 613. 
 
 (0 Amos V. Hughes^ 1 M. & R. 464, 
 siqjra, note {q). Mills v. Barber, 1 M. & 
 W. 427. 
 
 (m) See B. v. Stone, 1 East. 150, per 
 Lord Mansfi'ld; Spiers v. Parker, 1 T. 
 R. 144; 1 B, & P. 468; 1 Burr. 148. 
 153; and it makes no difference whether 
 the proceeding be by action, or by informa- 
 tion before a magistrate. li. v. Turner, 
 5 M. & S. 206. See 1 East. 653 ; 1 Burr. 
 148. 153; 3 B. & P. 307. Wliero a 
 party before a justice admits the trading
 
 ONUS PROBANDI. 419 
 
 Upon a plea of set-ofF on a bond conditioned for tlie payment Onug pro- 
 by the plaintiff of an annuity to a third person, the onus prohandl ^''" ''" 
 is on the plaintiff (a:). 
 
 In trespass, where the only plea consists of matter of justifica- 
 tion alleging an act of bankruptcy to have been committed by the 
 plaintiff, on which issue is joined, the proof is incumbent on the 
 plain tiff (?/). 
 
 On the plea of plene administravit, on which issue is joined, it 
 is for the plaintiff to prove assets (z). So where all the issues 
 were whether A. B. w^as of sound memory, the soundness of 
 memory being alleged by the defendant, it was held that he was 
 entitled to begin (a). So on a life insurance policy, where the 
 plaintiff has to prove the life to have been insurable as a con- 
 dition {h). 
 
 If the defendant by his plea impeach the consideration of a bill 
 of exchange or promissory note on which an action is brought, 
 the onus probandi lies on him, for the law presumes prima facie 
 that there was a good consideration (c). 
 
 In an action on a policy of insurance on goods, the plaintiff 
 having proved a barratrous act on the part of the master, it was 
 objected that it was incumbent on him also to prove that he was 
 not the owner or freighter ; but it was held that proof of the affir- 
 mative, if it were true, lay on the defendant (c?). 
 
 It seems that the question as to the onus probandi depends on 
 the issue joined, and is not affected by any inference to be drawn 
 from a fact alleged but not denied (e). 
 
 as a hawker and pedlar, it is incumbent on (b) Rawlins v. Desborongh, 2 M. & R. 
 
 him to prove that he had a licence. J?, v. 70. One counsel only on a side can be 
 
 Smith, Burr. 1475. So on a charge of heard on a disputed claim who shall be- 
 
 selling ale without a licence, R. v. Harri- gin. Ibid. 
 
 son, Paley on Conv. 45 (n.) 2d ed. In (c) Long v. Forrester, 2 C. M. & R. 
 
 such a case the defendant suffers not the 69. Mills v. Oddy, ibid. 103. Gaston 
 
 slightest inconvenience from the general v. Pritchett, 1 C. M. & R. 798. Mills v. 
 
 rule, for he can immediately produce his Barber, 1 M. & W. 427. 
 
 licence ; whereas, on the other hand, the (d) Ross v. Hunter, 4 T. R. 33. 
 
 prosecutor would be put to great incon- (e) In the case of Edmonds v. Groves, 
 
 venience. Per Abbot, C. J. Ibid. 2 M. & W. 642, which was an action by the 
 
 (x) Penny v. Foy, 8. B. & C. 11. indorsee against the maker of a promissory 
 
 {y) Cotton V. Thurland, 1 M. & M. note, the defendant pleaded that the con- 
 
 273. sideration for the note was money lost at 
 
 (z) Vol. II. tit. Executor. But see gaming, that it was indorsed to the plain- 
 
 The Dean and Chapter of Exeter v. tiff with notice, and without consideration 
 
 Treioinnard, Dyer, 80, pi. 63; Vin. Ab. for the indorsement. The plaintiff replied 
 
 tit. Ev. (S. a.) 1. that the note was indorsed to him without 
 
 (a) Tyrrell v. Holt, 1 Barnard, 13 G. 1. notice, and for a valuable consideration. 
 
 Vin. Ab. Ev. 2, (S. a.) 7. At the trial, each party declining to give 
 
 £ li: 2
 
 420 
 
 OT>JUS rnOBANDI. 
 
 Onus pro- 
 baiiili. 
 
 The proof of an allegation of deficiency lies on the party who 
 alleges it, although it imply a negative, for this is not to prove a 
 mere negative, but to prove an actual relation in point of magni- 
 tude or value. Thus upon an issue, whether land assigned for 
 payment of a legacy was deficient in value, it was held that 
 the party who alleged that it was deficient was forced to prove 
 
 it(/). 
 
 Where issue is taken on the amount which the plaintiff is en- 
 titled to receive, he is usually entitled to begin, for the excess 
 beyond what is admitted constitutes that virtually claimed on the 
 one hand and denied on the other {g). 
 
 It is a general rule that the onus probandi lies upon the party 
 who seeks to support his case by a particular fact of which he is 
 supposed to be cognizant (h). A defendant cannot set off cash- 
 notes of the bankrupt in an action by the assignees, without proof 
 that they came into his possession before the bankruptcy (i). A 
 party who pleads his infancy must prove it (k). And where to a 
 
 any evidence, Lord Abinger directed a 
 verdict for the plaintiff, giving the defend- 
 ant liberty to move to enter a nonsuit. A 
 motion was made on the ground tliat the 
 replication admitted the original defect of 
 consideration, and that tlierefore the onus 
 ■was thrown on the plaintiff. Lord A binger 
 held, that as the fact of notice of the 
 gaming transaction was involved in the 
 issue, it was at all events incumbent on 
 the defendant to prove that fact, in order to 
 call on the plaintiff for proof of a new con- 
 sideration. He declined to give any opinion 
 upon the effect of an admission on the 
 record upon the omis prohandi of an issue 
 already joined. Alderson, B. said that 
 " an admission on the record is merely a 
 waiver of requiring proof of those facts 
 which are not denied, the party being con- 
 tent to rest his claim on other facts in 
 dispute ; but if any inferences are to be 
 drawn by the jury, they must have the 
 facts proved like any others." In the 
 above case, if the plaintiff took the note 
 with notice of the original vice, as the de- 
 fendant alleged, and seems clearly to have 
 been bound to prove, no title could be 
 gained, and consequently there could be 
 no question as to any new consideration. 
 Supposing, however, the question of new 
 consideration to be material, qu. whether 
 the onus jjrobandi ought not to be deter- 
 
 mined by the actual allegation, and not 
 upon the presumption that facts are true 
 which the party taking issue on the alle- 
 gation had it not in his power to deny. 
 See Append. In covenant against a lessee, 
 proof of the allegation that the defendant 
 did not leave the premises well repaired at 
 the end of the terra is incumbent on tlie 
 plaintiff. 
 
 (/) Berty v. Dormer, 12 Mod. 526. 
 Where issue is upon the life or death of a 
 person, the proof lies upon the party who 
 asserts the death. Wilson v. Hodges, 2 
 East, 312. But where A. gave to JB. a 
 policy to receive 100 Z. if Saragossa were 
 not in the hands of king Charles on such a 
 day, Parker, C. J. held, that it lay on the 
 defendant to prove that Saragossa was in 
 the hands of king Charles on that day. 
 See Calder v. Rutherford, 3 B. & B. 302. 
 
 (g) Smart v. Rayner, 6 C. & P. 721. 
 Harman v. Thompson, 6 C. & P. 717. 
 But it seems that the Court is to be satis- 
 fied that the plaintiff really intends to give 
 evidence of a larger claim than that con- 
 fessed on the record. Ibid. 
 
 Qi) Per Ashurst, J. 6 T. R. 57 ; and 
 see 9 Price, 257; 5 M. & S. 211 ; 4 B. & 
 A. 140; 1 B. & C. 150; 3 B. & C. 342. 
 
 (j) Dickson v. Evans, G T. R. 57. 
 
 {k) Berty v. Dormer, 12 Mod. 526. R. 
 V. Twner, 6 M. & S. 206.
 
 VARIANCE. 421 
 
 plea of infancy tlie plaintiff replies a promise after the defendant Onnapr*- 
 had attained his age, it is sufficient for the plaintiff to prove the 
 promise, and it lies on the defendant to show that he was not of 
 age at the time(0' 
 
 It is sufHcient to prove a fact from which the rest of the affir- 
 mative allegation, in the absence of any other evidence, is a pre- 
 sumable consequence. Thus, upon an allegation that the plaintiff's 
 goods were unlawfully seized, it is sufficient to prove a seizure of 
 the goods, which, until the contrary appear, must be taken to be 
 unlawful (/«)• 
 
 But where the negative involves a criminal omission by the where thR 
 party, and consequently where the law, by virtue of the general "n^.^i^'es'^a 
 
 principle, presumes his innocence, the affirmative of the fact is criminal 
 , omission, 
 
 also presumed. 
 
 And therefore, upon an information against Lord Halifax for 
 refusing to deliver up the rolls of the Auditor of the Exchequer, 
 the Court of Exchequer put the plaintiff u]ion proof of the nega- 
 tive (?i). In an action for putting combustible matter on board 
 the plaintiff's ship, without giving notice of its contents, whereby 
 the ship was destroyed, it was held that the plaintiff was bound 
 to prove a negative which was essential to his case, viz. the want 
 of notice (o). Thus also, in a suit for tithes in the Spiritual Court, 
 where the defendant had pleaded that the plaintiff had not read 
 the Thirty-nine Articles, the Court required him to prove the nega- 
 tive (p). So in 27ie King v. Hawkins, where the objection, upon 
 an information in the nature of a quo warranto, was, that the 
 defendant had not taken the sacrament within a year, the Court 
 held that the presumption was that he had conformed to the 
 law (q). Where a woman, twelve months after her husband had 
 
 (l) Borthwick v. Carruthers, 1 T. R. (p) Monke v. Btitler, 1 Roll. R. 83. 
 
 648; and so ruled by Holroyd, J. in Pa^es See also B. v. Rogers, 2 Camp. 654. 
 
 V. Wells, Lanc.Sp. Ass. 18-22. Where the Powell v. Mlllhank, 2 Bl. R. 831. Lord 
 
 party charged with bigamy was an infant Halifax's Case, B. N. P. 298. B. v. 
 
 at the time of the first marriage, which Cooiiibs, Comb. 57 . 
 
 was by license, and the register did not (q) 10 East, 21, and per Bayley, J. 
 
 state any consent by parents or guardians, B. v. Twyning, 2 B. & A. 388. Upon an 
 
 it was held that some evidence of consent indictment under the stat. 42 G. 3, c. 1(37, 
 
 should be given on the part of the prose- s. 1, which makes it felony to course deer 
 
 cution. Butler's Case, Russ. & Ry. Cr. in any inclosed ground without the consent 
 
 C (51 . of the owner, it was held, that it was neces- 
 
 (wi) Aitcheran v. MaddocJt, Peake's C. sary to prove the negative of a consent by 
 
 162. And see Evans v. Birch, 3 Camp, the owner. R. v. Bocjers, 2 Camp. C. 
 
 10- Vol II. tit. Payment. 6.54. There the negative was part of the 
 
 (n) B. N. P. 298. description of the offence. In the report 
 
 (o) Williams v. The East India Com- of the above case, it seems to have been 
 
 pany, 3 East, 192. licid necessary to negative the consent by 
 
 E E 3
 
 422 
 
 PROOFS : 
 
 Where the 
 negative 
 involves a 
 criminal 
 omission. 
 
 Where the 
 lavr pre- 
 sumes the 
 affirmative. 
 
 Arguments 
 of counsel. 
 
 last been heard of, married again, and the husband had never 
 afterwards been heard of, upon tlie question as to the settlement of 
 the children of the second marriage, the Court held that the jus- 
 tices had done right in presuming the legitimacy of the children, 
 in the absence of any proof, except the usual presumption, that 
 the first husband was living at the time of the second marriage (r). 
 
 So where the question arises, in a criminal case, whether the 
 prisoner's examination was taken down in writing before the ma- 
 gistrate, under the statute it is incumbent on the prosecutor to 
 give negative evidence to show that it was not taken down, for 
 otherwise it will be presumed that the magistrate did his duty in 
 taking the examination in writing, as the statute directs (5). 
 And, in general, whenever the law presumes the affirmative, it 
 lies on the party who denies the fact to prove the negative {t). 
 As where the law raises a presumption as to the continuance of 
 life (u) ; the legitimacy of children born in wedlock (x) ; the satis- 
 faction of a deht{y). And in general, where it has been shown 
 that the case falls within the scope of any general principle or rule 
 of law, or the provision of any statute, whether remedial or even 
 penal, it then lies on the opposite party to show by evidence that 
 the case falls within an exception or proviso (z). 
 
 In civil, and now also in some criminal cases (a), the party, in 
 addition to the evidence which he adduces (the probatio inartifi- 
 cialis of the Roman law (b),) is entitled to the aid of the com- 
 ments and arguments of counsel, the probatio artificialis, as 
 applied to the evidence in general. The counsel for the plaintiff 
 
 the testimony of the owner himself j it may 
 however be doubted whether the only prin- 
 ciple on which the absolute neeessity for 
 such evidence must rest, viz. that the best 
 evidence ought to be given, would go to 
 this extent. In an action for selling goods 
 by auction in a place where the defendant 
 was not a householder, some evidence of 
 his not being such householder is es- 
 sential. 
 
 (r) R. V. IiiJi. of Ticyning, 2 B. & A. 
 388, and see Butler's Case, supra, 422. 
 See Vol. II. tit. PREsuMPTio:ys. — Set- 
 tlement. 
 
 (s) See Vol. II. tit. Admission. 
 
 (0 Gilb. L. Ev. 148, cited by Lord 
 Ellenborough, 1 East, 200. 
 
 (u) Vol. II. tit. Death.— Pedigeee. 
 {x) Vol. II. tit. Bastardy. 
 
 (y) Vol. II. tit. Payment. 
 
 (z) Doe v. Bingham, 4 B. & A. 672. 
 Doe V. Hawthorn, 2 B. & A. 101. Where 
 a plaintiff, for the purpose of avoiding 
 a conveyance of land, has shown it to 
 be for a charitable use, it lies on the defen- 
 dant to bring himself within the exception. 
 2 B, & A. 101. 
 
 (a) i. e. in all cases of misdemeanor, and 
 also cases of treason within the statute 
 7 W. 3, C.3, s. 1. 
 
 {b) Quinctil. L. 5, c. 8. According to 
 the practice of the ancient Roman law, the 
 advocate was entitled to make a perpetual 
 running comment upon the testimony of 
 the witnesses, and the documentary evi- 
 dence as it was adduced. Formerly, in our 
 own co'irts, the junior as well as the senior 
 counsel addressed the jury ; and the form 
 is still preserved in trials for high treason.
 
 ARGUMENTS OF COUNSEL. 
 
 423 
 
 has an opportunity for such comments in stating his case to the 
 jury (c). When the plaintiff 's case has been concluded, the de- 
 fendant's counsel in his turn observes upon the evidence given, 
 and also on that which he intends to adduce ; and after the de- 
 fendant has exhausted his evidence, the plaintitf 's counsel replies. 
 And thus each party has an opportunity of commenting upon the 
 whole of the evidence. If the defendant's counsel merely comment 
 on the plaintiff's case, and adduce no evidence {d), the plaintiff's 
 counsel cannot reply, for he has already been heard. Where the 
 plaintiff adduces fresh evidence in contradiction of some new facts 
 stated by the defendant's witnesses (e), it is unnecessary to preface 
 
 Arguments 
 of couusel. 
 
 (c) The counsel for a plaintiff lal)or,r3 
 under a disadvantage in commenting upon 
 his evidence before it has been given ; it is 
 frequently hazardous to lay much stress 
 upon facts which afterwards may not be 
 proved, and it not unfrequently happens 
 that the proof varies so much from the 
 statement as to render his comments and 
 inferences irrelevant, and sometimes even 
 injurious. The same observations apply to 
 the defence, where the defendant calls 
 witnesses: his counsel addresses the jury 
 upon the case to be made out for the de- 
 fendant, and upon the contradiction to be 
 given to the plaintiff 's witnesses hypothe- 
 tically, upon the supposition that all which 
 is stated will be proved ; he stands there- 
 fore in a most precarious and hazardous 
 situation with reference to the plaintiff's 
 counsel, who is entitled to reply, and has 
 the opportunity of commenting on the 
 whole case, not conditionally aud hypothe- 
 tically, subject to the contingency that the 
 very foundation on which his arguments 
 rest may sink from under him, but with a 
 full and certain knowledge of all the evi- 
 dence in the cause. This practice not 
 unfrequently induces a defendant's counsel 
 to waive his defence by witnesses, and to 
 rely on the infirmity of the plaintiff's case, 
 rather than give his counsel the opportunity 
 of replying. This is a practice attended 
 with considerable inconvenience, inasmuch 
 as it frequently excludes from tiie view of 
 the Court and jury circumstances which 
 might materially assist them in attaining 
 to a correct conclusion in law and in fact. 
 {d) But if the defendant's counsel state 
 facts which he proposes to prove, and after- 
 
 wards declines to call witnesses, the preva- 
 lent opinion seems to be, tliat the plaintiff's 
 counsel is entitled to reply. R. v. Bignold, 
 1 Dow. & Ry. C. 59. R. v. Horne,20 How. 
 St. Tr. G02. R. v. Carlisle, 6 C. & P. 636. 
 Faith v. M'Intyre, 7 C. & P. 44. There 
 the counsel for the defendant having proved 
 a document on cross-examination, read it 
 as part of his speech, and Parke, B. inti- 
 mated, that in point of good faith it ought to 
 be put in, which was done, and the plaintiff's 
 counsel replied. In the case of Crerar v. 
 Socio, 1 Mood. & Mai. C. 8G, Lord Tenter- 
 den, C. J. held, that the allowing a reply 
 in such a case was discretionary on the part 
 of tlie Ju Ige. An account-book having 
 been put into the witness's hands to refresh 
 his memory, the opposite counsel made 
 observations as to the state in which it was 
 kept ; held not to give a right of reply. 
 Pullen V. White, 3 C. & P. 434. 
 
 (c) A plaintiff may, it seems, give evi- 
 dence in re^dy in order to negative a spe- 
 cific fact sworn to by the defendant's 
 witnesses, the proof of which he could not 
 be expected to liave anticipated, but he 
 cannot be allowed to adduce evidence 
 whicli he might have given in the first 
 instance. Action for the amount of a 
 builder's bill; the defence was that the 
 charges were too high; the defendant 
 called surveyors, who said they considered 
 them lOOZ. too high; aud tlie plaintiff 
 offered a letter on the part of the defendant 
 by his attorney, some time before, com- 
 plaining tliat the defendant's surveyor 
 thought the charges 60 1, too much : held 
 that it was not properly evidence in reply. 
 Knapp V. Haskall, 4 C. & P. 690. 
 E E 4
 
 424 
 
 PROOFS ; 
 
 Order of 
 
 proof 
 
 where 
 
 tliere are 
 
 several 
 
 issues. 
 
 Arguments sucli evidence by observations ; for after the defendant's counsel has 
 of counsel, observed upon the evidence in contradiction, the plaintiff's counsel 
 is entitled to a general reply. And in such case the defendant's 
 counsel is not entitled to reason upon the whole of the evidence, 
 but on the subject of contradiction only, having already made his 
 observations on the supposition tliut his witnesses would be be- 
 lieved, and his case established. 
 
 Where the defendants in ejectment appeared by separate attor- 
 nies and counsel, it was held that only one counsel could address 
 the jury where they supported the same title (/). 
 
 Where one of two defendants in trover appeared by counsel, and 
 the other in person; it was held, that the defence being joint and 
 by one attorney, the counsel only could address the jury, but the 
 party might cross-examine the witnesses (g). 
 
 Where there are several issues, the proof of some being incum- 
 bent on the plaintiff, and of others on the defendant, it is usual 
 for the plaintiff to begin (/i), and to prove those which are essen- 
 tial to his case, and then the defendant does the same, and after- 
 wards the plaintiff is entitled to go into evidence to controvert the 
 defendant's affirmative proofs ; the defendant's counsel is entitled 
 to a reply upon such evidence, in support of his own affirmatives, 
 and the plaintiff 's counsel to a general reply. Where, however, 
 there are issues involving different transactions, the proof of one 
 of which is incumbent on the plaintiff, and the proof of the other 
 is incumbent on the defendant, some difference has obtained in 
 practice (i), on the question whether the plaintiff be bound to go 
 into evidence, as part of his own case, to negative the defendant's 
 case, as well as affirmatively to establish his own. According to 
 the later authorities he is not bound to enter on any such negative 
 evidence in the first instance, but may waive his proof until the 
 defendant has exhausted his affirmative evidence in support of his 
 own case. But it is also laid down, that if the plaintiff elect to 
 enter at all into such negative evidence in the first instance, he 
 
 (/) Doe V. Tindale, 3 C. &, P. 565. 
 
 (</) Pen'ing v. Tucker and another, 1 
 M. & M. 491 ; and 4 C. & P. 70. 
 
 {h) Jones v. Salta; 1 M. & R. 501. 
 Curtis V. Wheeler, M. & M. 493. Wil- 
 liams V . Thomas, 4 C. & P. 234. 
 
 (i) See Eees v. Smith, 2 Starkie's C.31, 
 where in an action of trespass, q. c.f. &c., 
 to which the defendant had pleaded tlie 
 general issue, and pleas of justification, 
 Lord EUenborough stated the rule to be, 
 
 that where by pleading or by reason of 
 notice the defence was known, the counsel 
 for the plaintiif was bound to open the 
 whole case ui clxief, and could not proceed 
 in parts. And his lordsljip held the same 
 doctrine in the case of bills of cxcliange, 
 where notice had been given of the 
 intention to dispute the consideration. 
 Delaney v. Mitchell, 1 Starkie's C. 439. 
 See also Spooner v. Gardiner, 1 R. 6.; M. 
 C.84.
 
 ORDER OF. 425 
 
 must then produce the whole of that evidence, and that he cannot Order of 
 in such case be permitted to adduce negative evidence generally in [i]|"r,! arc'^* 
 reply. Where to a declaration for a libel the defendant pleaded several 
 
 issues 
 
 the general issue, and several pleas of justification, it was held 
 that the plaintiff might if he chose go into evidence in the first 
 instance to negative the plea of justification, but that he could 
 not go into part of such evidence in the first instance, and adduce 
 the remainder in reply to the defendant's case (k). Where there 
 is but one transaction for inquiry, the plaintiff cannot split his 
 case, and go into part in the first instance, and reserve the remain- 
 der by way of reply, although there be in fact several issues, as 
 where in an action of assault and battery the defendant pleads not 
 guilty, and son assault demesne ; yet, if in fact the defence con- 
 sist of distinct collateral matter, the negative of which requires no 
 proof from the plaintiff in the first instance, it seems, that although 
 the plaintiff had notice of the defence intended to be set up, it is 
 not necessary to go into any evidence in answer to that defence, 
 until the defendant has, by his proof, called upon him for a reply ; 
 this appears to be a matter of practical convenience, subject to 
 the discretion of the Court (Z). It is possible that the defendant 
 may not be able to establish any case, and thus time may be 
 saved by postponing the plaintiff's reply; besides, until the defen- 
 dant has adduced such evidence, it cannot be known with any 
 certainty to what points the plaintiff is to adduce his evidence in 
 
 reply. 
 
 Where the lessor of the plaintiff claimed as heir-at-law, and 
 the defendant as devisee, and the plaintiff proved his pedigree and 
 closed his case, and the defendant opened a new case, which the 
 plaintiff answered by evidence ; it was held, that the defendant 
 was entitled to the general reply (m). From the report of this 
 
 (k) Broion v. Murray, 1 R. & M. 254, after Hil. 1820, at Westminster; provided 
 
 cor. Lord Tenterden, C. J. His Lordsliip no suspicion has been cast on the plaintitF's 
 
 had previously ruled to the same effect title by cross-examination of the plaintiff's 
 
 in Sylvester v. Hall, Sitt. after Trin. witnesses. 1 R. & M. 255. Chitty on 
 
 July 1825; where, to an action for tres- Bills, 6th ed. 401. See Vol. II. tit. Bills 
 
 pass and false imprisonment, the defendant of Exchange. Spooner v. Gardiner, 
 
 had pleaded the general issue, and also 1 R. &; M. 84. Lord EUenborough usually 
 
 several pleas in justification. Parke, J. required the plaintiff under such circum- 
 
 ruled accordingly in Roe v. I>ay, 7. C. &c stances to go at once into the whole of his 
 
 P. 707. case. 
 
 (/) Lord Tenterden, C. J. adopted this (tn) Goodtitle d. Revett v. Braham, on 
 
 course, and allowed a plaintiff to give evi- a trial at bar; 4 T.R. 497. But where 
 
 dence, in answer to a defence in an action the plaintiff in such a case is put to proof 
 
 on a bill, that there was no consideration, of liis pedigree, it seems to he clear that he 
 
 after notice of the intended defence. Sitt. may, at his election, go into proof to con-
 
 426 PROOFS : 
 
 Order of case it appears that the whole case went to the jury on the defen- 
 ^'^°°^' dant's title as devisee ; the lessor's title as heir being admitted. 
 
 The title being once admitted, the effect as to the order of proof, 
 seems to be the same as if it had not been disputed at all ; and 
 consequently the whole issue lying upon the defendant, he would 
 be in the same situation with a plaintiff in ordinary cases. And in 
 general, where the j^roof lies upon the defendant alone, the order 
 of proof is reversed, and his counsel is entitled to a reply. As 
 where the lessor of the plaintiff in ejectment claims under a will, 
 and the defendant claiming under a codicil, admits the will (w). 
 Or where, in ejectment, the lessor of the plaintiff claiming as 
 heir-at-law, the defendant who claims under a will admits the 
 heirship (o). Where the defendant brings evidence to impeach 
 the plaintiff 's case, and also sets up an entire new case, which, 
 again, the plaintiff controverts by evidence, it seems that the 
 defendant is entitled to a reply by counsel, confined to the new 
 case set up by him ; for upon that relied upon by the plaintiff, his 
 counsel has already commented on the opening of the defendant's 
 case ; and that the plaintiff is entitled to a general reply. 
 Onus pro- It seems formerly to have been considered that the defendant 
 
 was in all cases entitled to begin, where the onus probandi lay 
 upon him, notwithstanding the technical form of the pleadings, 
 and although the proof of the amount of his damages lay upon 
 the plaintiff. 
 
 Where in an action of trespass quare clausum fregit, the defen- 
 
 trovert the defendant's supposed case, and Clavell, took possession of premises of 
 
 he would then be entitled to the general which he died seized, the lessors were her 
 
 reply. devisee of the premises and her heir-at-law, 
 
 (n) Doe d. Corbett v. Corhett, 3 Camp. who was also heir-at-law of John Clavell. 
 
 568. Lord Denman ruled that the defendant 
 
 (o) Fenn v. Johnson, cited 1 M. & M. admitting those facts, and that the plaintiff 
 168 (a). Adams on Eject. 2d edit. 2.56, n., was entitled to the property, unless he the 
 where Le Blanc, J. and Wood, B. so ruled defendant proved the will of John Clavell, 
 on different occasions. But on another was entitled to begin. Where in eject- 
 occasion, Gihbs, J. held, that the admis- meat by the heir-at-law to recover pre- 
 sion did not give the defendant the right mises conveyed by the deceased ancestor 
 to begin. Where each party claimed under a deed which was impeached on the 
 as heir-at-law, and the defendant, if legi- ground of his incapacity at the time of 
 timate, was clearly heir, it was held (by execution, held that as the seisin of the 
 Vaughan, B.) that an admission by him, ancestor at the time of his death was not 
 that unless he were legitimate, the lessor admitted, the mere admission of tlie lessor's 
 of the plaintiff was the heir-at-law, did title as heir by pedigree, did not entitle the 
 not entitle the defendant to 1)egin. Doe v. defendant to begin. Doe v. Tucker, 1 
 Bray, 1 M. & M. 166. In the case of M. &M.536. lnDoe\.Smart,l'M..ii'R. 
 Doe V. Barnes, 1 M. & R. 386, Sophia 476. 
 Richnrde, the Bister and heiress of John 
 
 bandi, da- 
 mages
 
 ORDER OF PROOF. 427 
 
 dant, as to the force and arms, and whatever is against the peace, &:c. Jnstifica- 
 pleaded not guilty; and as to the residue, pleaded a justification '°"' 
 under a right of way, the defendant was held to be entitled to 
 begin and to reply (]}). 
 
 So in an action for a libel, where the only pleas were pleas alleg- 
 ing facts in justification, on which issues were joined (q). Or tres- 
 pass, where the only plea consisted of matter of justification, alleging 
 an act of bankruptcy to have been committed by the plaintiflT, on 
 which issue is joined. 
 
 Adifl"erent rule has since been stated as a resolution of the Judges. 
 In one report (r), Tindal, L. C. J., is stated to have expressed him- 
 self as follows : "The Judges have come to a resolution, that justice 
 would be better administered by altering the rule of practice, and 
 that in future the plaintiff should begin in all actions for personal 
 injuries, and also in actions for libel and slander, notwithstanding 
 the general issue may not be pleaded, and the aflfirmative be on 
 the defendant. It is most reasonable that the plaintiff who brings 
 his case into Court, should be heard first to establish his com- 
 plaint (s)." It appears, however, from later decisions that the rule 
 is to be confined to actions for personal or malicious injuries (^), 
 such as assaults, libel and slander {u), malicious prosecution, and 
 the like {lo). It is not sufficient to bring a case within the rule, 
 that the amount claimed should be unliquidated {x), as in an action 
 of covenant to recover damages for a breach of contract (w) or 
 trespass to land or goods (z), or, as it seems, in an action of 
 
 (p) Jackson \. Hesketh, 2 Starkie's C. " A resolution has lately been come to by all 
 
 520, per Wood, B. and Bayley, J. ; the the Judges that in case of slander, libel, and 
 
 general issue Lad been pleaded originally, other actions, where the plaintiff seeks 
 
 but had been withdrawn during the assizes to recover actual damages of an unascer- 
 
 (the cause was in the county palatine tained amount, he is entitled to benin al- 
 
 court), for the purpose of giving the de- though the affirmative of the issue may, 
 
 fendant's counsel a right to reply. So in in point of form, be with the defendant." 
 
 Hodges V. Holder, 3 Camp.C.QGG. Cottin {t) In Wooton v. Barton, 1 M. & R. 
 
 V. James, Mood. ScM. 270 iQC.k -p. 605. 518, Parke, B. said that the only rule 
 
 And these decisions do not appear to be laid down by tlie Judges was that in actions 
 
 affected by the new rule mentioned below. for personal injuries where damao-es are 
 
 (q) Cooper v. WaUey, 1 Mood. & M. sought, as in actions of assault, libel, and 
 
 C. 248. So in Barell v. RusscU, 1 R. & slander, the plaintiff should begin. And 
 
 M. 293. Where, to an action of battery see lieeve v. Undei-hill, 6 C, & P. 773. 
 
 the defendant justified as captain of a ship (?<) Ihid. 
 
 in which the plaintiff was mariner, and on (w) Atkinson v. Warne, C C. & P. G87. 
 
 issue joined on the plea of de injuria, it {x) Reeve v. Underhill, G C. & P. 773, 
 
 was held that the defendant was entitled Lewis v. Wells,! C. & P. 221. Wooton v. 
 
 to begin. Burton, 1 M. & R, 518. 
 
 (r) Carter v. Jones, 6 C. & P. 641. (y) Beeve v. Underhill, 6 C. & P. 773. 
 
 (<) In the report of the same case in (z) Biirrell v. Nicholson, C C. & P. 
 
 1 M. & R. 281, the rule is stated tJius, 202.
 
 428 PROOFS : 
 
 Jnstifica- trovcr (a). But tlic rule has been held to apply to an action for 
 breach of promise of marriage (h), an action of contract in sub- 
 stance as well as in form. The rule has been applied also to issue 
 taken on pleas in abatement (c). 
 
 Appeal. Upon an appeal against an order of removal it is incumbent 
 
 - on the respondents to prove their case, by establishing a settle- 
 ment in the appellant's parish. Upon an appeal against a poor's. 
 rate, on the ground that the appellant has no rateable property 
 within the parish, the onus is on the respondents to prove that he 
 has such property (d) there ; but if the appellant object merely to 
 the quantum of the rate, he is to prove the inequality of such 
 rate (e). Upon an appeal against an order of bastardy, the re- 
 spondents must begin if). 
 
 It lies on a defendant who seeks to bring a plaintiff within an 
 Act which, if the defendant resided within a particular district 
 subjects the plaintiff to a nonsuit, to prove his residence at the 
 time of the action brought, by particular evidence of the fact; 
 general evidence, of recent residence there is not sufficient (g). 
 
 Where there are several issues on pleas by different defendants, 
 and where one will decide the whole case, but the other will not, 
 the former ought to be tried first. As where one pleads in abate- 
 ment, and the other pleads to the action (h) ; or where one pleads 
 to the action, and the other a matter personal to himself (i) ; or 
 where in trespass one pleads a release, the other not guilty, or a 
 justification (k). Where there are many issues the Court will at 
 discretion order them to be tried separately (/).' 
 
 (a) See Scott v. Leiois, 7 C. & P. 347. (d) 4 T. R. 475. 
 
 {b) Harrison v. Gould, 7 C. & P. 580. (g) ibid. 
 
 Reeve v. Ufulerhill, 6 C. & P. 773. ^^^ ^_ ^_ ^-^^.^^^ j2 East, 50. 
 
 (c) See Vol. II. tit. Abatement. In 
 
 „ , ^ . , T,r c nT tTj-i 1 o .^ {g) JoJiesv. Kenrick,8 B.&c C.Q31. 
 
 Fowler v. Coster, 1 M. & M. 241, and 3 C. ^•'^ ' 
 
 & P. 463, Lord Tenterden held, that (A) 1 Inst. 125; Bro. Trial, pi. 1, pi. 48; 
 
 wherever it appears on the record or from 2 Rol. Ah. 627 ; Bac. Ab. Trial, K. But 
 
 the statement of counsel that there is no in a real action, where one pleads a plea 
 
 real dispute as to the sum to be reco- which extends only to himself, and the 
 
 vered, but the damages are either nominal other pleads a plea to the action, as 
 
 or mere matter of computation, then if the that the plaintiff is a bastard, it is imma- 
 
 affirmativeof the issue is on the defendant, tcrial which is tried first, for the trial of 
 
 he is entitled to begin ; where, therefore, one does not dispense with the necessity 
 
 to an action on bills of exchange there was of trying the other. Ibid. 
 
 a plea of abatement of the non-joinder of (i) 1 Inst. 124 ; 2 Rol. 628, pi. 7. 
 
 others, it was held that the defendant {k) lb. And it is said that if one plead 
 
 ought to begin. a plea which extends only to himself, on 
 
 {I) Kemp V. Maelterill, Sayer, 131.
 
 ORDER OF PROOF. 429 
 
 Since the passing of tlie Prisoners' Counsel Bill, the following Appeal, 
 rules of practice have been laid down by twelve of the Judges: — 
 
 1. That where a witness for the Crown has made a deposition 
 before a magistrate, he cannot upon his cross-examination by the 
 prisoner's counsel, be asked whether he did or did not in his de- 
 position make such or such a statement, until the deposition 
 itself has been read, in order to manifest whether such statement 
 is or is not contained therein, and that such deposition must be 
 read as part of the evidence of the cross-examining counsel. 
 
 2. That after such deposition has been read, the prisoner's 
 counsel may proceed in his cross-examination of the witness as to 
 any supposed contradiction or variance between the testimony of 
 the witness in Court, and his former deposition, after which the 
 counsel for the prosecution may re-examine the witness, and after 
 the prisoner's counsel has addressed the jury, will be entitled to 
 the reply, and in case the counsel for the prisoner comments upon 
 any supposed variance or contradiction without having read the 
 deposition, the Court may direct it to be read, and the counsel 
 for the prosecution will be entitled to reply upon it. 
 
 3. That the witness cannot in cross-examination be compelled 
 to answer whether he did or did not make such a statement before 
 the magistrate, until after his deposition has been read, and it 
 appears, that it contains no mention of such statement ; in that 
 event the counsel for the prisoner may proceed with his cross-ex- 
 amination, and if the witness admits such a statement to have 
 been made, he may comment upon such omission, or upon the 
 effect of it upon the other part of his testimony ; or if the witness 
 denies that he made such statement, the counsel for the prisoner 
 may then, if such statement be material to the matter in issue, 
 call witnesses to prove that he made such statement. But in 
 either event the reading of the deposition is the prisoner's evidence, 
 and the counsel for the prosecution will be entitled to reply. 
 
 4. If the only evidence called on the part of the prisoner, is evi- 
 dence to character, although the counsel for the prosecution is 
 entitled to the reply, it will be a matter for his discretion whether 
 he will use it or not ; cases may occur in which it may be fit and 
 proper so to do. 
 
 5. In cases of public prosecutions for felony, instituted by the 
 Crown, the law officers of the Crown, and those who represent 
 
 one day, and tlie other a plea which ex- pleaded, and it shall he tried first. Ero. 
 tends only to hiiuself, on a subsequent day, Trial, pi. 48 ; Bac. Ah. Trial, K. 
 it shall be intended that the first was first
 
 430 
 
 PROOFS 
 
 Statement 
 of counsel 
 as to tlie 
 cause of 
 action. 
 
 Evidence 
 must be rc- 
 Jevant. 
 
 Must cor- 
 respond 
 with the 
 allegations. 
 
 them, are in strictness entitled to the reply, although no evidence 
 is produced on the part of the prisoner. 
 
 A plaintiff is not precluded from recovering on any demand to 
 which he shows himself to be legally entitled, by the allegations 
 on the, record and the evidence, although his counsel may not, in 
 opening his case to the jury, have insisted on that demand. Thus, 
 in an action on a policy of insurance with the money counts, 
 where the defendant showed that the risk had never commenced, 
 it was held that the plaintiff was entitled to a return of the pre- 
 mium, although no claim had been made to it originally by his 
 Counsel (m). 
 
 It seems to be discretionary in the Judge, whether, after the 
 plaintiff has closed his case, and the defendant's counsel has 
 commenced his address to the jury, the plaintiff's counsel can 
 be allowed to go into a new case (n). In a penal action the 
 Court will not permit a defect in the plaintiff 's case to be supplied, 
 unless it has arisen merely from inadvertence on the part of the 
 plaintiff's counsel (o). 
 
 2dly. As to the nature, quality, and quantity, of the evidence 
 to be adduced by the parties ( p). 
 
 In the first place, with respect to the nature of the evidence ; 
 as the business of trial is to ascertain the truth of the allegations 
 put in issue, no evidence is admissible which does not tend to 
 prove or disprove the issue joined. 
 
 Thus, in an action of trespass for a battery, the defendant can- 
 not, under the general issue, prove that the plaintiff committed 
 the first assault, for that is not the issue {q). 
 
 And as one of the main objects of pleading is to apprise the 
 adversary of the nature of the evidence to be adduced against 
 him, it is essential to the purposes of substantial justice that such 
 allegations should be supported by corresponding proof And 
 therefore, in general, every material and essential allegation, and 
 every circumstance descriptive of the identity of anything so 
 alleged, must be proved as averred. 
 
 The same reasons which require the cause of action or of cir- 
 minal charge to be stated upon the record, require also that the 
 allegations shall be proved ; mere assertion, without corresponding 
 proof, would be nugatory. And as such allegations and proofs are 
 
 (m) Petuon v. Lee, 2 B. & P. 230. 
 (n) Per Le Blanc, J.,1 East, 614. 
 (o) Alldred v. HnlUiccll, 1 Starkie's C. 
 117; cor. Lord Ellenborough. 
 
 (p) Tha nature of the evidence easential 
 
 to the proof of particular issues will be 
 considered at large in Vol. II. 
 
 (q) See Vol. II. tit. Trespass, and tit. 
 Collateral Facts.
 
 VARIANCE. 431 
 
 to answer certain legal purposes, it necessarily follows that it is 
 always for the Court to pronounce whether the facts proved satisfy 
 the allegations on the record. 
 
 As questions of variance are of daily occurrence, it may not be General 
 improper, before the decisions on the subject are noticed, to ente P""'-'P*^^- 
 into a brief consideration of the principles upon which the doctrine 
 is founded. With respect to the proof of the facts and circum- 
 stances alleged, three predicaments may occur : they are either all 
 proved as alleged, or none of them are proved ; or part are proved 
 wholly or partially, and the rest are either not proved, or absolutely 
 disproved or negatived. The last of these predicaments is of course 
 the only one which can afford ground for discus&ion. 
 
 Now, considering that all human affairs and dealings are con- 
 nected together by innumerable links and circumstances, forming 
 one vast context, without any chasm or interruption, and undis- 
 tinguished by the artificial boundaries and definitions of right and 
 wrong prescribed by the law, it is in the nature of things impossible 
 that a transaction detailed upon the record can be identical with 
 the one proved, if the proof vary in the slightest particular, be it in 
 its own nature ever so insignificant. 
 
 An act done at one day or place cannot be the same with an act 
 done on another day, or at a difi'erent place ; a robbery, where ten 
 sovereigns were stolen, cannot be the same with a robbery where 
 nine only were taken. It is easy, therefore, to see that to require 
 this, as it were, natural and absolute identity of the allegations and 
 proofs, would be, at the least, highly inconvenient, if not wholly 
 impracticable. Hence it is, that an artificial and legal identity, as 
 contradistinguished from a natural identity, must be resorted to as 
 the proper test of variance ; that is, it is sufficient if the proofs 
 correspond with the allegations, in respect of those facts and cir- 
 cumstances which are, in point of law, essential to the charge or 
 claim. The rules which govern the connexion between the alle- 
 gations and evidence must obviously result immediately from the 
 principles which regulate the allegations themselves. 
 
 By the rules of law, specific remedies or punishments are 
 annexed as incidents to certain defined combinations of circum- 
 stances. And in order to the practical application of such remedial 
 and prohibitory definitions, it is necessary that the facts and cir- 
 cumstances of each individual case, corresponding with the legal 
 definition, but ampUfied and particularized according to certain 
 technical legal rules, should be detailed upon the record. And this 
 principally with a view to the following objects : first, to apprise 
 the defendant of the specific nature of the claim or charge which
 
 4.32 
 
 PROOFS : 
 
 General 
 principles. 
 
 Afere sur- 
 plusage. 
 
 Partial 
 proof. 
 
 is made against him ; and sccondli/, to enable the Court to adjudge 
 whether the circumstances stated fall within any remedial or pro- 
 hibitory law, and to pronounce the proper judgment if the facts 
 alleged be established ; and tldrdly, to enable the parties to avail 
 themselves of the verdict and judgment,, should the same rights 
 or liabilities be again discussed. When, therefore, in addition 
 to the facts which are essential to the claim or charge, others 
 are alleged which are wholly redundant and useless, the legal 
 maxim applies, " utile jyer inutile non vitiatur ;" and as the law 
 did not require the superfluous circumstances to be alleged, so, 
 although they have been improvidently stated, the law in further- 
 ance of its object rejects them, as mere surplusage, and no more 
 regards theni for the purposes of proof than if they had not been 
 alleged at all. 
 
 It would be nugatory to require proof of allegations which are 
 wholly impertinent ; the identity of those allegations which are 
 essential to the claim or charge, with the proofs, is all that is 
 material. 
 
 Thus, if it were alleged that A., being armed with a bludgeon, 
 and disguised with a visor, feloniously stole, took and carried 
 away the watch of JB., the allegations that A. was armed and 
 disguised, being altogether foreign to a charge of larceny, would 
 be wholly rejected, and would require no proof on the trial (r). 
 
 The same principle extends much further: it frequently happens 
 that the evidence fails to prove circumstances not altogether im- 
 pertinent, but which merely affect the magnitude or extent of the 
 claim or charge ; and here, although circumstances are alleged, 
 which, if proved, would have been of legal importance, yet, although 
 the evidence fail to establish the whole of what is alleged, the 
 principle adverted to still operates to give effect to what is proved, 
 to the extent to which it is proved. The principles which require 
 the cause of action or ground of offence to be stated, are satisfied : 
 the adversary is not taken by surprise, for no fact is admitted 
 in evidence which is not alleged against him; and the Court 
 is enabled to pronounce on the legal effect of the part which 
 is established as true by the verdict of the jury, and the record 
 shows the real nature and extent of the right or liability esta- 
 blished. 
 
 Thus, if ^. be charged with feloniously killing S. of malice 
 prepense, and all but the fact of malice prepense be proved, A. 
 may clearly be convicted of manslaughter, for the indictment 
 
 (>•) i. e. on an indictment for mere larceny.
 
 VARIANCE. 433 
 
 contains all the alleji^ations essential to that charf^e ; ^. is fully I'nrtiol 
 apprised of the nature of it, the verdiet enables the Court to pro- ^'""*^' 
 nounee the proper judgment, and A. may plead his acquittal or 
 conviction in bar of any subsequent indictment founded on the 
 same facts. 
 
 The same principle applies to allegations of number, quantity 
 and magnitude, where the proof, pro tanto, supports the claim or 
 charge. If a man be charged with stealing ten sovereigns, he may 
 be convicted of stealing five ; for when it is proved that he stole 
 five, evidence is not admitted of a different offence from that 
 charged, but of the same in legal essence, differing only in quan- 
 tity, and constituting, therefore, a natural, but no lefjal variance ; 
 no evidence is received which is not warranted by the allegations, 
 and the party may afterwards plead his conviction or acquittal 
 notwithstanding the variance as to nmuber. 
 
 But the doctrine as to the sufficiency of partial proof assumes 
 that the evidence, so far as it extends, agrees with the allega- 
 tions legally essential to the charge or claim ; that is, that what is 
 proved is part of what is alleged, and differs only in quantity or 
 extent. Where an allegation is rejected in toto, it is assumed that 
 the allegations are divisible, and that the averment in question 
 may be so rejected, without destroying the legal identity of the 
 charge or claim. 
 
 It is a most general rule, that no allegation which is descriptive Doscriptiv 
 of the identity of that which is legally essential to the claim or '^'''^o'it'<^°' 
 charge, can ever be rejected. Were it otherwise, and if proof 
 could be admitted which varied, from the record, in consequence 
 of the omission to prove any allegation descriptive of an essential 
 particular, it is plain that the proof would no longer agree with 
 the cause of action, or charge alleged, to anij extent ; they would 
 differ throughout in respect of that descriptive allegation ; and 
 as the proof would be more general than the allegations, it would 
 no longer be partial proof of the same charge or claim, but of a 
 different and more general one. As an absolute and natural 
 identity of the claim or charge alleged, with that proved, consists 
 in the agreement between them in all particulars, so their legal 
 identity consists in their agreement in all the particulars legally 
 essential to support the charge or claim ; and the identity of those 
 particulars depends wholly on the proof of the allegations and 
 circumstances by which they are ascertained, limited and de- 
 scribed. To reject any allegation descriptive of that which is 
 essential to the charge or claim would obviously tend to mislead 
 the adversary. The Court, in giving judgment on a general ver- 
 
 VOL. I. F F
 
 434 PROOFS : 
 
 Partial dict, could never be sure that those facts had been proved which 
 Deslriptive were essential to support their judgment ; and the record would 
 allegations, afford but very uncertain evidence as to identity, should the same 
 matter be again litigated. For instance, if in an action for breaking 
 the plaintiff's close, he were to describe it as abutting on the 
 several closes A., B., C. and D., these would all be allegations 
 descriptive of that which was material, that is, of the subject- 
 matter to which the injury was done, and a variance from any one 
 would be fatal (5) ; for if the allegation that the locus in quo 
 abutted on the close A. could be rejected as immaterial, the other 
 abuttals might also be disregarded. Evidence would then be 
 admitted of a trespass in an entirely different close ; the defendant 
 might come prepared to rebut the charge of trespass, as far as 
 regarded the close described, but be wholly unprepared to justify 
 an entry into any other close ; and the record would afford no 
 evidence, or, what is worse, might mislead, in case of future liti- 
 gation between the same parties. So if a man were to be charged 
 with stealing a black horse, the allegation of colour, although un- 
 necessary, yet being descriptive of that which is material, could 
 not be rejected : to admit evidence that he stole a ivhite one would 
 not be to prove a part of that alleged, but to prove an offence in 
 respect of a subject-matter proved to be different. 
 
 The very omission to prove the boundaries in the former case, 
 or the colour in the latter, would be fatal, although different 
 boundaries, or different colour, should not be proved ; for neither 
 the trespass nor the larceny proved could be considered to be the 
 same with that alleged, until the allegations descriptive of identity 
 were proved, that is, whilst the proof was general, but the descrip- 
 tion special ; for so long it would be possible that the subject- 
 matter proved was wholly different from that alleged (t). 
 
 It seems, indeed, to be an universal rule, that a plaintiff or 
 prosecutor shall in no case be allowed to transgress those limits 
 which, in point of description, limitation and extent, he has pre- 
 scribed for himself; he selects his own terms, in order to express 
 the nature and extent of his charge or claim ; he cannot, there- 
 fore, justly complain that he is limited by them ; to allow him to 
 exceed them would, for the reasons adverted to, be productive of 
 the greatest inconvenience. 
 
 (s) Supra, tit. Trespass ; 2 East, 500. matter described ; as if it were alleged that 
 
 (t) It is otlierwise where the subject- C. D. robbed or assaulted A. B., wearing 
 
 matter is identified and ascertained inde- a black coat. See Draper v. Garratt, 2 
 
 pendently of the additional description, or B. & C. 2. Stoddart v. Palmer, 3 B. & 
 
 where the additional description is not C. 2. 
 
 essential to the indentity of the subject-
 
 VARIANCE, 436 
 
 As no allegation, therefore, which is descriptive of any fact or Partial 
 matter which is lonally essential to the claim or ciiar<ie, can be I'f""''- .• 
 
 ^ , . ^ ' Descriptive 
 
 rejected altogether, inasmuch as the variance destroys the legal alkgatious. 
 identity of the claim or charge alleged with that which is proved ; 
 upon the same principle, no allegation can be proved partially, in 
 respect of extent or magnitude, where the precise extent or mag- 
 nitude is in its nature descriptive of the charge or claim. 
 
 If in an action or indictment for a nuisance, the wrong be 
 alleged to have been continued for twelve months, and proof be 
 given that it has been continued for one month only, the variance 
 would be immaterial, except so far as regarded the damages or 
 punishment; for the injury or offence would in point of law be the 
 same, Avhether continued for one month or for twelve ; the only 
 difference would be in point of duration. 
 
 But if a contract were to be alleged to serve for twelve months 
 for the sum of 12/., and proof were to be given of a contract to 
 serve for one month for the sum of 1 Z., the variance would be 
 fatal ; the precise time, as Vv'cll as the precise sum, being essential 
 to the contract, and descriptive of the ground of claim. For 
 although a nuisance continued for twelve months be an offence 
 made up of the continuance for each of the several months which 
 make up the twelve, a contract to serve for twelve months for 
 12 Z. is not made up of twelve contracts to serve for a month 
 for 1 I. each month, but each is separate and distinct in point 
 of law. 
 
 The same observations apply to prescriptions, and all other cases 
 where precise quantities, sums, duration or extent, are in point of 
 law essential to the identity of an entire subject-matter, and de- 
 scriptive of it. 
 
 Again, as the description of facts upon the record must neces- Redundant 
 sarily be finite and limited, whilst the detail of those facts in P"^""^- 
 evidence must usually be attended with a multitude of particular 
 circumstances connected with them, it is perfectly clear that what- 
 ever minuteness of description may be requisite in stating the 
 claim or charge upon the record, the evidence to prove those 
 allegations must usually be still more particular and circumstantial, 
 and consequently that the proof of more particulars than are 
 alleged can never be material, provided such additional particulars 
 consist with those which are alleged. The generality of the alle- 
 gations may indeed constitute a vice in the record itself, but it 
 never gives rise to the objection of variance from the evidence, 
 unless the subject be of so entire a nature that the matter proved, 
 
 F F 2
 
 436 
 
 PROOFS 
 
 General in 
 ference. 
 
 Rcdundaut but not alleged, is inconsistent with that which is alleged, and 
 disproves it altogether. 
 
 If a man were charged with stealing a horse, the property of 
 John Doe, generally, it would be no objection that on the evidence 
 it appeared tliat there were two persons of that name, the elder 
 and the younger ; for if he stole the horse of either, the allega- 
 tion would be true. But if he were to be charged with stealing 
 the horse of John Doe, and it turned out that the horse was the 
 property of John Doe and James Doe, the variance would be fatal ; 
 for the interest o^ James Doe, thus proved, but not alleged, would 
 show that the ownership was misdescribed altogether. 
 
 The general result of these principles and inferences seems to 
 be, that in the case of redundant allegations, it is sufficient to 
 prove part of what is alleged, according to its legal effect, pro- 
 vided that that which is alleged, but not proved, be neither essen- 
 tial to the charge or claim {u), nor describe or limit that which is 
 essential {v) ; and provided also, that the facts proved be alone 
 sufficient in law to support the charge or claim. And that 
 redundancy of proof will not be material, unless that which is 
 proved, but not alleged, contradict or disprove ih^ii which, is alleged. 
 Surplusage. In the first place, it seems that the omission to prove circum- 
 stances which are alleged, but are not essential to the claim or 
 charge, which are mere surplusage, and might have been wholly 
 omitted, or are merely cumulative, or which operate merely in 
 aggravation, or afflsct merely the extent of damages, is not mate- 
 rial, provided the circumstances so rejected do not operate by way 
 of description of others which are material. 
 
 It is a general rule, that whenever an averment may be wholly 
 rejected without prejudice to the charge or claim {w), proof is 
 unnecessary. 
 
 Thus, where a declaration for an injury to the plaintiff's rever- 
 sionary interest in land, alleged that the premises were, at the time 
 of the injury, and still were, in the occupation of JL. B., whereas 
 the occupation of ^. -Chad ceased previous to the commence- 
 ment of the action, the variance was held to be immaterial, the 
 possession of i4. B. as tenant at the time of the injury being pro- 
 
 (?/) Per Abbott, C. J., 3 B. & C. 122 : " It 
 is a general rule that a variance between 
 the allegation and proof will not defeat a 
 party, unless it be in respect of matter 
 which if pleaded would be material." 
 
 (r) See the observations of Abbott, C. J., 
 2 13. k A. 363. 
 
 {w) See the observations of Lawrence, J. 
 in WiUiamsoii v. AUison, 11 East, 4.52, 
 and of Lord Tenterden, 3 B. & C. 122. 
 The rule is of course otherwiso where the 
 averment cannot be wliolly rejected with- 
 out also rejecting something essential to 
 the action.
 
 VAniANCE. 437 
 
 perly described (x). But where in an action on tlie case for an Surpluwigs. 
 injury to the reversion, the plaintiff' allcf^ed that the house was in 
 the possession and occupation of a certain tenant tlicreof under the 
 plaintiff"; and the evidence was that the })laintiff" was seised in fee 
 for the use of the inhabitants of a particular parisli, and that the 
 house was occupied by paupers, under the superintendence of a 
 person appointed by the parish ; the variance was held to be fatal, 
 for neither the poor nor the superintendent could be considered as 
 tenants to the plaintiff" (?/). 
 
 Where the plaintiff", in an action for breach of a warranty in 
 sellino- ooods unfit for sale, allecred in liis declaration that the 
 defendants Jaiew the goods to be unfit for sale, it was held that 
 the allegation of knowledge, being imniatcriab need not be 
 proved (z). 
 
 An averment, in an action by an indorsee against the indorser 
 of a bill of exchange dishonoured on presentment for payment, 
 that the bill was accepted by the drawee, need not be proved (a). 
 
 In an action against a sheriff" for taking insufficient sureties on 
 a replevin-bond, it was alleged that the party replevying levied his 
 plaint at the next county court, to wit, at the county court holden 
 on, &c. before A., B., C, 8cc. suitors of the court; the evidence 
 was of a plaint levied at a court holden before -EJ., F., G., Sec, and 
 held to be sufficient; for the allegation that the court was held 
 before A., JB., C, Sec. was immatei^ial, and might have been alto- 
 gether omitted (Z*). 
 
 So where an indictment alleged a robbery to have been com- 
 mitted in the dwelling-house o{ A. B., it was held that a variance 
 as to the owner's name was immaterial, as it was not essential 
 to the crime of robbery that it should have been committed in a 
 dwelling-house (c). So if arson be alleged to have been committed 
 in the night-time {d). 
 
 If an off'ence at common law be laid to have been committed 
 against the form of the statute, the allegation may be rejected (e). 
 
 Where the plaintiff alleged, that before the publication of a 
 libel by the defendant, the plaintiff's carriage came in contact 
 with a carriage in which E. S. was riding, and that the accident 
 
 (x) Vowh'sy. Miller, ^Tinmt. 1^7. Jiu'.pcos that the allegation was under a 
 
 (?/) Martin v. Goble, 1 Camp. ;V2U. scilicet. 
 
 (z) Williamson V.Allison, llEiist, 45-2. (c) Pi/c's case, East's E. P. C. 785; 
 
 See also Broowfeld v. Jones, 4 B. & C. Johnston's case, ibid, 78G. 
 
 480. ('0 -R- V. Minion, E.ist's P. C. 1021. 
 
 (rt) Tanner v. Bean, 4 B. & C. 312. (e) 5 T. R. 1G2; 4 T. 11. 202; 1 Suuud. 
 
 (&) Draper v. Garratt, 2 B. & C. 2. 130, n. 3. 
 And note, that it was observed by all the 
 
 F f3
 
 438 
 
 PROOFS 
 
 Cumulative 
 allegations. 
 
 Surplusage, happened without any default on the part of the plaintiff, and 
 then alleged a publication of a libel of and concerning the acci- 
 dent ; and upon the evidence it appeared that the accident did 
 happen through the default of the plaintiff; it was held to be no 
 variance so as to bar the plaintiff from recovering as to part of 
 the libel not justified, the allegations being divisible, and the aver- 
 ment that the accident happened without the plaintiff's default 
 being an immaterial circumstance (/). 
 
 Where an intention to deceive is unnecessarily alleged in an 
 indictment, it may be rejected {g). 
 
 So where allegations are merely cumulative. In an action for 
 words it is sufficient to prove so much of the words laid in any 
 one count as are actionable (/t). 
 
 Where an information for a seditious libel alleged that outrages 
 had been committed in and in the neighbourhood of Nottingham, 
 it was held the allegation was divisible, and that it was sufficient 
 to prove that outrages had been committed 14 or 15 miles from 
 Nottingham (i). 
 
 Where an indictment charges a defendant with composing, 
 printing and publishing a libel, he may be found guilty of the 
 printing and publishing only (k). 
 
 If an indictment for treason charge several overt acts, it is 
 sufficient to prove one {I). 
 
 On an indictment for feloniously forging and causing to be 
 forged, the prisoner may be convicted of either. 
 
 Where a declaration under the Bribery Act alleged that the 
 bribe was to induce White to vote for Mr. Lochyer and Lord 
 Egmont, it was held to be sufficient to prove that the bribe was to 
 give his vote for Mr. Lockyer {m). 
 
 In an action by the husband for a malicious prosecution of the 
 husband and wife, the plaintiff is entitled to recover in respect of 
 a malicious prosecution of the wife {n). 
 
 Proof of 
 part. 
 
 (/) Lord Churchill V. Hunt, 2 B. & A. 
 685. 
 
 (i7) jR. V. J'owes, 2 B. & Ad. 211. On an 
 indictment for a nuisance, an allegation 
 that the defendant was bound ratione 
 tenure to repair a house adjoining to a 
 public road which was in a ruinous state, 
 dangerous to passengers is mere surplusage. 
 R. V. Watts, 1 Salk. 357. 
 
 (/j) Compagnon v. Martin, Bl. 794. 
 B. V. Dralie, Salk. 6G0; Dy. 75; Hardr. 
 470. Flower t. Pealey, 2 Esp. C. 491. 
 Secui, where the words alleged, but not 
 
 proved at all, qualify those which are 
 proved. So on the trial of an individual for 
 obtaining money by false pretences, it is 
 sufficient to prove an obtaining by part of 
 tlie pretences charged. R. v. Hill, Russ. 
 &; Ry. C. C. 190. 
 
 (i) R. V. Sutton, 4 M. & S. 532. 
 
 (/«) R. V. Williams, 2 Camp. 507. 
 R. V. Hunt, ib. 583 j 2 East's P. C. 515, 
 516. 
 
 (0 Fost. 194. 
 
 {m) Coombe v. Pitt, 3 Burr. 1586. 
 
 (n) Smith v. Hixon, Str. 977.
 
 VARIANCl*. inW 
 
 In an action against the sheriff fbr sufl'enng- tlic husband and proofof 
 wife to escape upon an execution founded on a debt due from P^""'- 
 the wife before coverture, the plaintiff is entitled to recover, on 
 proof that tlie husband alone was taken in execution, and suflered 
 to escape (o). 
 
 If a plea allege two matters, either of which amounts to a 
 justification in trespass, it is sufficient to prove one, though the 
 whole be put in issue by the general plea of tZe injuria (p). 
 
 If the defendant avow for rent and a nomine pcence together, 
 without alleging any demand of rent, the avowry is good for the 
 rent, though it be ill for the penalty (i/). 
 
 If the replication to a plea of tender allege a subsequent demand 
 of that sum, proof of the demand of a larger sum will not be suf- 
 ficient (r). 
 
 And not only may merely useless and cumulative averments be Ae^rava- 
 rejected, but so also may averments which are material by way of *^°"- 
 aggravation, provided they be not essential to support the charge 
 or claim, or describe or limit that which is essential. As in civil 
 cases, where matters are alleged in aggravation of trespass or 
 slander, or other ground of action. 
 
 Thus, if in trespass quare clausum fregit, the plaintiff allege 
 that the defendant is an inferior tradesman or dissolute person, 
 although he fail in the proof, he is still entitled to damages for the 
 trespass (s). 
 
 So on indictments for special and aggravated offences, includ- 
 ing more general ones, if the prosecutor fail in proving the cir- 
 cumstances in which the aggravation consists, the defendant may 
 still be convicted of the inferior and more simple offence (0- 
 
 (o) Roberts §• Ux. v. Herbert, 1 Sid. 5 ; And where it was alleged that the plaintiff, 
 
 B.N. P. 299. constable of parish^, was assaulted in the 
 
 (p) Spilsbury v. Micklethwaite, 1 Taunt. execution of his duty, it was held to be in- 
 
 146. sufficient to prove him to be constable of a 
 
 (g) 1 Saund. 286 ; Hob. 153 ; B. N. P. liberty of which A. was part. Goodes v. 
 
 56. Wheat lei/, 1 Camp. 231. Where an in- 
 
 {r) Rivers v. Griffit1is,5 B. & A. 630, dictracntalleged that the defendant rescued 
 
 and see Spybey v. Hide, 1 Camp. 181. goods which had been seized by the prose- 
 
 (s) Pallas V. Rolle, Bl. 900. cutors,whowere bailiffs, uuderawritof^ert 
 
 {t) Criui. Plead. 323, 2d edit. Blacalh/s facias and warrant, and upon motion in 
 
 case, 9 Co. 070 ; Co. Litt. 282, a. For other arrest of judgment the indictment was held 
 
 illustrations see the different titles. False to be bad for not setting out the writ, the 
 
 Statements, Libel, &c. Homicide, judgment was arrested, although the Court 
 
 Accessary, kc. But upon issue taken held that an indictment would have lain 
 
 whether A. and B. were churchwardens, for the single battery. R.\. Westbury, 8 
 
 proof that one was and the other was not, Mod. 357. 
 was held to be insufficient, B. N. P. 299. 
 
 F F 4
 
 440 
 
 PROOFS : 
 
 Omission to 
 prove the 
 whole da- 
 Biaire. 
 
 Under a count against a sheriff for u voluntary escape, the 
 plaintiff is entitled to recover if he prove a negligent escape (?0. 
 
 In the case of Coomhe v. Pitt{x), Lord Mansfield said, " In 
 penal actions, the material fact must be charged, and a fact must 
 be proved in such a manner that all those consequences will follow 
 the verdict which ought to attend it. But aggravations, and all 
 circumstances that do not vary the offence, are out of the case as 
 to the necessity of proving them." 
 
 So in general a variance as to the extent of the damages alleged 
 is immaterial. 
 
 If a plaintiff declare on a policy for a total loss, he may recover 
 for a partial loss (?/). 
 
 So if a plaintiff prove part of his breach of covenant {z) or 
 promise (a). 
 
 But here, as in all other cases, although the omission to prove 
 that which operates merely by way of aggravation will not be fatal, 
 yet part of that which is alleged, and which is sufficient to support 
 the charge or claim, must be proved. 
 
 The plaintiff, in an action of covenant, alleged that the defen- 
 dant had not treated the farm in a husbandlike manner, but on 
 the contrary thereof had committed ivaste. The defendant pleaded 
 that he had not committed waste, (fee, and issue being taken on 
 this plea, it was held that the plaintiff could not go into evidence 
 to show improper treatment of the farm, short of the commission of 
 waste (&). 
 
 Here it is to be observed, that as the only breach in issue was 
 
 the commission of actual waste, a term of known legal import, 
 
 acts of bad husbandry not amounting to acts of waste could not 
 
 constitute any part of the breach in issue. 
 
 Number, Again, a mere variance as to number, magnitude, or extent, is 
 
 magnitude, j^q^ material, unless the quantum be descriptive of the nature of 
 extent. . ■'■ ^ 
 
 the claim or charge. 
 
 If a defendant be charged with engrossing 1,000 quarters, he 
 may be convicted on proof of having engrossed 700 quarters (c). 
 
 If a plaintiff declare in ejectment for a fourth part of an estate, 
 he may recover a third of one-fourth part {d). 
 
 (u) Bonafousv. Walker, 2 T. R. 12G. 
 And see Roberts ^' Ux. v. Herbert, 1 Sid. 5. 
 
 {x) 3 Burr. 158C. 
 
 (y) Gardner v. Croasdale, Burr. 904. 
 Nicholson V. Croft, Burr. 1188; BI. 198. 
 And see Gorain v. Stceeting, 2 Saund. 205. 
 See also Stevens v. Whistler, 11 East, 51. 
 Tapley v. Waimoright, 5 B. & A. 399. 
 
 Bussell V. Mitchell, 2 B. & Ad. 399. Vol. 
 II. tit. Trespass. 
 
 {z) Burr. 1907; B1.200. 
 
 {a) Burr. 914. 
 
 (b) Harris v. Mantle, 3 T. R. 307. 
 
 (c) Varcv. Austen, Lane, 59. 
 {d) 1 Sid. 239; 1 Burr. 330.
 
 VAniANCR. 441 
 
 In an action of waste for cutting down trees, it is sufficient to 
 prove that the defendant cut down part of the number allc'^-ed (e). 
 
 So in an action to recover double the vakic of goods fraudulently Sums, &c. 
 removed to avoid a distress for rent, the quantum of rent alleged to 
 be due is immaterial/). 
 
 If a defendant avow for half a year's rent in arrear, he will be 
 entitled to a verdict, though he prove but a quarter's rent in 
 arrear (<jr). 
 
 Proof of the tender of a larger sura will support an allegation of 
 the tender of a smaller sum (Ji). 
 
 On an indictment for taking illegal brokerage, i. e. more than 
 10 s. in the pound, it is sufficient to prove that the defendant did in 
 fact take more, without proving the precise excess as alleged, 
 although it be alleged without a videlicet (i). 
 
 So on an indictment for extortion, alleging that the defendant 
 extorted 20 s., it is sufficient to prove that he extorted 1 s. (k). 
 
 In debt for using a trade without having served an apprentice- 
 ship, it was held that the whole time laid in the declaration need 
 not be proved ; it being alleged that the defendant forfeited 40 s. 
 for every month (/). 
 
 In an action of debt under the stat. 4 Geo. 2, c. 28, for double 
 the yearly value of land held over (tn), or for treble value for not 
 setting out tithes, under the stat. of Ed. G (n), a variance in the 
 value is immaterial, the action not being for a precise sum, but 
 for a sum in proportion to the value or damage found by the 
 jury. 
 
 In actions of trespass and replevin, if the defendant succeed in 
 establishing his justification to the smallest extent in point of 
 number or quantity, he will be entitled to a verdict, although a 
 trespass be shown to a much greater extent (o). 
 
 (e) 2 Roll, Ab. 70G; Co. Litt. 282, a.; (//) Vol. II. tit. Tender. 
 
 Hob. 53. (i) B. V. Gilham, 6 T. R, 265. 
 
 (/) Gicinnett v. PhilUps §• others, 3 T. ^^^-^ p^^ j^j^l^^ ^^ j ^ ^^ Burdett, Lord 
 
 '^- 643. Raym. 149. 
 
 (q) Harrison v. Barnby, 5 T. R. 248. ... ,, „ _ 
 
 r, ; T 1 n V 4. InA 1 a A (^^ Powell, q. t., v. Farmer, Peake's 
 
 Forty V. Imber, 6 East, 434; 1 Sauna. p r7 ' » ^ > 
 
 285; Moor, 281 ; Salk. 580; B. N. P. 5G. "^ ' 
 
 Seem, if he has title to two undivided parts ('«) ^^c v. Jackson, Dougl. 1G7, 704. 
 
 of the rent only. IhiA. Supra, \2m. TivLt (m) Dougl. 704. 
 
 in stating a demise, he cannot narrow the (o) Vol. II. tit. Tuespass. Liberum. 
 
 rent. Where the plaintiff declared in debt Teneaientum. XnCi see Sloper\. Allen 
 
 for rent, stating a lease rendering 15 Z. per 2 Roll. Ab. 700; B. N. P. 201). Down's 
 
 annum, and proved a lease rendering 15 Z. ctwe, 4 Rep. 29, b. Gray's case, 5 Rep. 79. 
 
 and three fowls, the variance was held to Brook v. Willett, 2 II. B. 224. lioyers v. 
 
 be fatal. Sands v. Ledger, Lord Raym, 792. Allen, 1 Camp. 313.
 
 ments. 
 
 442 PROOFS : 
 
 Divisibility The position, that a mere variance in point of extent or mag- 
 o aver- nitude is not material, assumes the divisihility of the subject- 
 matter, and does not apply in any case where the precise sum, 
 quantity or magnitude alleged, is put in issue by the nature of the 
 claim or charge {p). 
 
 It is an universal rule, that whatever is wholly surplusage, and 
 might have been struck out on motion, need not be proved (^). 
 And it seems to be clear in principle, that upon the question, 
 whether a particular averment can be rejected, regard is rather to 
 be had to the nature of the averment itself, and its connexion with 
 the substance of the charge or claim, than to the mere formal 
 manner in which it is averred. 
 
 And it seems to follow, that if averments be in their own nature 
 divisible, supposing them to have been separately averred, they 
 ought still to be so considered, although they be inseparable as far 
 as the mere language of averment is considered, being connected 
 together in one entire phrase or sentence. 
 
 The operation of this principle is in effect admitted and esta- 
 blished in the most simple instances. If a man be charged with 
 stealing twenty sovereigns, he may be convicted of stealing ten ; 
 the allegation is therefore considered to be divisible, although no 
 part of the sentence can be omitted without destroying the whole, 
 and although the ten sovereigns proved to have been stolen are 
 inseparably connected, as far as language is concerned, with the 
 remaining ten. 
 
 So, in numerous instances, allegations combined in the same 
 sentence have been considered to be divisible and separable, when 
 they are so with reference to the legal essence of a particular 
 charge. Thus a prisoner charged with burglariously and feloni- 
 ously stealing, may be convicted of feloniously stealing, should the 
 evidence fail as to the burglary. 
 
 A defendant charged with composing and publishing a libel may 
 be found guilty of pubhshing only. 
 
 So a general averment, including several particulars, may be 
 construed reddendo singula singulis. 
 
 An averment that particular lands are in the occupation of ^., 
 B. and C, is proved by evidence that the lands are in their several 
 occupations (r). And an allegation that lands are situated in the 
 
 {p) Grant v. Astle, Doug. 703, in note. in Bristow v. Wright, Doug. G42 ; and of 
 
 In re Gilbert v. Stanislaus, 3 Price, 64. the Judges, in Hoar v. 3Iills, 4 M. & S. 
 
 And see the cases cited in the following 470. 
 notes. (r) Pool v. Court, 4 Taunt. 700. 
 
 (q) See Lord Mansfield's obaervations,
 
 VARIANCE. 443 
 
 parishes A. and J3. is satisfied by evidence tliat part is situate in DivitiiiiiiUy 
 the parisli A. and part in the parish J3. (s). uwuil' 
 
 Where a declaration for a false return to a fieri facias against 
 the goods of -4. and B. alleged that A. and 7i. had goods within 
 the bailiwick, it was held to be suflicient to prove that eitiier of 
 them had, the averment being severable (^). 
 
 The plaintiff' declared for a disturbance of his right of common, 
 alleging that he was possessed of a messuage and land, with the 
 appurtenances, and by reason thereof ought to have common of 
 pasture ; and it was held that the averment was divisible ; and that 
 proof that the plaintiff was possessed of land only, and entitled to 
 right of common in respect of that land, was sufficient to entitle 
 him to damages pro tanto {it). 
 
 The distinction is now established between matter of substance Distinction 
 and matter of descsiption ; the former requires to be substantially carters of 
 proved, the latter to be literally proved {x). And therefore, where substance 
 the declaration against a sheriff for a false return, stated that the scription. 
 plaintiff, in Trinity term, in the second year of the reign of king 
 George the 4th, recovered by the judgment of the Court, as ap- 
 pears by the record, and the proof was of a judgment in Easter 
 term, in the third of George the 4th, it was held that the variance 
 was not material (?/). 
 
 In the next place, it is clear that no averment of any matter Descriptive 
 essential to the claim or charge can ever be rejected (o). And this cannot be* 
 position extends to all allegations which operate by way of descrip- rejected. 
 tion or limitation of that which is material. Let an averment of 
 this kind be ever so superfluous in its own nature, it can never be 
 considered to be immaterial when it constitutes the identity of that 
 which is material {z). 
 
 (s) Goodtitle d. Brcmridge v. Walter, mas, and the Nativity, 8hoT?ed that the 
 
 4 Taunt. G71. rent was in arrear for one whole year, 
 
 {t) Jones V. Clayton, 4 M. &. S. 349. scilicet, a festo Annunactionis, 40, usque 
 
 («) Ricketts V. Salioey, 2 B. & A. 3G0; ad festum Annunciationis, 41, a retro fuit. 
 
 Blanifold v. Pennington, 4 B. & C.161. After verdict for the plaintiff, on nan debet 
 
 Vide infra, 448, note (ar). pleaded, the Court held that the declara- 
 
 {x) P. C. Stoddart v. Palmer, 3 B. & tion was ill; for a excludes the first feast 
 
 C. 2. of Annunciation, and usque excludes the 
 
 (y) lb. "There are two kinds of allega- last, and if the viz- should be void, there 
 
 tions : one of matter of substance, which is no allegation when the year began, 
 
 must be substantially proved ; another, a Umble v. Fisher, Cro. Eliz, 702. 
 
 matter of description, which must be (a) Vide supra, 433. An indictment for 
 
 literally proved." Per Lord Ellenborough, stealing a note alleges that it was signed 
 
 J. in Purcell v. Macnamara, 9 East, 160. by A. B., proof is material, i?. v. Cromer, 
 
 {z) A declaration in debt for rent on a Russ. & Ry. C. C. L. 14. But it seems 
 
 lease for years, payable at four terms, viz. that whenever a sufficient description has 
 
 the Annunciation, Midsummer, Michael- once been given, a mere further useless and
 
 444 
 
 PROOFS : 
 
 Descriptive 
 
 allegations 
 cannot be 
 rejected. 
 
 Thus where the plaintiff, in an action against the sheriff for 
 taking his lessee's goods in execution without leaving a year's rent, 
 alleged tliat the rent was payable by four quarterly payments, it 
 was held that this allegation, although unnecessary, must be 
 proved (a). Here the necessary averment that rent was due was 
 limited by the allegation to rent payable quarterly. 
 
 The plaintiff, in an action against his lessee for negligently 
 keeping his fire, per quod the premises were burnt, alleged that he 
 was tenant under a demise for seven years, whereas he was but 
 tenant at will (b), and the variance was held to be fatal. Here the 
 injury was to the plaintiff's reversionary interest : the fact of 
 tenancy was essential ; and the averment that it was a tenancy 
 under a demise for seven years operated as a limitation and de- 
 scription of that which was material. 
 
 Where a common informer, in an action of debt against a sheriff's 
 officer, in his declaration alleged a judgment, and a, fieri facias 
 upon that judgment, it was held that he was bound to prove the 
 judgment as well as the writ, although it was unnecessary for the 
 plaintiff to have alleged the judgment at all(c). 
 
 Here again the allegation of the judgment, which was immaterial, 
 operated by way of description and limitation of the writ, which 
 was material. 
 
 So in an action for double rent on the statute (d), where the 
 declaration alleged a lease for three years, and it appeared in 
 evidence that the lease being by parol was void, and that the 
 defendant was but tenant from year to year(e). 
 
 In trespass every part of the description of the place is ma- 
 terial (/). 
 
 All these cases, some of which appear to have been carried to 
 an extent scarcely warranted by general principles, were decided 
 on the ground, that as the superfluous and unnecessary matter 
 
 unnecessary allegation need not be proved. 
 Draper v. Garratt, 2 B. & C. 2. Stoddart 
 V. Palmer, 3 B. & C. 2. 
 
 (a) Bristow v. Wright, Dougl. 640. 
 Note, that this was a variance in the state- 
 ment of a coyitract unnecessarily alleged. 
 See Lord Kenyon's observations in Gwin- 
 nett V. Phillips, 3 T. R. 645. He there 
 says, " I have heard both in and out of 
 court, that the doctrine in Bristow v. 
 Wright must be confined to contracts." 
 So where a declaration for illegally insuring 
 a lottery-ticket falsely alleged the consi- 
 deration to be 43 1. 2 s., although no alle- 
 
 gation of consideration is necessary. Phil- 
 lips V. Mcndez da Costa, 1 Esp. C. 59. 
 But see the Earl of Northutnherland's 
 case, B.N. P. 55; Yelv. 148. 
 
 {h) Cudlipp V. Handle, Carth. 202 ; 
 Dougl. 043. 
 
 (c) Savage, q. t., v. Smith, 2 Bl. 1101, 
 cited by Lord Mansfield, in Bristoio v. 
 Wright, Dougl. 643. 
 
 {d) 11 G.2, c.19, s. 18. 
 
 (c) Shvte v. Hor?isej/, K. B. East, 19 
 G. 3, cited by Lord Mansfield, Dougl. 643. 
 
 (/) Per Lawrence, J., 3 Taunt. 139. See 
 Vol. II. tit. Trespass.
 
 VARIANCE. 445 
 
 limited and described that wliich was material, it thereby became Doscriptive 
 part of that which was material, and could not be rejected. iillfirations 
 
 Lord Mansfield, in the case of Bristow v. Wright (g), in citing rcjecte.i. 
 the three last cases, observed that they were strong- ones, but that 
 they were authorities for the doctrine there laid down, as to the 
 distinction between material and impertinent averments. He added 
 that he believed that the doctrine stood right, and upon the best 
 footing, as it might prevent the stuffing of declarations with prolix 
 and unnecessary matter, because of the danger of failino- in the 
 proof, and might lead pleaders to confine themselves to state the 
 legal efiect (A). 
 
 Wherever precise sums, quantities or magnitudes, are essential Sums, mag- 
 to the nature of the charge or claim, a variance will be fatal ; as "■*"'^''^' 
 where they are descriptive of a contract, prescription, or written 
 instrument. 
 
 In the case of Grant v. Astleii) the declaration alleged a cus- 
 tom for every customary tenant to pay a reasonable fine on his 
 admission, to be assessed by the lord ; that a certain tenement was 
 of large annual value, viz. of the annual value of 23 1. 8 s. 9 d. ; 
 that the lord had assessed 40 /. 17 s. 6 d. as a fine for the defend- 
 ant's admission to the tenement, and that this sum was reasonable. 
 It appeared on the evidence that the fine should have been only 
 46 I. 4s. 3d., that sum being two years annual value ; and it was 
 held that the evidence did not support the declaration, for the 
 plaintiff had no right to recover any thing but the sum assessed, 
 for the duty arose upon the assessment, and that by the evidence 
 appeared to be illegal (k). 
 
 In an action for a false and deceitful representation of the annual 
 returns of a business sold to the plaintiff, it was held that an 
 averment that the returns amounted to a particular sum was mate- 
 rial, and must be proved, although the sum be alleged under a 
 videlicet (Z). 
 
 Where the lessor of an estate to A. B, declared in covenant 
 against the defendant as the assignee of all the demised estate, 
 
 ((/) Dougl. 643. K. B. were afterwards divided upon the 
 
 {h) See also The Dean and Chapter of question, whether the variance was fatal. 
 
 Rochester y. Pearsc,! Camp. 4G0. A.JB., (i) Dougl. 703, in n. 
 
 Dean of Rochester, and the Chapter, de- (k) Note, that the vice in this case was 
 
 clared for tlie use and occupation of pre- in the assessment itself, and could not have 
 
 mises held by the defendant, by the per- been aided by the mode of pleading. And 
 
 mission of the said dean and chapter; it see Titus v. Perkins, Skinn. 247; Carth. 
 
 appeared that tlie premises were occupied 13; 3 Lev. 249. 255; 3 Mod. 132. 
 
 before ,1. JB.was dean. Lord Ellenborough (Z) Gilbert v. Stanislatis, 3 Price, 54. 
 nonsuited the plaintiff; and the Court of
 
 446 PROOFS : 
 
 Descriptive and on a traverse of the assignment, as in the said declaration 
 cannot 'be^ mentioned, it appeared in evidence tliat the defendant was as- 
 rejected, signee of part only of the demised estate, the variance was held to 
 
 be fatal {m). 
 Allegations The question, whether an averment is to be consider6d as 
 Bcriptive" descriptive, and therefore material, depends principally upon the 
 nature of the averment itself, and the subject-matter to which it 
 is applied. But, 2dly, in many instances the law pronounces 
 averments to be merely /orma^, which would otherwise, according 
 to the ordinary rule, be deemed to be descriptive. 3dly. In other 
 instances, again, the question depends upon the particular and 
 technical mode in which the averment is framed. 
 
 In the first place, whenever an allegation limits and narrows 
 that which is essential, it is necessarily descriptive. 
 
 Instances of this nature most usually occur in the description 
 of written instruments and matters of contract and prescription. 
 
 In the description of libels or other written instruments (w), 
 which are set out according to their tenor, every part necessarily 
 operates by way of description of the whole ; for the libel alleged 
 cannot be the same with that proved, when they vary as to any 
 part, however unimportant (o). 
 
 Averments which apply a libel to a particular subject-matter, 
 are in their nature descriptive of the legal injury ; for that depends 
 upon the injurious nature of the meaning conveyed, which fre- 
 quently arises wholly from the external facts to which the terms of 
 the libel are made to apply by proper averments. The application, 
 therefore, of the libel to those facts is descriptive not of the libel 
 but of the injury (p); and consequently a failure in proving the 
 
 (m) Hare v, Cator, Cowp. 766. cular injury, every part of it is essential 
 
 (n") Tnfrri 477 and descriptive. On the other hand, where 
 
 tlie subject-matters of and concerning 
 
 ^ ' " ' ' which the libel is alleged to have beea 
 
 (p) Vol. II. tit. Libel; and see Tees- puijjigiiej are in their nature cumulative 
 
 dale v. Clement, 2 Chitty's R. 603. So ^^^j di^igjijie^ it should seem, that iu 
 
 in an actionfor words spoken of an attorney principle such allegations are divisible, 
 
 with reference to a former cause, the pro- jf^ f^^ example, it were alleged, that before 
 
 ceedings in that cause must be proved. ^j^^ publication, &c. 31. N. had committed 
 
 Parry v. Collis, 1 Esp. C. 399. tl^rge several highway robberies, and that 
 
 The question, whether partial proof of the defendant published of and concerning 
 
 the matters connected with the libel by the plaintiff, and of and concerning those 
 
 means of an averment, be sufficient, must, robberies, this libel : '^ A.B. was accessory 
 
 it seems, depend upon the nature and qua- to 31. JV." innuendo in the commission of 
 
 lity of the subject-matters so connected. the said robberies, and on the trial it were 
 
 If the allegations altogether form one proved that 31. N. had committed two 
 
 entire subject-matter, a contract for in- robberies only, the injury would, it seems, 
 
 stance, then no part can be rejected ; for be proved pro tanto as alleged ; for as far 
 
 the contract being essential to the parti- as regarded the two robberies, it was truly
 
 VARIANCE. 
 
 447 
 
 application to one of several facts previously stated, is not a Descriptire 
 variance from the allcped libel, but only an omission to prove part ""f""*'""* 
 
 . . ° •' r I cannot be 
 
 of the mjury. rejected. 
 
 And where a written instrument is not described by its tenor, 
 but merely according to its substance and effect, if more be alleged 
 in substance and effect than the legal construction of the instru- 
 ment warrants, the variance will be fatal, although the allegation 
 on which the variance arises was impertinent (q). 
 
 In cases of contract, the allegations of sums, magnitude and Contract, 
 duration, are usually, in their very nature, essential to the iden- 
 tity of the contract ; they are therefore descriptive, and must in 
 general be proved as laid (r), unless the mode of averment show 
 alleged that he published the libel of and 438; and R. v. Sutton, 4M.& S. 532, the 
 
 concerning them, and with the intent al- 
 leged ; and although it is also averred that 
 the libel was publislied of and concerning 
 a third robbery, as well as of and concerning 
 the two, yet that allegation would seem to 
 be rather cumulative than descriptive in 
 its nature. The substance of the complaint 
 is, that the defendant charged the plaintiff 
 with being accessory to three robberies, 
 and the proof is that he charged him as 
 being accessory to two of them. If, 
 indeed, the allegation had been, that by 
 the terms of the libel itself the defendant 
 charged the plaintiff as accessory to the 
 three, the variance would have been fatal, 
 for this would have been to misdescribe a 
 written instrument. No question, how- 
 ever, of this nature arises : the declaration 
 truly states the instrument itself; the 
 variance is merely as to the extent of its 
 application and injurious effect, and these 
 are divisible in their nature. If in such a 
 case, previous to the statute enabling the 
 defendant to plead several matters, three 
 robberies had been in fact committed, and 
 the defendant could have proved that the 
 plaintiff was accessory to one, he must 
 have pleaded his justification to that extent 
 specially, and pleaded not guilty to the 
 residue ; and the facts alleged in the de- 
 claration being proved on the one hand, 
 and the justification on the other, the 
 plaintiff would, it seems, have been entitled 
 to a verdict, having truly declared that the 
 libel was published of and concerning the 
 three felonies, and the justification extend- 
 ing to one only. In the case of Lord 
 Churchill v. Hu7it, 2 B. & A. 685, supra, 
 
 prefatory allegation seems to have been 
 considered to be divisible. — The ordinary 
 allegation in a declaration for a libel, that 
 the defendant published it of and con- 
 cerning the matter aforesaid, is not de- 
 scriptive of tlie libel, and docs not render 
 proof necessary that it was concerning all 
 the matters previously alleged ; and there- 
 fore, where it was alleged that money had 
 been applied in furtherance of a prosecu- 
 tion against J/., and that the defendant 
 published the libel of and concerning the 
 matters aforesaid, with intent to charge the 
 plaintiff with a fraudulent application of cer- 
 tain money, and it appeared on reading the 
 alleged libel that tiie charge was, that the 
 plaintiff had after the termination of the 
 prosecution misapplied the money, it was 
 held that the variance was not material. 
 Mayy. Broion, 3 B. & C. 113. And see 
 R. V. Home, Cowp. 72. 
 
 In the case of Leiois v. Walter, 3 B. & 
 C. 138, where the declaration alleged that 
 the defendant published a libel of and con- 
 cerning the plaintiff, and of and concern- 
 ing him in his profession of an attorney, 
 and the plaintiff on the trial failed to prove 
 that the libel was published of him as an 
 attorney, it was held that this was sufficient, 
 the publication being actionable without 
 reference to professional character. 
 
 {q) Vide ivfra, Variance, Written 
 Instrument 
 
 (r) Supra, 445; Vol. II. tit. Assump- 
 sit. — Variance. Gwinnett v. Phil- 
 lips, 3 T. R. 646. King v. Pippett, 1 
 T. R. 240. A special count in astumptit 
 for not paying a deposit on the purchase of
 
 448 
 
 PROOFS 
 
 Contract. 
 
 Prescrip- 
 tion. 
 
 that the party did not profess to state the sum, magnitude, num- 
 ber, &c. precisely. 
 
 Where an action of tort is founded on a contract, a variance 
 from the contract alleged will be us fatal as in an action on the 
 contract itself (s); for the tort founded on the contract cannot be 
 the same urdess the contract be the same. 
 
 As a contract is in its nature entire, not only will a variance in 
 omitting to prove the whole consideration as alleged, be fatal, but 
 so also will an omission to prove the whole of the p7'omises alleged 
 to be founded upon that consideration, although the plaintiff prove 
 the promise, and the breach of it, for which damages are sought to 
 be recovered, and although it was unnecessary to state any other 
 promise than that alleged to be broken (t). 
 
 As a prescription is founded on a supposed grant, and is there- 
 fore entire, for the subject-matter granted must necessarily be 
 descriptive of the grant itself, it follows that partial proof of that 
 which is claimed by the prescription is insufficient, although the 
 proof fail only as to part which is not material on the trial. Thus 
 where the defendant in an action of trespass prescribed for a right 
 of fishery in four specified places, but proved the right to exist in 
 three of them only, the variance was held to be fatal, although no 
 trespass was proved in the excepted part {u). 
 
 So a prescription for a right of common, as appurtenant to a 
 messuage and land, with the appurtenants, would not be sup- 
 ported by evidence of a prescriptive right appurtenant to the land 
 only (x). 
 
 lands, averring that the defendant became 
 the purchaser of divers (to wit, two lots), 
 for divers sums of money, amounting in the 
 whole to a large sum of money (to wit, &c.), 
 is not proved by evidence of the purchasing 
 of two different lots, thougli upon the same 
 terms; for the agreements are separate in 
 law and fact. James v. Shore, 1 Starkie's 
 C. 426 ; Vol. II. tit. Vendor & Vendee. 
 
 (s) Weall V. King, 12 East, 452 ; Green 
 V. Greenhank, 2 Marsh, 485. Lopez v. De 
 Tastet, 1 B. & B. 538. 
 
 (t) Vol. II. tit. Assumpsit. — Vari- 
 ANCE.-^It is otherwise where the law 
 implies a promise, as in the case of indebi- 
 tatus af<snmpsit. Webber v. Tivill, 2 
 Saund. 121 ; Vol. II. 
 
 (m) Rogers and others v. Allen, 1 Camp. 
 309. Heath, J. overruled the objection ; 
 but the Court of King's Bench afterwards 
 granted a new trial. See also Rather am 
 
 V. Green, Noy, 67 ; Conyers v. Jackson, 
 Clay. 19. SlojJer v. Allen, 2 Roll. Ab. 
 706. Gray's case, 5 Rep. 79. Broolte v. 
 Willett, 2 H. B. 224. 
 
 {x) See Richetts v. Saliccy, 2 B. & A. 
 360; snpra, 443. And see Yarly v. 
 Turnoch, Palmer, 269. Sir Miles Cor- 
 bet's case, 7 Co. 5. Hichnan v. Thome, 
 Freera. 211. Pring v. Henley, B. N. P. 
 59. Kingsmill v. Bull, 9 East, 185. It 
 was there alleged as a custom in a manor, 
 that the lord immemorially, until the divi- 
 sion of a certain tenement into moieties, 
 had a heriot, and that after the division 
 he had a heriot for each moiety ; and it 
 was held, that the whole being one custom, 
 was disproved by evidence of a division 
 within the time of memory. Where it was 
 alleged that a vestry had immemorially 
 consisted of a certain number of select 
 persons, it was held to be necessary to
 
 tort. 
 
 VARIANCE. 449 
 
 An allegation of an absolute prescription or custom is not proved Prescrijv 
 by evidence of a conditional or limited one {y). 
 
 A prescription to have pot-water out of a river is not proved 
 by evidence that he ought to have it, paying 6 d. yearly (z). 
 
 So a justification by the lord of a manor, under a custom that 
 the lord should have tlie best beast on the tenant's death, is not 
 proved by evidence that he ought to have the best beast or 
 good (a). 
 
 But the proof of a more ample right than is alleged will not Descriptive 
 destroy the identity of a prescription, any more than it would 
 the identity of a grant, for the fact that more was granted than 
 is alleged does not disprove the allegation that so much was 
 granted (b). 
 
 In actions also of tort, not founded on any contract or prescrip- Actions of 
 tion, the question, whether an allegation be or be not descriptive, 
 is one for the discretion of the Court, exercised upon the nature 
 and circumstances of the particular case. 
 
 If the allegation limit and confine that which is material, the 
 latter can never be available to any greater extent, for an aver- 
 ment which limits and restrains in point of magnitude or extent 
 is always so far descriptive. So it is if the allegation limit the 
 quality of that which is material. 
 
 In cases of tort, it is sufficient to prove part of that which is 
 alleged, and the only question is, whether the allegation be divisible, 
 and capable of partial proof (c), or be of so entire a nature that it 
 cannot be separated into parts (d). 
 
 prove that it had consisted of a definite Bricknell, 1 Taunt. 142. West v. An- 
 
 number. Berry v. Banner, Peake's C. drews, G B. & Aid. 77. 
 
 156. (c) See Eardly\. TMmocft, Palm. 269, 
 
 {y) Gray's case, 5 Co. 78 b. A pri- Cro., J.,629. Bicltelts v. Sahvey,2'B. Sc 
 
 vilege claimed for fastening ropes across a A. 360. Manifold v. Pennington, 4 B. 
 
 close in order to hang linen, and of hanging & C. 161. 
 
 linen thereon to dry, is not proved by (rf) See Ricketts v. Salivey, 2 B. & A. 
 
 evidence of a privilege for tenants to hang 360 ; supra. But note, that Abbott, C. J., 
 
 lines across a yard for the purpose of dry- said, that if there had been words of 
 
 ing linen of their own families only. connexion, such as " thereunto belonging," 
 
 Brewell v. Toioler, 3 B. & Ad. 735. or other words of like import, to connect 
 
 (c) In a Devonshire case, cited by the messuage and land together as one 
 
 Popham, C. J. in Gray's case, 5 Co. 786. entire tenement, he should have thought 
 
 (a) Adderly v. Hart, Trin. 4 Geo. 1. that the plaintiff was not ntitled to reco- 
 
 An avowry for a heriot in kind is not ver. And see Brmon v. Hill, 2 Scott, 
 
 supported by evidence of a right to a sum 535. A way was claimed by reason of 
 
 assessed in lieu of a heriot in kind. the plaintiff's possession of a close. The 
 
 Parkin v. BadcUffe, 1 B. & P. 393. evidence was of a way used to bring goods 
 
 (6) Johnson v. Thoroitghgood, Hob. 04; to an inn and yard ; and that the plaintiff 
 
 Bushwood V. Bond, Cro. Eliz. 722; B. N. was the occupier of a close recently cut 
 
 P. 29. Bailiff, &c. of Tewkesbury v. off from the yard j and this was held to be 
 
 VOL. I. G G
 
 450 
 
 PROOFS 
 
 Actions of 
 tort. 
 
 Character. 
 
 Title. 
 
 Induce- 
 ment. 
 
 Several of the decisions on this head have already been re- 
 ferred to (e). 
 
 An allegation as to the character in which the plaintiff sues, or 
 his title to damages, is usually in its nature descriptive, and re- 
 quires proof, although it was superfluous. As where in an action 
 for slandering a man in his profession or office, his appointment 
 is unnecessarily alleged (/). 
 
 Where the plaintiff stated that he was proprietor and editor 
 of a newspaper calumniated by the defendant, it was held to be 
 insufficient to prove merely that he was proprietor (g). 
 
 Where the issue was, whether J. S. devised to J. N. and his 
 heirs, or not, and the jury found that J. S. devised to J. A. for 
 years, remainder to J. N. in fee, the Court adjudged quod non 
 devisavit modo et forma (Ji). 
 
 Where the declaration against the maker of a promissory note, 
 payable to the bearer, unnecessarily alleged an indorsement by 
 the payee, it was held that the plaintiff was bound to prove it {i). 
 
 If a party unnecessarily allege a specific title, he is bound to 
 prove it, on a traverse taken ili). 
 
 Matter of inducement, it is said, need not be precisely 
 proved (Z). 
 
 insufficient, for the inn and yard were one 
 entire subject matter to which the right 
 belonged, and not merely to the frontage 
 claimed by the plaintiff. 
 
 (e) Supra, 438 ; and see Vol. II. tit. 
 Case — Action on. Where the decla- 
 ration alleged that the plaintiff was pos- 
 sessed of a messuage, belonging to and 
 supporting which were certain foundations, 
 which the plaintiff had enjoyed or ought 
 to enjoy ; on the evidence it appeared 
 that the plaintiff was entitled only to 
 an easement in the foundations, which 
 belonged to the defendant : it was held to 
 be no variance ; for the declaration does 
 not allege any property in the foundation, 
 but only an easement. Brown v. Wind- 
 sor, 1 C. & J. 20. 
 
 (/) See Vol. II. tit. Libel. 
 
 {g) Heriot v. Stuart, 4 Esp. C. 437, 
 cor. Kenyon, C. J. But note, that on a 
 motion for a new trial, Lawrence, J. 
 doubted: a rule nisi was granted, and 
 afterwards a stet jirocessus was entered by 
 consent. See also Stevens v. Aldridge, 
 5 Price, 234. An indictment under the 
 Stat. 7 Geo. 3, c. 50, s. 1, states the pri- 
 
 soner to have been employed as a sorter 
 and charger of letters ; it was held that it 
 was not sufficient to know that he was a 
 sorter only. R. v. Shaw, 1 Leach's C. C. 
 L. 79; East's P. C. 580. 
 
 (h) R. V. Neiodlgate, Sir \V. Jones, 
 224, cited Dougl. 641 . 
 
 (i) Wayman v. Bend, 1 Camp. 1 75. 
 
 (Jt) Sir F. Leake's case, Dyer, 365; 
 2 Will. Saund. 206, note (22,) Goram v. 
 Sweeting. 
 
 (I) Per Buller, J. in Gwinnett v. Phil- 
 lips, 3 T. R. 643. Per Chambre, J., m 
 Smith V. Taylor, 2 N. R. 210. The dis- 
 tinction between the gist of the action, 
 and that which is inducement, is not 
 always clear in principle. In Smith v. 
 Taylor, which was an action for slander- 
 ing a physician in his professional charac- 
 ter, Chambre, J., considered that his being 
 a physician was the very gist of the action, 
 and therefore required strict proof. In 
 Gioinnett v. Phillips, which was an ac- 
 tion for fraudulently removing goods to 
 prevent a distress for rent in arrear, 
 Buller, J., said that the averment that 
 rent was due was matter of inducement,
 
 VAniANcr:. 451 
 
 There seems, however, to be little difference in principle between Matter of 
 such averments and any other; for if they are essential, they must 'il|fl,''t*'* 
 be proved ; and if they be alleoed with descriptive circumstances, 
 such description is material. Thus, if the terms of a contract be 
 stated, though unnecessarily, by way of inducement, they must 
 be proved (m). 
 
 2dly. It is next to be observed, that in many instances circura- Formal by 
 stantial allegations are noticed by the law itself as merely formal, ^^''^' 
 and as requiring no proof. 
 
 These are to be regarded as exceptions made by the law, for 
 convenience sake. Thus, it is laid down as a general rule in the 
 Trials per Pais{n), that " where the issue taken goeth to the 
 point of the writ or action, there modo et forma are but words of 
 form." 
 
 The ground of which seems to be this, that where certain spe- 
 cific facts or actual results alone are essential to support the charge 
 or claim, and the means, manner, and circumstances, occasioning 
 or accompanying such facts or results, are purely immaterial, the 
 latter may, without inconvenience, be regarded as merely formal, 
 although perhaps originally such allegations, as well as those of 
 time and place, might require strict proof. 
 
 In trover, for instance, the alleging the mode by which the de- 
 fendant became possessed of the goods, whether by finding or 
 
 and therefore did not require strict proof j tenant as rent in arrear, the precise proof 
 yet the fact that rent was due in the would have been unnecessary ; nor is it 
 latter case was just as essential to the necessary in any case, unless from tlie 
 claim for damages, as the fact tliat the very nature of the claim or charge the 
 plaintiff was a physician was in the first precise sum be material. ' Supra, and R. 
 case. If by inducement such averments v. Qilhain, 6 T. R. 263. 
 only be meant as are not material, but On the other hand, it is certain, that 
 which, if struck out, would leave a valid whenever an allegation is material and 
 charge or claim behind, there is no question; essential, whether it fall within the scope 
 but if the term include essentialand material of the term mducement, or not, or what- 
 averments, then proof being necessary, le- ever its connexion may be in the order of 
 gal proof is essential, and that must, it time, or otherwise, with the other essential 
 should seem, depend upon the nature of averments, it must be proved according to 
 the allegation itself, and not upon its mere the precise and particular, though super- 
 order or connexion in point of time, or fluous, description with which it is cncum- 
 otherwise, with other material averments. bered. Vide supra, 443. 
 
 Although Mr. J. Buller, in Gwinnett (m) Bristoio v. Wright, Doug. 640. 
 
 V. Phillips, intimates that proof of the And so in all cases of tort where matter of 
 
 precise sum of 57 I. alleged to be in arrear, contract is alleged, though but by way of 
 
 was not necessary, because it ivas mere inducement. Lopez v. De Tastet, 1 B. & 
 
 inducement, yet it is clear, that if the very B. 538. Corney v. Mendez de Costa, 
 
 same allegation had been made in an action 1 Esp. C. 302. Weall v. King, 12 East, 
 
 to recover the very sum itself from the 452. (?0 389. 
 
 G G 2
 
 452 PROOFS : 
 
 Formal by otherwise, is purely formal, and requires no proof, for the gist of the 
 action is the conversion (o). 
 
 So upon indictments for homicide, the allegations of the kind of 
 weapon or poison used to occasion the death need not be pre- 
 cisely proved (^); it is sufficient if the same kind of death be 
 proved with that alleged. 
 
 Macalley's case (q) is a very strong instance to show the extent 
 of this doctrine. 
 
 The indictment for the murder of Fells alleged that P. sheriff 
 of London, upon a plaint entered, issued his precept to Fells, ser- 
 jeant-at-mace, to arrest Murray ; but on the evidence it appeared 
 that there was in fact no precept, but that by the custom of Lon- 
 don, after a plaint had been entered, any serjeant ex officio might 
 arrest the defendant in the suit. But it was held by all the Judges 
 that the variance was immaterial, for the warrant was but one 
 circumstance, which was not necessary to be precisely pursued 
 in evidence to be found by a jury ; for the indictment alleged 
 that the prisoner killed Fells of malice prepense ; and although 
 the evidence varied from the special matter, yet as it showed that 
 the prisoner killed Fells of malice prepense it maintained the 
 indictment. 
 
 Where the demandant, in a writ of entry on an alienation made 
 by the tenant in dower to his disinherison, alleges an alienation in 
 fee, and the tenant pleads that he did not aliene modo et forma as 
 the demandant has alleged, and it is found that the tenant aliened 
 in tail or for life, yet the demandant is entitled to recover ; for the 
 real question is, whether the tenant did aliene (r). 
 
 So if in assize of darrein presentment, the plaintiff alleged an 
 avoidance by privation, and the jury found an avoidance by death ; 
 for the mere result, viz. the avoidance, is alone material; the 
 manner of it is immaterial (s). 
 
 So again, if in an action against a wrong-doer for a disturbance 
 of the plaintiff in his office, he mistake his title in the declaration, 
 and the special verdict find a title for him different from that on 
 which he has declared, yet judgment will be given for him not- 
 
 (o) See Trover. against the Ordinary, and he pleadeth in 
 
 { p) See MacaUci/s case, 9 Co. 65. his visitation he deprived him as Ordinary, 
 
 (q) Ibid. whereupon issue is taken, and it is found 
 
 (r) Litt. sec. 483 ; Trials per Pais, he deprived hun as patron, the Ordinary 
 
 387. shall have judgment; for the deprivation 
 
 (s) 1 Inst. 282 ; Trials per Pais, 385. is the substance of the matter. 
 
 So if guardians of a hospital bring assize
 
 VARIANCE. 453 
 
 withstanding the variance (t) ; for as the disturbance occasions tlie Formal by 
 action, tlie finding the title is held to be purely superfluous. '^^^' 
 
 In these and the like instances the variances are immaterial, 
 not because such allegations are in their own nature merely formal, 
 but because tiie law considers them to be so with reference to 
 the matter directly in issue ; the very same allegations, where the 
 point arose collaterally, would be material. For it is also laid 
 down as a rule, that " where a collateral point in pleading is tra- 
 versed, there modo et forma is of the substance of the plea(M). 
 
 And therefore, if a feofl^ment by deed be pleaded, and the de- 
 fendant traverses " absque hoc quod feoffavit modo et forma,'^ the 
 jury cannot find a feoffment without a deed {x). 
 
 So if a feoffment by two be alleged, and it be found to be the 
 feoffment of one only {y). 
 
 Another distinction is, that although the issue be upon a colla- 
 teral point, yet, if by the finding of part of the issue it shall appear 
 to the Court that no such action lieth, there modo et forma are but 
 words of form {z). 
 
 That is, partial and deficient proof may be sufficient in law to 
 show that no action is maintainable, although by reason of the 
 defect the proof be sufficient to support the affirmative of the issue, 
 the proof of which lies on the defendant. 
 
 The lord distrains ; the tenant brings trespass. The lord pleads 
 that the tenant holds by fealty and rent, and prays judgment of 
 the writ. The tenant replies that he does not hold modo et forma. 
 
 (t) Cro. Eliz. 335. 419; Cro. J. 630; Yelv. 75); for although all that is neces- 
 
 Com. Dig. Action on the case for a dis- sary iu such a case is to show that the 
 
 turbance, B. 1 ; B. N. P. 76; 1 Will. cattle were not trespassers in the place 
 
 Saund. 346 (2). Secus, if the plaintiff from which they escaped, as if the defend- 
 
 set out an insufficient title. Dome v. ant was tenant at will, or had a license 
 
 Cashford, 1 Salk. 363. Crowther v. Old- to put the cattle there, yet if the defendant 
 
 Jield, 2 Ld. Raym. 1230; 1 Will. Saund. does not rely upon the averment of pos- 
 
 346, a. note (2). But on issue joined on a session, but alleges a precise estate, the 
 
 plea of justification, under a right of com- averment is traversable. Sir Francis 
 
 mon, to an action of trespass, or avowry Lealie's case, Dyer, 365 ; 1 Will. Saund. 
 
 damage-feasant, the title, by prescription 346 (2). 
 
 or otherwise, must be proved as laid. (m) Trials per Pais, 389; B. N. P. 301. 
 
 Supra, 389. Sir Francis Lease's case, See the preceding note. 
 
 Dyer, 365; 1 Will. Saund. 346, n. (2). {x) Co. Litt. 282; Trials per Pais, 
 
 Even although it would have been suffi- 389. 
 
 cient for the defendant to have relied on {y) Ibid. So if the issue be, whether 
 
 his possession alone: as where the de- A. and B. were churchwardens, proof 
 
 fendant justifies an escape of the cattle that one was, but that the other was not, 
 
 from a common to the close in which, &c., would not be sufficient. 2 Roll. 706; B. 
 
 through defect of a fence which the plain- N. P. 299. 
 
 tiff is bound to repair, or an escape from {z) Co. Litt. 282; Trials per Pais, 889; 
 
 the defendant's own close (Faldo v. Ridge, B. N. P. 301. 
 
 G G 3
 
 454 
 
 PROOFS : 
 
 Formal by 
 law. 
 
 Mode of 
 allegation. 
 
 Videlicet. 
 
 If the verdict find that the tenant holds by fealty only, yet the writ 
 shall abate, although the tenant does not hold as the lord has 
 alleged ; for as the plaintiff was tenant he cannot maintain tres- 
 pass against his lord, although he distrain for services which he 
 ought not to have («), for the only material question is, whether he 
 holds of him, or not (Z>). But it would have been otherwise in re- 
 plevin, for there the avowant must make out his title to have a 
 return according to his allegations (c). 
 
 Probably in early times precise proof was required of the formal 
 allegations, even of time and place ; indeed, the statute of Glou- 
 cester, in the case of an appeal of murder, required the very hour to 
 be stated ; an idle and nugatory enactment, unless proof of the 
 averment were requisite. The place was essential for the purpose 
 of awarding the venire. 
 
 The inconvenience of requiring strict proof has, in these and 
 many other instances, left the mere form and semblance of preci- 
 sion ; and as the law pronounces such allegations to be purely 
 formal, they deceive no one. 
 
 3dly. The question whether an averment is to be considered as 
 descriptive, depends much on the mode of allegation. There are 
 two kinds of allegations, one of which must be substantially 
 proved ; another a matter of description, which must be literally 
 proved yd). 
 
 Debt, on a demise for years ; plea, nil halmit, &c. ; replication 
 that he had a sufficient estate to make the demise, scilicet, an 
 estate in fee : it was held to be sufficient for the plaintiff to prove 
 any estate which would enable him to make the demise (e). 
 
 In many instances precise proof is rendered unnecessary by the 
 form of allegation (jf), which shows that the party did not mean 
 to bind himself to precise proof; as where sums or magnitudes 
 are averred under a scilicet or videlicet (g), the effect of which is 
 to render precise proof unnecessary, in some instances, where it 
 would otherwise have been essential (A) ; although it never renders 
 precise proof unnecessary where from the nature of the case it 
 is otherwise essential (i). Neither does the want of it ever render 
 
 (o) Co. Litt. 282 ; Trials per Pais, 387 ; 
 B. N. P. 301. 
 
 (b) By the stat. of Marl. c. 3. 
 
 (c) B. N. P. 302. 
 
 {(l) Per Ld. Ellenborough in Purcell v. 
 Macnamara, 9 East, 157. 
 
 (c) Wilson V. Field, Skinn. 624. 
 
 (/) See the observations of Chambrc, J., 
 2 N. R. 210. 
 
 ((/) The expression " divers, to wit, 
 
 50 years before the death," in a special 
 verdict, is too loose and indefinite. Doe v. 
 Earl of Jersey, 3 B. & C. 370. 
 
 (/() See 2 Will. Sauiid. 291. B. v. 
 Aylett, 1 T. R. 63; Criin. Plead. 252, 2d 
 edit. Symnions v. Knox, 3 T. R. 05. 
 
 (i) 4 Taunt. 320; 1. T. R. 056. As in 
 the case of a contract, where the consider- 
 ation is material and traversable : infra, 
 notes (A) and (w).
 
 VARIANCE. 
 
 455 
 
 precise proof necessary, where from the nature of the case it is videlicet, 
 not essential. 
 
 Where the consideration was alleged to be the forbearance of 
 21/. 65. without a videlicet, and the proof was of a forbearance 
 of 20Z. 18 5., the variance was held to be fatal {k). 
 
 But where the declaration alleged that *S'. F., the father of the 
 defendant, was indebted to the plaintiff in a certain sum, to wit, 
 the sum of 26 Z. 135. QcL, being the unpaid balance of a larger 
 sum; and that, in consideration of the plaintiff's forbearance to 
 sue for the recovery of the balance of 26/. 13 s. Gd., the defendant 
 undertook to accept a bill for the amount of the balance of 
 26/. 135. 6d., and the balance really due was 26/., it was held 
 to be no variance, the payment of the balance being the consider- 
 ation for the promise, and the statement of a particular sum was 
 unnecessary (/). 
 
 But it is a general rule that a videlicet will not protect, where 
 precision is rendered essential by the nature of the case (m). 
 
 The defendant avowed that the plaintiff held certain lands of 
 him, as his tenant, at a certain rent, to wit, at 110/. rent, pay- 
 able half yearly; upon non tenet pleaded, it appeared that the 
 land had been let by a written contract of 155. per acre, and that 
 
 (k) Arnfeld v. Bute, 3 M. & S. 173. 
 So -where the consideration for the 
 purchase of sheep was alleged to be 
 54 Z. 11 «. Gd., and ttirned out to be 
 64 Z. 125. 6rf. Durston v. Tuthan, 
 cited in Symmons v. Knox, 3 T. R. 67 ; 
 2 Will. Saund. 291, c. Note, that in 
 Durston v. Tuthan, the action was on a 
 warranty, and it was unnecessary to aver 
 the price. It seems that the rule is this, 
 that where the declaration would have 
 been good without laying any sum, there, 
 although a sum be alleged, but under a 
 videlicet, a variauce would not be mate- 
 rial. 
 
 In the case of Laing v. Fidgeon (6 
 Taunt. 108), it was held that an allegation 
 of a contract to deliver saddles to the 
 plaintiff at a reasonable price, was sup- 
 ported by proof of an agreement to deliver 
 saddles at 24 s. and 26 5. And it seems 
 that if the declaration state the considera- 
 tion to be certain reasonable reward, proof 
 that a specific sum was agreed on will not 
 be material as to variance. Bayley v. 
 Trecker, 2 N. R, 458. 
 
 (I) Bray v. Freeman, 2 Moore, 114. 
 
 (ni) An allegation under a videlicet, 
 that the Court was sitting on a day out of 
 term, may be rejected as surplusage. 
 Luchett V. Plumber, 2 B. & B. 659 ; and 
 see Draper v. Garratt, 2 B. & C. 2. In 
 Pi-eston v. Butcher, 1 Starkie's C. 3, in 
 assumpsit for not employing the plaintiff 
 as a clerk, the amount of the salary, 
 though laid under a videlicet, was held to 
 be material. See also Crisjnn v. Wil- 
 liamson, note (n). White v. Wilson, 
 infra, 459. Gladstone v. Nevill, 13 East, 
 409. Where the consideration for a pro- 
 mise is material and traversable, the stating 
 it under a videlicet will not avoid a vari- 
 ance. 6 T. R. 462 ; 2 B. & P. 48 ; 2 Will. 
 Saund. 207 ; 1 Str. 233 ; 5 T. R. 71 ; 4 T. 
 R. 591 ; 3 T. R. 68. Under a declaration 
 for maliciously charging the plaintiff with 
 an offence punishable by law, to wit, 
 felony, a charge of felony must be proved, 
 for if the allegation under the videlicet 
 were to be rejected there would be no 
 charge at all. Davis v. Noake, 1 Starkie's 
 C. 377. 
 G G 4
 
 456 
 
 PROOFS : 
 
 Videlicet. 
 
 Partial 
 proof in- 
 sufficient, 
 when. 
 
 Excess of 
 proof. 
 
 the whole amounted to lllL per annum; and the variance was 
 held to be fatal (n). 
 
 Where the defendant pleads a set-off to a bond, the averment 
 of the sum really due is material, and traversable, though laid 
 under a videlicet (o). 
 
 But the want of a videlicet will, in many cases be immaterial, 
 where, from the nature of the case, the precise sum, date, place, 
 magnitude or extent, is unnecessary, and the allegation is not 
 descriptive of matter of contract ( ^j). 
 
 It is scarcely necessary to remark that partial proof is in no 
 case sufficient, unless the facts proved, if alleged alone, would 
 have constituted a ground of action, or of criminal charge of the 
 nature alleged. 
 
 Thus, although on a charge of murder the prisoner may be 
 found guilty of manslaughter merely, yet upon a charge of felony 
 he cannot be convicted of a misdemeanor, although the facts 
 proved constitute a misdemeanor (q). 
 
 In the next place, the proof of more facts, circumstances and 
 particulars, than are alleged, will not be material, unless that 
 which is so proved, but not alleged, be so inconsistent with some 
 essential allegation as to disprove it altogether. Proofs in their 
 very nature must ordinarily be particular, although the allegations 
 be general, and therefore mere simple redundancy of proof is 
 usually unimportant. 
 
 If a man be charged with stealing ten sovereigns, proof that he 
 stole twenty is no variance as to the legal identity of the offence, 
 for it is still true, as alleged, that he stole ten. 
 
 Proof that a party has a right for a stated time, proves also 
 that he has the right on a particular day included within that 
 time (r). 
 
 (n) Broion v. Sayce, 4 Taunt. 320. 
 Note, tliat Mansfield, C. J. said that the 
 record would certainly be evidence as to 
 the amount of the rent between the same 
 parties in another action. So where the 
 plaintiff alleged that he had agreed to sell, 
 and the defendant to buy, certain goods 
 and merchandises (to wit, 328 chests and 
 30 half-chests of oranges and lemons), at 
 and for a certain price (to wit, the price of 
 G23Z. 3 s.), and the contract proved was 
 for 300 chests and 30 half-chests of China 
 oranges, and 20 chests of lemons, it was 
 held to be a fatal variance. Crisjnn v. 
 Williamson, 1 Moore, 547. See also 
 Green v. Bennett^ 1 T. R. GbQ. White v. 
 
 Wilson, 2 B. & P. 1 1 6 ; infra, 459. Pope 
 V. Foster, 4 T. R. 590. Grimtoood v. 
 Barritt, 6 T. R. 460. Johnson v. Prick- 
 ett, cited ibid. Bristow v. Wright, 
 Dougl. 665. B. V. Mayor of York, 5 
 T. R. 71. Gilbert v. Stanislaus, 3 Price 
 54 ; 386. 
 
 (o) Grinnvood v. Barritt, 6 T. R. 
 460. 
 
 (p) B. V. Gilham, 6 T. R. 265; supra, 
 441. Gwinnett v. Phillips, 3 T. R. 643. 
 B. V. Burdett, 1 Ld. Raym. 149 ; 2 Camp. 
 231. 
 
 {q) B. V. Westbeer, Str. 1133; Crim, 
 Pleadings, 2d edit. 345, 6. 
 
 (r) Brownl. 178.
 
 VARIANCE. 457 
 
 Proof of the tender of a larger sum supports an allegation of Excess of 
 the tender of a smaller sum (5). P''°"^* 
 
 Proof of a prescriptive right more ample than that which is 
 alleged establishes that right as far as it is claimed (t). 
 
 Evidence that a modus exists in respect of several farms or 
 closes proves an allegation that it exists with respect to one of 
 them (u). 
 
 An allegation that a bill of exchange was drawn upon and ac- 
 cepted by ^. jB. and C. is proved by evidence of a bill drawn on 
 and accepted by them jointly with a fourth (x). 
 
 So also an averment that money was received by A. is proved 
 by evidence of a receipt by him jointly with a deceased partner (?/). 
 
 An averment that A. was bound by a deed is proved by evidence 
 that A. and JB. bound themselves (z). 
 
 Proof that A. B. supplied the poor of W. and of other parishes 
 with provisions, satisfies an allegation that he supplied the poor 
 of W. {a). 
 
 So if upon a charge of libel, or of breach of covenant or pro- 
 mise, it appear in evidence that the defendant published a libel 
 containing not only the matter charged, but containing also addi- 
 tional injurious matter ; or that he further covenanted or under- 
 took to do some other thing, the breach of which further covenant 
 or promise is not complained of, the additional evidence would be 
 immaterial, for the charge or claim would still remain fully esta- 
 blished to the extent alleged (6). 
 
 But whenever that which is proved, in addition to that which is When ma- 
 alleged, is descriptive of it, and affects its identity, the variance *^"^'* 
 is fatal, for that which is essential to a correct description has 
 been omitted. 
 
 If it appear in evidence that part of a libel, covenant or promise, 
 proved, but not alleged, qualifies or alters the sense of the hbel, 
 covenant or promise stated, the variance would be fatal, for the 
 addition disproves the allegation. 
 
 Thus if the plaintiff declare on a covenant to repair at all times, 
 and the covenant in fact contain the additional words " and at 
 
 (s) See Vol. II. tit. Tender. [z) Vol. II. tit. Deed. South v. Tan- 
 It) Supra, 449. 1 Ford's MS. 404; ner, 2 Taunt. 294. 
 
 4 T. R. 160; 1 Skinn. 347. Bruges v. ^^^ ^^^^ ^^ ^„ ^^^^ „^ 
 
 Searle, Carth. 219. 
 
 (m) R.v. TFaZfer, Ford's MS. 404. (b) Supra, 375; Vol. II. tit. Libel. 
 
 (a?) Mountstephen v. Brooke, 1 B. & Squier v. Hunt, 3 Price, 68. Miles v. 
 
 A. 224. Sheicard, 8 East, 7. Handford v. Palmer, 
 
 (y) Richards v. Heather, 1 B. & A. 3 B. & B. 359. 
 
 29.
 
 458 
 
 PROOFS : 
 
 Exces8 of 
 proof. 
 
 When ma- 
 terial. 
 
 farthest within three months after notice," the variance is fatal (c). 
 
 So if the plaintiff declare on an absolute promise, and a con- 
 ditional one be proved (f/). 
 
 So if it be alleged as an absolute covenant or promise, and an 
 exception, qualification or limitation, be annexed to it (e) ; as, if 
 a covenant be alleged to repair generally, and the covenant proved 
 contain an exception of casualties by fire (/)• 
 
 Debt for rent on an indenture ; the omission of an exception, 
 referring to a subsequent proviso for the reduction of the rent, is 
 fatal, although the reduction is to be made on the happening of a 
 certain event, which has not happened {g). 
 
 Where a declaration for assaulting a constable in the execution 
 of his office, alleged that he was constable of a particular parish, 
 and the proof was that he was sworn in for a liberty, of which the 
 parish was part, the variance was held to be fatal {h). 
 
 So if part only of a person's name be averred {i). 
 
 Upon the same principle, a plea of tender of half a year's rent, 
 simply, is not proved by evidence of the tender of half a year's rent, 
 
 (c) Horse/all v. Testar, 1 Moore, 87. 
 
 (rf) See Vol. II. tit. Assumpsit. — Va- 
 riance. Tate V. Wellings, 3 T. R. 531. 
 White V. Wilson, 2 B. & P. 116. Layton 
 V. Pearce, Dougl. 16. Clmr chill v. Wil- 
 kins, 1 T. R. 447. Secus, if the condition 
 merely affect the quantum of damages on 
 a breach of contract. Clarke v. Gray, 6 
 East, 564. Parker v. Palmer, 4 B. & A. 
 387. Thornton v. Jones, 2 Marsh. 287. 
 
 (e) See Brown v. Etiill, 2 B. & B.395. 
 As, if the promise be alleged as an abso- 
 lute promise, and the proof be of a promise 
 in the alternative. Perry v. Porter, 2 
 East, 2. Cook V. Manstone. 1 N. R. 351. 
 See also Hoxoell v. Richards, 11 East, 
 633. Tempany v. Bernard, 4 Camp. 20. 
 
 Where the declaration in debt for rent 
 alleged a demise for 15 Z. rent per annum, 
 under a power to make leases for twenty- 
 one years, and the evidence was of a demise 
 for 15 Z. rent per annum, and three fowls, 
 under a power to make leases for twenty- 
 one years in possession, and not in rever- 
 sion, rendering the ancient rent, and not 
 dispunishable of waste, the variance was 
 held to be fatal, both in misdescribing the 
 power as general when it was special, and 
 in misdescribing the rent. Sands v. Ledger, 
 Ld. Raym.792j cited Doug. 641. An alio-' 
 
 gation of an undertaking to carry from 
 L. to B., and there to deliver, &c., is not 
 satisfied by evidence of an undertaking to 
 carry and deliver, &c., fire and robbery 
 excepted. Latham v. Rutley, 2 B. & C. 
 20. An indictment under the 3 & 4 W. 
 & M. c. 9, alleged the letting of a lodging- 
 room by contract to James Bew; the 
 Judges thought that this imported an ex- 
 clusive letting to James Bew. R. v. Bew, 
 Russ. & Ry. C. C. L. 480. A demise of 
 three rooms at a certain rate varies from a 
 demise of the three, and also a fourth at 
 that rent. Salmon v. Smith, 1 Saund. 
 202. Yet it seems that a demise may be 
 pleaded as parcel without averring the 
 whole. As, if ^. demise to JS. two acres 
 for a term, and B. be ejected of one by a 
 stranger, he may allege a demise of the 
 one. Per Saunders' arg. 1 Saund. 208. The 
 distinction is, that in the former case the 
 contract is described. 
 
 (/) 2 B.& B.395. 
 
 (g) Vavasour v. Ormerod, 6 B. & C. 
 430. Secus had the exception been con- 
 tained in a distinct clause ; ibid. 
 
 (/i) Goodes v. Wheatlcy, 1 Camp, C. 
 231. 
 
 (i) Arhouin v. Willoughby, 1 Marsh. 
 477.
 
 VARIANCE. 469 
 
 requiring the lessor to give change and pay back the property Excess of 
 tax (h). P'"""^- 
 
 It lias even been held, that where a statute, in describing the 
 subject-matter of aggravated larceny, uses a general term and 
 also a specific one, it is not sufficient to use the general for the 
 specific description, where the latter is applicable (/). 
 
 In assumpsit the consideration is of so entire a nature, that not Contract. 
 only must it be proved to the extent alleged, but an omission to 
 allege any part is fatal ; for if any part be omitted, then the basis 
 of the promise is misdescribed ; it is not true, as stated, that the 
 defendant's promise was founded upon the consideration alleged, 
 when it was in fact founded upon that and something else which 
 is also essential to its support (m). 
 
 Where a sailor declared for wages, and the average price of 
 a negro slave, due to him in consideration of service during a 
 certain voyage, " to wit, a voyage from London to the coast of 
 Africa, and from thence to the West Indies," and in the articles 
 it was described as " a voyage from London to the coast of 
 Africa, from thence to the West Indies or America, and after- 
 wards to London in Great Britain, or to some delivering port in 
 Europe," the variance was held to be fatal, notwithstanding the 
 scilicet (n). 
 
 But if the additional matter proved does not alter the legal 
 effect of that which is alleged, the variance will be immaterial. 
 An averment, that in consideration that the defendants had be- 
 come tenants to the plaintiff of certain premises, they undertook 
 to keep the same in good and tenantable repair, is proved by an 
 agreement containing a variety of provisions, and amongst others, 
 that the defendants would make good all repairs within three 
 months after notice by the plaintiff of the want of repairs ; for 
 the obligation to repair arises out of the tenancy, and the agree- 
 ment was evidence to prove the promise as laid (o). An allegation 
 
 (k) Robinson v. Cook, 6 Taunt. 336. omitted, held that as they formed a mate- 
 
 (Z) R. V. Cook, Leach's C. C. L. 123, rial part of the contract, the plaintiff could 
 
 3d edit. not recover, and that as they also qualified 
 
 (/k) Swallow V. Beanmont, 2 B. & A. the consideration stated in the instrument, 
 
 265. Clarke v. Gray, 6 East. 504. Parker and materially altered the situation of the 
 
 V. Palmer, 4 B. & A. 387. Thornton v. parties in certain cases, it was a fatal 
 
 Jones 2 Marsh. 287. Jones v. Cuivley, variance in the statement of the contract. 
 
 4 B. & C. 445. Vol. II. tit. Covenant — Strong v. Rule, 11 Moore, 86. 
 
 NoN EST Factum — Assumpsit — Vari- (m) White v. IVilson, 2 B. & P. 116. 
 
 ANCE. Where the evidence applied only (o) Codey v. Stretton, 2 B. & C. 273. 
 
 to the second count, in which the regula- It is in general sufficient to state tlie con- 
 
 tions of an association for mutual assurance sideration, and the act to be done, the 
 
 indorsed on the policy were altogether "breach of which is complained of. See
 
 4G0 
 
 PROOFS 
 
 Excess of 
 
 proof. 
 
 Contract. 
 
 of a contract for the delivery of gum Senegal, is supported by 
 evidence of a contract for the delivery of rough gum Senegal, 
 coupled with evidence that all gum Senegal on its arrival in this 
 country is called rough (/>).'■ 
 
 So where the declaration alleged that the defendant had bought 
 of the plaintiff a quantity of East India rice, according to the con- 
 ditions of sale of the East India Company, at a specified piice, to 
 be put up at the next Company's sale, if required, and it appeared 
 in evidence, that in addition to those conditions the rice was to be 
 sold per sample, it was held that this was no variance, for it was 
 not a description of the commodity, but a collateral engagement 
 that it should be of a particular quahty {q). 
 
 A variance, which would be fatal if it arose from superfluity of 
 allegation, is frequently immaterial when it arises from mere 
 redundancy of proof. For the superfluous particulars, wherever 
 they are descriptive, must be proved as alleged, although they 
 were unnecessary, and are consistent with the proof as far as it 
 goes. 
 
 But redundancy of proof is immaterial unless the facts proved, 
 but not alleged, are inconsistent with the allegations. Thus, if 
 it be alleged, that in consideration of 100 Z. A. promised to go to 
 Rome, and also to deliver a horse to the plaintiff, and the plain- 
 tiff were to fail in proving the latter branch of the promise, the 
 variance would be fatal, although he sought to recover in respect 
 
 note (c), and Cotterill v. Cuff, 4 Taunt. 
 285. Handford v. Palmer, 2 B. & B. 
 339. Gladstone v. Neale, 13 East. 410. 
 Crispin v. Williamson^ 8 Taunt. 107. 
 Mills V. Steicard, 8 East, 7. 
 
 (p) Silver V. Heseltine, 1 Cbitty, 39. 
 ■See also Parker v. Palmer, 4 B. & A. 387. 
 So where the plaintiff declared that the 
 defendant had agreed to buy of the plain- 
 tiff a large quantity of head-matter and 
 Bperm-oil in the possession of the plaintiff, 
 and the contract j)roved was for the pur- 
 chase of all the head-matter and sperm-oil 
 per the VYildman, it was held that there 
 was no variance ; for the allegations were 
 proved as far as they went, and the addi- 
 tional matter proved (that it was oil by the 
 Wildman) was immaterial; it did not 
 qualify or annex any condition to what 
 was stated. Wildman v. Glossop, 1 B. 
 &A. 9; vide infra, 462. But it seems, 
 that if the declaration alleged an agree- 
 ment for goods expected by particular 
 
 ships, a variance would be fatal ; as, if the 
 declaration allege an agreement to sell 
 goods expected by the Fanny Almira, and 
 the agreement proved is for the goods ex- 
 pected by the Fanny and Almira {Soyd 
 V. Siffkin, 2 Camp. 326). So an agree- 
 ment alleged to be for the delivery of all 
 merchandisable skins, varies from the 
 proof of a contract to deliver all merchan- 
 disable caZ/-skins. B. N. P. 145. 
 
 {q) Parker v. Palmer, 4 B. & A. 387. 
 Note, that the goods did not correspond 
 with the samples; but after seeing the 
 samples the defendant had taken upon 
 himself the disposition of the goods, and 
 had put them up to sale at a limited price, 
 and bought them in again ; the Court held, 
 that after this he could not repudiate the 
 contract; and the jury found that he had 
 not repudiated the contract within a 
 reasonable time ; therefore the sale was in 
 effect complete.
 
 VARIANCE. 461 
 
 of the breach of the former part of the promise only, and the state- Excess of 
 ment of the latter part of it was unnecessary. But if he had alleged contract 
 the former part of the promise only, proof that the defendant also 
 promised to deliver the horse would be immaterial ; for true it is, 
 that for the consideration stated the defendant did promise to go 
 to Rome, although in fact he also promised, in addition, to deliver 
 the horse. 
 
 But where the subject-matter is entire, a variance in proof shows 
 the allegation to be defective, and is therefore material. 
 
 Thus, if the allegation be that the defendant promised to pay 
 100/. in consideration of the plaintifFs going to Rome, and also 
 delivering a horse to the defendant, a variance, either in omitting 
 to prove the whole consideration, supposing the whole to be alleo"ed, 
 or in proving the whole, where part only was alleged, would be 
 equally fatal ; for in the latter case the proof would show that the 
 consideration for the promise was defectively stated. 
 
 But although the proof of more than is alleged may not preju- Excess of 
 dice by way of variance, it seems to be an universal rule that a P"""?/"?*^ 
 
 / '' . availabl&to 
 
 plamtm or prosecutor can in no case, by any proof exceeding the increase 
 quantity, magnitude, or extent alleged, entitle himself to a larger mLes' 
 verdict than if the proof had not exceeded the description ; for 
 although the precise quantity, or extent, or magnitude, need not be 
 proved as laid, yet they are so far descriptive that they operate as 
 limits which the party himself has prescribed, and which he ought 
 not to be permitted to exceed. 
 
 Thus a plaintiff is always limited by the damages averred ; he 
 cannot prove more than one trespass on any one count beyond the 
 temporal limit averred (r). 
 
 Upon indictments for larceny in a dwelling-house, the prosecutor 
 is bound by the value assigned to each article. 
 
 It is an universal rule, that it is sufficient to prove an allegation Legal 
 according to its legal effect (s). effect. 
 
 Thus a promise to pay may be supported by proof of a written 
 instrument, whose tenor is, I promise not to pay, the word not 
 having been fraudulently inserted (t). 
 
 Where a certain day is Hmited for the payment of an antecedent 
 debt, an allegation of payment at a particular day is proved by 
 
 (r) Vol. II, tit. Trespass. effect. R. v. Healey, 1 R. &; M. C. C. L. 1. 
 
 (s) See Barhe v. Parker, 1 H. R. 283 ; R. v. Hurrell, 1 R. & M. C. C. L. 296. 
 
 hifra, 479. Where the allegation is made (0 2 Atk. 32. See also Arnold v. 
 
 according to the fact, there is no ground Revoult, 1 B. <Sc B. 443; Vol. II. tit. Bill 
 
 for an objection, on the score of variance, OF Exchange. 
 that it is not stated according to the legal
 
 402 PROOFS : 
 
 Legal evidence of payment before the day, for payment before is a pay- 
 
 ertect. ment at all times {u). 
 
 In civil cases, and upon indictments for treason and misde- 
 meanors, the act of one is the act of all who procure the act to be 
 done, although they be absent at the time of the act ; and in the 
 case of homicide, an allegation that A. struck the fatal blow, and 
 that B. and C. were present, aiding and abetting, is satisfied by 
 evidence that B. struck the blow, and that the others were present 
 aiding and abetting j for in point of law the act of one is the act 
 of all {x). 
 
 If the terms used in the allegation and proofs be convertible in 
 fact, the variance will not be material. 
 
 In assumpsit on an agreement to take certain stock at a valua- 
 tion, an allegation that a valuation made amounted to a specific 
 sum, is satisfied by evidence of a valuation to that amount, setting 
 forth the price of each article, with a condition that if any of the 
 pans should prove to be broken the first time of using, an allowance 
 should be made thereon, there being no evidence that any of the 
 pans were broken at the time specified (y). 
 
 An allegation of a contract to deliver stock on the 27th of 
 February, is satisfied by evidence of a contract to deliver on the 
 settling day, coupled with proof that the 27 th was fixed for and 
 understood by the parties to mean the 27th {z). 
 
 The plaintifl^ declared on a contract for the purchase of a certain 
 quantity, to wit, eight tons of goods ; the proof was of a contract 
 for the purchase of about eight tons ; the precise quantity, which 
 was not known at the time of the contract, having been ascertained 
 to be eio'ht tons : and it was held that the variance was not mate- 
 rial ( a). 
 
 (u) Dyer, 222; Vin. Ab. Ev. T b. Ill, ing to be convertible terms. But this is 
 
 11,2. Secus, where the payment is made to be considered rather as a mode for 
 
 before the day when the debt becomes due getting rid of a South-sea contract, than 
 
 by the condition of a bond. Ibid. as a precedent. An allegation of an 
 
 (oc) Fost. Disc. 351 ; 9 R. 67 ; 1 Plow. agreement to take a full cargo is not satis- 
 
 98 ; 1 Salk. 334. fied by proof of an agreement to take on 
 
 (y) Welsh v. Fisher, 2 Moor, 378. In board 500 quarters of wheat, although 
 JPayne v. Hayes (Str. 74 ; B. N, P. 145), that quantity amounted to a full cargo, 
 where the contract declared on was to Harrison v. Wilson, 2 Esp. C. 108. Vide 
 deliver stock on the 22d of August, and supra, 460, note (p). 
 the evidence of the entry in the broker's (~) Wickes v. Gordon, 2 B. & A. 335, 
 book was a contract for the opening, the See the preceding note, 
 variance was held to be fatal, although it (a) Gladstone v. Neale, 13 East, 410. 
 was proved to be notorious that the books And see Crispin v. Willianison, 8 Taunt, 
 were to open on the 22d, and the broker 107. An allegation of a pnmiise to re- 
 swore that he took the 22d and the open- move goods within a reasonalile time is
 
 VARIANCE. 403 
 
 The allegation that A. uttered a counterfeit note under the false Lerral 
 pretence that it was a genuine note, uiay be proved by the fact of '''^'^''"*" 
 uttering, though A. said nothing at the time {b). 
 
 An allegation that A. B. became bankrupt cannot be proved 
 but by evidence of a commission (c). It is not sufficient to show 
 that a commission might have been supported {d). 
 
 All averments in terms which have an authorized legal sense Proof of 
 and meaning annexed to them must be understood in that sense, *''"°''<*f 
 and are not satisfied by proof according to the popular and vulgar 
 sense (e). 
 
 Several of the decisions on the subject of variance are noticed 
 in considering the evidence on the particular subjects with which 
 they are connected. It may be proper, however, in this place, to 
 refer to some of the most general applications of the foregoing- 
 principles, particularly with reference to allegations of time(y) 
 and place {g) — parties, and their names (A) — their acts (i), and the 
 consequences of such acts {k) — intentions {I) — written instru- 
 ments (/«), &c. 
 
 A variance from the formal allegation of the time of committing Time, 
 an act is not material, where it is proved to have been committed 
 before the commencement of the suit {n), or the finding of the bill 
 by the grand jury in criminal cases (o). 
 
 And autrefoits acquit, upon an indictment laying the offence on 
 one day, may be pleaded to an indictment laying the offence to 
 have been committed on a different day {p). 
 
 Although arson be alleged to have been committed in the night- 
 time, the offence need not be proved to have been committed in the 
 night-time {q). 
 
 But where in a declaration the injury is laid with a continuando, 
 although the plaintiff may prove any number of acts within the 
 time specified, yet if he go beyond that limit he is confined to a 
 single act ; for the allegation, as far as regards the continuation 
 and number of injuries, is descriptive (r). 
 
 satisfied by evidence of a promise to re- (h) Infra, p. 470. 
 
 move them in a month. Hoi-e v. Milner, {i) Infra, p. 473. 
 
 Peake's C. 42 {a). (k) Infra, p. 475. 
 
 (b) B. V. Freeth, Russ. & Ry. C. C. L. (0 Infra, p. 477. 
 127. \m) Infra, p. 477. 
 
 (c) Bulkeley v. Lord, 2 Starkie's C. (w) 2 Haw. C. 46, s. 179; 2 Ins. 318. 
 406. (o) Ibid. 
 
 (d) Ibid. (j:;) Sijer's case, 3 Inst. 23, B. v. 
 
 (e) Vol. II. tit. Parol Evidence. Vane, Keb. 104. 
 
 Doe V. Benson, 4 B. & A. 586. (</) B. v. Minton, East's C. P. 1021. 
 
 (/) Infra, p. 463. (?•) See Trespass, and 5«;j?-rt, 461. But 
 
 {9) I^fra, p. 465. upon the trial of a traverse of an inciuisi-
 
 464 PROOFS : 
 
 Time. If the facts A. and B. be each of them material, but their pri- 
 
 ority in point of time be immaterial, a variance from the priority 
 as alleged will not be material (s) ; as, if a declaration on a policy 
 of insurance allege that after the making the policy the ship sailed, 
 when in fact she sailed before (t). 
 
 Where the consideration for a guarantee for 5,000/. was alleged 
 to be credit to be given by C. ^ Co. to D. Sc Co. in a manner then 
 and there agreed upon between the parties, and the proof of the 
 guarantee consisted in evidence of several letters from the defend- 
 ant, in one of which he stated that he had given the guarantee for 
 such arrangements as might be entered into, it was held that there 
 was no variance from the legal effect (m). 
 
 In the same case, another count alleged the consideration for a 
 guarantee for 8,000 I. to be that C. Sf Co. would give V. Sf Co. 
 credit in manner then and there agreed upon, and it was held that 
 there was no legal variance, although it appeared from the letters 
 that C. Sc Co. had then credited V. Sf Co. to the amount of 5,000 Z. 
 of the 8,000 1, under the former guarantee {x). 
 
 But an allegation of an executory consideration is not satisfied 
 by evidence of an executed consideration {y). 
 
 An allegation that a party is possessed for the remainder of a term 
 of years, is satisfied by evidence that he is tenant from year to 
 year (2), or for a fraction of a year {a). 
 
 Where the defendant in replevin avowed the taking as a com- 
 moner damage-feasant, and the plaintiff alleged that J. S. was 
 seised of a house and land, whereto he had common, and that he 
 demised to him to hold from the 25th day of March next before 
 for a year, and the defendant traversed the lease modo et forma, 
 and the jury found that J. S. made a lease to the defendant on the 
 
 tion in the Exchequer, which found that a (m) Irving §• others v. Mackenzie, 1 B. 
 
 Crown-debtor was indebted to the Crown & B. 523. 
 
 in a specific siim for duties due between ^x) Ibid. 
 
 two assigned periods, and it appeared in ^^^ g j^^^ gg. ^.^^^ jy^^ j^^^^^^ ^^ ^^^ 
 
 evidence that the debtor was indebted in a Case-Assumpsit, F. 6. An averment by 
 
 different sum for duties accruing for a dif- ^^^ ^^ consideration that A. had paid 
 
 ferent period, it was held that the period ^ ^^^ of money, is not supported by evi- 
 
 alleged might be rejected aa surplusage. ^^^^^ ^f consideration that A. would pay 
 
 E. V. Franklin, 6 Price, 614. ^^^^ ^^^^^^ ^^^^^^^ ^_ Merryioeather, 
 
 (s) Peppin V. Solo7non, 5 T. K. 496. o B. & C. 573. Secus, where an executed 
 
 Young V. Wright, 1 Camp. 139; Doug. consideration is alleged, and the law ira- 
 
 497. 615. Matthie v. Potts, 3 B. & P. p^^g t^e duty. Streeter v. Horlock, 1 
 
 23. Secus where the time is material. Bjno- 34 
 
 Abitbol V. Bristoiv, 6 Tsiunt. A64. ° ., ,^ .. , r^ air, 
 
 /^s „ • ci If; m T> Ana {z) Boitmg V. Martin, I C&mT^. 317 . 
 
 (t) Pepjnn v. Solomon, [5 T. R. 496. . 
 
 Young v. Wright, 1 Camp. 139; Doug. («) Litt. a. 67. 
 
 497. 615. Supra, note («).
 
 VARIANCE. 
 
 4g; 
 
 25th of March, for one year, it was held tliat the plaintiff was 
 entitled to judgment (6). 
 
 The allegation of place is either merely formal, or it is descrip- 
 tive; where it is merely formal, proof is imnecessary, even on 
 indictments on criminal charges (c), and in actions for local olfences 
 it is sufficient to prove the offence to have been committed within 
 the county (c?). 
 
 Where it is doubtful whether the allegation be merely formal, 
 or it be descriptive, the allegation will be referred to venue, rather 
 than to description (e), even although the action be of a local 
 nature ( / ), and the existence of such a parish will be immate- 
 rial {g). 
 
 And where the place of doing an act is precisely alleged, if the 
 description be wholly immaterial, the ground of charge or of com- 
 plaint not being local, the description may, it seems, be rejected 
 as surplusage. As, if a robbery be alleged to have been committed 
 near a highway, when it was in fact committed in a dwelling-house* 
 and not near a highway (A); or in a field near the highway, and 
 the jury find that it was not committed near the highway (i) ; or 
 in the dwelling-house of ^. B. where the ownership cannot be 
 
 Place. 
 
 (fe) Hob. 72; B. N. P. 300. The reason 
 assigned is, that althoup,h the lease proved 
 was not the same with that alleged, yet 
 that the substance of tlie issue was, whether 
 the plaintiff had such a lease as entitled 
 liim to use the common. But it was said, 
 that he must not depart altogether from 
 the form of the issue, as if it had been 
 proved that he had a right of common by 
 lease from another. 
 
 (c) 2 Haw. c. 46, s. 181; Salk. 288; 
 2 Hale, 291; Keb. 13.33. By the pro- 
 visions of the Stat. 7 Hen. 5; 9 Hen. 5, 
 c. 1 ; 18 II. 6, c. 12 ; if there be no such 
 vill or place witliin the county, the Indict- 
 ment is void. The objection was taken in 
 the case of R. v. Goldsmith, 3 Camp. 73, 
 before Lawrence, J. on the Oxford Circuit, 
 Summ. Assizes, 1808, and the learned 
 Judge reserved the point ; but the prisoner 
 was afterwards acquitted. In R. v. Dmu- 
 ling, 1 R. & M. 433, on an indictment for 
 highway robbery, it was held to be unne- 
 cessary to prove that such a parish as that 
 alleged existed in the county. 
 
 (<Z) See WaiTen v. Well, 1 Taunt. 371 ; 
 
 VOL. I. 
 
 infra, m^,, note (7); Cro. Eliz. 911; Yel. 
 12, In an action for running foul of posts 
 fixed in a river supporting the plaintiff's 
 wharf, it is necessary to prove the posts or 
 wharf to be at the place alleged, under a 
 videlicet. Hamer v. Raymond, 5 Taunt. 
 789. Vol. II. tit. Nuisance. 
 
 (e) Jefferies v. Duncornbe, 11 East, 
 226. Vol. II. tit. Case, Action on. 
 2 Camp. 3; 4T. R. 561. 
 
 (/) 2 East, 437. 
 
 (</) 11 East, 226; 3 Camp. 3. Kirtland 
 v. Pounsett, 1 Taunt. 570; where in an 
 action for use and occupation, it was held 
 to be unnecessary to state in what parish 
 the premises are situate ; and that if the 
 parish be described by a wrong name, it is 
 immaterial, if it be described by a name 
 generally known, and which therefore could 
 not mislead the defendant. But see Wil- 
 son V. Clarhe, 1 Esp. C. 273 ; and Pool v. 
 Court, 4 Taunt. 700. 
 
 (Ji) R. V. Summers §- others, East's 
 P. C. 785. Foiolefs case, ibid. R. v. 
 Darnford S: Newto 1, il>iil. 
 
 (i) Wurdle's case. East's P. C. 785. 
 
 H H
 
 466 
 
 PROOFS 
 
 Place. 
 
 proved (/i), the variance is iinniaterial, lor the statute takes away 
 clergy generally. 
 
 (Ji) It was so held in Pye's case, (East's 
 P. C. 785,) where the robbery was laid to 
 have been committed in the dwelling- 
 house of Aaron Wilday, and the robbery 
 was proved, but it did not appear who was 
 the owner, aiul tlie variance was held to be 
 immaterial. So in Johnston's case, where 
 the robbery was alleged to have been 
 committed in the dwelling-house oi' Jose/jh 
 Johnston, and it appeared that the robbery 
 was committed by the prisoner, Sarah 
 Jolinston, in the dwelling-house of her 
 liusband, but his Christian name did not 
 appear. East's P. C. 786. 
 
 But in Durore's case (Leach's C. C. L. 
 200), where the prisoner was indicted 
 under the Black Act for maliciously shoot- 
 ing at A. Sanders, in the dwelling-house of 
 James Brewer and John Sanday, and it 
 appeared that the Christian name of 
 Brewer was not Ja7nes but John, the 
 variance was held to be fatal. But the 
 words of the stat. (9 Geo. 1, c. 22,) are 
 " who shall maliciously shoot at any per- 
 son in any dwelling-house or other place." 
 This case, which was decided by Hotham, 
 B., seems to have been completely over- 
 ruled by P7je's case, which was later, and 
 decided by all the Judges. 
 
 It has been said, that where an injury 
 is partly local, and partly transitory, and 
 a precise local description is given, a 
 variance in proof of the place is fatal 
 to the whole ; for the whole being one 
 entire fact, the local situation becomes de- 
 scriptive of the transitory injury {R. v. 
 Cranage, Salk. 383.) The defendants were 
 indicted for riotously assembling at the 
 parish of St, Giles in the Fields, and 
 breaking and entsring the bed-chamber of 
 Sarah S. in the dwelling-house of David 
 James, and taking and carrying away 
 thirty yards of stutf. Upon evidence, it 
 appeared to be the dwelling-house of 
 David Jameson ; and Lord C. J. Parker 
 held that the indictment could not be sup- 
 ported ; and he said that this was not like 
 the case 2 Roll. Ab. 677. And he cited 
 The Queen v. Sudbury. Indictment for 
 an assault and battery laid as a riot; two 
 were acquitted, and two found guilty, and 
 
 all were acquitted ; for the crime was the 
 riot, and the whole offence was charged 
 under that specification and description. 
 So of the playhouse. Indictment for acting 
 a play, and speaking obscene words in 
 sucli a parish, in a playhouse in Lincoln's- 
 Inn Fields; if there be no playhouse in 
 Lincoln's-Inn Fields the defendant must be 
 acquitted ; for though the words arc not 
 locil, yet these are made so. One may 
 make a trespass local that is not so. If 
 the speaking had been alleged in Lincoln's- 
 Inn Fields, then it had been laid as venue; 
 but here it is otherwise, for here it is 
 alleged as a description where the play- 
 house stood. In the principal case, part is 
 local, and part is not local : the cubiculwm 
 is local ; t!ie taking and carrying away is 
 not local ; but all is put together as one 
 entire fact, under one description, and you 
 cannot divide them. See also 2 Haw. c. 46, 
 s. 181, which cites the case of JR. v. Cra- 
 nage, and Fielding's Penal Law, 317 ; and 
 lays it down too generally, that if an of- 
 fence be laid in a parish, in the house of 
 J. S., a variance will be fatal. This posi- 
 tion, however, is contrary to the cases 
 above cited, and is not warranted by the 
 case of R. v. Cranage, Salk. 385, which 
 was founded on the consideration that the 
 offence was partly local. 
 
 And where a trespass to goods is con- 
 nected with a local trespass, a transitory 
 count has been held to be necessary in 
 order to avoid locality. SmitJi v. Milles, 
 1 T. R. 475. 
 
 In Buller's N. P. 5, it is laid down, that 
 if it be alleged in an action for slander 
 that the defendant in clausd ecclesice Lich- 
 field, spoke the words, the place being- 
 laid not as a venue, but as a description 
 of the offence, must be proved. But a 
 qusrre is subjoined in the margin. Yet 
 notwithstanding the above authorities, con- 
 sidering that it is settled that a defendant 
 may be found guilty of part of that with 
 which he is charged, if it amount to an 
 indictable offence, qu. whether he may 
 not be convicted of that which is merely 
 transitory, although the prosecutor fail as 
 to the local part by reason of variance.
 
 VARIANCE. 
 
 4G7 
 
 So in an action for running down the plaintiff's boat in the Place. 
 Thames, near the Half-way Reach, proof that it was done in the 
 Half-way Reach is sufficient, the place being perfectly imma- 
 terial (/). 
 
 But it seems that wherever the allegation of place is descriptive 
 of the terms of a contract, the proof must correspond with the 
 averment. 
 
 Thus, if in an action against a carrier the contract be alleged to 
 be to carry from A. to B., the termini are material (m). 
 
 So where the defendant's tenancy of land in F. was alleged to 
 be the consideration of his promise to treat it in a husband-hke 
 manner, and it was proved that the land was in F. and C, the 
 variance was held to be fatal {n). 
 
 See the case of J2. v. White, East's P. C. 
 780; Leach's C. C. L. 286. R. v. Wood- 
 ward, East's P. C. 780 ; Leach's C. C. L. 
 287 ; where, although it was held that the 
 prisoners could not be found guilty, either 
 of burglary, or under the stat. of Anne, of 
 stealing in a dwelUng-house to the amount 
 of 40s., by reason of variance in the name 
 of the owner of the dwelling-house, yet it 
 does not appear that the objection was 
 held to extend to the simple larceny. And 
 in R. V. Davis, East's P. C. 780, where 
 the prisoner was acquitted of a burglary 
 alleged to have been committed in the 
 dwelling-house of William Pearce, and it 
 appeared that it was the house, but not 
 the dwelling-house of Pearce, the prisoner 
 was recommended to mercy upon condition 
 of transportation. 
 
 As a defendant may be convicted of the 
 transitory part of an offence, though he 
 be acquitted of the local part ; and as it 
 seems to be now established, that if the 
 transitory part alone had been charged he 
 might have been convicted, notwithstand- 
 ing the variance from such local descrip- 
 tion, it seems to follow that he may be 
 convicted of the transitory part alone, 
 notwithstanding such a variance; for as 
 neither mere locality alone, nor the omis- 
 sion to prove the whole of the charge, 
 would have been fatal, it is difficult to 
 conceive why the conjoint variance should 
 be fatal. 
 
 (0 Brewry v. Twiss, 4 T. R. 558. 
 
 (?re) Tucker v. CracMin, 2 Starkie's C. 
 385. A declaration alleging a retainer, to 
 
 cause the plaintiff's ship to proceed to 
 Gottenburgh, in order that she might af- 
 terwards proceed to fetersburgh, is not 
 proved by evidence of a retainer to cause 
 the ship to proceed to Gottenburgh, and 
 afterwards, under particular conditions, to 
 Petershurgh. Lopes v. De Tastet, 1 B. 
 & B. 5.38. See also White v. Wilson, 2 B. 
 & P. 116 In the case of Frith v. Grey, 
 (4 T. R. 561, n.), in an action for not 
 procuring the plaintiff a booth at a horse- 
 race to be run on Barnet Common, in the 
 cminty of Middlesex, it was proved that 
 the whole of Barnet Common was in the 
 county of Hertford. But Lord Mansfield 
 and the rest of the Court, on a motion for 
 a new trial, on the ground of variance, 
 held, that as it was perfectly immaterial 
 whether Barnet Common was in Middle- 
 sex, or not, those words might be rejected 
 as surplusage. Sed qu. — Where the de- 
 claration was laid in tort, and stated the 
 delivery of a parcel at Chester, in the 
 county of Chester, to be carried to Shrews- 
 bury, and it appeared that the delivery 
 was at Chester within the county of the 
 city of Chester, it was Iield that the vari- 
 ance was immaterial, no evidence being 
 given that there was such a place as Ches- 
 ter within the county at large, and in 
 common parlance Chester means Chester 
 in the county of Chester. Woodward v. 
 Booth, 7 B. & C. 301. 
 
 (n) Pool V. Court, 4 Taunt. 700 ; and 
 see Guest v. Caumont, 3 Camp. 235, 
 Vol. II. tit. Use and Occupation. 
 
 H H 2
 
 468 PROOFS : 
 
 Place. So in an action of covenant on a lease of coals, where the decla- 
 
 ration alleged the lands to be situate in the parish of B. and ikf., 
 instead of in the parishes of B. and M. (o). 
 
 In trespass, every part of the description of the place is mate- 
 rial, and must be strictly proved (j)). 
 
 An action for a nuisance to the plaintiff's real property, whether 
 corporeal or incorporeal, is local, and the action must be brought 
 in the county where the property is situate (q). 
 
 But it is not necessary to describe the precise local situation 
 either of the property injured, or of the gravamen (r). 
 
 And unless a precise description be given, the place mentioned 
 will be ascribed to venue, and not considered to be descriptive (s). 
 
 But if in such case a precise local description be given, it must 
 be proved as laid, and a variance will be fatal (t). 
 
 Proof that the place is usually and commonly known by the 
 description used in the declaration is sufficient. 
 
 Where, in an action for a nuisance to the plaintiff's house, " at 
 Slieerness, in the county of Kent," it was proved that the house 
 was situated in the adjacent parish of Minster, but that both places 
 were usually known by the name of Sheerness, it was held to be 
 sufficient {u). 
 
 Where the local description of property within a parish is ma- 
 terial, it is sufficient to prove it to be a parish by general reputa- 
 tion, having churchwardens and overseers belonging to it, although 
 it be in fact but a hamlet (x). 
 
 And where premises are described to be situated in a particular 
 parish, it is sufficient to prove that the parish is usually known by 
 the name of description (?/). 
 
 (o) Morgan v. Edwards, 2 Marsh. 96 ; that the defendant suffered a spout to be 
 
 infra, 470. But it was also held that an out of repair at ^. in the county of B,, is 
 
 allegation that the lands were in the oecu- equivalent to an averment that it was 
 
 pation o{ A., B. and C, instead of in the situated there. Warrenw. Webb, 1 Taunt. 
 
 several occupations of A., B. and C, was 379. 
 
 sufficient. (r) Mersey §• Irwell Navigation Com- 
 
 (]}) Per Lawrence, J. in Vowles v. patiy y. Douglas, 2 E&st, ^97 . 
 
 Miller, 3 Taunt. 139. But it is sufficient (s) Ibid. 
 
 to prove a trespass in some part of the {t) 2 East, 500, n. Earner v. Bay- 
 
 place described, although other part be- mond, 5 Taunt. 789. Supra, 467. 
 
 longs to the defendant. Stevens v. Whist- (u) Burbige v. Jakes, \ B. &c V. 225. 
 
 Zer, 11 East, 51. And semble, the allegation might at all 
 
 (q) Mersey §■ Irwell Navigation Co. events have been referred to t'ewite. Supra, 
 
 V. Douglas, 2 East, 497. And where no 465. 
 
 local situation in such case is alleged, (x) 2 Camp. 5, n. See Kirtland v. 
 
 it will be presumed to be situate in the Pounsett, 1 Taunt. 570. 
 
 county specified in the margin ( Warre7i v. (y) Kirtland v. Pounsett, 1 Taunt. 570. 
 
 Webb, 1 Taunt, 379.) Thus, an allegation Goodtitle v. Walter, 4 Taunt. 671. Per
 
 VARIANCE. 
 
 4G9 
 
 And proof that tlie parish is usually described by the name of a Place. 
 Saint, or by any another addition, which is omitted in the plead- 
 ings, will not be material (z). 
 
 In ejectment, the premises were alleged to be situate at Fam- 
 ham, but were proved to be situate at Farnham Royal, and it was 
 held to be sufficient, as it was not shown that there were two 
 Farnhams («). 
 
 So where the penalty in a conviction was adjudicated to the poor 
 of the parish of St. Mary, Lambeth, but the offence was proved to 
 have been committed in the parish of Lambeth, it was held to be 
 sufficient, there being no evidence to show that there were two 
 parishes of that name (Z>). And although there be two parishes of 
 the general name, the general description will be sufficient (c). 
 
 But where, in trespass for breaking and entering a house situate 
 in the parish of Clerkenwell, it was proved that there were two 
 parishes in Clerkenwell, the one known by the name of St. John, 
 the other by the name of St. James, but that the whole was gene- 
 rally known by the name of Clerkenwell, the description was held 
 to be insufficient (d). 
 
 And where, in an action for an excessive distress, the premises 
 were laid to be in the parish of St. George the Martyr, Bloomsbury, 
 
 Mansfield, C. J., in Vowles v. Miller, 
 3 Taunt. 140. 
 
 (2) In Goodtitle v. Walter, 4 Taunt. 
 671, the Court said that the case in which 
 the variance between the parish of Chelsea 
 and the parisli of St. Luke, Chelsea, had 
 been held to be fatal, {Wilson v. Clerk, 1 
 Esp. C. 293) had been overruled by the 
 case of Kirtland v. Pounsett, 1 Taunt. 
 570. See Morgan v. Edicarcls, G Taunt. 
 394. 
 
 (a) Doe V. Salter, 13 East, 9. Where 
 a conviction for performing a stage enter- 
 tainment without licence, alleged the fact 
 to have been done at the Coburg Theatre, 
 in the parisli of St. Mary, Lambeth, and 
 the adjudication of the penalty was to the 
 poor of the parish of St. ISIary, Lambeth, 
 and the evidence stated that the theatre 
 was in the parish of Lambeth, it was held 
 to be no variance, for it did not appear 
 that there were two distinct parishes so 
 named. B. v. Glossop, 4 B. & A. 616. 
 
 (b) B. V. Glossop, 4 B. & A. 616. And 
 aote, that Lord EUenborough said that the 
 
 variance would not be material in eject- 
 ment. 
 
 (c) Doe d. James v. Harris, 5 M. & S. 
 326. In that case a fine described the 
 lands as situate in the parish of Westbury ; 
 there were two parishes of that name, 
 Westbury-on-Trym, and Westbury-on- Se- 
 vern, in the latter of which the premises 
 were situate, and it was held that there 
 was no variance. S. P. Taylor v. Wil- 
 liams, 3 Bing. 449. For the description is 
 correct, as far as it goes ; there is no va- 
 riance, although the two parishes are 
 usually distinguished by an addition. 
 
 {d) Taylor v. Hooman, 1 Moore, 161. 
 Tamen qu. The plaintiff was nonsuited ; 
 and a new trial was moved for, on an 
 affidavit stating that the whole district was 
 generally known by the name of St. 
 James, Clerkenwell, and statutes were 
 referred to in which it was so described. 
 Gibbs, C. J., observed, that the Acts re- 
 ferred to were not part of the public sta- 
 tutes ; but the Court gave leave to amend 
 on payment of costs, by adding another 
 count. 
 H H 3
 
 470 
 
 PROOFS : 
 
 Place. 
 
 Name. 
 
 Misnomer. 
 
 and were proved to be in the parish of St. George, Bloomsbury, it 
 was held that the description was improper (e). 
 
 Where the premises in ejectment were described as situated in 
 the united parishes of St. Giles in the Fields, and St. George, 
 Bloomsbury, and it appeared that the premises were in fact 
 situated in the parish of St. George, Bloomsbury, and that the 
 parishes were united by Act of Parliament for maintaining their 
 poor, but for no other purpose, the variance was held to be 
 fatal (/). 
 
 Where the premises in ejectment were alleged to be situate in 
 the parish of West Putworth and Bradworthy, and it was proved 
 that part were in the parish of West Putworth, and part in the 
 parish of Bradworthy, it was held to be sufficient ; and that the 
 declaration was to be construed as alleging the premises to be so 
 distributively situated (g). 
 
 In an action for non-residence, the description of the parish of 
 St. Ethelburgh for Saint Ethelburgha, is fatal (A). 
 
 An allegation that A. B. was a constable of the parish of St. 
 Paul, Covent Garden, is not satified by evidence that he was pre- 
 sented as a fit person to serve as constable for that parish, but sworn 
 in to serve for Westminster generally {i). 
 
 As natural persons, as well as aggregate corporate bodies, must 
 be described by name, an allegation of the name of any such per- 
 son or body, whose existence is essential to the claim or charge, 
 is necessarily descriptive, and consequently a variance is generally 
 fatal. Where, however, the name of a party to the action or 
 indictment is mistaken, the objection must be taken by plea 
 of the misnomer in abatement, and cannot be taken by a plea in 
 bar ij). 
 
 Where a corporation was sued by the name of the Mayor and 
 Burgesses of Stafford, and, on production of the charter, it ap- 
 peared that they were " The Mayor and Burgesses of the borough 
 of Stafford, in the county of Stafford," the Court held that the 
 variance was not fatal, under a plea of not guilty to a declaration 
 in case, but that the misnomer might have been pleaded in abate- 
 
 (e) Harris v. Coolie, 2 Moore, 587. The 
 Court said that it should have been de- 
 scribed by its known and popular name, 
 and not by its general description; St. 
 George, Bloomsbury, was dedicated to king 
 George the Ist, and St. George the Martyr 
 is quite a distinct parish. 
 
 (/) Goodtitle d. Piment v. Lummcr- 
 man, 2 Camp. 274. 
 
 {g) Goodtitle d. Brembridge v. Walter, 
 4 Taunt. G71. See the case of Morgan v. 
 Edwards, 2 Marsh. 96; supra, 468. In 
 the latter case the evidence varied from 
 the written description in the lease. 
 
 (/i) Wilson V. Gilbert, 2 B. & P. 281. 
 
 (i) Goodesv. Wheatleg, 1 Camp. 231. 
 
 {j ) Morlcy v. Late, 2 B. & B. 31. See 
 Gardner v. Walker, 3 Ans. 935.
 
 VARTAXCE. 
 
 471 
 
 ment(^). But if there be no sueli corporation the objection is Misnomer. 
 available in bar(Z). 
 
 Upon the trial of an ejectment on the demise of the mayor, kc. 
 of the borough town of 3Ialdou, it appeared from the charter that 
 they were incorporated by the description of the mayor, &;c. and 
 covimo7mlty of 3Ialden; and it was held that the variance was 
 immaterial, the charter showing that Maiden was a borough 
 town (m). 
 
 The misnomer of persons whose existence is essential to the Of persona. 
 charge or claim is usually a fatal variance. 
 
 An indictment charging the prisoner with having personated 
 M'Cawn, is not satisfied by proving his personation of M'Cay-n (w). 
 
 So Couch for Crouch is a fatal variance, in the description of a 
 party to a bill of exchange (o). 
 
 So a misdescription of a name of dignity will be fatal. 
 
 The declaration in an action for a malicious prosecution alleged 
 that the defendant went before R. C. baron Waterpark, of Water- 
 fork, in the county of ^. ; the proof was, that he went before R. C. 
 baron Waterpark, of Waterpark, in the county o? A.; and the 
 variance was held to be fatal {p). 
 
 An allegation that J. S., otherwise R. S., made a deed, is not 
 supported by evidence that J. S. made a deed by the name of 
 R. S. iq). 
 
 (k) Mayor and Burgesses of Stafford 
 V. Bolton, 1 B. & P. 40, In an action foi' 
 stock, the South Sea Company were 
 described as trading ad Maria Austral, 
 and it was held that the variance was 
 fatal ; but the plaintiff had leave to amend. 
 Turvil V. Aynsxoorth, Str. 787 ; infra, 478. 
 
 (Z) Ibid, and Bro. Misn. 73. 
 
 (m) Boe V. Miller, 1 B. & A. 699. And 
 see the cases of the Dean and Chapter of 
 Carlisle, 10 Co. 124; of the Dean and 
 Canons of Windsor, ibid. Dr. Agray's 
 case,'[\ Co. 19; Cro. Eliz. 810. 
 
 (n) R. V. Tassctt, cor. Wood, B., Kent 
 Lent Ass. 1818, and afterwards before the 
 Judges. Tarbart for Tabart is a fatal 
 variance in a bail-piece {Bingham v. 
 Dickie, 5 Taunt. 514.) So if the plain- 
 tiff on a bail-piece be described as Chris- 
 tian Nicholas Venn, instead of Daniel 
 Nicholas Verm ; they are not bail in the 
 cause, and the Court will not amend the 
 bail-piece, but give judgment on the plea 
 of mil tiel record. Venn v. Warner, 3 
 
 Taunt. 263. So Shahpear for Shahespear, 
 on a plea in abatement. If a defendant 
 be arrested by a wrong Cliristian name, as 
 Berend for Bernard, the Court will dis- 
 charge him on motion {Willis v. Lorch, 
 2 Taunt. 399). See also Smith v. Innes, 
 4 M. & S. 360, So where a party having 
 two Christian names is sued by one only 
 {Arbouin v. Willoughby, 1 Marsh. 477.) 
 Secus, where he has dealt with the party 
 by the name by which he is sued ( Walker 
 V. Willoughby, 6 Taunt. 530; S. C. 2 
 Marsh. 230) ; or where the name is idem 
 sonans, as Benedetto for Beneditto. Abit- 
 hol V. Benedetto, 2 Taunt, 401. See R. 
 V. Foster, Russ. & Ry. 412. 
 
 (o) Whitioell V. Bennett, 3 B. & P. 
 550. So if in an action on the statute of 
 usury, a bill of exchange be alleged to be 
 drawn on John K. instead oi Abraham K. 
 Hutchinson v. Piper, 4 Taunt. 810. 
 
 (;;) Walters v. Mace, 2 B. & A. 756. 
 
 {q) Hetchman v, Shotbolt, Dyer, 277 b, 
 pi. 9. 
 
 H II 4
 
 472 PROOFS ; 
 
 Misnomer So a declaration against a party in his right name, alleging that 
 of ijersous. ]^g executed a bond in a different name, is bad (r). 
 
 The description of a peer of Ireland by his christian and family 
 name and title, was held to be sufficient, the insertion of the sur- 
 name being no variance, for the Court will not intend the two to be 
 only his christian name (s). 
 
 If the plaintiff allege that a promissory note was made payable 
 to him, or that a promise was made to him, and on proof of the 
 instrument or contract it appears to have been made to another, it 
 is no variance if the plaintiff show that he was the person really 
 meant, for that is the legal effect (if). 
 
 Where a person is described by name simply, without addition, 
 proof that there are two persons of that name is no variance, for 
 the allegation is still true. 
 
 Upon an indictment for an assault upon Elizaheth Edwards, it 
 appeared that there were two of that name, mother and daughter, 
 and that in fact the assault had been made upon the daughter ; 
 and the conviction was held to be good {u). 
 
 But a description of persons by the name by which they are 
 commonly known is usually sufficient. 
 
 Proof that certain officers in the town of ^., within the parish 
 of -B,, have always been called the churchwardens of JL., is suffi- 
 cient to warrant the description of them as the churchwardens 
 of A.{x). 
 
 And proof that the name alleged is the reputed name, is usually 
 sufficient. 
 
 When an indictment charged the prisoner with having stolen 
 the property of Victory, baroness Turkheim, the prosecutrix ; and 
 the proof was that her real name was Selina Victoire; that baroness 
 Turkheim was her real title, but that she was usually known by the 
 name of Baroness Turkheim ; the Judges held that the description 
 was sufficient (y). 
 
 , (r) Gould V. Barnes, 3 Taunt. 504. 1 Starkie's C. 106. tit. Bills of Ex- 
 
 (s) Rex V. Brinklett, 3 C. & P. 416. change. 
 
 (0 Willis V. Barrett, 2 Starkie's C. 29. (x) Steady. Heaton, 4 T. R. 669. 
 
 Moller V. Lambert, 2 Camp. 548. And (y) SulVs case, Leach 1005. See also 
 
 see Bass v. Clive, 2 M. & S. 282. Secus, Mary Giaham's case, Leach, 619. On 
 
 in the case of a writ. Scandover v. an information for offering a bribe to one 
 
 Warne, 2 Camp. 270, or specialty. T. B., an officer of the customs, to allow 
 
 (m) B. v. Pearce, 3 B. & A. 579. But bugles to pass, held that it was no variance 
 
 if father and son be both called A. B., by that the officer's name was T. T. B., and 
 
 A. B. simply the father shall be mtcnded. not merely T. D., it beins iu evidence that 
 
 Lepiot V. Broim, 1 Salk. 7. Wihon v. he generally went by the "latter name, nor 
 
 Stubbs, Hob .330. Sweeting v. Fowler, secondly, that the articles were beads, and
 
 VARIANCE. 473 
 
 It is sufBcient if the name be idem sonans : on an indictment for Misnomer 
 assaulting John Whyneard, the evidence was of an assault on one " 1"^"**°*- 
 who spelt his name Wynyard, but it was commonly pronounced 
 Winniard, and the conviction was held to be right (c). 
 
 The misnomer of a party to the proceeding, whether civil or cri- 
 minal, can usually be taken advantage of by plea in abatement only, 
 and is immaterial where the defendant pleads in bar. 
 
 And where a defendant in assumpsit has let judgment go by 
 default, the other defendants cannot take advantage of a misnomer 
 of that defendant, proof being given that he has been served with 
 process (a). 
 
 Where the defence to an action by Elizabeth H. was, a judgment 
 against the defendant, as garnishee, in the mayor's court, in an 
 action against the present plaintiff, in which she was called 
 Eliza H., satisfaction having been entered, it was held that the 
 variance was not material, proof having been given that she was 
 known by the name of Eliza, as well as by that of Elizabeth (Z»). 
 
 If plaintiffs describe themselves as the assignees of A., proof Character, 
 that they are assignees under a joint commission against A. and B. 
 is no variance {c). 
 
 To satisfy an allegation that a party did a particular act, it is Act. 
 sufficient to prove that the act is his in legal effect. 
 
 In an action of debt against B. alone, on a joint bond of J., and 
 B., where B. pleads payment, proof that A. paid the debt will 
 support the issue {d). 
 
 Debt on bond against the executors of Stalwood; plea that 
 Hicks was a co-obligor, and that on a day specified Hicks and 
 Stalwood paid the money ; it was held that this was proved by 
 evidence that Stalwood paid one half during his life, and Hicks 
 the remainder after his death (e). 
 
 In an action on the case against the master of a ship for loss of Parties, 
 goods, it was alleged that the plaintiff was to pay the defendant, 
 
 not bugles, it appearing that the defen- by the name of George Lakeman, the 
 
 dant himself had treated them as bugles, mother's name being Clarke, but the child 
 
 and that they were usually called by that ^^^ «"* acquired her name by reputation, 
 
 term; held also, that an entry of cus- it was held to be a misnomer. R. v. Clarke, 
 
 tomed goods by bill of sight, under G 1 Russ. & Ry. C.C.L. 3o5. 
 
 Geo. 4, c. 107, s. 23, obtained by fraud, (a) Dicltenson\. Boiocs, 16 East, 110. 
 
 was no protection to the landing without (?0 Hxixliam v. Smith, 2 Camp. C. 19. 
 
 entry. Attorney-General v. Hatvkes, 1 C. (c) Harvey §• others v. ^forgan, 2 
 
 & J. 121; and 1 Tyrw. 3. Starkie's C. 17. Vide Vol. II. tit. Trover. 
 
 (c) E. V. Foster, Russ. & Ky. C. C. L. -VARiANCE.andtit. Bankruptcy, App. 
 
 412. But where the indictment charged (^0 P- ^'- ^^°- 133. 
 
 the murder of George Lakeman Clarke, a (<?) Groves v. The Executors of Stal- 
 
 bastard child which had been christened tcood, Ann. 133.
 
 474 proofs: 
 
 Act. but the jury found that the pluiiitift was to pay the shipowners, 
 
 Parties. ^^^^ ^j^j^^ ^l^g latter were to pay the defendant ; and the Court held 
 that the allegation was supported, since the plaintifi" did in effect 
 pay the defendant (/). 
 
 In an action by the consignor of goods against the carrier, on an 
 undertaking to carry them for a certain hire and reward, to be 
 paid by the plaintiff, proof of an agreement, as between the con- 
 signor and consignee, that the latter shall pay the carriage, does 
 not disprove the allegation, the consignor being in point of law 
 liable to the defendant (g). 
 
 An allegation in an action on an indemnity bond, that A. and 
 B. (the parties indemnified) advanced certain money to D., is 
 satisfied by proof of the advance of the money by A., B. and C, 
 the latter being a dormant partner {h). 
 
 Where the fact alone is material, and the agent immaterial, a 
 variance as to the latter will not be fatal. If a declaration on a 
 bill of exchange aver a presentment by A. B., it is sufficient to 
 prove a presentment by another {i). 
 
 In all civil cases, and in prosecutions for misdemeanors, it is a 
 general rule, that an allegation that a party did an act is sustained 
 by evidence that he caused it to be done by another, according to 
 the well-known maxim qui facitper alium facit per se. 
 
 In an action against A. for damage occasioned by his negligence 
 in driving a carriage, it is sufficient to prove that the damage was 
 occasioned by the negligence of his servant {k}. 
 
 An averment that the defendants accepted a bill of exchange 
 is satisfied by evidence of an acceptance by their authorized 
 agent (Z). 
 
 But an allegation that the plaintiff employed A. to repair damage 
 to a house, and to alter a room, is not supported by evidence that 
 an insurance company employed A. to repair, and that the plaintiff' 
 employed him to alter the room {m). 
 
 An allegation that A. sold a chattel to B. by writing, is not 
 
 (/) Morse v. Stall, 1 Ventr. 238. servant of either. Waland v. Elkins, 1 
 
 (gr) Moore v. Wilson, 1 T. R. 659. And Starkie's C. 272. But as to allegations 
 
 see Jordan v. James, 5 Burr. 2680. Vale that the principal has subscribed an instru- 
 
 V. Bayle, Cowp. 294. ment, which has in fact been subscribed 
 
 (74) Harrison v. Fitzhenry, 3 Esp. C. by an agent, see Levy v. Wilson, 5 Esp. 
 
 238. C. 180. Helmsley v. Loader, 2 Camp. 
 
 (i) Boehm v. Campbell, 1 Gow. 55. 450 ; Vol. II. tit. Agent. 
 
 (fc) Brucker \. Froimnt, 6 T. R. 659. {I) Heys v. Heseltine, 2 Camp. C. 604. 
 
 If A. and B., being carriers, horse a cart See Coare v Giblett, 4 Esp. C. 231 . 
 
 each for his own share of the road, tliey (?h) Witherington v. BucMand, Ann. 
 
 are jointly liable for the negligence of the 309.
 
 VAKIANCE. 475 
 
 proved by evidence tliat B. was the purchaser at an auction, and Act. 
 that Jl.'s agent wrote i^.'s name, as the buyer, in the printed l''''"^'^^- 
 catalogue, and that B. gave his promissory note for the sum (w). 
 
 An averment of an agreement to dehvcr goods to A. is not 
 proved by evidence of an agreement to deliver goods to the bearer 
 of a receipt for the goods given by the defendant (o). 
 
 Where the consideration was alle2;ed to be the releasing: certain 
 goods distrained for rent to the tenant, and evidence was given 
 of a promise on consideration of returning the goods to the plaintiff, 
 the variance was held to be fatal {p). 
 
 In an action for an amercement in a court-leet, an allegation 
 that the court was held before the steward is not proved by evi- 
 dence that it was held before his deputy {q). 
 
 An averment of an absolute assignment, alleged as a consi- 
 deration for a promise, is not supported by proof of a qualified 
 assignment {r). 
 
 Where a wrongful act and an injurious consequence are alleged, Conse- 
 the consequence must be shown to result immediately from the 'i^^'^'^*^" 
 act ; it is not sufficient to connect the act with a remote conse- 
 quence, by evidence of intermediate causes. 
 
 Where the plaintiff alleged that the defendant placed and con- 
 tinued a heap of earth, by means of which the refuse-water was 
 prevented from flowing from the plaintiff's house to a certain ditch, 
 and the proof was that the earth had been so placed originally as 
 not to obstruct the water, but that in process of time the earth was 
 trodden down, and fell into the ditch, and obstructed it, it was 
 held to be a variance (s). 
 
 An allegation that the defendant diverted and turned a stream 
 of water, is not proved by evidence that by interrupting its course 
 and penning it back he caused it to overflow the plaintiff's pre- 
 mises {t). 
 
 An allegation of damage from the unskilful steerage of the 
 defendant's ship, is not satisfied by evidence of damage from the 
 improper stowing of the defendant's anchor (m). 
 
 (n) Symonds v. Ball, 8 T. R. 151. ('*) Vansandmi v. Burt, 1 Moore, 42. 
 
 (o) Samuel v. Darch §• others, 2 Star- (5) Fitzsbnmons v. Inglis, 5 Taunt, 
 
 kie's C. 60. 534. 
 
 (;j) Goodson V. Leary, 4T. R. 487. 
 
 <q) Wyvill V. Shepherd, 1 H.B. 1C2. (^) ^"-^'^^ ^- ^«'-*««' ^ Price, 1; 
 For semble, a deputy cannot be appointed ^° J see Williams v. Morland, 2 B. & C. 
 without special authority, under a parti- 
 cular grant, or by established usage. See (m) Hullman y. Bennett, 5 Esp. C. 
 4 Ins. 88. And sec Gery v. Wheatlcy, 226. 
 1 H. B. 163, n.
 
 476 PROOFS : 
 
 Act. If tlie declaration allege as special damage, that the plaintiff 
 
 quenS. gave bail to the sheriff at the return of the writ, it is not proved by 
 evidence that he paid the debt, and 10 /. for costs, into the hands 
 of the sheriff (a:). 
 
 But where the declaration alleged that the defendant erected a 
 dam and diverted a watercourse, and prevented the plaintiff" from 
 having the use, &c., this was held to be sufficient, although the 
 effect of erecting the dam was not to divert the water, but to 
 prevent its flowing in sufficient quantities iy). 
 Agent. A variance as to the number of agents seems to be immaterial, 
 
 unless the number, from the nature of the case, operate by way of 
 description of the charge or claim. 
 Number of If il. be indicted as accessory to B. k C. he may be convicted 
 parties. ^^ proof that he was accessory to a felony committed by B. alone, 
 or by B. & C together with D. (z). 
 
 A livery to one of several feoffees is a livery to all (a). 
 
 An allegation in perjury, that the oath was taken before B. TF 
 one of the justices of assize, is proved by evidence that it was taken 
 before B. W. and another justice of assize (6). 
 
 In general, in actions for torts, it is sufficient if the injury be 
 proved to have been committed by one only of the defendants, who 
 may be convicted, and the rest acquitted (c). 
 
 Where three promise to do an act upon request, a request to 
 one is a request to all (d) ; and notice to one is notice to all (e). 
 
 Where it was alleged that differences depended between six 
 persons, partners, and it appeared that three of the partners had 
 given a joint and several bond to the other three, conditioned for 
 the performance of the award, and that the latter had given a 
 similar bond to the former, in which it was recited that differences 
 existed between the above bounden three and the above named 
 three, it was held to be no variance (/). 
 
 An allegation in an indictment of perjury, that A. filed his bill 
 (upon the answer to which perjury is assigned) against B. and 
 
 (.t) Bristoio V. Haijwood,'i Camp. 213. (z) Crim. Pleadings, 148, 9. 
 
 (j/) Shears v. Wood, Moore, 345. Case, (a) Co. Litt. 48 ; Com. Dig. Feoffment, 
 
 for so negligently pulling down a party- B. 2. 
 
 wall that plaintiff's cellar was weakened (&) j?. y. Alford, Leach's C. C. L. 179. 
 
 and fell in, and Ms wine destroyed; the ^^^ ^^j_ jj^ ^.^^ Paktners.-Vaki- 
 
 proof was, that the injury was caused by ance 
 
 the defendant's placing a quantity of , v ^ 
 
 , . , . iv 1 ^1, 11 4.1 (d) Breretons case, Noy, 135: Vin. 
 
 bricks, in pullmg down the wall, on the a, m v. q7 
 
 cellar, per quod, Sec. and the variance was 
 
 held to be immaterial. King v. William' («) C"™- ^^S- Condition, L. 9. 
 
 son, 1 D. & R. 35. (/) Winter v. W?iite, 3 Moore, 674.
 
 VAUIANCE. 477 
 
 another, is satisfied by proof of a bill filed against B., C. and D., Act. 
 
 the perjury being assigned on a fact which is material as between ^'"".'•'♦''" "^ 
 A. and B. only, and it seems that it would have been sufficient to 
 allege tliat it was filed against B. only {(j). 
 
 If the act itself which is the foundation of the claim or charge Allegation 
 
 be proved, it seems that allegations as to the manner of doin<>- it "*""'"''^''« 
 
 111 /, ■ 1 • o ' and mten- 
 
 iaid by way ot aggravation, may be rejected. Thus upon a charge tion. 
 of murder the act is laid to have been done wilfulhj and of malice 
 aforethought, yet, although neither of these allegations be proved, 
 the prisoner may be convicted of manslaughter (/^). 
 
 So if a libel be alleged to have been published with intent to 
 bring the administration of justice into contempt, and also to 
 defame particular magistrates, the defendant is liable to be con- 
 victed if a publication with either of those intentions be proved 
 against him {i). 
 
 Upon an indictment charging the defendant with assaulting a 
 female child, with intent to abuse and carnally to know her, he 
 may be convicted of the assault with intent to abuse her, although 
 the jury negative the rest of the intention (A ). 
 
 If slanderous words be alleged to have been spoken with intent 
 to injure the plaintiff in two trades, it is not a fatal variance if it 
 turn out that the intent was to slander him in one of them 
 only (Z). 
 
 Variances in the proof of a written instrument may be consi- Written 
 dered, 1st, Where it is set out by the tenor, Sec. ; 2dly, Where it instrument. 
 is described in substance and effect ; 3dly, Where it is vouched 
 in proof of particular facts by a description of its date, names of 
 parties, &c. ; 4thly, Where a fact is simply alleged, without vouch- 
 ing the instrument, and the instrument is used but as evidence. 
 Previously to stating the decisions applicable to this branch of the 
 inquiry, it may be proper to observe, that by a late wholesome 
 statute, power is given to Courts of Record to amend the record in 
 a civil action, or prosecution for a misdemeanor, in case it vary 
 from a writing produced in evidence to support it (m). 
 
 In general, where a party is bound, either by the nature of the 
 case, or by his own allegation, to strict proof of a written docu- 
 ment, any variance which affects the sense will be fatal ; but a 
 
 (g) R. V. Benson, 2 Camp. ^01, cor. (^) 7^. v. Daicson, cor. Holroyd, J. 
 
 Lord Ellenborough. York Sura. Ass. 1821. 
 
 (/i) 2 Hale, 246 ; Fost. 329. (0 Figgins v. Cogswell, 3 M. & S. 
 
 (i) R. V. Evans, cor. Bayley, J. Lane. 369. 
 
 Sp. Ass. 1821. (?«) See below.
 
 478 PROOFS : 
 
 tYri mere variance in the spelling of a word will not be material unless 
 
 tte" 
 instrumenf ^^e word be thereby altered into one of a different meaning (m). 
 
 The words, '^ to the tenor following,'' or '^ as follows," or "in 
 the words and figures following" bind to an exact recital {n). 
 
 Under such an allegation the insertion of the word nee instead 
 o{non{o), air for heir(p), would be fatal; but a variance of the 
 word abbg for abbey {q), or in an indictment for perjury, of 
 undertood and believed for understood and believed (r), would not 
 be material. 
 
 A variance in a name contained in an instrument so set out, or 
 in a record on a plea of nul tiel record, will be fatal, as of Craioley 
 for Crowley {s), Ansty for Anesty, Shartless for Sharpless{t), 
 Shutliff for Shirtliff (u), unless, as it seems, the name be idem 
 sonans, as Segrave for Seagrave {x). 
 
 And so it is where a name is alleged which is to be proved by 
 a record, or other written instrument (?/). 
 
 An allegation that it was presented in an indictment in manner 
 and form following, does not bind to an exact proof; and there- 
 fore, where the indictment set out under that allegation omitted 
 the word despaired, it was held that the variance was not 
 material {z). 
 -^ If the condition of a bond be set out on oyer, a variance from 
 
 condition of the tenor will be fatal. Thus where, on oyer, the condition was, 
 that if the defendant should pay to the plaintiff the full sum of 
 100 Z. by six equal payments, &c., and under the plea of non est 
 factum the evidence was, that the word hundred had been omitted 
 in the bond, and had been interlined in it after execution, the 
 variance was held to be fatal, although it was clear, from the 
 context, that the word hundred was intended (a). Where a profert 
 
 {m) Vol. II. tit. Forgery. — Libel. {x) 2 Str. 889. Under the stat. 2 Will. 
 
 Crim. Pleadings. 100, 2d edit. Doug. 194; 4, c. 39, s. 4, a copy of a capias will be 
 
 Cowp. 230; Salk. 660. insufficient, if any word be so written as 
 
 (w) Doug. 97. It. V. Powell, 2 Bl. R. to vary from the original in sense or sound, 
 
 768 ; Salk. 660 ; Hob. 272 ; 8 Co. 78 ; as if Middesex be written for Middlesex. 
 
 Co. Ent. 508 ; 2 Saund. 121 ; Dyer, 75. HodgMnson v. Hodghinson, 1 Ad. & Ell. 
 
 Ladij Batcliffe v. Shubly, Cro. Eliz. 224. 533. 
 
 Blissett y. JolmsonCro.'EAiz.bOZ; 2 'Roll. {y) Turvil v. Aynsicorth, Str. 787. 
 
 Abr, 708 ; supra, tit. Libel. The plaintiff declared for stock in the cora- 
 
 (o) Salk. 660. pany trading ad Maria Austral, vocat, 
 
 ip) Abney v. Wallace, Str. 201. 231. the South Sea Company; and after great 
 
 (q) Ibid. debate it was held that the variance be- 
 
 (r) R. V. Beach, Cowp. 229. tween Austrial and Austral v/a.& fatal, but 
 
 {s) 12 Ass. pi. 2. the plaintiff had leave to amend. 
 
 (0 Bro. Var. 20. {-) R. v. May, Doug. 183. 
 
 (m) Gordon v. Austin, GT.H. Gil. See (a) Waugh v. Bussell, 5 Taunt. 707. 
 
 al3o R. V. Shahespear, 10 East, 83. Secwi, where the substance only is alleged 
 
 bond.
 
 eifect. 
 
 VARIANCE. 479 
 
 IS made of an indenture of demise, proof of the counterpart is sufii- Written 
 
 cient(i). iiislruuicut. 
 
 If a public statute be misrecited, the Courts will take notice of 
 the variance, and it will be fatal (c); but they will not notice 
 a variance in a private statute unless it be pleaded (d). 
 
 Where in setting out a statute the word or is used instead of the 
 word and, the mistake will be fatal (e), unless the word or m the 
 statute has always been construed to mean and (f). 
 
 Secondly, when the instrument is described merely by its sub- i^egal 
 stance and effect, it is sufficient to prove it by one which cones- " 
 ponds in legal effect. 
 
 In debt on bond, the plaintiff alleged that the defendant 
 acknowledged himself to be bound to Richard Bishoj) ; on oyer 
 it appeared that the defendant acknowledged himself to be bound 
 
 to Richard to be paid to the said Richard Bishop ; and on 
 
 demurrer the Court held that this was no variance, for the word 
 said pointed out the relation of the names so immediately that it 
 was impossible to doubt but that the bond was made to the person 
 to whom the money was payable {g). 
 
 The declaration averred that a note was payable to B. or order, 
 and alleged an indorsement as payable to C. or order, and on 
 production of the note the indorsement was. Pray pay to C. ; it 
 was held that there was no variance in substance, for by the 
 indorsement it was payable as alleged (/*). 
 
 and oyer is not demanded. lb. And Gibbs, In an action on the case for detainlno- a 
 
 C. J., observed, that C. B. Comyns, in 5 bond alleged to have been given by Lord 
 
 Com. Dig. Obligation, B.4, had misunder- Gave, upon non assumpsit pleaded, a bond 
 
 stood the case Cull ^- Ux. v. Sarmine, was given in evidence executed by Lord 
 
 when he says, that if the declaration be Gage ; and the Court of C. B. held that 
 
 upon a bill that he will pay, and the bill the variance was not material. Alcorn v. 
 
 says, " if he pay," the variance will not be Westhrook, 1 Wlls. 115 ; but it seems from 
 
 material; and that what was really decided the report, that although the declaration 
 
 in that case was, that the mis-spelling, by alleged the name to be Gave, yet in other 
 
 adding an e final to the name of the widow parts it was stated to be Gage. If in set- 
 
 Sarmine, did not thereby vitiate the obli- ting forth the substance and effect a blank 
 
 gation. be supplied, and a meaning be thereby 
 
 (b) Pearcev. Morris, 2 B. & Ad. .390. added which is not actually supplied by 
 
 (c) Boyce v. Whitaher, Doug. 97. any terms contained in the instrument it- 
 {d) B. v. Wilde, 1 Lev. 206; Doug. 97; self, the variance will be fatal. An indict- 
 
 1 Salk. 330; 1 Lord Ray. 318. ment for perjury alleged that the defend- 
 
 (e) R. V. Marsack, 6 T. R. 771. See ant swore in substance and effect, "that 
 
 the Attorney-General V. Horton, 4: Frice, A. assaulted her, and at the same time 
 
 237, where thereout for thereon was held threatened to shoot her," the word time 
 
 to be an immaterial variance. was omitted in the affidavit, and the 
 
 (/) Ibid. variance was held to be fatal. R. v. Mary 
 
 (g) Bishoj) v. Morgan, 11 Mod. 275. Ann Taylor, 1 Camp. C. 404. 
 
 See also Waugh v. Bussell, 5 Taunt. 707. (/() B. N. P. 275.
 
 480 PROOFS : 
 
 Written Where the declaration was on a note promising to pay a sum 
 
 instniinent. ^f money and interest, and the proof was of a note entitled in 
 efibct. a cause with a promise to pay the debt and costs, it was held to be 
 
 sufficient (i). 
 
 So where the declaration alleged a bond for 40 I. to be paid to 
 the plaintiff, and on oyer of the bond it was to be paid to his 
 attorney or assigns, the Court, on demurrer, lield the variance to 
 be immaterial, for payment to the plaintiff or his attorney was the 
 same thing ; the teneri made it a debt to the plaintiff, and a solvend 
 to any one else would be repugnant {h). 
 
 In an action by the husband alone, on a bond alleged to be 
 given to him, he gave evidence of a bond to himself and his wife ; 
 and this was held to be no variance, for he had a right to reject 
 the obhgation to his- wife, and in legal import it was a bond to 
 himself (Z). 
 
 So where, in covenant, a lease was alleged to have been made 
 by the plaintiff on the one part, and the defendant on the other, 
 and the lease proved under the plea of non est factum, was by the 
 plaintiff and his wife of lands the property of the wife before 
 marriage (//?). 
 
 In an action against the high bailiff of Westminster for a false 
 return to a writ of fi. fa., the plaintiff alleged a warrant to levy 
 200/. of the goods of A. U., which the plaintiff had recovered 
 against A. U. He proved ^ fieri facias to that effect, and a war- 
 rant to levy 200 I. of the goods and chattels of A. U., which 
 
 the plaintiff had recovered against ; and it was held that 
 
 the allegation was satisfied, for the name might be supplied by 
 
 reference (^^). 
 
 So where the declaration on a bond alleged that the defendant 
 
 acknowledged himself to be bound in so many pounds, on the 
 production of the bond it appeared that the word pounds in the 
 obligatory part was omitted, but it being manifest from the con- 
 dition of the bond that pounds were meant, it was held that the 
 omission might be supplied (o). 
 
 A declaration for maliciously holding to bail, in setting out the 
 judgment in the former action, stated, " it was thereupon consi- 
 dered that the then plaintiffs should take nothing by their said 
 
 {i) Coombs V. Ingram, 4 D. & R. 216. (m) Arnold v. Revoult, 1 B. & B. 443; 
 
 {k) Salk. 659. 4 Moore, 66. Beaver \. Lane, 2 Mod. 217. 
 
 (I) Ankerstein v. Clarke ^ others, (n) King v. Mon'is, Str. 909 ; Fitzg. 
 
 4T. R. 616. Although the bonrt was given 198; 1 Ford, 85. See also Hendray v. 
 
 to the wife as administratrix. Ibid. And Spencer, cited 1 T. R. 238 ; and Vol. II. 
 
 see Arnold v. Revoult, 1 B. & B. 442. tit. Sheriff.. 
 
 Beaver v. Lane, 2 Mod. 217. (o) Coles v. Hnlme, 8 B. & C. 568.
 
 instrument. 
 Lcjral 
 
 VARIANCE. 481 
 
 writ, but that they and their pledges to prosecute should be in Writtpn 
 mercy," &;c. In the record of the former judgment the words 
 " and their pledges to prosecute " were omitted, and it was held cfFuct. 
 that the words might be rejected as surplusage {p). 
 
 A declaration in setting out the condition of a bail-bond 
 stated, that if the defendant should appear to answer the plain- 
 tiff, according to the custom of Ids Majesty's court of Common 
 Bench, then the obligation should be void ; on the production of 
 the bond it appeared that the words in italics were omitted, 
 but this was held to be no variance, as the legal effect was 
 averred {q). 
 
 An avowry alleged certain rent to be due under a demise, 
 and certain further increased rent for breaking up land into til- 
 lage. It appeared from the lease that the increase of rent was 
 confined to the last three years, and the rent was, in fact, claimed 
 in respect of part of the last three years, and the Court held that 
 under the statute (r) this was no variance, the mere effect and 
 operation of the demise being stated ( s). 
 
 In an action for false imprisonment, the declaration, in setting 
 forth the bill of Middlesex, alleged that the sheriff was com- 
 manded to take A. B. (the then defendant) and John Doe, if, &c., 
 and them, &c. The bill produced was in words at length, and 
 it was held to be no variance, for it was sufficient to set out the 
 substance ; and there was no variance between what was set out 
 and the bill of Middlesex produced {t). 
 
 Where in proceeding against bail above, and nul t'lel record 
 pleaded to a replication, which alleged a capias ad satisfaciendum, 
 returnable Coram Rege apud Westm., a ca. sa. was produced, 
 returnable Coram Rege uhicunque, &,c,, it was held to be no 
 variance (m). 
 
 In an action against the sheriff for misconduct in the sale of 
 the plaintiff's goods, under a fieri facias, the plaintiff, in stating 
 the substance of the writ, alleged that the sheriff was commanded 
 to levy 80 5. awarded to J. C. for his damages sustained, by 
 
 {p) Judge V. Morgan, 13 East, 547. {t) Wilson v. Mawson, cor. Lee, C. J., 
 
 Although the judgment was pleaded with cited 1 T. R. 237. 
 
 a pj-out patet. Note, that Lord EUenbo- (u) Roberts v. Price, Ld. Raym. 702. 
 
 rough observed that there was an Sfc. in And see Shuttleicorth v. PilMngton, 2 
 
 the record. See Phillips v. Shaw, 4 B. Str. 1 155, cited by Buller, J., 1 T. R. 240; 
 
 & A. 435; 5 B. & A. 984; hifra, 488. where it was held that tlie omission of 
 
 (q) Bonfellow v. Steward, 3 Moore, w&icwn^'Jfe in a bail-bond was not material; 
 
 214. for that by appearing before the King, was 
 
 (r) 11 Geo. 2, c. 19. meant the appearing before the King in his 
 
 (*) Roulston V. Clarke, 2 H. B. 5G3. court, and not in person. 
 
 VOL. I. I I
 
 482 TRCOFS : 
 
 Written orcasion of the detaining of the d(!l)t ; and the writ stated that 
 
 Lrn'i'l"'"^ the 80 s. were awarded to J. C. for his damages sustained, as well 
 
 eitect. ijy reason of the detaining the debt, as for his damages ; and it 
 
 was held to be no variance, for costs, in a legal sense, are included 
 
 in the word damages (x). 
 
 Where in an action for bribery, the declaration alleged a pre- 
 cept to the mayor, and the plaintiff gave in evidence a prccejjt 
 directed to the mayor and burgesses, the variance was held to 
 be immaterial (?/) ; for the substance was proved, and the mayor 
 being the proper returning officer, the precept should have been 
 directed to him. 
 
 So where the declaration alleged a precept to the mayor, and 
 proof was given of a precept directed to the mayor and com- 
 monalty (z). 
 
 So where the precept was alleged to be directed to the bailiffs 
 and jurats of Seaford, and the evidence was of a writ directed 
 to the bailiff and jurats of Seaford (a). 
 
 In an indictment for perjury, it was alleged that a bill in Chan- 
 cery was directed to Robert Lord Henley, &c. ; it appeared in 
 evidence to be directed to Sir Robert Henley, Knight, but the 
 objection was overruled (b). 
 
 Where a declaration for penalties under the stat. 55 Geo. 3, 
 c. 137, s. 6, alleged that the defendant was overseer of the town- 
 ship of S, duly appointed, and the appointment produced purported 
 to be an appointment of the defendant as overseer o{ the j)arish of 
 S., and it was proved that the township of S. and all the other 
 townships within the parish of S. maintained their own poor 
 separately, and there was no evidence that any overseer had ever 
 been appointed for the parish of S., and that the defendant had 
 acted as the overseer of the township of S. ; it was held that it 
 might be presumed that the word parish had been inserted by 
 mistake (c). 
 
 The declaration stated the condition of a replevin-bond to pro- 
 
 (x) PAiZZipsv. B<7co?i, 9East,298. Leafe, 1 Camp. 139. Where the indict- 
 
 (j/) Cuming v. Sibley, cited 1 T. R. 239. ment alleged the former trial to have been 
 
 {z) Dickenson v. Fisher, Burr. 2'2C7. before Littledale, J., without a jjroMf/>a<rf 
 
 Note, that the word commonalty in the j^^^ recordum, and it did not aj)pear from 
 
 precept had been struck through with a tlie record itself before whom the trial took 
 
 pen, but not obliterated. place, but the postea stated it to have 
 
 (a) Warre v. Harbin, 2 H. B. 113. taken place before Sir C. Abbott, L. C. J., 
 
 {b) R. V. Lookup, Trin. 7 Geo. 3, cited and it was proved that in fact the trial 
 
 1 T. R. 240. And see It. v. Pippet, 1 took place before Littledale, J. sitting for 
 
 T. R. 236. Byne v. Moore, 5 Taunt. 187. tlie Chief Justice in London. 
 
 Cousim V. Brown, 1 R. & M. 291. R. t. (c) Stede v. Smith, 1 B. & A. 94.
 
 VARIANCK. 483 
 
 secute an action for taking, (fee. his goods and chattels in the said Written 
 condition mentioned, the condition was to prosecute for takinir. (fee. \"-~'*''"'"«"*- 
 goods and chattels, and groiving crops, and held to be no variance, effect, 
 for growing crops may be considered as chattels within the stat. 
 11 Geo. 2, c. 19 (cZ). 
 
 An allegation that A. was bound by a deed is satisfied under 
 the plea of non est factum, by evidence of a joint deed by A. & 
 B. (c), whether the deed be joint, or joint and several, for it is still 
 the deed ofyl.(/). 
 
 If the substance and effect of an instrument be alleged with 
 more particularity than is contained in the instrument, the vari- 
 ance will be immaterial, provided the particulars be true in fact. 
 An allegation that a writ was directed to A. and B. sheriff of 
 Middlesex, is satisfied by evidence of a writ directed generally to 
 the sheriff of Middlesex, coupled with evidence that A. and B. 
 were the sheriff (r/). 
 
 Where a written instrument is described merely by the sub- 
 stance and effect, superfluous and insensible words occurring in 
 the description may be rejected as surplusage. Thus, where in 
 a declaration for bribery, in setting forth the precept from the 
 sheriff to the portreeve of a borough, it was alleged, " and if 
 the said election so made should certify," &c., it was held that 
 the word if, which was not in the precept itself, might be re- 
 jected as surplusage, as the precept was not described by its 
 tenor (A). 
 
 An indictment for perjury, assigned on an aflSdavit to support a 
 petition by the defendant to supersede a commission of bankrupt 
 against him, alleged the petition, and that the defendant in his 
 petition stated declarations made by the petitioner before the 
 commission ; upon the trial it appeared from the petition that the 
 declarations were made before the commissioners, and held to be 
 sufficient, for the commission might mean either the authority or 
 the persons entrusted, and it appeared from the context that the 
 latter were meant, and it was suflicient to set out the petition in 
 substance and effect {i). 
 
 {d) Glover v. Coles, 1 Bing. 6. The al- (f) Ibid. But a memorial under the An- 
 
 legation of a covenant to pay, &c. in twelve nuity Act, stating that A. and jB. were 
 
 months, is proved by a covenant to pay in severally bound, is bad, if they were bound 
 
 twelve calendar mouths ; but (semble) it jointly as well as severally. Willey v. 
 
 appeared from other parts of the record Caiothoriie, 1 East, 398. 
 
 that calendar months were meant. Cock~ (g) JBatchellor v. Salmon, 2 Camp. C. 
 
 rell v. Gray, 3 B. & B. 386. 525. 
 
 (e) Vol. II. tit. Deed.— Variance.— (h) King v. Pippet, 1 T. R. 235. 
 
 Middleton v. Sandford, 4 Camp. C. 36. (i) li. v. Dudjnan, 4 B. & C. 850. 
 
 I I 2
 
 484 
 
 PROOFS : 
 
 Wiittcn 
 inst.nuncnt 
 Legal 
 efiect. 
 
 Variance 
 from legal 
 cftcct. 
 
 So where a word in tlic declaration has been mis-spelt, and the 
 • mistake and the word really intended plainly appear from the 
 context, the variance will not be material. As where a lease 
 granted liberty to make levels, pits and soughs, and the declara- 
 tion in covenant stated it to be a liberty to make sloughs (k). 
 
 But in general a description of an instrument, or an averment 
 to be proved by an instrument, contrary to its legal effect, will be 
 fatal (I) ; as, if the plaintiff declare on a lease by A. and J3., and 
 the proof be that A. being tenant for life, remainder to 13. in fee, 
 they both joined in a lease to the plaintiff (m) : for during the life 
 of y1. it is the lease of A. and the confirmation of 13., and after the 
 death of ^. it is the lease of ^. and the confirmation of A. 
 
 So if a party make a deed granting rent, which under the cir- 
 cumstances operates as a covenant to stand seised, if it be pleaded 
 as a grant of rent the variance would be fatal {n). 
 
 An allegation of a grant of an unqualified interest, is not proved 
 by evidence of a qualified grant of such interest as the title of the 
 plaintiff, as a shareholder, permitted (o). 
 
 If in an action of debt or recognizance of bail, the recognizance 
 be alleged generally, and on nul tiel record pleaded it appear 
 to be a recognizance with a condition annexed, the variance would 
 be fatal (2?). 
 
 Debt on bond conditioned for performance of an award ; plea, 
 no award ; replication, setting out an award ; rejoinder, no such 
 award. If it appear in evidence that a material part of the award 
 has been omitted, the variance will be fatal {q). But it is other- 
 wise if the part omitted be void (r). 
 
 So if the covenant be stated as absolute which is but limited ; as, 
 if a covenant for repairing contain an exception of casualties by 
 fire, and be stated without such exception (5). 
 
 (k) Morgan v. Edwards, 6 Taunt. 
 394. 
 
 (V) See Scandover v. Warne, 2 Camp. 
 270. 
 
 (/h) Treport's Case, G Co. 15. 
 
 (?0 Carth. 308. See also Baker v. 
 Lnde, 3 Lev. 291 ; 2 Will. Saund. 97, b. 
 note (2). Taijlor v. Vale, Cro. Eliz. 166; 
 Str. 432. 
 
 (0) JSarl of Portmore v. Bunn, 1 B. 
 & C. 694. Adam v. JDuncalfe, 5 Moore, 
 475. Tliere can be no variance from the 
 legal effect when the terms of the instru- 
 ment itself are set out. Ross v. Parker f 
 
 1 B. & C. 358. Nor in general where the 
 allegation corresponds 'loith the fact ; as 
 where an act is truly stated to have been 
 done by the under-sheriff, although, in 
 point of law, it be the act of tlie sheriff. 
 
 {p) Per Powel, J. Ward v. Griffith, 
 Ld. Raym. 83. 
 
 {q) Foreland v. Hornigold, Lord^Raym. 
 715. 
 
 (»•) Ibid. 
 
 {s) Brown v. Knill, 2 B, &1B. 395. 
 Howell V. Ricliards, 1 1 East. 633. And 
 see Tempany v. Barnard, 4 Camp. 20. 
 Secus, where the qualification is no part
 
 VARIANCE. 485 
 
 Where in debt for an amercement the declaration alleged that Written 
 the defendant was summoned to serve on the jury of the court- "'strument. 
 
 VuriuiicG 
 
 leet and court-baron, but the summons proved was to serve on the fiom legal 
 jury of the court-leet only, the variance was held to be fatal {t). t^ect. 
 
 An allegation that the plaintifis by the judgment of the Court 
 recovered against the bail, with a prout patet, is not proved by 
 the production of the recognizance of bail, and the scire facias 
 roll containing the entry, " therefore it is considered that the 
 plaintiffs have their execution thereupon against the bail," for 
 this is an award or judgment of execution, and not a judgment to 
 recover (m). 
 
 An allegation of a writ indorsed to levy 600 Z. together with 
 sheriffs' poundage, officers' fees, and other legal charges and inci- 
 dental expenses attending the levy, is not (it has been held) proved 
 by a writ indorsed to levy 600 /. together with sheriffs' poundage, 
 officers' fees, &c. (x). 
 
 An averment that a clausum fregit issued out of the Common 
 Vle^&Wiih.^ prout patet, is not proved by the record of an ap- 
 pearance to a clausum fregit issued out of Chancery (?/). 
 
 A bill of exchange alleged to have been drawn at Dublin, to 
 wit, at Westminster, for a specified sum of money, is not proved 
 by evidence of a bill of exchange drawn in Ireland for that sum 
 of money; for English currency differs from Irish, and the bill 
 declared upon must be taken to be a bill drawn in England for 
 Enghsh money {z). 
 
 An averment of an order for the landing of goods on a quay 
 or wharf, is not satisfied by proof of an order to deliver at the 
 king's warehouse, although the warehouse stands upon the 
 quay («). 
 
 An omission to allege that which has no legal operation is im- 
 material (6); as, if a bill of exchange be alleged to be drawn for 
 the payment of so much money, and the bill proved to be for the 
 payment of so much money sterling (c). 
 
 But a variance in alleging the substance and effect of a deed or 
 
 of the covenant. Ibid. And Elliott v. (a) R.v. Cassano, 5 Esp. C. 231. 
 
 Blake, 1 Lev. 88. Gordon v. Gordon, {h) Sanderson v. Judge, 2 H. B. 509. 
 
 1 Starkie's C. 94; Com. Dig. Pleader, (c) Kearney v. King, 2 B. & A. 301. 
 
 C. 97. Glossoj}, V. Jacob, 1 Starkie's C. 69. So 
 
 (t) Gery v. Wheatley, 1 H. B. 163. where a memorandum is made on a bill 
 
 (tt) Phillipson v. Mangles, 1 1 East, of exchange, or promissory note, which is 
 
 616. no part of the bill or note. See Hardy v. 
 
 {x) Stiles V. EajcUns, 5 Esp. C. 133. Woodroofe, 2 Starkie's C. 319. Butter- 
 
 (y) Myers v. Kent, 2 N. R. 503. worth v. Lord Le Despencer, 3 M. & S. 
 
 (2) Kearney v. King,2 B. & A. 301. 150. 
 
 1 1 a
 
 486 
 
 PROOFS : 
 
 Wrttton other instrument will be fatal, although the allegation be not mate- 
 
 Vuriiince ""^^^ ^*^ '''^^ causc 01 action. 
 
 from legal The plaintiff declared in covenant that the defendant demised 
 
 c'tTcct. . 
 
 to him a wharf and storehouses, where the word in the deed was 
 storehouse, in the singular, and it was held to be a fatal variance, 
 although no breach was assigned on the demise of the store- 
 house (d). 
 
 So where the declaration in an action on the case against the 
 sheriff, alleged a judgment for non-performance of promises, and 
 the judgment proved was for non-performance of a single pro- 
 mise ((?). 
 
 In the previous case of Hamborough v. Wilkie (f), where the 
 plaintiff, in declaring on a mortgage-deed, alleged that the de- 
 fendant bound himself, his heirs, executors and administrators, 
 and on nan est factum pleaded, it appeared that the word heirs 
 was not in the deed, it was held that the variance was not fatal, 
 inasmuch as the allegation of heirs was purely impertinent, and 
 might have been struck out upon motion. It is difficult, however, 
 to rescue this case from the operation of the rule so often adverted 
 to, that a descriptive averment, though ever so immaterial, is 
 never impertinent. And the authority of this case seems to have 
 been much doubted in the later case of Hoar v. MiU(g). 
 Writinfr Thirdly, Where an instrument is not alleged by its tenor, but is 
 
 date^ & vouched and referred to by its date, or names, sums, days of pay- 
 ment, or other particulars, a variance from the precise allegations 
 will be material, for they are descriptive of the instrument itself(i^). 
 First, if it be described by the date {i) : 
 
 Where a judgment was described as in a suit during the reign 
 of the present king, it was held that it was not supported by 
 evidence of a judgment in a preceding reign(^). 
 
 (d) Hoar v. Mill, 4 M. & S. 470. 
 
 (e) Edwards v. Lucas, 5 B. & C. 
 639. 
 
 (/) 4 M. & S. 474, n. 
 
 {g) 4 M. & S. 470. See the observa- 
 tions of Lord Elleuliorough, C. J. and Le 
 Blanc, J. ibid. 
 
 (h) See in general Green v. Rennett, 
 1 T. R. 656. Purcell v. Macnamara, 9 
 East, 157. Edicards v. Lucas, 5 B. & 
 C. 339. Sheldon v. Whitaker, 1 R. & M. 
 266. i?. V. Bellamy, 1 R. & M. 171. 
 Broken v. Jacobs, 2 Esp. C. 726. B. v. 
 Taylor, 1 Camp. 204. Woodford v. Ash- 
 
 ley, 2 Camp. 193; and the cases cited 
 below. 
 
 (i) Baynham v. Mattheics, Fitzg. 130. 
 Stafford v. Farrer, cited Str. 22. A lease 
 to commence from the day of the date, 
 may mean either exclusively or inclusively. 
 Pugh V. Duke of Leeds, Cowp. 714; see 
 Welsh V. Fisher, 2 Moore, 378. An Act 
 passed in the 24th year, &c. when the 
 Parliament was continued by prorogation 
 till the 25th year, &;c., being described in 
 a conviction as passed in the latter year, 
 the variance was held to be immaterial. 
 jR. V. Windsor, 2 Ch. C. T. M. 513. 
 
 (h) Dickins v. Grcnville, Carth. 168.
 
 VARIANCR, 487 
 
 So if in debt on a judgment of Hilary term, on mil tiel record Writing 
 pleaded, it appear to be a judgment of Easter term {I). date &c. ^ 
 
 So if a declaration on a note payable by instalments mis-state 
 the day on which one of the instalments is payable (/w). 
 
 But if the date alleged be merely formal, as if it be prefaced 
 by a videlicet, and therefore be not descriptive, it may be proved 
 to have been made on another day, and the variance will not be 
 fatal {n). 
 
 An allegation of date, according both to the legal and domi- 
 nical year, is supported by evidence of a deed 30th March 1701(o). 
 
 An admission of the due execution of the deed stated in the 
 declaration, does not preclude the defendant from objecting on 
 the score of variance {p). 
 
 So a variance from the place at which a deed is dated, is also 
 material {q). 
 
 Where the time of a particular fact is not material, a variance 
 from the date will not be material, although it is to be proved by 
 a record or other written instrument, provided the time be not 
 alleged as descriptive of the record, by means of a, prout patet per 
 recordum, or otherwise; and therefore, where in an action for a 
 malicious prosecution the plaintiff alleged that he was acquitted 
 on a particular day (r), it was held that the precise day was not 
 material, the substance of the allegation being, that the plaintiff 
 was acquitted before the commencement of the action (.9). So 
 where in an action on the case for not indemnifying the plaintiff, 
 he alleged that B. afterwards, to wit, in Michaelmas term in such 
 a year, obtained judgment against him, and on the trial it ap- 
 peared that the judgment was of a different term, it was held that 
 
 (Z) Wells V. Girling, 3 Moore, 75. {q) B. N. P. ]70; Salk. Go9. Debt 
 
 (»«) Ince V. Hay, Fort. 35. on ^'oi'il 1^'od cum dcfendens apud Lon- 
 
 (n) Wells V. Girling, 3 Moore, 75. ''""' »'■ '"""''''''^ '" *'''^''' «° ^y*^"" '* 
 Nicholls V. Bamfylde, 1 T. R. 657. And appeared tl.at the deed was dated at Port 
 see Hob. 209; 3 Lev. 243. PMUips v. ^* °^^'^''^' ^"^^ ^^'^ Court held tliat the 
 
 c,, A -o i A. A<iK • ^ 4. /j\ tlating was local, although the plaiutifF 
 
 Shaw, 4 B. & A. 435 ; infra, note {t). " > o r 
 
 A J -i? i.1 J 1 i- 1 * 4. ii » might have averred London hv way of 
 
 And if the declaration merely state that ^ j j 
 
 , , venue merely under a videlicet. But au. 
 
 a promissory note was made on such ■' ' 
 
 , ,, , ., u 1 <. „ „ A-w... „t- whether, if the place be not expressly 
 a day, though it bear date on a diirerent ' ' t' j 
 
 -. ., '. ^^t ,. u e 4. ^ r< averred as descriptive of the record, as by 
 
 day, the variance will not be fatal. Loxon ^ > j 
 
 T « /-, o,.o n the words " bearing date at such a place," 
 
 V. Lyon, 2 Camp. 308, n. Pasinore v. ° ' ' 
 
 i^r J7 noT^ X rin the avermeut of placB would uot bc ascrlbcd 
 North, 13 East, 517. ^ 
 
 to venue. 
 
 (0) Holmany.Brirrough,?,^\V.G5^,Q. (^^ p^^^^^^ ^ Macnamara, 9 East, 
 
 {p) Goldie V. Shuttleworth, 1 Camp. 157. 
 70. But senible, it would have been other- (s) lb. and 9 East, 600 ; and see R. v. 
 
 wise if the admission had run " as stated Payne, there cited ; and Brinky v. Wut- 
 in the declaration." Ibid. son, 2 BI. 1{. 1050. 
 
 I I 4
 
 488 PROOFS : 
 
 Writing the variance was not material (t), the time not being alleged with 
 date'&c ^ a prout patet per recordtim. It has been since held that a prout 
 patet alleged unnecessarily, and which might have been struck out 
 oftlie declaration, may be rejected as surplusage {u). 
 
 It is otherwise where the date is material from the nature of the 
 case. The plaintiff, in an action against an attorney, for not pro- 
 ceeding to judgment in due time, alleged under a videlicet, that 
 process was sued out Jan. 24, 1785, returnable on Monday 
 next after fifteen days of St. Hilary. He proved process sued 
 out 24th Jan. 1784,- and it was held to be material, because it 
 affected the time of the return, and consequently the time when 
 the defendant ought to have proceeded to judgment (a:). 
 By name. In debt on a judgment, a variance as to the name of any party, 
 
 his abode or addition, will be fatal on nul tiel record pleaded (y). 
 
 Where the plaintiff declared in debt on a judgment against 
 Hamilton Fleming, esquire, and on nul tiel record pleaded pro- 
 duced a judgment against the right honourable Hamilton Fleming, 
 Earl of Wig ton, having privilege of peerage, the variance was held 
 to be fatal (z). 
 
 The plaintiffs being assignees of JB. Tahart, sued as such on a 
 recognizance of bail, the defendants pleaded comperuerunt ad diem, 
 and on the production of the roll it appeared that bail had been 
 put in at the suit of the plaintiffs, as the assignees of B. Tarhart^ 
 and the defendants had judgment (a). So an allegation that a 
 commission of bankrupt issued against the surviving partner of 
 Edmund Darhy, is not proved by evidence of a writ to supersede 
 a commission against Edward Darhy (b), although the plaintiffs 
 were in fact surviving partners of Edmund Darhy. 
 
 {€) Phillips V. Shaw, 4 B. & A. 435 ; judgment was alleged to be a judgment for 
 
 5 B. & A. 984. Gadd v. Bennett, 6 damages by reason of the non-performance 
 
 Price, 549 ; infra, 492. Rastall v. Strut- of a certain promise and undertaking, and 
 
 ton, 1 H. B. 49. the judgment itself was for the non-per- 
 
 (m) Stoddart v. Palmer, 3. B. & C. 2, formance of certain promises and undertak- 
 P. C. The distinction is between matter ings, the variance was held to be fatal. 
 of substance, which must be substantially Paynes v. Forrest, Str. 892. But it seems 
 proved, and matter of description, which that tlie case was adjourned. 1 Ford, 38. 
 must be literally proved : the prout patet See Black v. Lord Braybrooke, 2 Star- 
 was unnecessary, and therefore may be kie's C. 7. Supra, 485, 6. But an aver- 
 rejected as surplusage. lb. Co. Litt. ment that issue was joined, was held to be 
 303, a. Waite v. Briggs, 1 Ld. Raym. 35 ; proved by an information containing two 
 3 Salk. 6G5. counts on each of which issue was joined. 
 
 (x) Green v. Bennett, 1 T. R. 350. And R. v. Jones, Peake's C. 38. 
 
 see Few v. Backhouse, 8 Ad. k Ell. 789. (a) Bingham §• others v. Dickie, 5 
 
 {y) 1 Roll. 754, 1. 40. Taunt. 814. 
 
 (z) Bhtckuwre v. Fleming, 7 T. R. (b) Matthews S; another v. Dickinson-, 
 
 447. Where, on a sci.fa. on a judgment, a 7 Taunt. 399.
 
 VARIAKCE. 4a9 
 
 In an action against a surety on a bail-bond, an averment of By name. 
 the issuing a latitat against Francis J. by the name of John J., is 
 not supported by proof of a latitat against John J., although the 
 bond was signed by the principal in this form, " Francis J. ar- 
 rested by the name of John J." {c). But it seems that a mere 
 variance from the omission in the declaration of the description 
 which is superadded in the record, is not material unless some 
 ambiguity result (d). The declaration styled a party in a former 
 cause Samuel Glover, but the record in reciting the judgment 
 against Glover styled him Samuel Glover the younger, and the 
 objection was overruled; for although the declaration did not 
 give the party his full description, yet it did not give him a wrong 
 description (e). 
 
 Where an indictment alleged that an action was depending 
 between A. and S., and the judgment produced began " JB. sued 
 by the name of C. was summoned," &c. it was held that the 
 omission of the name by which S. was miscalled in the process 
 was immaterial (/). So it seems in general that if the name of 
 the party be not alleged as descriptive of the record, and be truly 
 alleged, a variance from it on reading the record will not be 
 material (g). 
 
 So a variance as to the number of parties {h) or parcels de- 
 scribed (i), or damages (A), will be fatal. Thus a variance in 
 setting out a covenant of a lease, in alleging the Cellar-beer field 
 for the Allerheer field, is fatal, although the plaintiff offer to waive 
 damages on that breach (Z). 
 
 Where the declaration on a deed of covenant recited certain 
 premises to be late in the occupation of Samuel M., and in the lease 
 it stood Saul R., the variance was held to be fatal (m). 
 
 If a judgment for an entire sum be stated, a variance will be 
 
 (c) Scandover v. Warrw, 2 Camp, stated it to have been made by 
 
 270. Const, esq., and B. F. G., and others, 
 
 (rf) Amey v. Long, 1 Camp. 14. their fellows, &c. Lord Tenterden is re- 
 
 (e) 1 Camp. C. 14. So where the de- ported to have held that evidence was 
 
 claration described a writ as against M. admissible to show that the justices named 
 
 B., and the writ produced was against in the indictment were present. R. v. Bel- 
 
 M. B. spinster. Brown v. Jacobs, 2 Esp. lamy, 1 R. & M. 174. 
 
 C. 726. Seem, as to the converse. lb. (g) Vide supra, 479. 
 
 (/) R. V. Windus, 1 Camp. 406. An (A) 1 Rol. 753, 1. 45. Rastall v. Strut- 
 
 indictment for perjury, setting out the re- ton, 1 H. B. 49. 
 
 cord of the case at the trial at which the (i) 3 Co. 2, a. 
 
 perjury was alleged to be committed, (A) 1 Rol. 754, 1. 40. 
 
 stated an adjournment of the sessions by (Z) Pitt v. Green, 9 East, 188. 
 
 Const, esq., and B. C. D. and others, (wt) Bowditch v. Maidcy, 1 Caujp. 105. 
 
 their fellows, justices, (kc, the record See Pitt v. Green, 9 East, 188.
 
 490 
 
 proofs: 
 
 Sums. 
 
 Estoppel. 
 
 Where the 
 writuig is 
 used as 
 mere evi- 
 dence. 
 
 material; but if tlic judgment be for several distinct sums, un 
 allegation that the judginent was given for one or more of those 
 sums, according to the fact, withuut noticing the rest, will be 
 good (w). 
 
 A variance is immaterial wliere the defendant is precluded from 
 taking advantage of it by estoppel ; as where he has executed a 
 deed by a name which is not his own (o), or by any act of his 
 which operates in the nature of an estoppel. Thus a lessee or 
 assignee of a lessee is estopped from disputing the title of his 
 lessors (j>). And therefore, where the plaintiffs, who derived title 
 from two of four lessors, the two other lessors having no interest in 
 the premises, alleged a demise by the four, and also alleged that 
 two of the four had no title, the objection being taken that the 
 plaintiffs should have alleged a demise by the two who had title, 
 it was held that the defendant was estopped by the lease (q). 
 
 An allegation, in an action against an acceptor, that the bill 
 was drawn by certain persons trading under the name and firm of 
 A. B. k Co., is satisfied by proof of a bill accepted by the de- 
 fendant, and purporting to have been drawn by A. B. k Co., 
 although it be proved that the firm consists of but one person (r ) ; 
 for the defendant is precluded from taking the objection by his 
 acceptance. 
 
 But on an indictment for stealing a note signed by A. Hooper, 
 when it was not so signed, the variance is fatal {s). 
 
 A lease was described to be made by the plaintiff of the first 
 part, James Cooke of the second, and J. S. of the third, and the 
 parties were so described in the heading of the lease, but Cooke 
 was in other parts of the lease described as George Cooke, and it 
 was uncertain, on the face of the deed itself, whether his name was 
 James or George, but it purported to be executed by George 
 Cooke ; the variance was held to be fatal on non est factum 
 pleaded (0- 
 
 4thly. Where a fact is simply alleged, without vouching any 
 instrument, and the instrument is used as mere evidence, a vari- 
 
 (n) Phillips V. Earner, 5 Esp. C. 358 ; 
 where judgment was given on a scire facias 
 for the debt and costs in the original ac- 
 tion, also for the nonprossing of a writ of 
 error brought on that action, and for the 
 damages and costs in the scire facias ; and 
 the declaration against the sheriff for a 
 false return stated the first two sums only. 
 
 (o) Gould V. Barnes, 3 Taunt. 104. 
 
 {p) Atkitison V. Cuatsivorth, 1 Str. 612. 
 
 And per Gibbs, C. J. in Wood v. Day, 
 1 Moore, 399. 
 
 (q) Wood v. Bay, I Moore, 389. 
 
 (?•) Bass V. Clive, 4 M. & S. 13. 
 
 (s) B. V. Craven, Russ. & Ry. C. C. L. 
 11. 
 
 (t) Mayd^ton v. Lord Palmerston, 
 1 Mo. ^' M. (i.
 
 VARIANCE. 491 
 
 ance will not be fatal, if the substance of the allegation be Where the 
 proved. '^"'^'"" ^8 
 
 ■* _ used as 
 
 An allegation that a latitat was issued on the 21st of June is '"ereevi- 
 proved by evidence of the issuing of a latitat then, though tested 
 of the previous term ( m). 
 
 A declaration for not indemnifying the plaintiff alleged that 
 D. P. afterwards, to wit, in Michaelmas term, 58 G. 3, reco- 
 vered and obtained judgment against the plaintiff, and the record 
 produced was of Hilary term ; the variance was held to be imma- 
 terial, the time not being alleged as descriptive of the instrument 
 by means of a prout patet (x). 
 
 An allegation that rent is due in respect of a certain messuage, 
 dwelling-house and premises, is supported by evidence of a lease 
 of two messuages, for premises may be considered as a cumula- 
 tive description (y). 
 
 An allegation in an action on the case for a conspiracy to indict 
 for barretry, alleged it to be coram justiciariis de pace necnon ad 
 diver sas felonias, Sfc, and the indictment proved was before justices 
 of the peace, without more, it was held to be no variance, for as 
 justices of the peace they might take the indictment {z). 
 
 Where the declaration averred that the defendant chargred the 
 plaintiff with violently assaulting him, and procured a warrant to 
 apprehend him for the said offence, and it appeared that the charge 
 was made for assaulting and striking, and the warrant produced 
 recited the charge to be for assaulting and beating, it was held 
 that the variance was not material {a). 
 
 But if a party unnecessarily allege that to have been effected by 
 means of a judgment on record which might have been alleged 
 generally, and proved by other means, he will be bound to prove 
 it by a judgment of record (b). 
 
 The plaintiff alleged that the defendant permitted his bill to 
 
 (m) Anon. 1 Vent. 3G2. But where, in took to keep the same in good and tenant- 
 
 an action against the sheriff for removing able repair, is proved by an agreement 
 
 goods without paying a year's rent, the containing a variety of provisions, and 
 
 declaration alleged a JieTi facias from the amongst others, that the defendants would 
 
 Court of King's Bench, and thefi.fa. pro- make good all repairs within three months 
 
 duced was from C. B., the variance was after notice by the plaintiff of the want of 
 
 held to be fatal. Sheldon v. Whitaker, repairs ; for the obligation to repair arises 
 
 4 B. & C. 657. oat of the tenancy, and the agreement was 
 
 (x) Phillips V. Sha7V, 4B. & A.435; evidence to prove the promise as laid. 
 
 6 B. & A. 984 ; tupra, 488. Colley v. Stretton, 2 B. & C. 273. 
 
 (y) Taylor v. Brooke, 2 M. & S. 269. (z) Cro. Jac. 32; Yel. 46. 
 
 An averment, that in consideration that (a) Byne v. Moore, 5 Taunt. 187. 
 
 the defendants had become tenants to the (b) T. Price, 540. 
 plaintiff of certain premises, they under-
 
 492 PROOFS : 
 
 Where the be discontinued for want of prosecution thereof, and that thereupon 
 use'das ^* ^'^^^ ^'^^'^ "^^^ there considered by the said Court that the said 
 mere evi- defendant should take nothing by his said bill prout patet, &c. 
 whereby the said suit then'and there became and was wholly ended 
 and determined ; it was held that this was not proved by the pro- 
 duction of the rule to discontinue, although had the allegation been 
 general it would have been satisfied by the production of the rule 
 and payment of costs (&). 
 Description The averment of a judgment with a prout patet per recordum 
 ments^" ^^^^ ^^^^ render proof by a record necessary, where, from the 
 Process, nature of the judgment, as averred, it appears that it is not of 
 record, as where the plaintiff declares in debt on a judgment in 
 Jamaica (c). 
 Description Where it is necessary to allege a court having judicial autho- 
 of^courts. j,j^y^ -^ -g j^Q^ essential that the style set out in the record should be 
 &c. exactly copied (£^). 
 
 Where a declaration in an action for a malicious prosecution 
 alleged that the defendant caused the plaintiff to be indicted at 
 the general quarter sessions of the peace for Middlesex, and the 
 record stated the indictment to have been found at the general 
 sessions, it was held to be sufficient, the offence being cognizable 
 at such general sessions (e). 
 
 A conviction being alleged to have been quashed at the general 
 quarter sessions, &c. the allegation is supported by proof that it 
 was quashed at an adjournment (/). 
 Action. In an action for not indemnifying the sheriff, against whom 
 
 trover had been brought for levying under a^. fa., after an act 
 of bankruptcy, an allegation that an action was prosecuted for the 
 recovery of the said money was held to be sufficient {g). 
 
 A bill of Middlesex is well described as a precept of the 
 king (h). 
 
 An allegation that an action is depending in his Majesty's Court 
 of the Bench at Westminster is not supported by proof of a pluries 
 bill of Middlesex, for by such an allegation the Court of Common 
 Pleas must be intended (i). 
 
 (b) Gadd v. Bennett, 6 Price, 540. It (e) Btuby v. Watson, 2 Bl. 1050. 
 was also held that a variance from tlie Secus, if the general sessions had not had 
 sum in tlie ac etiam part of a writ was authority. lb. 
 
 fatal; \\Ae supra, 480, 1. (/) Simpkiny. French, 12 Price, 394. 
 
 (c) Walker v. Witter, Doug. 1. And Ilullock, B., dub. See tit. Libel. 
 
 see Wigley v. Jones, 5 East; but see {g) Batchelor §• another v. Salmon, 
 
 Turner v. Eyles, 3 B. & P. 456. 2 Camp. C. 625. 
 
 (d) Constantine v. Bai-nes, Cro. Jac. (/t) Harris v. Bernard, Str. lOGt). 
 32. Buiby v. Watson, 2 BL 1050. (t) Impey y. Taylor, 3 M. & S. IGG.
 
 of thins 
 
 VARIANCE. 493 
 
 An averment that a defendant was acquitted by a jury in the Action. 
 Court of our said Lord the King, before the King liimself, is a de- 
 scription of an acquittal on a trial at bar, and is not proved by an 
 acquittal at JVisi Prius {k). 
 
 A commission of bankrupt, though under the great seal, does 
 not issue out of Chancery ; and it seems that an averment that it 
 did so would be fatal (/). 
 
 Under penal statutes, allegations of the receipt or embezzling Money. 
 of money are not satisfied by evidence of the receiving or embez- 
 zling bank-notes or bills of exchange, or other equivalent for 
 money (m). 
 
 An averment that A. has received 500 1. is not satisfied by 
 evidence that stock to that amount has been transferred into his 
 name (n). 
 
 An allegation of a loan of lawful money of Great Britain is sup- 
 ported by evidence of a loan of foreign money, as pagodas (o). 
 
 In the ordinary description of articles of trade, or other subject- Description 
 matter of averment, a variance will be material, or otherwise, in 
 point of law, as it is material or immaterial in point of fact in ordi- 
 nary language and acceptation. If the agreement alleged be to 
 deliver merchandisable corn, proof of an agreement to deliver good 
 corn of the second sort is insufficient (p). 
 
 Where the defendant in an action on a bond pleaded that the 
 bond was given to receive money won by the plaintiff from the 
 
 But where taking the whole record toge- Renalds v. Smith, 2 Marsh, 258 ; 6 Taunt. 
 
 ther it sufficiently appeared that the con- 251 . 
 
 dition of the bond was for appearance in (k) Woodford v. Ashley, 11 East, 599 ; 
 
 the Court of C. P., it was held that it was no 2 Camp. 193. See R. v. Coppard, 1 Mood. 
 
 variance from the statement of the condi- and M. C. 118. 
 
 tion in the declaration to appear "before {l)Poynto7iv.FosterSfothers,3Camp.58. 
 
 the Justices of our said Lord the King at (m) Vol. II. tit. Larciny. — Embez- 
 
 Westminster," according to the exigency zlement. — Where a clerk was charged 
 
 of the writ. Crofts v. Stockley, 5 Bing. with having received a 50 ?. bankrnote, 
 
 32; 1 M. & P. 81 ; 3 C. & P. 281. and 14 s. \Qd. in money, and having 
 
 Where the declaration against the sheriff embezzled the money, but the party who 
 
 for an escape, alleged that the party was paid it could not state how he paid it, wlie- 
 
 taken under a certain writ " of the King," ther all in notes, or by a draft, Bayley, J., 
 
 called a ca. sa,, issued on 8tli May 1826, directed an acquittal (i?. v. lies, Surrey 
 
 but the writ produced was in the name of Spring Assiz. 1816; Mann. Ind. 372), and 
 
 Geo. 3, but tested Sir W. D. Best, Knt., said that it ought to have been proved 
 
 8th May, in the seventh year, &c., in- that the defendant received the 14 s. \0d. 
 
 dorsed " May 13th, 1826 ;" held that the in monies numbered. 
 
 variance was immaterial, and that the (n) Jones v. Brindley, 5 Esp. C. 205. 
 
 sheriff having acted under the writ, could (o) Harrington v. Macmorris, 5 Taunt. 
 
 not afterwards treat it as a nullity. Elvin 228. 
 
 V. Drtimmond, 12 Moore, 523. And see (p) B.N. P. 145; I Bay. 735.
 
 494 PROOFS : 
 
 defendant at a game called Faro, it was held to be necessary to 
 
 prove the money to have been lost at that particular gamc((/). 
 
 Roconcile- It will be seen, that where a written instrument, such as a 
 
 varh!nco ])y ^ccord, is vouched in proof" of an allegation, parol evidence is in 
 
 averment, many instances admissible to reconcile the allegations with the 
 
 instrument (r). But where a variance occurs, which without 
 
 extrinsic explanation would be fatal, it seems that an averment of 
 
 identity is usually necessary to warrant such evidence. • 
 
 The defendant in ejectment for the manor of Artam pleaded 
 ancient demesne, and when Domesday Book was brought into 
 court, offered to prove that the manor was anciently called Nettam, 
 but the evidence was rejected, for tlie variance ought to have been 
 averred on the record (5). 
 
 It is a rule, that where a general allegation is put in issue, par- 
 ticular instances may be shown to prove it {t). It is otherwise in 
 the case of barretry ; for there, although the indictment be general, 
 notice must be given of the particular acts intended to be proved. 
 So also where the general question arises collaterally, for then the 
 party cannot be prepared to answer them. 
 
 Where in assumpsit the record o^ Nisi Prius, which corresponded 
 with the agreement, varied from the declaration and issue delivered, 
 and a verdict had been found for the plaintiff, the Court refused to 
 set it aside, as the Judge might at the trial have amended the 
 variance (u). 
 
 Two statutes are now to be adverted to, the objects of which are 
 enumerated in their preambles. The statute 9 Geo. 4, c. 15, 
 entitled, " An Act to prevent a Failure of Justice by reason of 
 Variances between Records and Writings produced in Evidence in 
 support thereof," recites, that " Whereas great expense is often in- 
 curred and delay or failure of justice takes place at trials, by 
 reason of variances between writings produced in evidence and the 
 recital or setting forth thereof upon the record on which the trial 
 is had, in matters not material to the merits of the case, and such 
 record cannot now in any case be amended at the trial, and in some 
 cases cannot be amended at any time," and then enacts, " That it 
 
 (q) Mazzincjhi v. Stephenson, 1 Camp, of ill fame, or issue on non comiws. In 
 
 291. See Calborne v. StocMale, Str. Clarke v. Periam, 2 Atk. 333, a bill 
 
 493. Sigell v. Jebb, 3 Starkie's C. 1. was filed to compel a woman to give up a 
 
 (r) Vol. II. tit. Parol Evidence j homlgi\en as premium pitdicitice, charging 
 
 Crim. Pleading, 325. 329, 2d edit. her with previous lewd conduct; and per 
 
 (s) Gregonj v. Withers, 28 C. 2; Gilb. Lord Hardwicke,C., general lewdness being 
 
 Ev. 44; 3 Keb. 588. charged,partieularinstances maybe proved, 
 
 (t) Per Lord Hard. 2 Atk. 339. 34G. for putting it in issue is sufficient notice. 
 As on an indictment for keeping a house (m) Berney v. Green, 12 Moore, 174.
 
 VARIANCE. 
 
 405 
 
 shall and may be lawful for every court of record holding pica in lioconcile- 
 civil actions, any Judge sitting at NisiPrius, and any Court of Over ""''" "* , 
 and Terminer and general gaol delivery in England, Wales, the avennunt. 
 town of Berwick-upon-Tweed, and Ireland, if such Court or Jud^-e 
 shall see fit (x) so to do, to cause the record on which any trial may 
 be pending before such Judge or Court in any civil action, or in any 
 indictment or information for any misdemeanor, when any vari- 
 ance (?/) shall appear between any matter in writing or in print pro- 
 duced in evidence {z), and the recital or setting forth thereof upon 
 the record (a) whereon the trial is pending to be forthwith amended 
 in such particular by some officer of the Court, on payment of such 
 costs (if any) to the other party as such Judge or Court shall think 
 reasonable, and thereupon the trial shall proceed as if no such 
 variance had appeared ; and in case such trial shall be had at 
 Nisi Prius, the order for the amendment shall be indorsed on tlie 
 postea, and returned, together with the record, and thereupon the 
 
 {x) Lord Tenterden refused to amend the 
 declaration, wliere the variance arose from 
 want of due care in drawing it. Jelfy. 
 Orvil, 4 C. & P. 22. It lias been held 
 that the Judge's discretion in making an 
 amendment under this statute cannot be 
 reviewed. Parlie v. Edrje, 1 Cr. & M. 429. 
 In Prudhomine v. Fraser, 1 Mood. & R. 
 435, Lord Denman refused to strike out 
 superfluous innucndos in a declaration for 
 libel. 
 
 (?/) These words have been held to extend 
 to the amendment of a misdescription of a 
 promissory note as a Idll of exchange. 
 MoUlet V. Poioell, G C. & P. 233. A mis- 
 take in the date of a bill of exchange. 1 
 Cr. & M. 429. Bentzing v. Scott, 4 C. & 
 P. 24. A mis-statement of the Court in 
 setting forth the record of a judgment. 
 Briant v. Eicltc, M. & M. 359. A de- 
 claration for not obeying a subpcEna 
 stated that the plaintifl" caused to be left 
 with the defendant a copy of the writ of 
 subpoena. The writ was in fact directed 
 to the defendant and two others, but the 
 copy served was directed to liim and John 
 Doe, and it was held that the Judge might 
 direct the declaration to be amended by 
 alleging that the plaintiff caused to be left 
 with the defendant a copy of so much of 
 the said writ of subpoena as related to the 
 
 defendant. For tlie Court held that this 
 was in substance an amendment to pre- 
 vent a variance between the writing pro- 
 duced in evidence and the recital, or set- 
 ting forth thereof upon the record, and 
 not, as was objected, an allegation of a 
 new fact. Ma&terman v. Jvdson, 8 Bing. 
 480. 
 
 (z) In the case of Brookes v. Blnn- 
 chard, 1 C. & M. 779, the Court of Kxclie- 
 quer held, tliat the statute did not extend 
 to a variance between a writing and secon- 
 dary evidence of a writing. 
 
 («) A writing is sufficiently set forth 
 when it is described to be a copy of an 
 original, of which it is not in fact a copy. 
 Masterinan v. Judson, 8 Bing. 480. And 
 according to the case of Lamey v. Bishop, 
 4 B. & Ad. 479, the statute applies, and 
 an amendment, according to a written 
 contract proved, is admissible, although 
 the declaration merely sets forth a contract 
 without professing to set forth a written 
 contract. The Court, in this case, relied 
 on Masterinan v. Judso7i, and seem to 
 have overruled a previous Nisi Prius de- 
 cision, in which Parke, J. held that a 
 variance between, the terms of a tenancy 
 as stated in an avowry, and a writing ad- 
 duced in support of it was not amendable. 
 Ryder v. Mullone, 3 C. & P. 595.
 
 496 PROOFS : 
 
 Rcconoiio- pnpci's, rolls, and other rGcords of tJie Court from which such record 
 iiieiit of issued shall be amended accordinoly. 
 
 varianco by ^ "^ 
 
 avcrniLiit. The stat. 3 & 4 W. 4, c. 42 (b), recites, that " Whereas great 
 expense is often incurred and delay or failure of justice takes place 
 at trials by reason of variances as to some particular or particulars 
 between the proof and the record, or setting forth on the record or 
 document on which the trial is had, of contracts, customs, prescrip- 
 tions, names, and other matters or circumstances not material to 
 the merits of the case, and by the mis-statement of which the 
 opposite party cannot have been prejudiced, and the same cannot 
 in any case be amended at the trial, except where the variance is 
 between any matter in writing or in print produced in evidence 
 and the record : and whereas it is expedient to allow such amend- 
 ments as are hereinafter mentioned to be made in the cause," and 
 therefore enacts, " that it shall be lawful for any court of record 
 holding plea in civil actions, and any Judge sitting at JVisi Priiis, 
 if such Court or Judge shall see fit so to do (c), to cause the record, 
 writ or document, on which any trial may be pending before any 
 such Court or Judge in any civil action, or in any information in 
 the nature of a quo warranto or proceedings on a mandamus, when 
 any variance shall appear between the proof and the recital (d) or 
 setting forth on the record, writ, or document on which the trial is 
 
 (ft) The new rules for pleading laid having refused to amend a count on a bill 
 
 down by the Judges, by which a party of exchange, the Court above granted a 
 
 is precluded from varying the statement of new trial, after a nonsuit on the ground 
 
 his case in a number of different counts, of variance. Pullen v. Seymour, 5 Dowl. 
 
 and is consequently more exposed to the 164. 
 
 danger of variance, unless either more {d) Tlie statute, it has been held, gives 
 
 general statements were permitted, or no authority to supply an omission, as by 
 
 variances cured, or both, are founded on extending a justification of the taking of 
 
 the assumption, that by the above Act, the mirrors to the taking of handkerchiefs also, 
 
 powers at the trial, in cases of variance, in John v. Currie, 6 C. & P. 618 ; or to in- 
 
 particulars not material to the merits of crease the damages laid in the declaration, 
 
 the case, are greatly enlarged. See the Watkins v. Morgan, 6 C. & P. 661 ; or to 
 
 observations of Parke, B. in Hanbury v. strike out the name of a defendant. Cooper 
 
 Ella, 1 Ad. & Ell. 61 ; and see the obser- v. Whitchurch, 6 C. & P. 545 j or to amend 
 
 vations of Alderson, B. in Parry v. Fair- the award of process on the record, Adanis 
 
 hurst, 2 Cr. M. & R. 196. v. Power, 7 C. & P. 76. In the case of 
 
 (c) Where the Judge at Nisi Prius had Pullen v. Seymour, 5 Dowl. 164, the Judge 
 
 refused to amend the declaration in eject- at Nisi Prius refused to amend a count on 
 
 ment, where two tenants in common were a bill of exchange by inserting the words, 
 
 alleged to have jointly demised, Lord Den- " three months after the date hereof;" but 
 
 man, C. J., intimated that the refusal could the Court (of Exchequer) is reported to 
 
 not be reviewed in Bank. But in I>oe v. have set aside the nonsuit, and granted 
 
 Errington, 1 Ad. & Ell. 760, the Judge a new trial on payment of costs.
 
 VARIANCE. 
 
 4Q7 
 
 proceeding of any contract ((?), custom, prescription, name(f), or Anuiid- 
 other inatter ({/), in any particular or particulars in the judgment of'^'^'"^" 
 such Court or Judge, Jiot material to the merits (/<) of the case, and 
 
 {e) A dcclarati.in is amendable by alter- 
 ing a contract to pay for goods delivered 
 to a contract to guarantee payment. Han- 
 bury V. Ella, 1 Ad. & Ell. 61. So, by 
 altering a contract of general warranty of 
 a horse to a warranty of sound, except in 
 one foot, the breach comjilained of being 
 unsoundness of wind. Heininbujy. Pareij, 
 6 C. & P. 580. Alderson, 13., in allowing 
 the amendment, observed that if the de- 
 fence had depended in any way upon the 
 qualification of the warranty, he would not 
 have allowed it, as that would have gone 
 to the merits. So a declaration is amend- 
 able by substituting for an allegatioij that 
 the defendant represented the horse to be 
 sound, and a good worker, an allegation 
 that he represented the horse to be sound 
 in the wind. Mash v. Denham, 1 M. & 
 R. 442. Alderson, B., in that case ob- 
 served, that the variance was not material 
 to the merits ; it is presumable, therefore, 
 although it is not so stated, that the detect 
 proved was unsoundness of wind. So a 
 declaration was amended by substituting 
 for a contract by the defendant to de- 
 liver poles, to be paid for on delivery, 
 a contract to pay cash on delivery with 
 five per cent, discount. The defendant 
 had pleaded non assumpsit. Part of the 
 poles had been delivered, but not paid 
 for, and otlier part had been tendered, but 
 rejected ; and to the application to amend, 
 it was objected that if the contract had 
 been properly set out, the defendant would 
 have pleaded that the plaintiff refused to 
 pay on the first part delivery, and that 
 thereupon the plaintiff rescinded the con- 
 tract. Alderson, B., said that before he 
 could allow the amendment, he must see 
 that the defendant could not have been 
 prejudiced by the mis-statement. It after- 
 wards appeared that the plaintiff had 
 refused to pay for the poles till the whole 
 had been delivered; but there being not'jing 
 to sliow that the defendant had rescinded 
 the contract, on that ground the amend- 
 ment was allowed. Ivey v. Young, 1 M. 
 & R. 546. In the case of Parry v. Fair- 
 hurst, -2 C. AI. & R. 190, the declaration 
 VOL. I. 
 
 was in case for negligence as carriers ; 
 plea not guilty ; evidence that the defen- 
 dants, if liable, were liable as wharfingers 
 only. An application to amend was made 
 after the defendants' case was closed, and 
 the plaintifTs counsel was proceeding to 
 reply; the learned judge refused to amend, 
 but left the case to tlie jury, wlio found 
 against the defendants as wharfingers. 
 There were circumstances to show that the 
 defendant might liavebeen prejudiced in the 
 conduct of his defence. Tlie Court made 
 the rule absolute for a new trial, on pay- 
 ment of costs, Parke, B., observing that he 
 should, under the circumstances, have 
 directed the amendment, postponing the 
 trial to another day, to enable the defen- 
 dants to prove in defence notice of limited 
 liability. 
 
 (/) In Doe V. Ecbcards, 1 U. k R. 3-?l . 
 6 C. & P. 208, Parke, B., amended the de- 
 scription of the parish, in an action of eject- 
 ment for a forfeiture. In Howell v. lliomas, 
 1 M. & R. 342, Coleridge, J., issue being 
 joined in an action of trespass, as to the 
 plaintiff's property in a close, described in 
 the declaration as Clover-hill, allowed the 
 name to be altered to Clover-moor, 
 
 {g) A variance between the penalty of a 
 bond, and that alleged, was amended. 
 Hill V. Street, 2 C. & M. 420. 
 
 {h) In the case of Doe v. Edwards, 1 M. 
 & R. 321, 6 C. & P. 208, where it was ob- 
 jected that an amendment as to the de- 
 scription of the parish ought not to be 
 allowed, the action being a harsh and op- 
 pressive proceeding for a forfeiture. Park, 
 B.,said," I do not think that the supposed 
 improjiriety of the action is a consideration 
 that ought to influence me in deciding 
 whetner I shall give leave to amend under 
 the Act of Parliament." In Doe v. Erring- 
 ton, 1 Ad. & Ell. 750, the demise was 
 joint by two lessors, who were in fact 
 tenants in common. Taunton, J., refused 
 an application to amend by striking out the 
 name of one of the lessors, or adding 
 proper words applicable to the title, saying 
 that the amendment was prayed for on a 
 point very material to the merits of the 
 K K
 
 inent 
 
 498 PROOFS : 
 
 Amend- by wliicli the opposite party cannot have been prejudiced in the 
 conduct of his action, prosecution, or defence, to be forthwith 
 amended by some officer of the Court or otherwise, both in the 
 part of the pleadings where such variance occurs, and in every 
 other part of the pleadings which it may become necessary to 
 amend, on such terms as to payment of costs to the other party or 
 postponing the trial, to be had before the same or another jury, or 
 iDoth payment of costs and postponement, as such Court or Judge 
 shall think reasonable ; and in case such variance shall be in some 
 particular or particulars, in the judgment of such Court or Judge, 
 not material to the merits of the case, but such as that the opposite 
 party may have been prejudiced {i) thereby in the conduct of his 
 action, prosecution, or defence, then such Court or Judge shall have 
 power to cause the same to be amended upon payment of costs to 
 the other party, and withdrawing the record or postponing the 
 trial as aforesaid, as such Court or Judge shall think reasonable, 
 and after any such amendment the trial shall proceed, in case the 
 same shall be proceeded with, in the same manner in all respects, 
 both with respect to the liability of witnesses to be indicted for per- 
 jury and otherwise, as if no such variance had appeared ; and in 
 case such trial shall be had at Nisi Prius, or by virtue of such 
 writ as aforesaid, the order for the amendment shall be indorsed on 
 ihepostea or the writ, as the case may be, and returned, together 
 
 case. In Franhim v. The Earl of Fal- and that, on the other hand, the plaintiff, 
 
 vionth, 2 Ad. & Ell. 451, 6 C. & P. 629, who had suffered from some breach of 
 
 the declaration alleged injury, by diverting duty on the part of the sheriff, and who 
 
 a watercourse, the right to which the most probably was without the means of 
 
 plaintiff claimed in respect of a mill. The discovering precisely what it was, might 
 
 right appeared in fact to be ea;j2«re naii<?'ffi, have been really injured by too strict an 
 
 and not in respect of the mill, which was adherence to the issue actually joined. In 
 
 of recent erection. Alderson, J., refused the case oi Jenkins v. Treloar, 1 M. & \V. 
 
 to amend, but directed the jury to find 16, upon a question, whether two counts, 
 
 specially that the defendant had diverted oneofaSAnm;jJS(Y, for a toll claimed as met- 
 
 the water from its proper course ; but the age, and the second for toll claimed as a 
 
 Court above refused to give judgment for post duty, Parke, B., intimated that he 
 
 the plaintiff, deeming the variance to be would allow the one to be substituted for 
 
 material, and observing that the defendant the other by way of amendment, 
 might have prepared his defence to meet (i) In two cases of slander, {Lejeune 
 
 the claim made in respect of the mill, and v. Dennett, cor. Patteson, J., Winton Sp. 
 
 not the land. In Guest v. JElwes, 5 Ad. Ass. 1836, and Sheers v. Phllp, cor. Bol- 
 
 & Ell. 118, in an action against the sheriff land, B., Launcest. Sp. Ass. 1830, Ros- 
 
 for an escape, the evidence was that he coe on Ev. 71), a material variance in the 
 
 had negligently omitted to arrest, and the words was amended on the terms of the 
 
 matter being specially found, the Court plaintiff's withdrawing the record, and 
 
 above gave judgment for the plaintiff, ob- paying the costs of the day, with liberty 
 
 serving that the defendant had experienced to the defendants to plead de novo. 
 no disadvantage from the course adopted,
 
 MATTERS ADMITTED BV THE PLEADINGS. 499 
 
 with the record or writ, and tliercupon such papers, rolls, or Amend- 
 other records of the Court from which such record or writ issued, ™^"*' 
 as it may be necessary to amend, shall be amended accordingly; 
 and in case the trial shall be had in any court of record, then the 
 order for amendment shall be entered on tlie roll or other document 
 upon which the trial shall be had, provided that it shall be lawful 
 for any party who is dissatisfied with the decision of such Judo-e at 
 Nisi Prius, sheriff, or other officer, respecting his allowance of any 
 such amendment, to apply to the Court from which such record or 
 writ issued for a new trial upon that ground ; and in case any such 
 Court shall think such amendment improper, a new trial shall be 
 granted accordingly, on such terms as the Court shall think fit, or 
 the Court shall make such other order as to them may seem meet. 
 And it is fm-ther enacted, that the said Court or Judge shall and 
 may, if they or he think fit, in all cases of variance, instead of 
 causing the record or document to be amended as aforesaid, direct 
 the jury to find the fact or facts according to the evidence, and 
 thereupon such finding shall be stated on such record or document, 
 and notwithstanding the finding on the issue joined, the said Court 
 or the Court from which the record has issued shall, if they shall 
 think the said variance immaterial to the merits of the case, and 
 the mis-statement such as could not have prejudiced the opposite 
 party in the conduct of the action or defence, give judgment ac- 
 cording to the very right and justice of the case." 
 
 In the next place, it is a rule that no evidence is necessary to Matters 
 prove that which is agreed upon by the pleadings ; for the jury bv™he^*^ 
 are sworn to try the matter in issue between the parties, and no pleadings. 
 other question is before them {k). If the defendant in replevin 
 avow the taking the cattle damage- feasant in the locus in quo, as 
 parcel of the manor of K., and the plaintiff make title to the 
 manor of K., and traverse that the manor is the freehofd of the 
 defendant, the plaintiff cannot prove that K. is no manor, for 
 that is admitted by the traverse (Z). And the jury cannot find 
 against the admissions of the parties on the record, though they 
 be contrary to the truth ; but in other cases, as has been seen (m) 
 the jury are not estopped to find the truth, though the parties 
 are. But where thei'e are several issues joined, an admission in- 
 volved in one does not operate as an admission in relation to any 
 other (71). 
 
 (k) B. N. P. 293; Bic. 
 6G2. 
 
 (l) Ibid, and sec tit. Wat. 
 
 Ab. 
 
 Ev. 
 
 (m) Supra, 343 ; ami see B. N. P. 293, 
 Goddard's Case, 'Z Co. 4 b. 
 
 (n) Harrington v. Macmorris, 5 Taunt. 
 2'28 ; I Marsh. 33 ; Willes, 380. 
 
 K K 2
 
 500 PROOFS : 
 
 Tlioiiest Next as to the (piaUty of the evidence to be adduced by the 
 
 evidence 
 
 must be ad- parties. 
 
 duced. j|. jg ^\^Q pecuhar province of the jury to decide upon the force 
 
 and effect of the evidence submitted to them ; but, as has ah-eady 
 been seen, the law, by many rules of a negative nature, excludes 
 from their consideraton some matters, on account of their general 
 tendency to mislead, and to create prejudice rather than to pro- 
 mote the cause of truth. One of the most important rules upon 
 this subject is that which requires that the best attainable evi- 
 dence shall be adduced to prove every disputed fact. This rule 
 lias already been adverted to, though but slightly, inasmuch as 
 its effect is not to exclude any of the materials of evidence in the 
 abstract, but only by comparison of the evidence offered with that 
 which might have been produced, but which has been suspiciously 
 withheld. 
 
 The ground of this rule(o') is a suspicion of fraud. If it appear 
 from the very nature of the transaction tliat other and better evi- 
 dence of the fact is withheld, a presumption arises that the party 
 has some secret and sinister motive for not producing the best and 
 most satisfactory evidence, and is conscious that if the best were 
 to be afforded, his object would be frustrated {p) : subject, then, to 
 the observations which will be made upon the operation of this rule, 
 it follows, that of the several gradations in the scale of evidence, no 
 evidence of an inferior class can be substituted for that of a superior 
 degree. It is a very general rule, that the contents of a writing 
 cannot be proved by a copy (q), still less bymere oral evidence, if 
 the writing itself be in existence and attainable (r). If a deed be 
 lost, a copy is not evidence if a counterpart exist (s). And, except on 
 special grounds, no declaration or entry by any person can be given 
 in evidence, where the party who made such declaration or entry 
 
 (o) B. N. P. 293, 4; Gil. Ev. 13. . also The Queen's Case, 2 B. & B. 287, 
 
 (j3) Show. 397; Carth.310; Holt, 284; supra. And see Crowley v. Page, 7 C. 
 
 Salk. 281 ; Bac. Abr. E. 6G2. & p. 790. Strother v. Burr, 5 Bing. lol. 
 
 {q) Supra, 308. To prove an insurance Vol. II. tit. Parol Evidence— Assump- 
 
 from fire, the books of the company are sit — Ejectment — Title of Land- 
 
 not the best evidence. The policy itself lord. 
 
 must be produced. 22. v. Boran, 1 Esp. (s) Supra, 341. The commissioners 
 
 C. 127. Kenyon, C. J., 1791. under an inclosure Act having made mi- 
 
 (r) Si/]}ra,3GS-0. See the observations nutes of their proceedings; held, that 
 
 of Lord Tenterden in the case of Vincent parol evidence of the divisions and allot- 
 
 V. Cole, M. & M. 258, as to the extreme nicuts was inadmissible, the minutes of the 
 
 danger of relying ou the recollection of commissioners not heing produced or ac- 
 
 witnesses, however honest, as to the con- counted for. Benchjshe v. Pearse, 1 B. 
 
 tents of written instruments. And see k B. 460.
 
 QUALITY or THE EVIDENCE. 501 
 
 can be produced and examined as a witness (0. These arc well The best 
 known definite gradations of evidence, to which the principles may ''^'^^"'^g 
 be applied without much difficulty. Thus, upon a question, adduced, 
 whether the abbey de Sentibus was an inferior abbey or not, Duf- 
 dale's Monasticon Anglicanum was refused, because the orio-inal 
 records might be had at the Augmentation Office (u). 
 
 This rule relates not to the measure and quantity of evidence. The rule i< 
 but to its quality when compared with some other evidence of °arati°ve" 
 superior degree. It is not necessary, in point of law, to give the nature, 
 fullest proof that every case may admit of. A will of lands may 
 be proved by one witness only (x). If there be several eye-wit- 
 nesses to a particular fact, it may be proved by the testimony of 
 one only. 
 
 Where tiie defendant, in order to disprove the right claimed by 
 the plaintiff to erect certain' hatches on a river, offered in evidence 
 ancient articles of agreement between persons standing in the 
 respective situations of the plaintiff and defendant; and the 
 defendant's attorney produced the deed, and said he received it 
 from the son of the owner of the defendant's land ; and on the 
 objection being taken that this was insufficient, the father was 
 called, whose testimony was objected to on th(^ score of interest ; 
 it was held that the deed was admissible, for the testimony of the 
 father had been objected to, and the next best evidence had been 
 given (y). 
 
 Nor does it apply in any cnse, unless the evidence proposed be in wb^t 
 in its p-eneral nature of an inferior de2;ree to that for which it is ^''^'^^^ '^'"^ 
 
 3 ^ rnle ap- 
 
 (t) Even although the parties to be writer. See HutjJics's Case, 2 East's P. C. '' 
 
 called would criminate themselves by tlse 102. 3I'Giiire's Case, ib. For other il- 
 
 proof required. Ednuinstone v. Webb, lustrations, see Llcbman v. Poolei/, I 
 
 3 Esp. C. 244. The Queen's Case, 2 B. Starkie's C. 107, and tit. Agent— Pku- 
 
 & B. 311. JURY. Where consent is to be negatived, 
 
 (m) Salk. 281. Oaths taken by a even in a criminal case, it is not absolutely 
 
 preacher under the Toleration Act are necessary that the party himself whose 
 
 matter of record, and cannot be proved by negative is required to be proved should be 
 
 parol evidence. J?, v. Hiibe Sf others, called. As upon indictments for unlawfully 
 
 Peake's C. 131. To prove that A. was killing deer or taking fish. Allen's Case, I 
 
 chosen constable the wardmote book, con- Mood. C.C.I 54, before the Judges. Hanj's 
 
 taining an account of the election, should Case, 2 V.. & P. 4.53. In the previous casa 
 
 be produced ; a list from the town clerk's of R. v. Rogers,^ Camp. 654, Lawrence, J., 
 
 office of the persons sworn in to serve the is stated to have ruled that it was neces- 
 
 office, in which the name of B. appears as sary to call the owner of the deer to nega- 
 
 having been sworn as substitute for A., is tive consent, but in that case there seems 
 
 not the best evidence. Umlerhlllv. Witts, to have been no eu^^ence to negative con- 
 
 3Esp. C.5G. sent. 
 
 (x) See tit. Will. So in case of a deed, (y) Carol v. Jeans, cor. Holroyl, J., 
 
 B. N. P. 234. So hauihvriting may be Dorch. Sp. Ass. 1319, Manning's lad. 375, 
 
 proved by another, without calling the 2d edit. 
 
 K K 3
 
 A02 
 
 PROOFS 
 
 In what 
 cases the 
 rule ap- 
 plies. 
 
 The rule 
 does not 
 exclude 
 eridence 
 when supe- 
 rior evi- 
 dence fails. 
 
 Or is unat- 
 tainable. 
 
 sought to be substituted. It is not sufficient that it may probably 
 be less satisfactory in the particular instance. Where a plaintiff 
 proved notice to the defendant to produce a letter written by him 
 to the defendant, it was held that the plaintiff" was at liberty to 
 prove the contents by any witness who knew them, and that he was 
 not obliged to call the clerk who wrote the letter (z). 
 
 The rule assumes, that from the nature of the transaction superior 
 evidence may be had ; and therefore it never excludes evidence 
 which is the best that can be then produced by the party («). 
 Hence if a deed or other written document be lost, or be in the 
 hands of the adversary, who refuses to produce it (b), a copy of 
 it is admissible. If a witness to a bond, after his attestation be- 
 comes interested, it may be read upon proof of his handwriting (c) ; 
 and so it may if he be dead, or be beyond seas, out of the jurisdiction 
 of the court. So where the witnesses are dead, their depositions or 
 their declarations made when they were in extremis frequently 
 become evidence. Where a prisoner's examination, taken in writ- 
 ing before the coroner, could not, in consequence of an irregularity 
 in the latter, be read, it was held that the coroner might be asked 
 as to what the prisoner said on that occasion (d). 
 
 Neither is the rule strictly adhered to where a mere negative is 
 to be proved, especially where it results from inspecting documents 
 of a voluminous nature (e). And though a witness cannot give 
 evidence of accounts not produced, he may, it seems, be examined 
 as to the general state of such accounts, or he may give evidence 
 of the general course of trade, as that the practice has been to 
 accept bills in a particular form, according to one invariable course 
 of dealing (f). In Roioe v. Brenton{g), a witness was allowed to 
 
 {z) Liehman v. Pooley, 1 Starkie's C. 
 167. 
 
 (a) Gilb. Ev. 4, 5 ; B. N. P. 294. 
 
 (&) SeeWp.iTTEN Instkument, Proof 
 OF, ante, 398. 
 
 (c) Godfrey v. Norris, Str. 34 ; 3 Ves. 
 112. It is otherwise where the witness 
 was interested at the time. Swire v. 
 Bell, 5 T. R. 341. Where, on principles 
 of public policy, a document cannot be 
 read in evidence, tiie effect will be the same 
 as if it was not in existence. Cooke v. 
 Maxwell, 2 Starkie's C. 483. Therefore, 
 where such a document contains au order 
 from a public officer, no evidence can be 
 given of its contents, but it may be shown 
 that what was done, was done by the order 
 of such officer. Ibid. 
 
 (d) It. V. Beed, I Mood. & M. C. 403. 
 
 (c) Where, in order to show the insol- 
 vent state of the party before bankruptcy, 
 the assignees (plaintiffs) offered the ledger 
 of the bankers of the bankrupt to prove 
 that he had no funds in their hands, it was 
 held, that they were properly received to 
 prove the negative, without calling the 
 different clerks who made the entries, 
 although it might not be admissible to 
 prove the affirmative. Funiess v. Cope, 
 6 Bing. 114. 
 
 (/) Huberts v. Doxon, Peake's C. 83. 
 But if the mode of dealing has varied, 
 the bills must be produced. Ibid. 
 
 {g) 3 M. & R. 212.
 
 QUALITY OF THE EVIDENCE. 503 
 
 state the result of his examination of a number of old recorrls, Does not 
 and to prove their correspondence with one which iiad l)een read. <^Y '^^^ 
 So a witness may be examined as to a general balance of ac- i)criorcvi- 
 counts(/0, or as to the general result of inquiries from accounts imattain- 
 rendered by a bankrupt of his affairs as to his solvency at a par- ^'^^<^' 
 ticular time (i). And in general, where evidence is given as to in- 
 troductory or collateral matters, which do not depend at all upon 
 the particular form or contents of the instrument, such evidence, 
 though perhaps not strictly warranted, is for convenience sake 
 usually admitted in practice without objection. 
 
 Again, as the rule was intended to guard against fraud, its Or where 
 operation ceases where the presumption of fraud does n^t arise ; g,^„^ptioa 
 
 consequently it does not apply where the law itself raises a of fraud 
 
 , ... A 1 xi r ■ arises from 
 
 presumption under particular circumstances. And tnereiore, in thesubsti- 
 
 general, in order to prove that a particvilar person was a magistrate t'ltion. 
 or constable, it is sufficient to prove that he acted as such ; for 
 then, in the absence of evidence to the contrary, it is to be pre- 
 sumed that he was duly and legally appointed {k). The rule ex- 
 tends to one acting as surrogate in the Ecclesiastical Court (Z). 
 Also to a public commissioner for taking affidavits (w). So where the 
 plaintiff proved his acting as vestry clerk (n). So in the case of a 
 revenue officer (o). The rule does not extend to a tithe collector act- 
 ing under private authority (p). Nor to assignees of a bankrupt (q). 
 
 So where a document is of a public nature, a copy of it is evi- 
 dence; for the production of the original is dispensed with on 
 account of the inconvenience which would result from the frequent 
 removal of public documents, and consequently the absence of the 
 original affords no presumption of fraud ; and the probability of 
 fraud is much diminished by the consideration that it would be 
 liable to easy detection by reference to so accessible an original (?•). 
 For like reasons, inscriptions on tombstones, walls and fixed tables, 
 are usually proved by oral evidence (s). 
 
 The rule does not apply where the adversary has admitted the Nor in case 
 fact which is to be proved ; for he is in general barred by his own mjgsion.* 
 admission or representation, particularly if the other party has 
 
 (A) Roberts v. Doxon, Peake's C. 83. (o) See 26 Geo. 3, c. 77, s. 13, and ib. 
 
 (i) Assignees of Mayer v. Sefton, 2 c. 82, s. 6. 
 
 Starliie's C. 274. Lord Kenyon had re- ^^^ gj^^^f ^ 2:ee, 2 J. & W. 4G8. 
 ceived similar evidence. 
 
 ... „ -n-iT o n^^^ r ((J) Pasmore v. Bnusjield, 1 Starkies 
 
 (k) Spencer v. Billing, 3 Gamp. C ^'' j > 
 
 310. ^- '^^^' 
 
 /■IN r. xr 1 ^ 'i n A'X<^ (r) Jjl/Va, Vol. II. tit. CHARACTER. 
 
 (I) R. V. Verelst, 3 Camp. 432. ^ ^ " ' 
 
 (m) R. V. Howard, 1 M. & R. 187. (*) Doe v. Cole, 6 C. & P. 860. R. v. 
 
 (n) M'Qahey v. AUton, 2 M. & W. 21 1. Fursey, 6 C. & P. 81. 
 
 K K 4
 
 )04 
 
 PROOFS : 
 
 IVor in case 
 of an ad- 
 mission. 
 
 A collate- 
 ral writing 
 does not 
 exclude 
 oral evi- 
 dence. 
 
 acted on the faith of it, and no competition arises as to tlie com- 
 j)arative efficacy of two modes of proof (0- 
 
 But it has been held that an admission by an obhgor of his exe- 
 cution of a bond does not supersede the necessity of proving it by 
 calhng the attesting witness (u). 
 
 So although it be a general and most inflexible rule, that oral 
 evidence cannot be substituted for a written document, which by 
 authority of law, or by private compact, is constituted the authentic 
 and appropriate instrument of evidence, yet in other cases the 
 mere existence of written evidence never excludes independent 
 ])arol evidence to prove the same fact. Where a written instru- 
 ment is required by law, or made by private compact to express 
 the intention of the parties, it possesses a force and authority 
 superior to any other evidence Cr) ; but in other cases its superi- 
 ority is merely fortuitous and contingent, for it may be that the 
 oral evidence is far more deserving of credit than the written 
 evidence, and consequently the legal presumption of fraud does 
 not exclude the oral evidence, however strongly it may tend to 
 discredit it under particular circumstances (y). If several persons 
 be witnesses of the same fiict, and one of them, to assist his 
 memory, make a memorandum of it, this circumstance would 
 not exclude the testimony of the other witnesses, who, from their 
 number, their powers of discernment, and their concurrence in the 
 same account, may be more entitled to credit than the witness 
 who made the memorandum. If a prisoner confess his guilt 
 before his examination is taken before a magistrate under the 
 authority of the statutes, and the examination be not returned, 
 or cannot be received in evidence, the prisoner's confession is 
 admissible {z). 
 
 (t) See tit. Admission, Vol. II., where 
 the cases are collected. 
 
 (u) Abbot V. Plumb, Dougl. 205, See 
 the ground of this rule, supra, 371. 
 
 (.r) See tit. Assumpsit — Ejectment 
 Pakol Evidence. Where in ejectment 
 after notice to quit, it apjieared by tlie 
 plaintiff's evidence that the premises had 
 been demised by a writing, it was held that 
 he was bound to produce it. Fenn v. 
 Griffith, 6 Bing. 530. 
 
 (y) See this subject more fully consi- 
 dered, Vol. II. tit. Parol Evidence. 
 
 (r) B. V. Reason S; Tranter, I Str.499. 
 Wiiere it ujjpearud that a party was sworn 
 
 and examined before justices on a charge, 
 held that it was to be presumed to have 
 been taken down in writing, and that 
 parol evidence of it was not receivable 
 until the contrary was shown. Phillips 
 V. Wimburn, 4 C. & P. 273. A. gives a 
 warrant of attorney to secure a joint debt 
 to i?. and C; B. receives the whole. In 
 an action by C. to recover his moiety, A. 
 may be called to prove the payment, with- 
 out the production of the warrant of at- 
 torney. Bayne v. Stone, executor of 
 Stone, 4 Esp. C. 13. For though the se- 
 curity was the foundation of the action, the 
 immediate cause was the money paid to 
 the defendant, which the debtor might
 
 QUALITY OF THE EVIDENCE, 505 
 
 Where tlie contents of a writing have been read to the adverse a collateral 
 party, and admitted by him to be true, oral evidence of the con- (Vo'f'g'uot 
 tents may be given, although the writing itself be inadmissible in cxclmin 
 
 • 1 , . oral evi- 
 
 evidence(a). dcnce. 
 
 Where the plaintiff's agent entered into a verbal agreement with 
 the defendant, and made a memorandum of the terms, to assist his 
 own recollection, which was not signed by the parties, it was held 
 to be unnecessary to produce it, for it was not the contract, Init 
 only a private note {h). 
 
 And in order to exclude oral evidence of a contract, it is neces- Orai evi- 
 
 sary to prove that the contract was committed to writino;. And, '^^^nceofa 
 
 ,,., ..^.. . contract, 
 
 therefore, after the plamtifi in ejectment had given parol evidence whon ex- 
 
 of tlie tenancy, the evidence was held to be sufficient, although it ^''^'^'^''• 
 appeared upon the cross-examination of his witness that an agree- 
 ment relative to the land in question had been produced upon a 
 former trial between the same parties, and had been seen the same 
 morning in the hands of the plaintiff's attorney (c). 
 
 There is a distinction between the exclusion of evidence by the Distinctioa 
 operation of this rule, and a mere failure or defect in evidence which '''^tween 
 
 ... . . . ' secondary 
 
 is in itself admissible. The effect of the rule is to exclude particu- and defcc- 
 lar evidence altogether until proof be given that better evidence is de^ceJ'" 
 unattainable • and when such proof has been given, to admit the 
 evidence of inferior degree. But evidence tending to the proof may 
 be admissible, yet insufficient, and may still be so, although it be 
 proved that better evidence cannot be had. 
 
 In the case of Williams v. The East India Cowpany (d), the 
 question was, whether the agent of the defendants, who were the 
 freighters of the plaintiff's ship, had apprised the plaintiff or his 
 officers of the inflammable and dangerous nature of a quantity of 
 roghan, which had been stowed on board the ship, and which ulti- 
 mately occasioned its destruction. It was the duty of the conductor 
 of military stores to convey goods ou board the ship, and of the 
 chief mate to receive them ; the chief mate was dead, and no evi- 
 
 prove to have been paid to the party sued plaintiff's evidence that there is a written 
 
 without production of the security. Per agreement. Fenn v. Griffith, G Bing. 
 
 Ld. Kenyon, ib. See Ingrain v. Lea, 2 533. So where a memorandum of an in- 
 
 Camp. C. 521. tended agreement has been read over to an 
 
 (a) Jacob v. Lindsay, \ East, 460. And intended tenant, but has never been signed, 
 
 see Doe d, Bingham v. Carticright, 3 B. parol evidence of the terms is admissible. 
 
 & A. 32G. Doe d. Bingham v. Cartwright, 3 B. k, A. 
 
 (h) Dalison v. Starli, 4 Esp. C. 1G3. 32G. See Vol. II. tit. Stamp. 
 
 Ramsbottom v. Tunbriclge, 2 31. & S. 435. {d) 3 East, 192. See the case of Koster 
 
 (c) Doe d. Wood v. Morris, 12 East, v. i?e6< 6 B.& C. 19; and Vol. II. tit. Po- 
 
 237. Doe d. Shcai-ivood v. Pearson, ib. licy of Insukancej pKiiaUMPrivE 
 
 2:38, in 7i. Secus, where it appears by the Evidence op Loss.
 
 506 
 
 PROOFS 
 
 Distinctiou 
 between 
 secondary 
 and (lefi'c- 
 tive evi- 
 dence. 
 
 Quantity 
 and niea- 
 fiure of 
 evidence. 
 
 dence was given of what passed between him and the conductor of 
 the stores ; but the captain and second mate proved that no com- 
 munication had been made to them of the nature of the roghan. 
 It was objected, that the conductor of the stores ought to have 
 been examined, and it was so ruled by Lord Ellenborough at Nisi 
 Prius, and afterwards decided by the whole Court, on the ground, 
 1st, that the delivery without notice thus insisted upon by the 
 plaintiff was a criminal act, and that therefore it was incumbent 
 on the plaintiff to prove the neglect to give notice ; and, 2dly, that 
 the plaintiff had not given sufficient j)rima facie evidence of the 
 want of notice. The defect in this instance seems to have con- 
 sisted rather in a failure in the measure of the proof, than in the 
 substitution of secondary for original evidence. It was necessary 
 to negative the fact of communication, which, under the circum- 
 stances, could be proved by no one but the conductor, for the chief 
 mate was dead ; and that evidence which was essential was not 
 given. The evidence which was received of the captain and 
 second mate, that they did not know that any communication had 
 been made of the nature of the article, was not evidence of a 
 secondary nature, substituted in the place of superior evidence, for 
 it was at all events admissible evidence, and would still have been 
 admissible had the conductor been called, contrary to the nature of 
 secondary evidence, which can never be admitted where the supe- 
 rior evidence is adduced, but is wholly superseded by it. Neither, 
 like secondary evidence, could it have been substituted for the 
 superior evidence, when the latter had become unattainable ; for 
 had the conductor been dead, there would still, it seems, have been 
 a defect in the evidence incapable of being supplied by that of the 
 captain and chief mate. 
 
 With regard to the quantity and measure of proof, but few ob- 
 servations are requisite. It is for the parties, according to their 
 own discretion, to procure such evidence as the circumstances of 
 the case may supply; and it is for the jury to decide upon its 
 effect. The law rarely interferes as to the measure of proof; and 
 the sufficiency cannot, in the nature of things, be subject to legal 
 definition or control (e). All that can be done is to intercept such 
 evidence as would tend to prejudice or mislead ; the law then 
 confides in the good sense and integrity of the jury. In some few 
 instances, however, the law interferes as to the number of wit- 
 nesses (/). 
 
 (e) Quoe argumenta ad quem modum 
 probandaB cuique rei sufficiant, nullo certo 
 modo satis definiri potest. 
 
 (/) It seems that in equity no decree 
 can be made on tlie oath of one witness 
 against the defendant's answer on oath.
 
 MATTERS NOTICED BY THE COURT. 507 
 
 As in the case of higli treason, when it works corruption of Q'lantity 
 blood ; there two witnesses are necessary by the express provision sun "oievi- 
 of the statute law {g). So in the case of perjury, two witnesses are ^'^"'='^- 
 essential, for otherwise there would be nothing more than the oath 
 of one man against that of another (Zs), upon which the jury could 
 not safely convict. 
 
 In other cases the general rule seems to be, that where there is 
 any legal admissible evidence tending to prove the issue, the 
 effect of that evidence is solely for the consideration of the 
 jury(i). 
 
 It is, however, in all cases requisite that the plaintiff should 
 adduce some priina facie evidence in support of every essential 
 allegation. Where there is a failure of evidence, tending to 
 establish any one essential averment, the Court directs an acquit- 
 tal in a criminal, or directs the plaintiff to be nonsuited in a civil 
 case. But, in civil actions, if there be any evidence, however 
 weak, tending to the proof of the issue, the plaintiff may, by 
 appearing when he is called, have his case submitted to the consi- 
 deration of the jury ; but if there should be no evidence tending 
 to prove any one essential fact, the jury would be directed to give 
 a verdict against him, by which he would be absolutely and finally 
 concluded. 
 
 No evidence is requisite to prove the existence of a fact which Matters 
 
 must have happened accordino; to the constant and invariable j"iiicialiy 
 
 . noticed. 
 
 course of nature {k), or to prove any general law (Z), nor is it neces- 
 
 Vent. 161 ; 3 Ch. C. 123. 69. And one by one witness. Show. 151 ; 3 Mod. 172 
 
 witness is not sufficient against the hus- 283; Comb. 160; Holt, 752; Ld. Rayni. 
 
 band, although it be supported by tlie 22 ; Ven. 291 ; Carth. 142. 
 
 answer of the wife, for she cannot be a {g) 7 W. 3, c. 3; 1 Ed. 6, c. 12; 5 & 6 
 
 witness against her husband. 2 Ch. C. 30; Ed. 6, c. 12. Qu. whether the stat. 1 & 2 
 
 3 P. Wms. 238. But a decree may be P. & M. c. 10, repealed the stat. 1 Ed. 6, 
 
 made on the evidence of a single witness, c. 12, 5 & 6 Ed. 6, c. 11, as to the necessity 
 
 ■where the evidence of the party is falsified. for two witnesses in the case of petit 
 
 2 Vem. 554; 2 Atk. 19; 3 Atk. 419; treason. According to Forster, 337, petit 
 
 1 Bro. Ch. C. 52. treason stands on the stat. 5 & 6 Ed. 6, 
 
 In general, at common law, one witness and therefore two witnesses are necessary, 
 
 was in all eases sufficient; per Holt, C. J., But now see the stat. 9 Geo. 4, c. 31, 
 
 who said that the authorities cited by s. 2. 
 
 Lord Coke to the contrary did not war- (Ji) Vol. II. tit. Perjury. 
 
 rant his opinion. Carth. 144; Co. Litt. (i) />?/)•«, Vol. II. tit. Conviction. 
 
 6, a. The Spiritual Court, acting upon {k) See Lord Ellenborough's observa- 
 
 the rules of the civil law, requires two tions, 8 East, 202. 
 
 witnesses ; but where temporal matter is (Z) Facile patet non indigere probatione 
 
 pleaded in bar of an ecclesiastical demand, jus commune, quod judici jam notum esse 
 
 and the evidence of one witness is refused, censetur. Heinecc. El. J. C. 443. The 
 
 a prohibition will be awarded. As where Courts notice the contents of all public 
 
 SB executor proves the paymentof a legacy Acts. Renier v. Fagosm, Plow. 12; lb.
 
 )08 
 
 proofs: 
 
 Matters 
 
 judicially 
 
 noticed. 
 
 sary to prove any general customs of the realm (m), or any artificial 
 
 81, a, m, h; Bro. Ah. Cro. pi. 40. Such 
 as relate to trade in general. Kirk v. 
 Nowell, 1 T. R. 118; secus, where a sta- 
 tute relates to a private trade only, lb. 
 An Act of Parliament relating to a public 
 highway is so far a public Act. 
 
 So the Courts will notice all other gene- 
 ral laws, as that every corporation has a 
 right of removing one of its members. JR. 
 V. L;/me Regis, Doug. 150. The privileges 
 of the King's Palaces. R. v. Elderton, 
 Ld. Rayra. 980. And all privileges of the 
 Crown, lb. The Ecclesiastical Law. 1 Roll. 
 Abr. 520; Vin. Abr. 49G. 
 
 Tlie commencement of the sessions of 
 Parliament. Plowd. 77; 1 Lev. 20G; 2 
 Keb. G80. Spring v. Eve, 2 Mod. 240 ; 
 D. Ld. Raym. 343; Moor, 551. The 
 place of holding Parliament on a particu- 
 lar day. Blrt v. Rothwell, Ld. Raym. 
 210. 343. 
 
 The prorogation of Parliament. 1 Lev. 
 296. The course of proceedings in Parlia- 
 ment, whether before one of the Houses, or 
 before a Committee. Lake v. King, 1 
 Saund. 131. But not the Journals of 
 either House. 1 Ld. Raym. 15. 
 
 So the Courts will notice all Courts of 
 general jurisdiction, and their proceed- 
 ings. 2 Lev. 17G. As of the Court of 
 Chancery. Weaver v. Clifford, Cro. J. 
 73. Worlish v. Bfasseij, Cro. Jac. G07. 
 And other courts at Westminster. Lane's 
 case, 2 Co. 16, b. Mounson v. Bourn, 
 Cro. Car. 518 ; W. Jones, 417 ; 4 Co. 93, b. 
 The proceedings in the County Palatine 
 Courts. 1 Sauud. 84; 1 Sid. 331. Of the 
 Courts in Wales. Bro^ujhton v. Randall, 
 Cro. Eliz. 502. Griffitlt v. Jenkins, Cro. 
 Car. 179. Of the Prerogative Court of 
 the Archbishop of Canterbury. Shelton v. 
 Cross, 1 Ford, 4GG. The practice of the 
 Ecclesiastical Courts is a matter of fact to 
 be proved by witnesses. Beaurain v. Sir 
 W. Scott, 3 Camp. C. 388. 
 
 And will notice what Courts possess a 
 general jurisdiction. Tregany v. Fletcher, 
 Ld. Raym. 154. Peacock v. Bell, 1 Saund. 
 73 ; 1 Sid. 340. And the limits of their 
 general jurisdiction. 2 Inst. 557. And 
 their officers. Ogle v. Norcliffe, Ld. 
 Raym. 869. See Dilhn v. Harper , Ld. 
 
 Raym. 898; 6 Mod. 74. So every Court 
 will notice the records of its own court, 
 but not deeds enrolled, for these are merely 
 the private acts of the parties, authenti- 
 cated in court, nor the letters patent of 
 another court. 10 Co. 92 ; Str. 520 ; 5 Co. 
 74, b.; Bac. Abr. Ev. G43. Nor the 
 nature and extent of inferior courts. 
 Moravia v. Sloper, Willes, 37. 
 
 Nor the proceedings of inferior courts. 
 R. v. Vice-chancellor of Cambridge, Ld. 
 Raym. 1 334. Nor of any particular juris- 
 diction, as of a dean and chapter to induct. 
 Bro. Presentation al Eglise, pi. 13, Office, 
 pi. 2. Nor that the lord of a particular 
 franchise has the return of writs. Bro. 
 Office, pi. 2. Nor of a particular liberty. 
 March. 125. Nor of the Cinque Ports. 
 
 2 Inst. 557. Nor of an entry in the she- 
 riff's book, referred to by an affidavit. 
 Russell V. Dickson, 1 Bing. 442. 
 
 Nor foreign laws. Mostyn v. Fahrigns, 
 Cowp. 174. Wee v. Gaily, G Mod. 195 ; 
 4 T. R. 192. Nor of the laws of the plan- 
 tations abroad. 6 Mod. 195. Nor of the 
 seal of a foreign court. Henry v. Adey, 
 
 3 East, 221. Black v. Lord Brayhrooke, 
 2 Starkie's C. 7. 
 
 (/?«) As the custom of merchants. Soper 
 V. Dibble, Ld. Raym. 175. Erskine v. 
 Murray, Ld. Raym. 1542. Williams v. 
 WiUlams, Carth. 2G9. Carter v. Dorcnish, 
 ib. 83. The customs of gavelkind and 
 Borough-English. Doe d. Clements v. 
 Scndamore, Ld. Raym. 1025; 1 Bla. Com. 
 75 ; Co. Litt. 1 75 ; Cro. Car. 5G2. 
 
 But not of peculiarities not essential to 
 tenures. 1 Sid. 138. Brown v. Ricks, 2 
 Sid. 153. Saunders v. Brookes, Cro. Car. 
 562. Such as a custom to devise. 2 Sid. 
 153. Or a gavelkind custom to hold by 
 the curtesy, although the wife has no 
 issue. 1 Sid. 138 ; 2 Sid. 153. 
 
 Nor of particular local customs. 1 Roll. 
 R. 106 ; Doug. 96. 380. Such as of foreign 
 attachment in London. Spinke v. Tenant, 
 1 Roll. 105. Or of carting whores. Stain- 
 ton V.Jones, Doug. 379.' Argylev.Hunt, 
 Str. 187 ; Fort. 319. But such customs 
 are noticed in the city courts. Doug. 96. 
 381, And are noticed by the Courts at 
 \Vestminstcr, after they have been certi-
 
 MATTERS NOTICED BY THE COURT. 
 
 509 
 
 regulation prescribed by public and competent authority ; such as Mattors 
 the ordinary computation of time by the calendar (w); or the known ii'otked/ 
 divisions of the kingdom (o) ; or any public matters recited in Acts 
 of Parhament (p), royal proclamations (/y), or other public docu- 
 ments, published by competent authority ; the meaning of English 
 words, terras of art, legal weights and measures, the ordinary 
 admeasurement of time (r). 
 
 Or any matter of legal presumption (s). Legal pre- 
 
 The nature of legal presumptions will hereafter be more fully sumpuoii. 
 considered ; it has already been observed, that there are several 
 distinct kinds of presumptions : 1st, absolute and conclusive pre- 
 sumptions, which, like the prcEsuniptiones juris et de jure of the 
 
 fied. Blacquiere v. HawJdns, Doug. 363. 
 The custom of the city, that every shop is 
 a market overt, was certified by Sir E. 
 Coke, Co. 83, b. The custom of foreign 
 attachment was certified by Starkie, re- 
 corder of tliat city, -ii Ed. 4 ; Doug. 379. 
 The custom of a ferae covert being sole 
 trader is also noticed. Burr. 1784, 
 
 (n) Str. 387; Ld. Raym. 994; 1 H. 7. 
 13; Bro. Error, pi. 134. Pugh v. Robin- 
 son, 1 T. R. 116; 1 Roll. Ab. 525. The 
 fasts and festivals appointed by the calen- 
 dar. BrougJi v. PerMns, 6 Mod. 181. 
 J?. V. Justices of Ipsicich, 2 Ford. 280. 
 Harvey v. Brand, Salk.626; 6 Mod. 148. 
 The number of days in a particular month. 
 
 1 Roll. Abr. 524. Tlie coincidence of the 
 day of the week with that of the year. 
 Cro. Eliz. 227 ; 1 Leo. 328. Smith v. 
 Bouch, Ann. 72. 
 
 The beginning and end of term. Cro. J. 
 548; Jenk. 330; 12 Mod. 647. Austin 
 V. Bewley, Cro. J. 548. Dobson v. Bell, 
 
 2 Lev. 176. Ball v. Boive, Ld. Raym. 4. 
 Pullein V. Benson, ib. 354. Bstioicke v. 
 Cooper, Ld. Raym. 1557. 
 
 But qucere, whether the Courts will no- 
 tice the end of a moveable term. Mitchell 
 V. Ramsay, Latch. 11. 118; 1 Roll. Abr, 
 304; Dyer, 181; 1 Sid. 308; Cro. Eliz. 
 210. Unless put in issue. Courtney v. 
 PJielps, 2 Keb. 108, 109. 122. But see 
 Kynaston v. Jones, Roll. Ab. 85; Mod. 
 Ca. 196. 
 
 (o) The Courts will notice all counties, 
 although they be inferior ones. March. 
 125 ; 2 Inst. 657. That a county is co- 
 
 extensive with a particular town. R. v. 
 Baker, 18 & 19 Geo. 2. Also the eccle- 
 siastical divisions of the kingdom. Adams 
 V. Terre-tenants of Savage, 2 Ld. Raym. 
 854. But not that a town is in a particular 
 diocese. R. v. Simpson, Ld. Raym. 1379 ; 
 Str. 609. So the Courts will notice the 
 extent of a port. Fazakerley v. Wiltshire, 
 Str. 469. Of incorporated towns. R. v. 
 Blacksmiths' Compaity, Mich. 4 Geo. 2. 
 
 Also the known divisions of the kingdom 
 into counties ; but the Courts do not notice 
 the local situation of places within parti- 
 cular counties, or the distance of counties 
 from each other. BeybeVs Case, 4 B. & A. 
 243. 
 
 The Court will not notice without an 
 averment, that Dublin, mentioned in a bill 
 of exchange, is Dublin in Ireland. Kearney 
 \. King, 2 B. & A. .301. 
 
 (p) As of a war with France, the war 
 being mentioned in several statutes. R. v. 
 Be Berenger, 3 M. & S. 67. 
 
 {q) Supra, 233. The Court will take 
 judicial notice, as a public matter affecting 
 the government of the country, that an 
 allegation that a revolted colony has been 
 recognised as an independent state by this 
 country, is false. Taylor v. Barclay, 2 
 Sim. 213. 
 
 (r) 1 Rol. Ab. 86. 525; 4 T. R. 314; 
 6 Vin. Ab. 492. 
 
 {s) According to the civil law, the 
 efiect of a legal presumption is " ut a 
 probatione immunis sit qui vel presump- 
 tionem pro se habcat vel possessionem." — 
 Heinccc. Pand. 441.
 
 610 
 
 PROOFS 
 
 Lo^'al ]>rc- 
 sumptiou. 
 
 Questions 
 of law. 
 
 Roman law, admit of no proof to the contrary (0- 2dly, Legal 
 presumptions which are applied by the Court, but which, like the 
 prasumptiones juris of the Roman law, admit of proof to the 
 contrary (li). 3dly, Presumptions of law and fact, which admit 
 of proof to the contrary, but which cannot be applied by the 
 Court, without the aid of a jury {x). Lastly, mere natural pre- 
 sumptions, which do not depend upon any artificial force given by 
 the law, but rest wholly on their own natural efficacy (?/). Al- 
 though in all cases, where a legal presumption arises, the party 
 is relieved by it from the burthen of proof, yet whenever the pre- 
 sumption is not an absolute one, proof may still be necessary to 
 meet the adverse evidence tending to overthrow the prima facie 
 presumption. 
 
 Neither a judge nor juror can notice facts within his own 
 private knowledge ; he ought to be sworn, and state them as a 
 witness (z). 
 
 Secondly, It is the undoubted province of the Court, not only 
 to expound the law as applicable to the facts {a), but also to decide 
 upon all interlocutory matters which arise collaterally in the 
 course of the trial. Previous to a few remarks upon the distinction 
 between law and fact, it will be convenient to consider more par- 
 ticularly the process by which the law is applied to facts (b). 
 
 So infinitely varied and complicated are human affairs that no 
 
 {t) Vol. II. tit. Presumptions. 
 
 (m) Ibid. 
 
 (x) Ibid. 
 
 (2/) Ibid. 
 
 (^) Partridge v. Strange, Plow. 83, b. ; 
 Hacker's Case, Kel. 12. The law was 
 formerly otherwise. In taking recogni- 
 tions of assize, the sheriff was bound to 
 return such recognitors as knew the truth 
 of the fact; and these, when sworn, retired 
 from the bar, and brought in a verdict 
 according to their own personal knowledge, 
 without hearing any extrinsic evidence, or 
 receiving the direction of the Judge. Brae, 
 lib. 4, tr. 1, c. 19, s. 3; lb. 1. 4, c. 9, s. 2; 
 3 Bl. Com. 374. And when attaints came 
 to be extended to trials by jury, as well as 
 to recognitions of assize, the same doctrine 
 was also pxtended to common jurors, that 
 they might escape the heavy penalties of 
 an attaint, in case they could show, by any 
 additional proof, that their verdict was 
 agreeable to the truth, although not ac- 
 cording to the evidence produced ; with 
 
 which additional proof the law presumed 
 they were privately acquainted, though it 
 did not appear in court. But this doctrine 
 was again gradually exploded when attaints 
 began to be disused, and new trials intro- 
 duced in their stead : it is quite incompati- 
 ble with the grounds on which new trials 
 are every day awarded, viz., that the ver- 
 dict was given without, or contrary to, 
 evidence. See Sty. 233 5 1 Sid. 133; 3 
 Bl. Com. 374. See R. v. Sutton, 4 M. & 
 S. 532. 
 
 {a) After the jury are charged they can 
 only state a question, and receive the law 
 from the Court; the Court therefore re- 
 fu-oed to permit them to have a law treatise 
 on the subject, which had been cited. 
 Burrowes v. Univin, 3 C. & P. 310. 
 
 {b) See Hale's P. C. 306; Sid. 233. 
 Goodman v. Cotherington, Sty. 233 ; 
 Bennett v. Hundred of Hertford, Tri. per 
 Pais, 209. Duke v. Ventris, Selk. 203 ; 
 B. N. P. 313. Kitchen v. Mainwaririj;, 
 cited Andr. 321.
 
 LAW AND TACT. 511 
 
 code of law can provide a priori for all possible predicaments Qupstions 
 whicli may happen; all that can be done is to annex consequences " ^^^' 
 and incidents to certain defined combinations of circumstances 
 described in general terms, capable of being applied to such par- 
 ticular modes or predicaments as may occur in practice. In order, 
 then, to establish a claim or charge, circumstances must be al- 
 leged which show that the claim or charge is warranted in point 
 of law, supposing those allegations to be true. In other words, 
 the allegations upon the record are nothing more than an ampli- 
 fied specification of facts and circumstances which in point of law 
 are essential to support the charge or claim. Thus, on a charge 
 of larciny the indictment alleges all the particulars essential to the 
 offence, a caption, and an asportation of specific property belong- 
 ing to a particular owner with a felonious intention. Now with 
 respect to every essential allegation, although the jury must find 
 the facts, it is always for the Court to decide whether those facts, 
 when proved, support the allegations in point of law. Thus, in 
 the case of larciny, the jury must decide upon the evidence 
 whether the prisoner removed the goods alleged to be stolen, at all, 
 and how far, and under what circumstances, he removed them ; 
 but whether such a removal be an asportation sufficient to con- 
 stitute felony, is pure matter of law. Hence, in order to substan- 
 tiate every charge or claim as alleged on the record, it is essential 
 that the j ury should find some predicament or state of facts falling 
 within the description contained in each essential allegation, and 
 that the Court should adjudge such special modes or facts to be 
 sufficient in law to sustain those allegations. This must be done 
 in one or other of two ways ; either the Court must inform the jury 
 hypothetically, that the facts which the evidence tends to prove 
 will, if proved, satisfy the allegations, being but particular modes 
 which fall within the essentials enumerated in the general defini- 
 tion, or the jury must find those predicaments or modes specially, 
 and then the Court can afterwards apply the law, and pronounce 
 whether the facts proved be or be not such as satisfy the general 
 and defined essentials to the charge or claim. 
 
 It is obvious, that in order to enable the Court afterwards to The jury 
 apply the law to the facts, the jury must find, not merely evidence |^"tj^an|} 
 or circumstances which tend to prove or disprove facts falling not mere 
 within the particulars which are essential to support the charge or ^^* ^^^^' 
 claim, but must either find particular modes included within the 
 description, or such facts as negative one or more of the circum- 
 stances essential to the charge or claim. Thus, if, in the case of
 
 512 
 
 ruooFS 
 
 The jury 
 
 iimst iiiul 
 facts, ami 
 not mere 
 evidence. 
 
 J,aw and 
 tact. 
 
 laiciny, the jury were to find specially, that tlie prisoner took the 
 goods described in the house o( A. B. with the intention of steal- 
 ing them, removed them for the space of 100 yards ; and that -4. jK., 
 the alleged owner, had a special pro])erty in them as a bailee to 
 carry the goods ; then, as the finding would embrace facts which 
 were special modes falling within each of the descriptive allega- 
 tions essential to the offence, the Court would be enabled after- 
 wards to apply the law by pronouncing the prisoner to be guilty. 
 So if, on the other hand, the jury were in such case to find, inter 
 alia, that a bale of goods was taken by the prisoner and removed, 
 but that it still remained connected with the shop from which it 
 was taken by a rope or chain, such a finding would negative every 
 mode or species of asportation, and the Court would pronounce 
 accordingly {m). But again, if the jury were in such case to find 
 mere evidence (w), however cogent in its nature, of any of the essen- 
 tial facts, the Court could not draw the conclusion. Thus, if they 
 were to find, that immediately after the goods were missed the 
 prisoner was seized with the goods in his possession, and that he 
 confessed that he was guilty, this might be abundant evidence to 
 prove his guilt, but would be men^e evidence (o), and the Court 
 could pronounce no judgment. 
 
 Where a general verdict is given, the same process occurs at the 
 trial ; the jury decide what facts are proved, and receiving and 
 
 (c) See It. V. Phillips, East's P. C. 
 662. 
 
 (d) In the case of a special verdict, all 
 the facts must be found on which the 
 judgment is founded, and not mere evidence 
 of facts. Hubbard v. Johnston, 3 Taunt. 
 309. But where a special case is reserved, 
 if the circumstances be such as to enable 
 the Court to say, without difficulty, what 
 ought to be the verdict of the jury upon 
 them, the Court is at liberty to decide the 
 question. Thompson v. Giles, 2 B. & C. 
 422. 
 
 (e) So where in trover the jury merely 
 find a demand and refusal, without ex- 
 pressly finding a conversion, or any fact 
 which in point of law amounts to an actual 
 conversion, the Court can give no judg- 
 ment. Vol. II. tit. Trover. 
 
 In the case oi Hancootl v. Goodright, 
 Cowp. 87, the jury found, that after the 
 will had been executed by a testator, in 
 favour of Harwood, he executed another 
 
 will, the contents of which were unknown ; 
 and it was contended by the heir at law 
 that this amounted to a revocation. Lord 
 Mansfield, in giving judgment, said, " In 
 considering this special verdict, the duty 
 of the Court is to draw a conclusion of law 
 from the facts found by the jury, for the 
 Court cannot presume any fact from the 
 evidence stated. Presumption, indeed, is 
 one ground of evidence; but the Court 
 cannot presume any fact. In case the 
 defendant had been proved to have de- 
 stroyed this last will, it would have been 
 a good ground for the jury to find that 
 this was a revocation : but the jury, on the 
 presumption, must have found the fact. So 
 with regard to all other circumstances, as 
 that the will was in the hands of the heir 
 at law, that there were three attesting 
 witnesses to the will, these would have 
 been proper for the jury to have considered, 
 but we are confined by the facts found by 
 them."
 
 LAW AND FACT. 513 
 
 applying the law expounded by the Court, as tlic Court would have 
 applied it had the jury found the facts simply, pronounce a general 
 verdict involving both law and fact. 
 
 It has been frequently doubted, whether a particular question be Oenoral 
 one of law or o^ fact. Thus far is clear, that whenever upon par- Jetwwn"" 
 ticular facts found, the Court, by the application of any rules of questions of 
 law, can pronounce on their legal effect, with reference to the alle- fiuTt."*"' ^ 
 gations on the record, such inference is matter of law. It is also 
 clear, that whenever the Court cannot pronounce on the legal 
 effect of particular facts, and where it is requisite, to enable them 
 to do so, that the jury should find some other inference or con- 
 clusion, such further inference or conclusion is a question of fact. 
 It is most emphatically true, that a jury can decide matters of fact 
 only ; they may indeed apply the law as delivered by the Court, 
 but in this respect they act merely ministerially, under the direc- 
 tion of the Court. 
 
 Every general verdict, and indeed every allegation on the record 
 found by a jury to be true, involves matter of law as well as matter 
 of fact ; for it is always a question of law, whether the particular 
 facts proved satisfy the allegations upon the record. Every legal 
 definition, allegation, and every general verdict, involves both law 
 and fact. Thus, in the simplest case, if the issue be whether A. 
 assaulted B., it involves a question of law as well as of fact : what 
 A. did is a question of fact; whether what he so did amounted in 
 law to an assault, is a question of law. Still the question for the 
 jury is one of mere fact, for upon the advice of the Court, they find 
 a general verdict, applying the law to the facts proved ; or they 
 find the facts, and the Court afterwards applies the law (/). 
 
 Hence it follows, that a question or inference of fact, is one 
 which the jury can find upon the evidence by virtue of their own 
 knowledge and experience, without any legal aid derived from the 
 Court : and that an inference or conclusion of law, is one which the 
 Court can draw from the mere circumstances of the case as ascer_ 
 tained by a jury, independently of any general inference or con- 
 clusion drawn by the jury. 
 
 In ordinary cases this distinction is perfectly clear ; but it is 
 now necessary to advert to a class of cases in which doubt has 
 arisen, whether particular questions and inferences belong more 
 properly to the Court or to the jury. 
 
 This occasionally happens where some general inference or con- Instances of 
 elusion is to be drawn from a number of particular facts and cir- [itne,&c! 
 
 (/) An allegation of duty involves matter of law. R. v. Everett, 8 B. & C. 114. 
 VOL. I. L L
 
 514 proofs: 
 
 Instances of cumstaiices appertaining to tl)C individual case. As in the instances 
 timo'&c.^^ of reasonable time, probable cause, due diligence, and others of a 
 similar nature. 
 
 It will be proper to consider the origin and nature of these 
 questions a little more particularly. Every law, it has been 
 observed, consists in the annexation of certain legal incidents to 
 particular combinations of facts. Such definitions of necessity 
 in the earlier and more simple stages of the law, and as matter 
 of convenience at all times, must be of a general and abstract 
 nature. No human sagacity can, in framing laws, provide 
 specifically for the almost infinite variety of cases which occur in 
 practice ; and therefore all that can be done in many instances 
 is to define, not by an enumeration of facts, which, in cases 
 depending on a great variety of minute and varying circum- 
 stances, would be impracticable, but by means of some general 
 result or inference from them, as in the instances above alluded 
 to, of reasonable time, due diligence, and probable cause. 
 
 For instance, the law cannot prescribe in general what shall 
 be a reasonable time, by any defined combinations of facts {g). 
 So much does the question depend upon the situation of the 
 parties, and the minute and peculiar circumstances incident to 
 each case. If a man has a right, by contract or otherwise, to cut 
 and take crops from the land of another, the law, it is obvious, can 
 lay down no rule as to the precise time when they shall be cut and 
 removed ; all that can be done is to direct or to imply that this 
 shall be done in a reasonable and convenient time ; and this must 
 obviously depend on the state of the weather and other circum- 
 stances which cannot from their nature form the basis of any legal 
 rule or definition (Ji). 
 
 id) By th^ general Inclosure Act, a same lie on the premises until the same in 
 rector or vicar is enabled to lease his a course of husbandry was fit to be car- 
 allotment, " so that (inter alia) there ried away; and that the defendant dis- 
 be inserted in the lease, power of re-entry trained the same before it was fit to be 
 on nonpayment of the rent or rents to be carried away ; it was objected by the de- 
 tliereby reserved, within a reasonable time, fendant, on demurrer to this plea, that 
 to be therein limited, after the same shall the plaintiff ought to have set forth how 
 become due." See the observations of long tlie corn lay on the land after it was 
 Abbott, C. J. in Smith v. Doe, d. Lord cut, that the Court might see whether it 
 Jersey, 2 B. & B. 592. were a reasonable time or not. But the 
 
 (/«) Eaton V. SoutJiby, Willes, 131. Court decided that the objection was un- 
 
 Where the plaintiff in replevin pleaded to tenable; for though in Co. Litt. 5G, b. it 
 
 an avowry, justifying the taking goods as is said that in some cases the Court must 
 
 a distress for rent in ar rear, that he took judge whether a thing be reasonable or 
 
 the growing crops under an execution, not, as in the case of a reasonable fine, a 
 
 and afterwards cut the wlieat, and let the reasonable notice, or the like, it would be
 
 LAW AND FACT. 
 
 515 
 
 General terms then, such as reasonable time, probable cause (i), Ronsonable 
 and others of a similar nature, being technical and legal expres- ^""'-'''^*^- 
 
 absurd to say, that in a case like the i)re- 
 scnt the Court must judge of the reason- 
 ableness ; for if so, it ought to have been 
 set forth in the plea, not only how long 
 the corn lay on the ground, but what wea- 
 ther it was during that time, and many 
 other incidents which would be ridiculous 
 to be inserted in a plea. And the Court 
 were of opinion that the matter was suffi- 
 ciently averred ; and that the defendant 
 might have traversed it if he had pleased, 
 and then it would have come before a 
 jury, who, upon hearing the evidence, 
 would have been the proper judges of it. 
 
 So in the case of Bell v. Wardell, 
 Willes, 202, where the defendant in tres- 
 pass justified under an alleged custom for 
 the inhabitants of a town to walk and ride 
 over a close of arable land, at all season- 
 able times, it was held, that seaso?iable 
 times was partly a question of fact, and 
 partly a question of law; and on de- 
 murrer to the replication of de injiiriA, 
 the Court said, as the custom is laid here, 
 if it were not a seasonable time, the justi- 
 fication is not within the custom ; and 
 though the Court may be the proper judges 
 of this, yet in many cases it may be proper 
 to join issue upon it, that is, in such cases 
 where it does not sufficiently appear on the 
 pleadings whether it were a seasonable 
 time or not. Accordingly it is said in the 
 case of Hobart v. Hammond, Cro. J. 204, 
 that the reasonableness of fines must be 
 determined by the Judges, either on de- 
 murrer or on evidence laid before a jury. 
 For issues may be joined on things which 
 are partly matters of fact, and partly mat- 
 ters of law ; and then when the evidence 
 is given at the trial, the Judge must di- 
 rect the jury how the law is ; and if they 
 find contrary to such direction, it is a 
 ground for a new trial. 
 
 (i) Although time be a necessary ingre- 
 dient in almost every contract and legal 
 obligation, yet inasmuch as the time for 
 performing an act must depend upon a 
 great number of varying circumstance.', 
 the law cannot lay down precise rules ap- 
 plicable to all cases, or do more than pre- 
 scribe generally a reasonable time. 
 
 And in general, questions of reasonable 
 time, reasonable care, due diligence, pro- 
 bable cause, and such like, depend so 
 much on their own peculiar circumstances 
 as not to admit conveniently of any gene- 
 ral rules ; and it is of greater convenience 
 to depend on the judgment and discretion 
 of a jury, deciding on a comparison of the 
 circumstances with the ordinary course of 
 practice, or with reference to the ordinary 
 principles of fair and honest dealing, than to 
 introduce such a multiplicity of legal rules 
 and definitions as would be necessary for 
 the due decision of cases subject to such in- 
 finite variety of circumstances. It is in 
 truth a matter of important and obvious 
 policy rather to refer questions of this na- 
 ture as matters of fact to a jury, than to 
 frame legal rules applicable to particulars. 
 The difficulty of framing precise rules 
 must, in such instances, be very great, 
 for the reasons adverted to, unless they be 
 founded on some prominent and decisive 
 incidents : whenever the Court decided 
 upon circumstances, the decision would 
 become a precedent and rule of law : and 
 as each decision would afford room by 
 comparison for a great number of distinc- 
 tions, the obvious effect would be to mul- 
 tiply such decisions and distinctions to a 
 very inconvenient and burthensome extent. 
 On the other hand, by abstaining from 
 legal decision, except in cases where some 
 decisive rule or principle of law is clearly 
 applicable, and by adopting in others the 
 inference of the jury, in point of fact, 
 substantial justice is administered in sim- 
 plicity, and free from the perplexity occa- 
 sioned by nice and subtle distinctions and 
 conflicting decisions. And this is an ad- 
 vantage, and by no means an unimportant 
 one, incident to the system of trial by 
 juiy : the law can thus deal in general de- 
 finitions, and leave the rest as fact to the 
 jury, without multiplying decisions and 
 precedents ; but if the Judges and not the 
 jury were to decide, every decision would 
 become a precedent, and leg.al distinctions 
 would be multiplied to an excessive ex- 
 tent. 
 
 L L 2
 
 516 
 
 PROOFS : 
 
 General sions, it is clear, in the first place, that in the abstract they in- 
 voKecn'a- volve matter of law as wcll as matter of fact ; for in the applica- 
 tion? of law tion of all legal expressions, it is a question of legal judgment and 
 offoct/^ discretion to pronounce whether the facts as found by a jury do or 
 not satisfy that legal expression or allegation (7t). It is therefore 
 in all cases for the Court to pronounce whether the facts show that 
 the time was reasonable or the cause was probable in point of law ; 
 just as it is for the Court to decide whether the facts found show 
 an alleged asportation or conversion, or bankruptcy, in point of 
 law (Z). 
 
 But in particular cases the inference in law follows the inference 
 in fact : where the Court cannot draw the inference that the time 
 
 {k) The question, whether the facts of a 
 particular case fall within the general terms 
 of a statute, is (at least usually) a ques- 
 tion of law, whether the statute define 
 the meaning of its own terms, or use them 
 •without definition according to their ordi- 
 nary acceptation and meaning. If a special 
 verdict involve the question whether a party 
 be a bankrupt, it is not essential that the 
 jury should draw tlie conclusion; the 
 Courts may do it from the facts found. 
 Dodswortli V. Anderson, 2 Jon. 142. So 
 if the question be whether the party be a 
 chapman within the stat. 5 Ann. c. 14. 
 Hearle, q. t. v. Boulter, Say. 11; Bac. 
 Ah. tit. Stat. H. 
 
 The rule applies to all statutory ex- 
 pressions, and to all allegations in issue, 
 however common and popular their sense 
 and meaning may be. Thus, if the issue 
 be, whether C. Z>. was an inferior trades- 
 man (under the stat. 4 & 5 W. 3, c. 3, s. 
 10), although it would be for the jury to 
 find whether C. D. was a tradesman, and 
 to ascertain the nature and kind of trade, 
 it would be for the Court to decide whe- 
 ther he came within the description in the 
 atatute. See Vol. II. tit. Trespass. 
 
 Executors shall have reasonable time to 
 take the goods of their testator from his 
 mansion. Litt. s. 69. This reasonable 
 time shall be adjudged by discretion of 
 the justices before which the cause de- 
 pendeth. And so it is of reasonable fines, 
 customs and services, upon the true state 
 of the case depending before them ; for 
 reasonableness in this case belongeth to 
 
 the wisdom of the law, and therefore to 
 be decided by the justices. Quam longura 
 esse debet non definitur in jure, sed pen- 
 det ex discretione justiciariorum. And 
 this being said of time, the like may be 
 said of things uncertain, which ought to 
 be reasonable, for nothing that is contrary 
 to reason is consonant to law. Co. Litt. 56 b. 
 The question whether a market is held so 
 near to another as to constitute a nuisance, 
 is sometimes a question of iaw. Vol. II. 
 tit. Nuisance. Six days was held by the 
 Court to be a reasonable time for removing 
 the goods of a lessee for life by his exe- 
 cutors after his death. Stodden v. Harvey, 
 Cro. J. 204. Power is given to the lessor's 
 son to take the house to himself on com- 
 ing of age ; he must make his election 
 within a reasonable time : a week or fort- 
 night is reasonable ; a .year is unreason- 
 able. Doe V. Smith, 2 T. R. 436. A 
 reasonable time for countermanding a trust 
 was held to be a question of law, 1 B. & 
 P. 388. In Hurst v. Royal Exchange 
 Assuratice Co., 5 M. & C. 47, a laches 
 of five days after intelligence of the loss, 
 and before notice of abandonment was 
 given, was held by the Court to be too 
 long. What is a convenient time for the 
 taking of a prisoner, by the sheriff, to 
 prison, is a question for the Judge, Vol. 
 II, tit. Sheriff. 
 
 (Z) The construction the law putteth 
 on facts found by a jury, is in all cases 
 undoubtedly the proper province of the 
 Court, Post, 256.
 
 LAW AND FACT. 517 
 
 was reasonable or the cause probable, the jury must draw tiio con- 
 clusion in fact ; and then the time will be reasonable or the cause 
 probable in point of law, according as the one or the other is rea- 
 sonable or probable in point of fact. 
 
 Hence it follows, that the test for deciding whether such a Reasonable 
 general inference as to reasonable time, probable cause, &c. be one a'qu'rtion 
 of law or of fact, is this : if the Court, in the particular case, can of law, 
 draw the conclusion by the application of any legal rules or prin- fact, 
 ciples, the conclusion is a legal one (m) ; for the rules and principles 
 of law must prevail against the opinion of a jury (n). But if, on 
 the other hand, the circumstances be so numerous and complicated 
 as to exclude the application of any general principle, or definite 
 rule of law, the further inference is necessarily one of mere fact, 
 to be, made by the jury. In other words, the rules of ordinary 
 practice and convenience become the legal measure and standard 
 of right. 
 
 Thus in the case of a bill of exchange, where the law requires Notice of 
 notice of dishonour to be given within a reasonable time ; if it ^f ^^n ^f 
 appear on the facts proved in evidence, that the case is one falling exchange, 
 within a rule by vv^hich the law itself prescribes and defines what 
 shall be considered to be reasonable time, the question is a mere 
 question of law, for the law itself, from the mere res gesta, makes 
 the inference that the time was reasonable time (o). The duty of 
 the jury in such a case is obviously confined to the finding and 
 
 (7m) Tills happens very generally upon where the business is to know the truth of 
 
 the question of reasonable fines, customs facts ; and we call those questions of law 
 
 and services. Co. Litt. 56 b, 59 b ; 4 Co. where the matter is about reasoning on 
 
 27 b. Hohart v. Hammond, Cro. J. 204. facts that are agreed on, in order to draw 
 
 Stodden v. Harvey, Cro. Eliz. 583. So from them the consequences which may 
 
 in the case of Bell v. Wardell, Willes, seem to establish the right of the parties. 
 
 202, supra, 452, where the plaintiff in Domat's Pub. L., B. 4, tit. 1, p. 658. 
 trespass, justified under an alleged cus- (o) Vide supra, 258. Williams V. 
 
 tom for the inhabitants of a town to walk Smith, 2 B. & A. 496. Wright v. ShaW' 
 
 and ride over a close of arable land at all cross, ib. 501. Tindal v. Brozmi, 1 T. R. 
 
 seasonable times, but it appeared by the 167. Inthe case o{ Smith v. Doe, d. Lord 
 
 plea that the trespass was committed Jersey, 2 B. & B. 592, Abbott, C. J. said, 
 
 whilst the corn was standing ; the Court, " I conceive that in this as well as in all 
 
 upon demurrer, decided that the time was other cases Courts of Law can find out 
 
 not seasonable. See Lord Raym. 241. In what is reasonable ; and that in some cases 
 
 Wright v. Court, 4 B. & C.596, the Court they are absolutely required to do so. la 
 
 held, on demurrer to a plea justifying an many cases of a general nature or prevail- 
 
 Imprisoument on a suspicion of felony, that ing usage, the Judges may be able to de- 
 
 the detention of the plaintiff for three cide the point themselves ; in others, which 
 
 days, to give the prosecutor an opportu- may depend upon particular facts and 
 
 nity for collecting witnesses, was an un- circumstances, the assistance of a jury 
 
 reasonable time. may be requisite." 
 
 (n) We call those questions of fact 
 
 L L 3
 
 518 PROOFS : 
 
 ascertaining of the sinaplc liacts and res gestae ; any niference of 
 theirs upon the subject, that the time was or was not reasonable, 
 would be either simply nugatory, or both nugatory and illegal. 
 Reasonable Where, ou the other hand, the law is silent, and does not by the 
 wherc^'^ operation of any principle or established rule decide upon the legal 
 question of qyahty of the simple facts, or res gestce, it is for the jury to draw 
 the general inference of reasonable or unreasonable, or of probable 
 or improbable, in point of fact {p). In such cases the legal con- 
 clusion follows the inference in fact ; in other words, the question as 
 to reasonable time, probable cause, &c., is one of fact, and the time 
 is reasonable or unreasonable, or the cause probable or improbable in 
 point of law, according to the finding of the jury in point of fact. 
 
 If the question be, whether reasonable notice has been given by 
 the holder, of the dishonour of a bill of exchange ; and the evidence 
 be, that the holder gave notice by the next day's post, to an in- 
 dorser, living at a distance ; the question would be one of mere law, 
 for it would fall within an express rule of law, which determines 
 such notice to be reasonable (5-). But where no acknowledged 
 rule or principle of law defines the limits between reasonable and 
 unreasonable, the question seems to be one for the jury under all 
 the circumstances of the case (r). 
 standard It is next to be observed, that these terms, in the absence of any 
 
 of couipan- pj-^^ise rule of law, always import a comparison with some usual 
 son, in the i^ ' ^ i i ^ 
 
 absence of a course and order of dealing, or have reference to general con- 
 ega rue. yenience, utility, and the plain principlesof natural justice. Where 
 the law is silent, the jury must draw the inference, not as their own 
 casual fancies or arbitrary opinions may dictate, but according to 
 their judgment and discretion, upon comparison of the facts with 
 the general and understood course of dealing, if any such exist, in 
 reference to the matter litigated ; and in the absence of any such 
 guide, with reference to mutual convenience and utility, or the 
 
 (jj) As upon the question, whether a Wright v. Shaivcross, 2 B. Sc A. 501, n. ; 
 
 party has been guilty of laches in not pre- Vol. II. tit. Bill of Exchange. 
 
 senting a bill payable at sight, or a certain (r) Per Lord Kenyon, in Hilton v. 
 
 time after, where no established rule of Shepherd, 6 East, 14, n. Fry v. Hill, 
 
 law prevails. See Fry v. Hill, 7 Taunt. 7 Taunt. 397. If the rule in the particu- 
 
 397 J Vol. 11. til. Bill OF Exchange. lar case be, that the act must be done 
 
 Whether a particular covenant is an within a reasonable time, and the Court be 
 
 usual covenant in a lease ; Doe v. Sand- able to pronounce that the act was done 
 
 ham, 1 T. R. 705, per Cur. K. Bi. Hil. in a reasonable time, the decision becomes 
 
 1828. What is a reasonable time for a legal precedent. If the Court cannot 
 
 carrying away tithes ; Facey v. Hurdmn, decide on the evidence that tlie 'act was 
 
 3 B. & C. 213. For removing a distress; done in a reasonable time, then a further 
 
 Pitt V. Adams, 4 B. & A. 200. finding as a fact that the time was reasoo- 
 
 ((/) Williams v. ismith, 2 B. & A. 490. able, is es;:cutial.
 
 LAW AND FACT. 619 
 
 ordinary rules of fair and honest dealing ; for these, in the absence 
 of any express rule of law, are the proper, and indeed the only, 
 standards of comparison which the case admits of. 
 
 It follows, that such general questions of reasonable time, pro- Reasonable 
 bable cause, due diligence, and the like, are never in the abstract Sln^he'^ 
 necessarily either mere questions of law or questions of fact (s). abstract a 
 Whether in a particular instance the question be of the one class mTreiawor 
 or the other, depends simply upon the existence and applicability ^^^^ ^^^^' 
 of a rule of law to the special circumstances, or res gestce : if any 
 such rule be applicable, the question is a mere question of law ; if 
 no such rule apply, the inference is one of mere fact for the jury (i). 
 It may even happen that the very same circumstances which at 
 one time would have raised a question of fact, may at a subsequent 
 period raise a mere question of law ; a rule of law which governs 
 the case having been established in the interval (m). 
 
 Cases of this kind, where the jury are to find the special facts. Mixed 
 and where the Court can decide upon the legal quality of those „" la^^and 
 facts by the aid of established rules of law, independently of any fact. 
 general inference or conclusion to be drawn by a jury, have been 
 sometimes termed mixed questions of law and fact. Thus it was 
 said (a;), that the question of reasonable notice of the dishonour of 
 a bill of exchange was a mixed question. That the situation and 
 
 (s) In the case of Darhishire v. down tcith respect to this reaso7iableness, 
 
 Parker, 6 East, 18, Lawrence, J. expressed that should be decided by the Court, and 
 
 an opinion, that reasonable time was in adhered to by every one, for the sake of 
 
 general a question of law, because in' the certainty." 
 
 case of Tindal v. Brown, 1 T. R. 167, the These observations remove all difficulty ; 
 
 jury found merely the circumstances. he does not say, that reasonable time must 
 
 But with great deference to the opinion always be an inference of law upon the 
 
 of that very learned Judge, it seems to be facts ; but only, where the law can lay 
 
 going too far to infer that reasonable time down a rule as to reasonableness ; which 
 
 must always be a conclusion of law, because can only be by recognizing a practice 
 
 it was so considered in the particular case. already established, or by applying legal 
 
 In that case, the bill being dishonoured on principles to some defined combination of 
 
 the 5th, and notice not given till the 7th, circumstances. 
 
 although the parties lived within 20 mi- {t) Intention is a mere matter of fact, 
 
 nutes' walk of each other, the jury never- where the law does not infertile intention 
 
 theless found for the plaintiffs ; but the from the fact itself. Per Lord Mansfield, 
 
 Court held that there was a sufficient R. v. Woodfall, 5 Burr. 261. See tit. 
 
 foundation for laying down a legal rule Intention, and Malice. 
 then but imperfectly established, as to the (?^) The rule as to notice to a tenant to 
 
 time of notice. Lord Mansfield said, quit, formerly was that reasonable notice 
 
 " What is reasonable notice is partly a should be given, but in the reign of H. 8, 
 
 question of fact, and partly a question of it was decided that six montlis' notice was 
 
 law. It may depend in some measure ou necessary. See 6 East, 123, and see Vol. 
 
 facts, such as the distance at which the II. tit. Bill of Exchange, 
 parties live from each other, the course of (x) See Darhishire v. Parher, 6 East, 
 
 post, &C.J but whenever a rule can be laid 3j and the observations of Grose, J. ib. 
 
 L L 4
 
 620 PROOFS : 
 
 ]\iixc(i ])laces of parties, tlie post-hours, and other matters of that sort, are 
 oria\v"aiid ^^^cts to be ascertained by the jury ; but whetlier under the circum- 
 fact. stances notice was given in reasonable time, is a question of law 
 
 upon which they ought to receive the direction of the Judge. 
 Now, it seems to be clear, that whenever any rule or principle of 
 law applies to the special facts proved in evidence, and determines 
 their legal quality, its application is matter of law ; and on the 
 other hand, that whenever the special facts and circumstances are 
 such tliat the Court cannot by the aid of any legal rule or principle 
 decide upon the legal quality of the facts, it is necessary that the 
 jury should draw the inference in fact as a mere question in fact, 
 with reference to the ordinary course and practice of dealing, and 
 the general principles of morality and utility. It may therefore be 
 doubted whether the expression * mixed question of law and fact,' 
 be in strict propriety apphcable to the former class of cases. For 
 wherever the law uses a general technical and abridged form of 
 expression, the question arising upon it is partly a question of law, 
 partly a question of fact; the jury must in all instances find the 
 facts which form the basis of the legal judgment, unless they be 
 admitted by the parties ; and it is for the Court, in all cases, to 
 decide upon the legal quality of those facts. So universal is this 
 rule, that it applies even in those instances where, in the absence 
 of any rule or principle of law, which enables the Court to draw 
 the conclusion directly and immediately from the special facts, it 
 is essential that the jury should draw the inference of reasonable 
 time or probable cause, as a matter of mere fact ; for even here the 
 adjudication by the Court, that the time is reasonable or the cause 
 probable, involves matter of law as well as matter of fact, although 
 the question whether the time be reasonable or the cause pro- 
 bable, in point of law, be dependent on the question whether it 
 be reasonable or whether it be probable in point of fact. If the 
 jury were by their verdict to find all the special facts, ' and were 
 
 The observations of Lord Mansfield and may be clear and simple, and their legal 
 
 Buller, J. in Tindal v. Broivn, 1 T. R. effect doubtful ; but still in each case the 
 
 1G7. The terming any question a mixed provinces of the Court and jury are per- 
 
 question of law and fact, is chargeable fectly plain and distinct. It is true that 
 
 with some degree of indistinctness. Ques- in some instances the Court could uot, 
 
 tions of fact and of law are not in strict- without the aid of a conclusion of fact 
 
 ness ever mixed; it is always for the jury drawn by a jury, apply the law; but this 
 
 to decide the one, and the Court the other, consideration does not properly occasion 
 
 however complicated the case may be. In any intermixture of or confusion of the 
 
 some cases the main difficulty may consist respective functions of the court and jury; 
 
 in ascertaining the facts, where the appli- for the latter, in drawing their conclusion, 
 
 cation of the law to the ascertained facts still confine themselves to mere matter of 
 
 admits of no doubt ; in another the facts fact.
 
 LAW AND FACT. 621 
 
 also to find that tlic time was reasonable in point of fact, the judg- 
 ment of the Court upon this finding would still in all cases be 
 matter of law. If in such a case the mere facts fell within any 
 established rule or principle, the special inference made by the jury 
 would be entirely nugatory, and the Court would apply the rule of 
 law to the special facts, even although the legal inference should 
 be contrary to the inference in fact(?/). In the absence of any 
 such rule, the judgment of the Court, that the time was reasonable, 
 would follow the conclusion in fact ; but it would involve that 
 which is mere matter of legal consideration and judgment, that is, 
 the adjudication that no legal rule applied to the facts, and that 
 the question of law was consequently dependent on the question 
 in fact. In strictness, therefore, as the legal application of every 
 technical expression recognized by the law is partly a matter of 
 fact and partly a matter of law, it may be doubted whether the 
 terms ' mixed question of law and fact ' serve accurately to dis- 
 tinguish any particular class of cases. All technical expressions 
 whatsoever, such as asportation (cr), conversion {a), acceptance (Z>), 
 and the like, are in their application partly matters of law, partly 
 matters of fact. 
 
 These observations may not, perhaps, be deemed to be alto- 
 gether unimportant, when it is considered how essential it is to pre- 
 serve the distinction between law and fact, and to prevent any mis- 
 conception as to the relative functions of courts and juries (c). 
 
 Some of the cases to which these principles apply will next be Reasonable 
 adverted to. Reasonable time is always a question of fact, in the 
 absence of any rule or principle of law applicable to the circum- 
 stances. Thus, in an action for not removing goods distrained for 
 rent, after the expiration of five days, it is a question for the jury, 
 whether they were removed within a reasonable time afterwards (cZ). 
 So whether the sheriff or his agents have used due diligence in at- 
 tempting to discover and arrest a defendant under civil process (e). 
 
 In the case of JVoble v. Kennaway (f), where the defence to 
 an action on a policy of insurance was, that there had been unne- 
 
 (»/) For it would be a wrong conclusion the law, and the jury the fact : and if ever 
 
 in point of law. See 6 T. R. 466. they come to be confounded, it will prove 
 
 (z) See Vol. II. tit. Larciny. the confusion and destruction of the law 
 
 (o) See Vol. II. tit. Trover. of England. Per Hardwicke, C. J., R. v. 
 
 (b) See Vol. II. tit. Frauds, Statute Poole, B. R. H. 23. 
 OF. (d) Vol. II. tit. Distress. 
 
 (c) It is of the greatest consequence to (<^) Vol. II. tit. Sheriff — Negli- 
 the law of England, and to the subject, gence. 
 that the powers of the Judge and jury be (/) Doug. 492. 
 kept distinct ; that the Judge determine 
 
 time.
 
 522 
 
 PROOFS : 
 
 Reasonable cessary delay in unloading the cargoes, it was held, that this was 
 *""'''■ a question to be decided by a jury, who could not decide without 
 
 being informed as to the usual practice of the particular trade. 
 Where the defence to an action for the price of goods sold and 
 delivered was, that they did not correspond with the sample, it 
 was left to the jury to say whether, under the circumstances, the 
 defendant had rejected the goods within a reasonable time(^). 
 
 In the cases of Tindal v. Brown (h), and Darbishire v. Parker j 
 it was said (i), that what is reasonable notice of the dishonour of a 
 bill of exchange is a question of law arising upon the facts ; and 
 that a jury in such cases ought to receive the directions of the 
 Judge ; a position incontrovertibly true wherever the law affords a 
 rule which governs the case, for then the finding of the jury, that 
 the time is reasonable or unreasonable in point of fact, cannot be 
 placed in competition with the settled rules and principles of law, 
 and can never prevail but where the law is silent, and where the 
 general rules of law, founded upon a knowledge and experience of 
 their general utiUty, are from the peculiar nature of the case sup- 
 posed to be inapplicable. 
 
 The existence of probable cause has frequently been treated as a 
 question or inference of law (k). But although it be clear that it 
 is sometimes a question of law, in practice it is not unfrequently a 
 question of fact for the jury (Z). And this must in principle happen 
 in all cases where the result depends on the combined effect of a 
 variety of circumstances to which no particular rule or principle of 
 law is applicable. 
 
 The probable cause of prosecution must necessarily consist in 
 the circumstances of the case within the defendant's knowledge, 
 which tended to throw suspicion on the plaintiff. The existence 
 of such circumstances, and their force and tendency, are questions 
 rather of fact than of law ; for the effect must be measured by 
 sound sense and discretion rather than by any rule of law, which 
 cannot measure mere probability. If such circumstances did exist, 
 it is to be presumed that the defendant acted upon them, but this 
 is not to be conclusively presumed ; for it seems to be clear, that 
 
 Probable 
 cause. 
 
 (g) Parker v. Palmer, 4 B. & A. 387. 
 
 (h) 1 T. R. 187. 
 
 (i) 6 East, 10. 
 
 {k) See Candell v. London, 1 T. R. 
 520, n. Johnston v. Sutton, 1 T. R. 543. 
 Reynolds v. Kennedy, 1 Wils. 232. Gold- 
 ing V. Crowle, B. N. P. 14. Infra, Vol. 
 II. tit. Mal. Pros. In the case oi Hill v. 
 Yates, 2 Moore, 80, where a constable jus- 
 
 tified the apprehension of the plaintiff under 
 the stat. 15 C. 2, c. 2, s. 2, which authorizes 
 a constable to apprehend persons whom he 
 suspects to be carrying a burthen of young 
 tress, it was held, that the question of 
 probable cause was for the Judge, and that 
 he could not leave it to the jury. 
 
 (Z) BtooIls v. WarioicTi, 2 Starkie's C. 
 389. Isaacs v. Brand, ib. 167.
 
 LAW AND FACT. 
 
 523 
 
 if, notwithstanding the existence of unfavourable circumstances, 
 the defendant knew that the plaintiff was innocent, he would be 
 liable in damages ; for as to him, who was better informed, the 
 circumstances could afford no probable cause or ground of accu- 
 sation (m). 
 
 The inference of fraud is also in some cases a mere question of Fraud, 
 law arising upon the facts ; in others it is a mere matter of fact (w). 
 Where a trader alienes the whole of his effects, he is guilty of 
 fraud against his creditors, and commits an act of bankruptcy ; 
 and the Court will infer fraud from the facts, without the aid of a 
 jury (o). So under the stat. of Eliz., where a transfer is made of 
 chattels without delivery of the possession (p). 
 
 If a creditor, knowing that his debtor was going to break, were, 
 before any direct act of bankruptcy, to procure payment by threats, 
 the law would pronounce that this was not fraudulent (q). 
 
 {m) See Haw. b. 2, c. 12, s. 15. Sir 
 Anthony Ashley's case, 12 Co. 92. Davis 
 V. Busssll, 5 Bingh. 354 ; where the Judge 
 having directed the jury to consider wlie- 
 ther the circumstances afforded the de- 
 fendant reasonable ground for supposing 
 that the plaintiff had committed a felony, 
 and whether in his situation they would 
 have acted as he had done, the Court held 
 that the direction was substantially cor- 
 rect. Best, C. J., in giving judgment, ob- 
 served, it was for the jury to say whether 
 they believed the facts ; and, if they be- 
 lieved them, whether the defendant was 
 acting honestly. In Beckwith v. Philby, 
 B. & C 637, Littledale, J. directed the 
 jury to find for the defendants, if they 
 thought on the whole that the defendants 
 had reasonable cause for suspecting the 
 plaintiff of felony. And Lord Tenterden 
 said, whether there was any reasonable 
 cause for suspecting that the plaintiff had 
 committed a felony, or was about to com- 
 mit one, or whether he had been detained 
 in custody an unreasonable time, were 
 questions of fact for the jury. If A., 
 having an opinion of counsel in his favour, 
 arrests B., he is not liable to an action 
 for a malicious arrest, if he acted honestly 
 on that opinion : sems, if he proceeded to 
 arrest, believing that he had no cause of 
 action. Whether he did so or not is a 
 question of fact for the jury. Ravenga v. 
 Macintosh, 2 B. & C. 093 ; Vol. II. tit. 
 Malicious Arkest. 
 
 (n) Per Lord Mansfield, in Foxcroft v. 
 Devonshire, 2 Burr. 931 . 937. Fraud and 
 covin is always a question or judgment of 
 law on facts and intention; per Lord 
 Ellenborough, in Doe v. Manning, 9 East, 
 59. But the intention is frequently a 
 question of fact. Upon an issue taken 
 generally on an allegation of fraud, it is a 
 question of fact, and if there be no fraud 
 in fact, there is none in law; per Buller, J. 
 Pease v. Naylor, 5 T. R. 80, on a general 
 replication of fraud, to plea by executor 
 of outstanding judgments. Fraud in taking 
 a tenement is a question of fact in a settle- 
 ment case. Vol. II. tit. Settlement. 
 The obtaining a bill of exchange by fraud 
 is a question of fact. Greio v. Bevan, 
 3 Starkie's C. 134. So whether a party in 
 taking a bill of exchange (which turns out 
 to have been lost or stolen) acted with a 
 sufficient degree of prudence and caution. 
 Vol. II. tit. Bill op Exchange. 
 
 (o) Neioton v. Chantler, 7 East, 145. 
 Linton v Bartlett, 3 Wils. 47. Wilson v. 
 Day, 2 Burr. 827 ; supra, 174. See the 
 observations of Buller, J. in JEstwick v. 
 Caillaud, 5 T. R. 420. Vol. II. tit. Frau- 
 dulent Conveyance. 
 
 {p) Edwards v. Harben, 2 T. R. 587. 
 Bamford v. Baron, cited ib. in not. JReid 
 v. Blades, 5 Taunt. 212. 
 
 {q) Per Lord Mansfield, 2 Burr. 038.
 
 524 
 
 PROOFS : 
 
 Malice and 
 iutention. 
 
 Negli- 
 gence, &c. 
 
 Or the question may be one of" fact for the jury. As where it 
 depends not on the mere act done, but upon the particular inten- 
 tion with which it was done (r). As where a trader conveys part 
 of his property (s), or a debtor assigns his property, to defraud 
 creditors (0* So it is a question of fact, whether fraud has been 
 practised in procuring a bhnd man to execute a will (u). 
 
 The inference as to malice and iyttention, also, may be one either 
 of mere law, as in cases of homicide, where the law frequently 
 infers a malicious intention from the facts, independently of any 
 conclusion drawn by the jury (x). 
 
 Or of mere fact, as in all cases where some malicious intention 
 in particular is essential to the offence {y) ; or where the nature of 
 an act depends on the particular intention of the parties {z). The 
 question whether a party had knowledge of a particular fact, is 
 usually a question of fact to be left to the jury (a). 
 
 The question whether a sheriff, attorney or agent, has been 
 guilty of negligence, is usually one of fact for the decision of the 
 jury(^>). 
 
 What shall be said to be the next sessions, that is, the next 
 practicable sessions, for an appeal against a removal order, is a 
 question of fact, inasmuch as it frequently depends on the par- 
 ticular situation of the parties, and the circumstances of the 
 case (c). 
 
 Reputed ownership, it seems, is a question of fact rather than 
 of law {d). 
 
 (?•) Vol. II. tit. /jSTENTION. 
 
 (5) Neioton v. Chantler, 7 East, 145 j 
 Vol. II. tit. Bankrupt. 
 
 {t) Vol. II. tit. Fraudulent Con- 
 veyance. 
 
 {ti) Per Heath, J. Longchamp v. Fish, 
 2 N. R. 418. 
 
 {x) See Vol. II. tit. Murder — Libel 
 — Malicious Prosecution — Mali- 
 cious Arrest. 
 
 (2/) Vol. II. tit. Intention — Malice 
 — Malicious Injuries — Libel. 
 
 {z) Poiver V. Smith, 5 B. & A. 550. 
 So according to the civil law, " Quicunque 
 intentionem facto superstruit factum id 
 tenetur probare, ut non neganti sed adfir- 
 manti iucumbat probatio." The intention 
 of the parties in paying or receiving rent 
 is for the jury. Per Gould, J. 1 H. B. 
 312. Goodright v. Corder, 6 T. R. 319. 
 
 («) Hanatt v. Wise, 9 B. & C. 712; 
 where it was held that knowledge on the 
 
 part of the captain of a vessel, of the fact 
 that a foreign port was in a state of block- 
 ade, was not to be presumed on the ground 
 that notice to a State was notice to all the 
 subjects of that State, but was to be 
 proved as matter of fact. It is a question 
 of fact for the jury to whom credit was 
 given by the vendor of goods. Leggatt v. 
 Reed, 1 Carr. C. 16. Bentley v. Griffin, 
 5 Taunt, 356. To what purpose trees cut 
 down by a tenant, were intended to be 
 applied by him. Doe v. Wilson, 1 1 East, 
 56; Vol. II. tit. Copyhold. On a prose- 
 cution for larceny, the quo animo is for 
 the jury. JR. v. Phillips, East's P. C. 662. 
 Vol. II. tit. Larciny. 
 
 {h) Vol. II. tit. Negligence. 
 
 (c) R. v. Coode, 4 Burn, 603, 23d ed, 
 R. v. Justices of the East Riding of York- 
 shire, ib. See R. v. Justices uf Essex, 
 1 B. &A. 210. 
 
 {d) Per Buller, J. in WalJierv.BurneU,
 
 LAW AND FACT. 625 
 
 An allegation that a person is employed in the service of the 
 Customs is an allegation of fact ; the allegation that it was his duty 
 as such to seize goods which on importation are forfeited, is matter 
 of law (e). 
 
 The construction of a written document is matter of pure law, Cnnstmc- 
 as it seems, in all cases where the meaning and intention of the *'"" "^ , 
 
 /• -11 1 n ^ r i i Written (lo- 
 
 Iramers is by law to be collected trom the document itself. As in cuments. 
 the instances of judicial records, deeds, kc. if); but where the 
 meaning is to be judged of by the aid of extrinsic circumstances, 
 the construction is usually a question of fact for the jury. Thus 
 in the case of libel, the meaning of the writer, and the truth of the 
 innuendos, are questions of fact. So in a prosecution for sending 
 a threatening letter, the question, whether it contains a threat, if 
 doubtful, is to be decided by the jury (g). The construction of all 
 deeds and other express contracts is matter of law for the decision 
 of the Court (A). And where the agreement is not contained in 
 any formal instrument, but is collected from letters which have 
 passed between the parties, their construction, where their terms 
 are plain and unambiguous, is also for the consideration of the 
 Court ; but where they are written in so dubious and uncertain a 
 manner as to be capable of different constructions, and can be ex- 
 plained by other circumstances, it is for the jury to decide on the 
 whole of the evidence (i). And it seems that in general, where 
 the evidence of a contract is matter of inference from circum- 
 stances, it is a matter of fact for the jury (k). 
 
 Doug. 317. And per Lawrence, J. in per for the consideration of the jury; but 
 
 Horn V. Baker 9 East, 241. But it is BuUer, J. intimated his dissent from the 
 
 not unfrequently a question of law ; infra, general proposition. In Stammers \. Dixon, 
 
 Vol. II. tit. Bankruptcy. 7 East, 200, where the question was whe- 
 
 (e) J{.v.JSverett,81i.&cC.ll4:. ther a piece of land was parcel of the 
 
 (/) See Vol. II. tit. Parol Evidence plaintiff's freehold, or of the defendant's 
 
 — Will. Where there is a sufficient de- copyhold estate, and evidence was given of 
 
 scriptionsetforthof premises by giving the acts of ownership, and also of copyhold 
 
 particular name of a close, or otherwise, admissions, it was held that the effect of 
 
 we may reject a false demonstration ; but the admissions was matter of law for the 
 
 if premises be described in general terms, opinion of the Court ; and the result of that 
 
 and a particular description be added, case seems to be, that the jury were to 
 
 the latter controls the former. Doe v. find upon the whole of the case, giving 
 
 Galloway, 5 B. & A. 43. effect, as far as the documents were con- 
 
 (gr) Girdwood'scase,l.ea.ch, C.C.L.169. cerned, to the construction put upon them 
 
 (A) Per Lord Mansfield, Macheath v. by the Court. 
 
 Haldimand, 1 T. R. 180. {k) The assent of the master to the scr- 
 
 (i) Per Buller, J. ib. Note, that Willes, vice of the apprentice with another, is an 
 
 J. in the same case was of opinion that the inference of fact for the justices at sessions. 
 
 construction of letters generally was pro- See Vol. II. tit. Settlement.
 
 526 
 
 PROOFS 
 
 Collateral 
 mutters of 
 law. 
 
 Bill of ex- 
 ceptions. 
 
 It is the peculiar province of the jury to draw the proper con- 
 clusion in fact from mere circumstantial evidence of the fact, and 
 to deduce the proper inference in all cases of indirect evidence, 
 except in those instances where the law makes particular facts the 
 foundation of a legal presumption ; and even in such instances, 
 where the legal presumption is not conclusive, it is still for the 
 jury to decide on the evidence whether the legal prima facie 
 presumption or intendment is repelled by contrary evidence. 
 
 It also belongs to the Court to decide all collateral matters 
 arising in the course of the tria^ Thus it is for the Court in all 
 cases to determine upon the competency of witnesses, and the 
 admissibility of particular evidence with reference to the facts in 
 issue, or to the allegations on the record, even although the 
 admissibihty of the evidence should depend on matter of fact. 
 Thus it is a question for the Court, whether a declaration made 
 by one in articulo mortis be admissible under the circumstances 
 of the case(Z). 
 
 It is also the province of the Court to decide all matters w^hich 
 depend on an inspection of the record {m). 
 
 The Court will, ex officio, exclude illegal evidence, without 
 regard to the compact of counsel {n). 
 
 A party who is dissatisfied with the decision of the Court in 
 point of law, may either tender a bill of exceptions, or, which is 
 the more modern practice, may afterwards move for a new trial. 
 
 A bill of exceptions is founded upon some objection to the 
 direction or decision of the Judge at nisi prius, or of the Court 
 upon a trial at bar (o), as to the admissibility of evidence (p), the 
 competency of witnesses (g-). The stat. 13 Ed. 1, s. 31, enacts 
 
 (I) So held by all the Judges. See R. 
 Hucks, 1 Starkie's C. 523, Vol. II. tit. 
 Admissions. 
 
 (in) B. V. Huclts, 1 Starkie's C. 522. 
 Note, the question there was, whether a 
 •word in a record was meeting or viutiny. 
 
 (n) Shaio v. Roberts, 2 Starkie's C. 455. 
 So the parties cannot by private stipulation 
 bind a court of justice not to call for that 
 proof which the law has rendered necessary. 
 They cannot make proof of the policy suf- 
 ficient, where the stat. 19 G. 2, c. 37, pro- 
 hibits the recovery without further proof 
 than the policy. 6 East, 321 . 
 
 (o) Rojve V. Brenton, 3 Man. & R. 2G6. 
 
 {j)) Salk. 284. If the contention be 
 
 whether the facts proved tend to prove the 
 issue, the party objecting ought to demur 
 to the evidence. Bulkely v. Butler, 2 B. 
 & C. 434. 
 
 {q) 3 T. 11.27. For improperly directing a 
 nonsuit. Strother v. Hutchinson, 4 Bing. 
 N.C.83. Qu. andsee Doe V.Fisher, 2 Bligh 
 M. S. 9. So if the Judge tell the jury 
 that there is evidence where there is none. 
 B^dhehj v. Butler, 2 B & C. 434. Where the 
 reception of evidence depends upon some 
 fact ichich is disputed, and of which the 
 Court and not the jury is the proper judge, 
 it may be very doubtful whether the deci- 
 sion of the Judge can afterwards be brought 
 in question by means of a bill of exceptions ;
 
 BILL OF EXCEPTIONS. 
 
 that, " when one (r), that is impleaded (s) before any of the Bill of cx- 
 Justices, doth allege an exception, praying that the Justices will ceptions. 
 allow it, which if they will not allow, if he that hath alleged the 
 question do write the same exception, and require that the Justices 
 will put their seals for a witness, the Justices shall do so ; and if 
 one will not, another of the company shall ; and if the king, 
 upon complaint made of the Justices, cause the record to come 
 before him, and the same exception be not found in the rolb 
 and the party show the exception written, with the seal of the 
 
 for this would be to constitute the Court 
 of Error a court for deciding not upon the 
 law but upon the fact, and that too in a 
 case which might depend altogether on a 
 balancing of the credit due to conflicting 
 testimony. In the case of Bell v. The 
 Hull and Selby Railway Company, T. T. 
 1840, one of the questions was, whether 
 the Judge at Nisi Prius had properly re- 
 jected a witness tendered for the defend- 
 ants, on the ground of interest, the witness 
 having stated that he had been a share- 
 holder, but that he had a few days before 
 assigned his shares to the treasurer of the 
 Company in order to qualify himself to 
 be a witness, that he conceived himself 
 to have transferred his interest, and that 
 he had to rely only on the honour of the 
 transferree for a re-transfer, but that in 
 case of refusal, he should apply to a Court 
 of Equity for redress. The Judge had 
 rejected the witness on the ground that 
 the transaction was merely collusive. For 
 the plaintiff, it was contended (inter alia) 
 that the question whether the transaction 
 was conclusive or not, was one of fact for 
 the Judge at nisi prius, and that his deci- 
 sion could not be questioned in Bank, any 
 more than if the question had been raised 
 upon a bill of exceptions tendered. But 
 the Court intimated that the decision of 
 the Judge might be questioned on a mo- 
 tion for a new trial, although not upon a 
 bill of exceptions tendered. Qu. and see 
 Wright V. Boe d. Tatham, 7 Ad. & Ell. 356; 
 and the observations ib. of Tindal, C. J. on 
 the case of the Bishop of Meath v. The 
 Marquis of Winchester. 
 
 (r) The stat. extends to a plaintiff as 
 well as a defendant. 2 Inst. 427. 
 
 (*) The words are, si aliquis iniplacite- 
 tur; hence it has beeu said that it does 
 
 not apply in a criminal case. Sir H. Vane's 
 case, Kel. 15. Lord Grei/s case, 1 Vern. 
 Ch. Cases, 175. It does not lie on an in- 
 dictment for treason or felony. 2 Haw. 
 c. 46, s. 610. 
 
 But it has beenallowedon an indictment 
 for trespass. R. v. Lord Paget, 1 Leon. 5. 
 And also on an information in the nature 
 of a quo warranto. 2?. v. Higgins, 1 Ventr. 
 366 ; sic R. v. Nutt, 1 Barnard. 307. It 
 does not lie before Justices on the trial of 
 an appeal. R. T. H. 251. Nor in any case 
 where a writ of error does not lie. B. N. P. 
 316. Tlie stat. extends to a trial at bar 
 as well as to one at nisi prius. Thurston 
 v. Slatford, 3 Salk. 155 ; Skinn. 354 ; con- 
 tra, 7? V. Smith, 2 Show, 287. 
 
 R. V. Broughton, Str. 1229; 1 Sid. 85: 
 1 Keb. 384 ; 1 Lev. 68; 2 Inst. 427; 2 Haw. 
 C.46, 8. 210. Lord Coke says, the stat. ex- 
 tends to all actions real, personal, and mixed, 
 but makes no mention of criminal cases. 
 Lord Hardwicke considered this to be a 
 point not then settled. R. v. Inhabitants 
 of Preston,^,. T.H. 251. He said, a bill 
 of exceptions had been allowed in infor- 
 mations in the Exchequer, which are civil 
 suits for the King's debt ; but that it had 
 never been determined to lie in mere cri- 
 minal proceedings. Ib. And see R. v. 
 Stratton and others, Howell's St. Tr. vol. 
 21, p. 1187. It has been held that it does 
 not lie on the trial of a feigned issue out of 
 Chancery. Bulleny. Mitchell,2Vvice,4\Q. 
 Wood, B. distentiente. A bill of exceptions 
 cannot be allowed by justices of the peace 
 at the quarter sessions, on an appeal against 
 a removal order. For no writ of error lies 
 in such case, B. N. P. 316. But it lies on 
 the direction of a sheriff to a jury in the 
 county court. Strother v. Hutchimon, 4 
 Bing. N. C. 83.
 
 528 
 
 proofs: 
 
 Bill of ex- 
 ceptions. 
 
 Form of 
 the bill. 
 
 Justice affixed, the Justice shall be commanded that he appear at 
 a certain day to confess or deny his seal ; and if the Justice can- 
 not deny his seal, judgment shall be given according to the excep- 
 tion, as it may be allowed or disallowed." If the Judge admit 
 the matter to be evidence, but not conclusive, where in point of 
 law it is conclusive, the course is to demur to the evidence (^t), 
 because (as it is said), although the evidence be conclusive, the 
 jury may hazard an attaint if they please {u) ; as where the Judge 
 leaves it to the jury whether the probate of a will be evidence 
 to prove the devise of a term for years {w). The statute is silent 
 as to the time of tendering the bill, but it has been held, on 
 reason and principle, that it must be done at the trial, for the 
 party may have misled his adversary by not insisting on the ob- 
 jection at the time (a;); if he had stood upon his exception, the 
 adversary might have had more evidence, and need not have put 
 his cause upon that point. It need not, however, be put in form 
 then, although the substance of it ought to be put into writing, 
 since it is to become a record {y). 
 
 If the bill be annexed to the record, it begins with the proceed- 
 ings after issue joined, and proceeds to state the circumstances 
 upon which it is founded : that a particular witness was called to 
 prove certain facts, or evidence offered to prove such facts (s), or 
 
 (0 See Demurrer to Evidence, iw/*ra, 467. 
 
 (m) T, Raym. 104, 5 ; T. Jon. 146. 
 
 \w) See Tidd's P. 773, 4th edit. 
 
 Ix) 1 Salk. 288, 9. 
 
 (y) Per Holt, C. J., 1 Salk. 288, 9; 
 Tidd, p. 773, 4th edit. 
 
 (^z) Where the object for which evi- 
 dence is offered, but rejected, is obvious, 
 and must have been understood by the 
 Judge and the jury, it is not necessary 
 that that object should be specially stated. 
 Boe V. Earl of Jersey, 3 B. & C. 870. 
 In the case of Bulhely and others v. But- 
 ler, in error, 2 B. & C. 434, where the 
 question on which a bill of exceptions was 
 tendered, was whether there was sufficient 
 evidence that the bill on which the action 
 was brought was indorsed by E. S., the 
 payee, the record, when brought into the 
 Court of K. B., after setting out the plead- 
 ings and continuances, stated that on a 
 certain day the cause came on to be tried ; 
 that one W. B. was produced and exa- 
 mined as a witness for the plaintiff, and 
 stated that, &c. j on cross-examination, he 
 stated that, &c. (see the evidence, Vol. 
 
 II. tit. Bill of Exchange); and then, 
 upon no other evidence being adduced of 
 the person calling himslf E. S. being the 
 payee of the said bill in the declaration 
 mentioned, the counsel for the defendant 
 objected to the evidence so given as afore- 
 said by the said plaintiff in support of the 
 said issue joined between the said par- 
 ties, and that there was no proof to go to 
 the jury of the identit y of the said person 
 calling himself C. S. with the said E. S. 
 the payee of the said bill ; and then and 
 there prayed the said Chief Justice that 
 he would declare to the jury that there 
 was no evidence before them of the in- 
 dorsement of the said bill of exchange by 
 the payee before mentioned ; yet the said 
 Chief Justice did then and there declare 
 and deliver his opinion to the jury afore- 
 said, that although in law there should be 
 some proof of the identity of the person 
 making the endorsement, still it ought not 
 to be so rigidly followed up as to clog the 
 negotiability of bills of exchange ; and the 
 said Chief Justice did further deliver his 
 opinion, that the said evidence above set
 
 BILL OF EXCEl'TIONS. 5tJ9 
 
 challenge made, or demurrer tendered ; the allegations of coun- 
 sel on the admissibility or effect of evidence ; the opinion of the 
 Court or Judge, and the exception of coinisel to that opinion, 
 and the verdict of the jury (a). Where the bill is not annexed to 
 the record, it is necessary to set out the whole of the proceedings 
 previous to the trial (S). 
 
 The Judge either sets his seal to the exceptions, or refuses to Course of 
 do so because the bill contains matters which are not true(c). On L,'yn it, " 
 refusal, the party may have a writ founded on the statute, con- 
 taining a surmise of an exception taken and overruled, and com- 
 manding the Justices, that if it be so, they put their seals to the 
 bill (d). If they return fpwd non ita est, an action lies for a false 
 return, in which tiie surmise may be tried ; and if it be true, the 
 plaintiff recovers damages, and a peremptory writ issues (e). 
 
 The bill of exceptions, when sealed, is not used until judgment Bill of ex- 
 has been signed, and a writ of error brought to remove the pro- ^'^'P^>°"^- 
 ceeding into the Court above (/), for the proceeding is in the 
 nature of an appeal (^). On the return of the writ of error, the 
 Judge being called on by the Court, either confesses or denies 
 his seal ; if he confess it, the proceedings are entered of record, 
 and the other party assigns error ; if he denies his seal, the plain- 
 tiff may take issue upon it, and prove it by witnesses (h). 
 
 The Court will not grant a motion for a new trial where a bill 
 of exceptions has been tendered, unless the bill of exceptions be 
 abandoned (z). And a bill of exceptions is waived by bringing 
 
 forth was reasonable evidence to be left to been the case, the contention was whether, 
 
 the jury, whether the said indorsement admitting the foots deposed to, they tended 
 
 was the indorsement, kc. ; and thereupon, to prove the issue, there should have been 
 
 with that direction, left the same to the a demurrer to the evidence." The judg- 
 
 jury, who declared themselves to be sa- ment was affirmed. 
 
 tisfied of the identity of the said E. S.; (a) 3 T. R. 27; 2 Lut. 984; 1 Salk. 
 
 concluding in the usual form. Holroyd, J. 284, As to the form of the bill, see 
 
 in giving judgment, observed, the real Tidd's Pr. 774, 4th ed. ; Brownl. 129. 131 . 
 
 question was, " whether this evidence was Money v. Leach, B. N. P. 317. Fahritjas 
 
 or was not admissible, either as containing v. Mostyn, 11 St. Tr. 187;Tidd's Pr. 
 
 the declarations of persons not called as Append. 38. 
 witnesses, or as having no tendency to (&) B. N. P, 317. 
 
 prove the matters in issue. If the objec- (c) Sliow. 120. 
 
 tion was known (i priori, it should have been {d) 2 Inst. 427 ; B. N. P. 31G. 
 
 made before the evidence was given; but (e) 2 Inst. 427. 
 
 if it was not discovered till afterwards, (/) 1 Salk. 284; B. N.P. 31G; 1 BL R. 
 
 then the Judge should have been requested 679; Cowp. 501 ; 3 Bl, Com. 372; see 2 
 
 to strike the evidence out of his notes; Lev. 23G. And therefore where no writ of 
 
 and if after that he persevered in summing error lies there can be no bill of exceptions. 
 it up to the jury, that would have been a {g) ^ Bl. Com. 372. 
 
 good ground for tendering a bill of excep- Qi) 2 Inst. 438. 
 
 tions; but if, us appears to me to have (i) 2 Chitty's K. 272. 
 
 VOL. I. M M
 
 D evidence. 
 
 530 PROOFS : 
 
 a writ of error before the Judge's signature has been obtained, and 
 the party will then be precluded from appending the bill to the 
 writ of error (j). Where the objection is to the reception of 
 evidence as inadmissible, the party ought, if aware of the objec- 
 tion, to object to its reception ; if not apprised previously, he 
 ought, after it has been received, to request the Judge to strike 
 it out of his notes, and if the Judge persist in retaining it and 
 stating it to the jury, the proper course is to tender a bill of 
 exceptions ; but if the contention is, whether the evidence, being 
 admissible, tends to prove the issue, the proper course is to demur 
 to the evidence (/c). 
 
 The Court of Error may look into the whole of the matters set 
 out on the record, to enable them to pronounce their judgment (/). 
 Jemurrer A party who admits the facts which the adverse evidence tends 
 to prove, but desires to withdraw the application of the law to 
 those facts from the jury, and to submit them for that purpose 
 to the Court above, is at liberty to do so by his demurrer to the 
 evidence {m). But his demurrer cannot be allowed unless he 
 admit the truth of the facts which the evidence of his adversary, 
 though it be but presumptive or circumstantial, tends to prove (w). 
 For though he has a right to submit the legal effect of the facts 
 to the judgment of the Court, yet, as the jury are the proper 
 judges of matters of fact, the evidence must either be submitted 
 to the jury, or the facts themselves must be admitted (o). The 
 Judge, it seems, may overrule the demurrer if he think proper, 
 and leave the case to the jury (p). 
 
 And if in the case of an information or any other suit evidence 
 be given for the King, it is said that the King's counsel cannot be 
 
 (j) Dillon V. Parlter, 1 Bing. 17. But de noi^o to an inferior Court. Strother v, 
 
 where a bill of exceptions had been sent to Hutchinson, 4 Bing. N. C. 83. 
 
 the plaintiff, that he might agree to it or {m) Where the King is a party, his 
 
 suggest alterations before being signed by counsel cannot be compelled to join in 
 
 the Judge, and on the same day the defen- demurrer; but the Court ought to direct 
 
 dant sued out a writ of error, it was held, the jury to find the special matter. Baker's 
 
 that notwithstanding this the plaintiff was case, 5 Co. R. 104; infra, 531. 
 
 bound to express his assent or dissent, and (w) Gibson v. Hunter, 2 H. B. 187. 
 
 return it. Willans v. Taylor, 6 Bing. Wright v. Pindar, Alleyn, 18. Cock- 
 
 512. sedge y. Fanshaw, Doug. 119. 
 
 (fc) Bulhehj V. Butler, 2 B. & C. 434; (o) lb. and see Baker's case, 5 Co. 104 ; 
 
 supra, 466. B. N. P. 314. But on a demurrer to evi- 
 
 (/) Vines v. The Corporation of Bead- dence, the Court may draw the same infer- 
 
 ing, 1 Y. & J. 4. Smyth v. Latham, 1 ence a jury would have drawn. Vere v. 
 
 C. & M. 568. If the Court decided in iejms,3T.R. 182. Noobjectioncan betaken 
 
 favour of the objection, they would either to the pleadings. Cortv.Birkbeck, Doug, 
 
 award a venire de novo or reverse the 218. 
 
 judgment, but they cannot award a venire (p) Worsleyx. Fillisker, 2 Roll. R. 119. 
 
 I
 
 NEW TUIAL. 
 
 5^1 
 
 compelled to join in a demurrer to the evidence, but that in such Demnnor 
 a case the Court ought to direct the jury to find the special ^ ^ ^^'' 
 matter (q). 
 
 Where the demurrer is allowed, the usual course is for the 
 Court to give order to the associate to take a note of the evidence, 
 which is signed by counsel, and affixed to the postea (r). But if 
 the Court overrule the demurrer improperly, the party may tender 
 a bill of exceptions {s). 
 
 A demurrer to evidence lies in an inferior Court (t). 
 
 The ancient practice of tendering bills of exceptions demurring New trial, 
 to the evidence, or proceeding against the jury by writ of attaint, 
 has in a great measure been superseded by the more modern {u) 
 practice of moving the Court for a new trial ; in the granting or 
 refusing of which the Courts exercise a discretionary power accord- 
 ing to the exigency of the case, upon principles of substantial 
 justice and equity (t?). 
 
 The two principal grounds (w) for this motion, with reference to 
 the present subject, are, 
 
 1st, Some misdirection or misruling on the part of the Judge ; or, 
 
 2dly, Error or misconduct (x) on the part of the jury (?/). 
 
 (q) Bakei-'s case, 5 Co. 104; B. N. P. 313. 
 
 (r) B. N. B. 313. The damages may 
 be assessed conditionally ; or if necessary, 
 a writ of inquiry may be executed after 
 the Court has given judgment. B. N. P. 
 314, and see Herbert v. Walters, 1 Lord 
 Ray. 60 ; Plowd. 310 ; and Miller v. Warre, 
 1 C. & P. 239. 
 
 (s) 2 H. B. 208. 
 
 (t) As in the Palace Court. 1 Lev. 187. 
 
 (m) See the observations of Lord Mans- 
 field in the case of Bright v. Eynon, 1 
 Burr. 390, where he observed that a verdict 
 can only be set right by a new trial, which 
 is no more than having the cause more 
 deliberately considered by another jury, 
 when there is a reasonable doubt, or rather 
 a certainty, that justice has not been done. 
 And see the judgment of Wood, B. in Ste- 
 vens V. Aldridge, 5 Price, 392. (v) lb. 
 
 {w) Where the attorney had permitted 
 the cause, through inattention, to be called 
 on and tried as an undefended cause, the 
 Court refused to grant a new trial, although 
 it was sworn that there was a good de- 
 fence upon the merits. Breach v. Caster' 
 ton, 7 Bing. 224. See also Watson v. 
 Reeve, b Bing. N. C. 112. 
 
 {x) Where the conclusion of the jury is 
 a reasonable inference from the evidence, 
 the Court will not disturb the verdict, 
 even in a criminal case. R, v. Burdett, 4 
 B. & A. 167. In general, the Courts will 
 not grant a new trial in case of a verdict 
 against evidence, where the verdict is on the 
 honest side of the cause. Per Bathurst, J. 
 in Goslin v. WllcocTi, 2 Wils, 302 ; and 
 he cited Smith v. Page, 2 Salk. 644, as a 
 strong case to that effect. 
 
 (y) If the verdict be manifestly against 
 the justice of the case, and the Judge's 
 direction, the Court will grant a new trial 
 without costs, though the damages be under 
 20 Z. Per Buller, J. in Jackson v. Bu- 
 chaire, 3 T. R. 553. Where the jury found 
 a verdict with 205. damages, in a gross 
 case of slander, the Court refused a new 
 trial. Kendall v. Hayioard, 5 Bing. 424. 
 And in general a new trial will not be 
 granted where the verdict for the plaintiff 
 is for a sum under 20 I. Soioell v. Cham- 
 pion, 6 Ad. k. Ell. 407. Although the 
 case be stated to be of importance as re- 
 lating to the boundary jurisdiction. It is 
 irregular in a j ury to take with them, oa 
 retiring to consider their verdict, docu» 
 M M 2
 
 532 
 
 proofs: 
 
 Mistake or 
 misdirec- 
 tion of the 
 Judge. 
 
 First, a new trial will be granted wliere the Judge has misdi- 
 rected the jury upon a matter of law; as where he states to the 
 jury that the evidence does not prove an alleged custom, when the 
 testimony of the witnesses, if believed, does prove the custom (z). 
 
 So if the Judge reject evidence which ought to have been 
 admitted, or admit that which ought to have been rejected (a). 
 
 Formerly the Courts would not grant a new trial on the ground 
 of the reception of improper evidence, where there was sufficient 
 evidence without it to warrant the verdict (Z*). But it has since 
 been determined and seems now to be settled, that where evidence 
 formally objected to at the trial is improperly received, the adverse 
 party has a right to a new trial (c). 
 
 A new trial was refused to be granted on account of the rejection 
 of a witness as incompetent, who was really competent, where 
 the fact which he was called to prove was established by another 
 witness, and was not disputed, and the verdict was founded on a 
 collateral point, on which the defence was rested (d). 
 
 The Court will grant a new trial on the ground of misdirection 
 
 ments without leave of the Court ; hut if 
 the document so taken be evidence on both 
 sides, the taking it will not avoid the ver- 
 dict. R. v. Burdett, Ld. Ray. 148. Secus, 
 if it be evidence on one side only. Lady 
 Joy's case, cited ib. ; Bro. Verd. pi. 19. 
 It is not enough, in order to set aside 
 a verdict, to show that printed papers 
 tending to create prejudice against a 
 party, even in a criminal case, were circu- 
 lated by strangers. R. v. Burdett, 1 Ld. 
 Ray. 148. 
 
 (z) How V. Strode, 2 Wils. 269 ; 
 2 Salk. 649; 7 Mod. 64. So if that be 
 left to the jury, as an award by commis- 
 sioners having jurisdiction, which is in 
 fact necessary evidence, founded on the 
 conduct and demeanour of the parties, and 
 not an award or adjudication, the Court 
 will grant a new trial. Jarrett v. Leonard, 
 2 M. & S. 266. The Court refused to 
 grant a new trial on the ground of misdi- 
 rection by an under-sheriff on a subject 
 over which the jury had no power, viz. the 
 amount of daniiiges which would entitle the 
 plaintiff to full costs. Grater v. Collard, 
 6 Dowl. P. C. 503. The Court granted 
 a new trial in a toll cause, where the Judge 
 had misdirected tlie jury as to the mean- 
 ing of the term consuetudines, in an ancient 
 
 charter. Earl of Egremont v. Saul, 6 
 Ad. & Ell. 24. 
 
 (a) Thomkins v. Hill, 7 Mod. 64. 
 Where no objection was made to the ad- 
 missibility of evidence until the Judge 
 commenced summing up, the Court after- 
 wards refused a new trial on that ground. 
 Abbott v. Parson, 7 Bing. .563. 
 
 (6) Nathan v. Buckland, 2 Moore, 153. 
 Horford v. Wilson, 1 Taunt. 12. Even, 
 as it seems, in a criminal case. R. v. Ball, 
 Russ. & Ry. C. C. L. 132. Tinkler's case, 
 ib. in the note; 1 East's P. C. 354. And 
 see R. V. Treble, Russ. & Ry. C. C. L. 
 166. Where the Court saw that there 
 was evidence not merely enough to war- 
 rant the finding of the jury, independently 
 of that which was objected to as having 
 been improperly received, but that it 
 greatly preponderated in favour of the 
 verdict, the Court refused a new trial. 
 I>oe d. Lord Teynliam v. Tyler, 6 Bing. 
 561. But see below. 
 
 (c) By Ld. Denman, C. J., in Wright v. 
 Doe d. Tatham, 7 Ad. & til. 330. S. P. 
 Crease v. Barrett, 1 C. JM. & R. 919, 
 
 5 Tyr. 458; and Be Rutzen v. Farr, 4 Ad. 
 
 6 Ell. 53. 
 
 {d) Edwards v. Evans, 3 East, 451.
 
 NEW TRIAL. 5.']3 
 
 in a penal action after a'verdict for the defendant (tf), or altlioufh 
 the sum recovered should be less than 20 /. 
 
 If the plaintiff's counsel at the trial acquiesce in the ruling of Misdircc- 
 the Judge, and in consequence the defendant takes a verdict with- *'^'"'^^^'^'^'' 
 out entering into his case, the plaintiff cannot afterwards move for 
 a new trial on the ground of misdirection (/). And it rarely hap- New trial 
 pens that the Court will grant a new trial upon a point of law ""* e''^"'*^*^ 
 which has not been taken at the trial (^); and in no case where jectinn not 
 the objection, if taken, might have been removed by evidence (/i). trM"*^'*^*^^ 
 The Court has refused to grant a new trial, to let the party into a 
 defence of which he was apprised at the trial (i) ; as to give the 
 defendant an opportunity of proving by way of defence the ille- 
 gality of a policy of insurance (k). But where the defendant in an 
 action on a policy failed to prove a breach of the Convoy Act, 
 through the mistake of a witness who had failed in producing the 
 necessary document from the Admiralty, the Court granted a new 
 trial after a verdict for the plaintiff on the merits (Z). 
 
 The Courts do not interfere for the purpose of granting new Mistake or 
 trials, but in order to remedy some manifest abuse, or to correct "tamiTn^'^of 
 some manifest error in law or fact. Where there is a contrariety t^'<^ ju^y- 
 of evidence the Court will not grant a new trial, unless it clearly 
 appear that the jury have drawn an erroneous conclusion, even 
 although there are circumstances in the case pregnant with sus- 
 picion, and which lead to a contrary conclusion, or although the 
 verdict be contrary to the opinion and direction of the Judge who 
 tried the cause (m). 
 
 (e) WUnon v. Rastall, 4 T. R. 753. (Z) D'Aguilar v. Tobin, 2 Marsh. 265. 
 
 Calcraft v. Gihhs, 5 T. R. 19; 3 T. R. (?«) Carstairs v. Stein, 4 M. & S. 192. 
 
 553. The question was, whether a commission 
 
 (/) Bohinson v. Cooli, 6 Taunt. 336. of one half per cent, on a banking account ■ 
 
 /\-.,-. ,• -n ^-Tinm i onn was usurious : and the iury decided that, 
 
 (q) Ritchie v. Boiisfield, 7 Taunt. 309. , , . . . , 
 
 . , „ ^.., , , T. K Ti ooM under the circumstances, it was not. And 
 
 And see Cox v. Kitchen, 1 B. & P. 3-39, , . , /^„ ,, 
 
 , ^ ^ ^ j' .. -J J/oorev.J'awior.l Ad. & Ell. 2o: where the 
 
 where the Court refused to set aside a . , , , . , „ 
 
 . . „ , ^ ^ , . , , question was, whether bricks, &;c. were 
 
 Terdict on a point of law not taken at the ^ -, , , 
 
 taken as cargo or as ballast. So where the 
 
 trial, where the justice and conscience of 
 the case were with the verdict. 
 
 sessions have found as a fact a contract of 
 
 hiring for a year, the Court will not, if 
 
 (A) Malkin v. Vicherstaff, 3 B. & A. ^j^^^.^ ^^ ^^^ premises from which that 
 
 89. If, at the trial of a cause, the counsel conclusion might be drawn, disturb that 
 
 on both sides argue on the effect of an in- fljj^|i,^g_ V^lxae, after the original hiring 
 
 strument, as being in evidence, and it is by ^^^ ^^^^ ^j^^^ ^ ^^^^^ ^j^^ ^^^^p^j. ^^^ j^^^ 
 
 mistake never in fact produced; after ver- niistress varied the terms, from which it 
 
 diet, the omission cannot be taken advan- j^j^.j^^ ^^ inferred that they contemplated 
 
 tage of. Doe v. Penry, 1 Aust. 2G6. ^j^.^^ ^jj^j.^ ^^^^^^ ^^ ^ continuation of the 
 
 (i) Fe>'/ion V. Zfaji/eey, 2 T. R. 113, service beyond the original period, the 
 
 \Jt) Gist V. Mason, 1 T. R. 84. Court refused to disturb the decision of the 
 
 M M 3
 
 634 
 
 PROOFS : 
 
 New trial. Where a plaintiff is in conscience entitled to recover, the Coufts 
 will not grant a new trial, although he has obtained a verdict upon 
 a presumption contrary to evidence {71), or upon a point of law not 
 reserved on the trial (o). 
 
 It is matter of discretion with the Court, in all cases, whether 
 they will grant a new trial for excessive damages (p). Where a 
 plaintiff is entitled to recover for part of his demand, and is also 
 entitled to recover the residue, but in a different form of action, the 
 Court will not reduce the damages, a verdict having been obtained 
 for the whole demand {q). 
 
 Where the verdict (under 20 l.) was against the opinion of the 
 Judge and weight of evidence, the Court nevertheless refused a 
 new trial without payment of costs (r). 
 
 A new trial will not be granted after a verdict for the defendant 
 upon an indictment for a misdemeanor, on the ground that the 
 verdict was against evidence (s) ; nor in a penal action (t). 
 
 A new trial has been granted on an afhdavit made by a material 
 witness that he made a mistake in his evidence {u). 
 
 It is a general rule that affidavits cannot be received from jurors 
 
 to show on what grounds they acted {x). 
 
 And although affidavits 
 
 sessions. R. v. St. Andrew the Great, 
 Cambridge, 8 B. & C. 664. 
 
 In an action on an insurance policy 
 against fire, one of the conditions was a 
 forfeiture of all benefit in case of fraud or 
 false swearing as to the amount of loss 
 claimed : the plaintiff claimed and made an 
 affidavit of damage to the extent of 1,085 Z., 
 and having sued for the amount, the jury, 
 upon very suspicious circumstances of 
 fraud, gave only 500 L ; the Court, at the 
 instance of the defendants, granted a new 
 trial. Levi v. Balllie, 7 Biug. 349; and 
 6 M. & P. 208. 
 
 (n) Wilkinson v. Payne, 4 T. R. 468. 
 (o) Cox V. Kitchen, 1 B. & P. 338. 
 (p) Ducker v. Wood, 1 T. R. 277. 
 Jones V. Spai-rouf, 5 T. R 257. Goldsmith 
 V. Lord Sefton, 3 Ans. 803. Hewlett v. 
 Crutchley, 5 Taunt. 277. A new trial 
 will not be granted, on this ground, in an 
 action for crim. con., unless it appear that 
 the jury acted under the influence of un- 
 due motives, or of error and misconcep- 
 tion.- Duberly v. Gunning, 4 T. R. 
 651. Chambers v. Caulfield, 6 East, 244. 
 Bennett v. AUcott, 2 T. R. 166. Where, 
 the defendant omitting to appear at the 
 
 trial, the jury had, in a case of great 
 aggravation of crim. con.,' given more 
 damages than were laid in the declara- 
 tion, the Court refused a new trial on any 
 terms. Masters v. Barnwell, 7 Bing. 
 224. The Court will sometimes direct the 
 former verdict to stand as a security. 
 Pleydell v. irf. Dorchester, 7 T. R 529. 
 
 {q) Per Abbott, C. J., Mayfield v, 
 Wadsly, 3 B. & C. 357. 
 
 (?■) Scott V. Watkinson, 4 M. & P. 
 237. 
 
 (s) R. V. 3Iun7i, 4 M. & S. 337. B. v. 
 Beynell, 6 East, 315. But, under special 
 circumstances, the Court has suspended 
 the entry of a judgment after an acquittal 
 on an indictment for not repairing a high- 
 way. R. V. Wand&ioorth, 1 B. & A. 63. 
 (0 Brooks V. Middleton, 10 East, 268. 
 (m) Richardson v. FisJier, 1 Bingh. 
 145. 
 
 (x) Where the Judge, being of opinion 
 that the plaintiff had made out no title, 
 directed a verdict for the defendant ; and 
 the jury being present, and no objection 
 made at the lime of entering the verdict, 
 the Coui't refused an application for a new 
 trial on the affidavit of a juror that he had
 
 NONSUIT. ;-)35 
 
 may be admissible when made by jurors as to what is done openly 
 in court, yet it was observed by the Court that the information had 
 better be derived from some other source (y). The delivery of food 
 to a retired jury, without showing that it was done by a party to the 
 cause, or that the refreshment had the effect of carryintr the 
 verdict, is not a sufRcient ground for setting aside the verdict (z>. 
 
 The doctrine of nonsuits is founded on the ancient practice, Practice ■ 
 according to which, a plaintiff was bound by himself or his attorney ^"^ "o"^" " 
 to appear at the trial, prosecute his suit, and hear the verdict ; 
 and in case, after being called, he made defiiult, he was decreed to 
 have abandoned his suit, and was nonsuited. 
 
 This ancient practice has long been used as the medium by 
 which the Court intimates an opinion that the plaintiff has not 
 made out a sufficient case for the consideration of the jury. The 
 plaintiff is therefore formally called, although by himself or his 
 counsel he has actually appeared in court. In conformity, how- 
 ever, with the old practice, being called, he may if he choose ap- 
 pear, and if he do, the case must go to the jury (a). On the other 
 hand, the plaintiff may of his own accord and for his own conve- 
 nience elect to be nonsuited at any time before the jury have deli- 
 vered their verdict(6), and in that case, he cannot afterwards be 
 heard upon an application to set aside the nonsuit (c). 
 
 Where an objection is taken in the nature of a demurrer to the 
 plaintiff's evidence, that, even admitting it to be true, it is in- 
 sufficient in point of law, if the Judge accede to the objection 
 
 not concurred in the verdict. SaviUe (z) Everett v. Youells, 4 B. & Ad. 
 
 V. Lord Farnham, 2 M. & Ry, 216. 681. 
 
 And see Everett v. Youells, 4 B. & Ad. (a) Watkins v. Towers, 2 T. R. 281. 
 
 681. As the plaintiff cannot be nonsuited with- 
 
 {y) Everett v. Youells, 4 B. & Ad. 681. out consent, he may refuse to do so unless 
 
 But it was there held that the note of the the defendant will consent to terms. E. g. 
 
 Judge on such points is conclusive. Upon that the Court alone shall have the same 
 
 the trial of an information for a seditious power as to amending a variance that the 
 
 libel, the jury, after having retired, upon Court at Nisi Prius had. 
 
 their return into court in order to deliver {h) 3 Bing. 391. 
 
 their verdict, it was uncertain whether all (c) Simpson v. Clayton, 2 Bing. N. C. 
 
 of them were witiiin hearing of what was 467. As, if the plaintiff's counsel elect 
 
 declared by their foreman ; the Court held, to be nonsuited on an intimation from the 
 
 that the Judge properly refused to inter- Court that he is entitled to nominal 
 
 fere after the verdict was recorded, or to damages only. Butler v. Dorant, 3 
 
 act upon a communication from any of Taunt. 229. So if he do so on the Judge's 
 
 them ; but under such uncertainty, the proposing to leave two questions to the 
 
 Court would allow the defendant a new jury, one of which is material, and of 
 
 trial, if lie were disposed to apply for it. which there is prima facie evidence. 
 
 B. V. Wooler, 6 M. & S. 265. K. B. Trin. T. 1830. 
 
 M M 4
 
 636 proofs: — nonsuit. 
 
 Practice as tlie usual course is to nonsuit (cZ) the plaintifF. But in such case, 
 to nousuits. jf ^jj^> objection be of a doubtful nature, it is usual for the Judge, 
 either to nonsuit the plaintiff, with leave to move to set aside the 
 nonsuit and enter a verdict for the plaintiff' for a sum agreed on or 
 ascertained by the jury, or to permit the plaintifF to take a verdict^ 
 with liberty to the defendant to move to enter a nonsuit. This 
 seems to be discretionary on the part of the Judge, who usually 
 decides according to the weight of his own opinion for or against 
 the objection. 
 
 A plaintifF after a nonsuit may move without any leave reserved 
 to set aside the nonsuit ; but in that case, although the nonsuit 
 was improper, the Court will do no more than set aside the non- 
 suit (e). Upon such motion made without leave, if the nonsuit be 
 not tenable on the objection urged at the trial, tlie Court will not 
 support it on another ground which was not urged, unless the ob- 
 jection be of such a nature as to be incapable of removal (/). But 
 a defendant cannot move to enter a nonsuit without leave ; and 
 even with leave he will be confined to the objections founded upon 
 defects in evidence taken at the trial ; for had the further objection 
 been then taken, the plaintiff might possibly have answered it by 
 adducing further evidence ((7). Where the nonsuit is in invitum 
 the plaintiff may without leave move to set it aside, although 
 he make no request at the trial that the case may be left to a 
 jury (A), and submit merely out of deference to the Judge. The 
 
 {(l) In an action of tort against several, special jury. Wood v. Grimwood, 10 B. 
 
 there cannot be a nonsuit as to one and a & C. 701. 
 
 verdict against the others. Revettv. a plaintiff may be nonsuited after pay- 
 
 Browne, 2 M. & P. 18. ^^^^^ ^^ money into court. Gutheridge v. 
 
 The Court will not entertain an appli- ^^^^.^^^^ ^ H. B. 374. In replevin, although 
 
 cation for a nonsuit upon an objection the cause is tried on the defendant's record, 
 
 taken at the trial, but not reserved by the ^^^^^ ^_ ^^^^.^^^^ ^ ^ jj_ ^^^ g^ ^^^^^ 
 
 Judge. Ilattheics v. Smith, 2 Y. & J. ^j^^^^ j^ ^^^^^^^^^ ^y default against one 
 
 426. Where two issues were found for ^^ ^^^ defendants, and the other has 
 
 the plaintiff and two for the defendant, ^^^^^^^^ /K/wr/j/i^/ v. Donlan, 6 B. & C. 
 
 with liberty reserved to the latter to move ^rj^ g^ ^^ ^^.j^^ ^^ p^^^j^^^ Anderson 
 for a nonsuit if the Court should think the '^hmn '^ Bino- 200 
 
 issues found for the plaintiff immaterial, 
 
 which was acquiesced in at the trial by (e) Doe d. Lawrence v. Shawcross, 
 
 the plaintiff's counsel ; held, that a non- K. B. Hil. 1825. 
 
 suit might be entered, notwithstanding ^y) n,, ^.nd see Malldn v. Vicker- 
 
 tlie finding of some of the issues for the staff 3 B. & A. 89. 
 defendant. Shepherd v. Bishop of Chester, 
 
 r. TT ^o" nn 4.1 T 1 -..J in) Driver \. Thomson, 4 Timni.2Q^, 
 
 6Bmg. 43/. Where the Judge nonsuited ^•'■^ 
 
 upon the opening, and consequently there (7«) Alexander v. Barker, 2C. & J. 136. 
 
 was no verdict ; held, that he had no Ward v. Mason, 9 Price, 291. Garrow, 
 
 power to certify under the G Geo. 4, c. 50, B. disscntiente. But he cannot urge a 
 
 to entitle the defendant to the costs of the ground of action which he did not urge a'
 
 CHARGE TO THE JURY. 637 
 
 plaintiff, with leave reserved at the trial, may move to have a non- Practice as 
 suit set aside, and a verdict entered for him. Such a reservation **" nonsuits, 
 being- made in open court, tlie tacit consent of the jury and de- 
 fendant is to be implied (i). And this may be done even in an 
 undefended cause (A). Leave is sometimes given to a defendant to 
 move to set aside a verdict and enter a nonsuit. But this cannot 
 be done without the plaintift^'s consent ; and, as the condition of 
 such consent is that the case shall go to the jury (Z), the defendant 
 will not be entitled to have a nonsuit entered unless the jury give a 
 verdict. 
 
 The defendant cannot insist on a nonsuit after he has addressed 
 the jury and examined witnesses (m). It has been held that a bill 
 of exceptions lies if the Judge improperly nonsuit (n). 
 
 After an untenable verdict for the plaintiff, no liberty to enter a 
 nonsuit having- been reserved, the Court can only grant a new 
 trial, for otherwise the defendant would be deprived of his right to 
 tender a bill of exceptions (o). 
 
 Where the terras of a declaration are ambiguous, and taken in 
 one sense will, but taken in another sense will not, support the 
 verdict, and there is no evidence to support the allegation in the 
 former sense, the proper course is (on leave given) to move to enter 
 a nonsuit (p ). A plaintiff in assumpsit may be nonsuited, although 
 a co-defendant has let judgment go by default (q). 
 
 A verdict set aside in part, must be set aside for the whole (r). 
 
 The practice of advising the jury as to the nature, bearing, charge to 
 tendency and weight of the evidence, although it be a duty which J*^"^®- 
 from its very nature must be, in a great measure, discretionary on 
 
 the trial. Waller v . Dralieford, 1 Starkie's Lord Huntingtoicer v. Gardiner, 1 B. & 
 
 C. 481. C. 297. Avery v. Hoole, 2 Cowp. 825. 
 
 (i) 2 B. & A. 797. And tlierefore where the declaration al- 
 
 (k) 3 Bing. 291. leged in some counts the "giving money 
 
 (l) Dewar v. Purday, 3 Ad. & Ell. for voting," and there was no evidence of 
 
 IGG. a previous agreement to give money, which 
 
 (in) Roberts v. Croft, 7 C. & P. 376. was necessary to constitute the offence, 
 A nonsuit for not giving material evidence the Court (leave having been reserved to 
 within the county must be claimed at the move to enter a nonsuit) directed a non- 
 trial. How v. Pickard, 2 M. & W. 373. suit to be entered. For the declaration, to 
 
 (7t) Strother v. Hutchinson, 4 Bing. be sustainable, must be taken to import a 
 
 N. C. 83 ; yet the plaintiff may appear if previous agreement, and of that there was 
 
 he think proper. no evidence. 
 
 (o) Minchbi v. Clement, 1 B. & A. 252. {q) Murphy v. JDonlan, 5 B. & C. 178. 
 
 And see Hill v. Thompson, 8 Taunt. 402. (r) B. v. Phillips, 1 Burr. 305. Ber- 
 
 (p) Where the terms used in a deelara- nasconi v. Fairbrother, 3 B. & Ad. 572. 
 
 tion fjunded on a penal clause in a statute But see Thwaites v. Laiiubury, 6 C. &; P. 
 
 are ambiguous, they will, after verdict, be 09. 
 so construed as to sustain th^ verdict.
 
 638 PROOFS : 
 
 Charge to the part of the Judge, is one which does not yield in importance 
 the jury. ^^ ^j^g more definite and ordinary one of directing them in matters 
 of law(s). The trial by jury is a system admirably adapted to the 
 investi^i-ation of truth ; but in order to obtain the full benefit to be 
 derived from the united discernment of a jury, it must be admitted 
 to be essential that their attention should be skilfully directed to 
 the points material for their consideration. 
 
 A jury taken from the body of the community may well be pre- 
 sumed to be possessed of such knowledge and experience, derived 
 from their intercourse with society, as will peculiarly fit them for 
 the determination of all disputed facts arising out of the ordinary 
 transactions of life. It must, however, be recollected, that jurors, 
 unaccustomed as they usually are to judicial investigations, require, 
 in complicated cases, all the aid which can be derived from the 
 experience and penetration of the Judge, to direct their attention 
 to the essential points, and enable them to arrive at a just con- 
 clusion. The law, in its wisdom, ultimately relies upon their 
 integrity and understanding, but nevertheless anxiously prepares 
 the way for a correct conclusion, by excluding from their consi- 
 deration all such evidence as is likely to embarrass, mislead or 
 prejudice them in the course of their inquiry. So far the law pro- 
 ceeds by certain and definite rules. Much yet remains to be done 
 of a nature which cannot be defined : to divest a case of all its 
 leo-al incumbrances ; to resolve a complicated mass of evidence 
 into its most simple elements ; to exhibit clearly the connexion, 
 bearing, and importance of its distinct and separated parts, and 
 their combined tendency and effect, stripped of every extrinsic and 
 superfluous consideration which might otherwise embarrass or 
 mislead ; and to do this in a manner suited to the comprehen- 
 sion and understanding of an ordinary jury, is one of the most 
 arduous as well as the most important duties incident to the judi- 
 cial office (0- There is, perhaps, no instance in which the natural 
 
 (s) See Comm. 375. Wlieii the evi- vantages which in practice are known to 
 
 dence is gone through on both sides, the emanate from this wise and venerable in- 
 
 Judge, in tlie presence of the parties, tlie stitution, it is not to be disguised, that iu 
 
 counsel, and all others, sums up the whole some, and those essential respects, it is 
 
 to the jury, omitting all superfluous cir- liable to objections, from which an ordi- 
 
 cunistances; observing wherein the main nary tribunal, constituted of professional 
 
 question and principal issue lies ; stating Judges, would be more likely to be free, 
 
 what evidence has been given to support Jurors are liable to prejudice and bias, and 
 
 it, with such remarks as he thinks neces- even partiality, from local and personal 
 
 sary for their direction, and giving them connexion; their very prejudices in favour 
 
 his opinion in matters of law arising upon of right may frequently tempt them to put 
 
 the evidence. their oaths in peril, by their desire to act 
 
 (0 Notwithstanding the splendid ad- according to their own notions of justice,
 
 PROVINCE or THE JURY. 539 
 
 and acquired powers of the mind are more strikingly and benefi- 
 cially exerted than in a court of justice, where a confused mass 
 of evidence relating to an intricate case is, by the effort of a 
 vigorous, acute, and comprehensive mind, reduced into regularity 
 and order. 
 
 On the discharge of this great duty the dearest interests of 
 society, the very issues of hfe and death, frequently depend. 
 
 To offer any remarks on this head would be irrelevant, as well as 
 presumptuous. Some observations will, under another division, be 
 made upon the force and weight of evidence, and on the general 
 principles which relate to that branch of the subject. 
 
 The law, to use an ordinary phrase, has no scales wherein to Province of 
 weigh different degrees of probability (<<), still less to ascertain CeSpro- 
 what weight of evidence shall amount to sbsolute proof of any babilities. 
 disputed fact. 
 
 Its business is to define, to distinguish, and to apply legal con- 
 sequences to ascertained facts ; but whether a fact be probable or 
 improbable, true or false, admits of no legal definition or test. The 
 principles on which the investigation and ascertainment of truth 
 depend, are fixed and invariable, however the particular process 
 prescribed by different systems of law for the purpose of investi- 
 gation may vary. 
 
 As the power of discriminating between truth and falsehood 
 depends rather upon the exercise of an experienced and intelligent 
 mind than upon the application of artificial and technical rules, 
 the law of England has delegated this important office to a jury of 
 the country. 
 
 One great advantage derived from this venerable institution is, 
 that this mode of trial excludes a number of technical and artificial 
 rules and distinctions, which, but for the complete and absolute 
 separation of law from fact, would be sure to arise. Were the deci- 
 sion of facts to be constantly referred to the same individual, the 
 frequent occurrence of similar combinations of facts would tempt 
 
 when those are at variance with defined volved in and complicated with legal rules 
 
 and general but wise rules of law; they and presumptions. If such olijections were 
 
 act but casually ; they have no professional not in practice to be counteracted by the 
 
 character to sustain ; they assign no rea- discretionary aid, advice and guidance of 
 
 sons for their decisions; in effect they are the presiding Judge, and if the errors and 
 
 not amenable for corrupt decisions ; and it mistakes of juries were not to be subject to 
 
 can rarely happen that their individual and revision and correction, it must be admitted 
 
 personal characters are at stake. In many by its warmest admirers that this mode of 
 
 instances too tliey are ill suited, by their trial would frequently be precarious and 
 
 previous habits, to decide on the effect of unsatisfactory, 
 legal instruments, and other matters in- (u) Infra, note {x).
 
 far limited 
 by law 
 
 540 PROOFS : 
 
 him to frame general and artificial rules, which, when they were 
 applicable, would save mental exertion in particular instances ; and 
 perhaps a laudable wish to decide consistently, and that fondness 
 for generalizing which is incident to every reflecting mind, would 
 tend to the same point, and would lead to the introduction of 
 refined and subtle distinctions. A juror, on the contrary, called on 
 to discharge his duty but seldom, possesses neither inclination nor 
 opportunity to generalize and refine; unfettered, therefore, by 
 technicalities, he decides according to the natural weight and force 
 of the evidence (x). 
 Juries, how Although all questions of pure fact belong peculiarly to the pro- 
 vince of a jury (y), who are to be guided in their decision by their 
 conscientious judgment and belief, yet it is to be recollected, that 
 in many instances the effect of particular evidence is the subject of 
 legal definition and cognizance, as in the case of all legal presump- 
 tions resulting from particular facts. It will be proper, therefore, 
 in the first place, briefly to inquire to what extent a jury is restrained 
 by legal rules; and, in the next place, to make some general 
 observations on the natural force and weight of evidence. 
 
 With a view to the first consideration, that is, how far the law 
 itself interferes as to the force or measure of evidence, it is to be 
 recollected, that except in the few instances where a jury deter- 
 mine by the actual evidence of their senses, all evidence is either, 
 first, direct, that is, where witnesses state or depose to facts of 
 which they have had actual knowledge: or secondly, it is indirect; 
 and indirect evidence is either artificial or natural. Artificial, 
 where the law, by arbitrary appointment, annexes to particular 
 evidence a force or efficacy beyond that which naturally belongs to 
 it ; as in the case of records, which for the sake of public con- 
 venience are usually made final and conclusive evidence of the 
 
 (.r) Beccarria, (sec. 14,) thus expresses certezza, perche ogni uomo di buon senso 
 himself: — Ma questa morale certezza di vi acconsente necessariemente per una con- 
 prove e piii facile il sentirla che 1' esatta- suetudine, nata dalla necessitsl di agire ed 
 mente definirla. Percio io credo ottima anteriore ad ogni speculazione ; la certezza 
 lege quella, che stabilisce assessori al che se richiede per accertare un uomo reo 
 giudice principale presi dalla sorte e non e dunque quella che determina ogni uomo 
 dalla scelta, per che in questo caso e piu nelle operazioni piu importante delhi vita, 
 sicural'ignoranzachegiudicapersentimen- (y) As to the discharging of a jury, 
 to, che la scienza che guidica per opinione. where they cannot agree, see Morris v . 
 Again he says, lo parlo di probabilita in Davies, 3 C. & P. 427. There, on an issue 
 materia di delitti, che par meritar pena out of Chancery in order to inform the 
 debbouo esser certi. Ma svanira il para- conscienceof the Chancellor, the jury could 
 dosso, per chi considera che rigorosamente not agree, and the parties refusing to con- 
 la certezza morale non e che una probabi- sent to discharge them, the Judge did sg 
 lita, lua probabilita tale che e chiamato on his own responsibility.
 
 PROVINCE OP TIIC JURY. 
 
 641 
 
 facts recorded (z). So in all instances of legal presumptions, juries, how 
 whether they be absolute and conclusive (a), like the prasuinp- f^'rj-cstnun- 
 tiones juris et de jure of the Roman law, or, as the prcesumptiones 
 juris, be operative only until they be rebutted by proof to tlie con- 
 trary : or such artificial evidence may be of a conventional nature, 
 as where parties by deed or other written agreement constitute the 
 particular instrument to be the appropriate expositor of their inten- 
 tions, and the legal memorial of the facts which it contains. In 
 these and some other instances the law prescribes the extent to 
 which the evidence shall operate ; and in these and all other cases, 
 where a rule of law intervenes, a jury is bound by that rule of law, 
 even though it be in opposition to their own conclusion as to the 
 truth of the fact drawn from ail the circumstances. Or, secondly, 
 the evidence is purely natural, where the jury decide according to 
 the natural weight and effect of the circumstances, either by the 
 aid of experience, where former experience supplies such natural 
 presumptions, or by the aid of reason exercised upon the cir- 
 cumstances, or by the joint and united aid of experience and 
 reason (b). 
 
 (z) Infra, Vol. II. tit. Presumptions. 
 
 (a) Ibid. 
 
 (ft) Sir W. Blackstone, 3 Comm. 371, 
 following the examjile of Lord Coke, classes 
 all circumstantial evidence as violent, jiro- 
 hahle, or light presumptions ; making no 
 distinction between such inferences as re- 
 sult immediately in respect of some asso- 
 ciation pointed out by previous experience, 
 and those which are derived by the aid of 
 reason exercised upon the special circum- 
 stances. According to this classification, 
 the presumption is violent where the cir- 
 cumstances necessarily attend the fact; 
 probable, where the circumstances usually 
 attend the fact; and light presumptions, 
 or rash presumptions, are those which have 
 no weight or validity at all. The last 
 branch of the division seems to be wholly 
 useless, for an inference of no tveight is 
 a mere unwarrantable assumption. The 
 division of all circumstantial evidence into 
 circumstances which necessarily or usually 
 attend such facts, is one of a questionable 
 nature, inasmuch as it tends to confound 
 those inferences which are the pure result 
 of experience with those which result 
 either from reason alone, exercised upon 
 the circumstances, or upon reason and ex- 
 
 perience jointly. It is very possible that 
 circumstances may supply moral proof, 
 altliough not one of them be such as either 
 necessarily or even usually attends tlie 
 fact ; the inference may be entirely inde- 
 pendent of associations founded on expe- 
 rience, and rest wholly upon the exclusive 
 force and nature of particular circum- 
 stances. Thus, in an instance cited below, 
 where a highway robber was struck on the 
 face by the prosecutor with a key, and 
 was identified by the complete impression 
 wliieli he bore on his face, the circumstance 
 was conclusive, but it was neither a neees- 
 sary nor an usual one, with reference to 
 the fact to be proved. 
 
 It is remarkable, that the illustration 
 cited by Sir W. Blackstone, and by him 
 borrowed from C. B. Gilbert's Law of 
 Evidence, (p. 160), is not an instance of 
 presumptive evidence offered to a jury, in 
 the sense in which Lord Coke used the 
 terms violenta prcssumjitio, but one of a 
 conclusive presumption, or estoppel in law. 
 He says, " If a tenant, in answer to his 
 landlord's demand for rent due Michaelmas 
 1754, produce an acquittance for rent due 
 at a subsequent period, in fall of all de- 
 mands, then tills induces so forcible a pre-
 
 542 PROOFS 
 
 Jurios Juries are bound by all the rules and presumptions of law, as 
 
 lel'al'Vules. far as they apply : they are to confine themselves strictly to the 
 matters put in issue by the pleadings ; they are bound by the 
 admissions of the parties upon record ; and although they are not 
 bound by estoppels, as the parties might have been had the matter 
 of estoppel been pleaded, yet they are usually bound by legal 
 estoppels which could not have been pleaded, and also by all such 
 matters in the nature of estoppels as in point of law conclude the 
 parties. They are bound to give the proper legal effect to all in- 
 struments established by competent evidence, and to notice all 
 matters which are noticed by the Court ; they are to be governed 
 by the order of proof which the law prescribes, and their verdict 
 must be founded on the evidence adduced in the cause. 
 
 It is now perfectly settled that a juror cannot give a verdict 
 founded on his own private knowledge (c) ; for it could not be 
 known whether the verdict was according to or against the evi- 
 dence {d) ; it is very possible that the private grounds of belief 
 might not amount to legal evidence. 
 
 And if such evidence were to be privately given by one juror to 
 the rest, it would want the sanction of an oath, and the juror would 
 not be subject to cross-examination. If, therefore, a juror know 
 any fact material to the issue, he ought to be sworn as a witness, 
 and is liable to be cross-examined ; and if he privately state such 
 facts it will be a ground of motion for a new trial (e). It some- 
 sumption of payment that no proof shall ticular circumstances : "as if one be run 
 he admitted to the contrary" and yet he through the body with a sword, in a house, 
 previously says, " these are called pre- whereof he instantly dieth, and a man is 
 sumptions, which are only to he relied seen to come out of that house with a bloody 
 upon till the contrary bej^roved." Besides sword, and no other man was at that time 
 this, an acquittance, even in full, is not in the house." For further observations 
 conclusive unless it be under' seal. See on this subject, see Vol. II. tit. Presump- 
 Vol. II. tit. Receipt; and then it ope- tion. 
 
 rates, not as a circumstance or ground of (c) Comm. 375; And. 321. In trover 
 
 presumption for the consideration of a the jury found for the plaintiff, but accom- 
 jury, but as a legal estoppel. Lord Coke, pauied their verdict by a statement in 
 in the passage from which the illustration writing, that whether the goods were con- 
 is cited (Co. Litt. 373), was treatuig of sidered as a loan or gift, they ought to 
 legal presumptions, which are mere arbi- have been returned, this was held to be 
 trary and positive rules of law (see Vol. II. nothing more than a mere statement of 
 tit. Presumption), and not of presump- private opinion. Whittet v. Bradford, 5 
 tive or circumstantial evidence to be Sc. 711. 
 weighed by a jury. Lord Coke, on the (d) Comm. 375 ; And 321. 
 
 other hand, in illustration of his violenta (e) And. 321. But a new trial would 
 
 prcEstimptio, states a case of pure circum- not be granted if the verdict was sup- 
 stantial evidence, independent of previous ported by the evidence which was legally 
 experience of the connexion of the par- given. lb. 
 
 I
 
 DEGREES OF EVIDENCE. 643 
 
 times happens that evidence whicli is admitted for one purpose 
 may be no evidence for another purpose, and in such cases a jury 
 is bound to apply the evidence so far only as it is legally appli- 
 cable. Thus, if ^. and B. be tried at the same time, a confession 
 made by the one, but which criminates the other, ought not to 
 operate with the jury against the latter. 
 
 When the jury find a general verdict they are bound to apply 
 the law as delivered by the Court, in criminal as well as civil cases, 
 and in the latter they must do so under peril of an attaint. 
 
 Previous to the remarks which will be made on the force and Degrees of 
 weight of evidence, whether direct or circumstantial, it is to be 
 observed, that the measure of proof sufficient to warrant the verdict 
 of a jury varies much, according to the nature of the case. 
 
 Evidence which satisfies the minds of the jury of the truth of 
 the fact in dispute, to the entire exclusion of every reasonable 
 doubt, constitutes full proof of the fact ; absolute mathematical or 
 metaphysical certainty is not essential, and in the course of judicial 
 investigations would be usually unattainable. 
 
 Even the most direct evidence can produce nothing more than 
 such a high degree of probability as amounts to moral certainty. 
 From the highest degree it may decline, by an infinite number of 
 gradations, until it produce in the mind nothing more than a mere 
 preponderance of assent in favour of the particular fact. 
 
 The distinction between full proof and mere preponderance of 
 evidence is in its application very important. In all criminal 
 cases whatsoever, it is essential to a verdict of condemnation that 
 the guilt of the accused should be fully proved ; neither a mere 
 preponderance of evidence, nor any weight of preponderant evi- 
 dence, is sufficient for the purpose, unless it generate full behef of 
 the fact to the exclusion of all reasonable doubt. 
 
 But in many cases of a civil nature, where the right is dubious, ]\iere pre- 
 and the claims of the contestinp- parties are supported bv evidence po'^*^'^'"" 
 nearly equipoised, a mere preponderance of evidence on either 
 side may be sufficient to turn the scale. This happens, as it 
 seems, in all cases where no presumption of law, or prima facie 
 right, operates in favour of either party ; as, for example, where 
 the question between the owners of contiguous estates is, whether 
 a particular tree near the boundary grows on the land of one or 
 of the other. But even where the contest is as to civil rights only, 
 a mere preponderance of evidence, such as would induce a jury to 
 incline to the one side rather than the other, is frequently insuffi- 
 cient. It would be so in all cases where it fell short of fully dis- 
 proving a legal right once admitted or established, or of rebutting
 
 544 
 
 PROOFS : 
 
 Moro pre- 
 ponder- 
 ance. 
 
 Prima facie 
 and con- 
 clusive 
 evidence. 
 
 a presumption of law. If a party claimed as devisee against the 
 licir at law, full proof of the devise, with all its foimahties, would 
 be essential ; circumstantial evidence, which merely showed it to 
 be more probable that the testator had made a will in favour of the 
 party claiming as devisee, than that he had not done so, would be 
 insufficient. So were a devise to be fully established by one who 
 claimed as devisee, it would not be sufficient to show a mere pro- 
 bability that the devisor had made a subsequent will, revoking the 
 former (/). One who seeks to charge another with a debt, must 
 do so by full and satisfactory proof; and on the other hand, where 
 a debt has once been established by competent proof, the debtor 
 cannot discharge himself but by full proof of satisfaction. Again, 
 where the law raises a presumption in favour of the fact, the con- 
 trary must be fully proved, or at the least such facts must be 
 proved as are sufficient to raise a contrary and stronger presump- 
 tion. Thus the law presumes a man to be innocent of a crime 
 until his guilt be proved ; but if the fact be proved that A. killed 
 JB., then the presumption of law which before was in favour of ^. 
 is now against him, and malice will be presumed, unless he can 
 establish facts which justify or extenuate the act (cf). 
 
 Another distinction to be observed upon is, between prima facie 
 and conclusive evidence: prima facie evidence is that which, not 
 being inconsistent with the falsity of the hypothesis, nevertheless 
 raises such a degree of probability in its favour that it must pre- 
 vail if it be accredited by the jury, unless it be rebutted or the con- 
 trary proved ; conclusive evidence, on the other hand, is that which 
 excludes, or at least tends to exclude, the possibility of the truth 
 of any other hypothesis than the one attempted to be established. 
 All evidence is strong or weak by comparison : in civil cases slight 
 evidence of right or title is sufficient, as against a stranger who 
 possesses no colour of title. Thus the mere possession of goods 
 by one who found them, is evidence of property as against a 
 wrong-doer, in an action of trover (A). The occupation of land, 
 however recent, will enable the occupier to maintain trespass 
 against a stranger (i). So in a settlement case, proof that a re- 
 mote ancestor of the pauper was settled in the appellant parish 
 would be sufficient ijrima facie evidence, and would prevail, un- 
 less it were to be rebutted by proof of some later settlement. So 
 a special custom in a particular manor may be proved by a single 
 instance in which it has been acted upon (A). So a prescription 
 
 87. 
 
 (/) Haricood v. Goodrigld, Cowp. 
 1. 
 {(j) Vol. II. tit. Murder. 
 
 (/() Armory v. Ddumirie, Str. 505. 
 (i) Cattcris v. Coicper, 4 Taunt. 547. 
 {k) Sec tit. Custom.
 
 FORCE OF TESTIMONY. 545 
 
 may in some instances be supported by proof of user for twenty 
 years. On the other hand, in criminal cases, it is essential that 
 the evidence should be of a conclusive nature. But here it is to 
 be observed, that it very frequently happens in criminal as well as 
 civil proceedings, that evidence which in itself is but inconclusive 
 derives a conclusive quality from mere defect of proof on the part 
 of the adversary or accused. 
 
 Where a party, being- apprised of the evidence to be adduced 
 against him, has the means of explanation or refutation in his 
 power if the charge or claim against him be unfounded, and does 
 not explain or refute that evidence, the strongest presumption 
 arises that the charge is true, or the claim well foimded. It would 
 be contrary to all experience of human nature and conduct, to 
 come to any other conclusion. 
 
 Evidence to be weighed by a jury consists either in, 1st, the Direct evi- 
 direct testimony of witnesses ; or 2dly, indirect or circumstantial 
 evidence (Z) ; or 3dly, in both, either united or opposed to each 
 other. The nature and force of such evidence may be considered 
 either separately or in conflict. First, as to the direct testimony 
 of witnesses. The credit due to the testimony of witnesses de- 
 pends upon, 1st, their honesty; 2dly, their ability; 3dly, their 
 number, and the consistency of their testimony ; 4thly, the con- 
 formity of their testimony with experience ; and &thly, the coin- 
 cidence of their testimony with collateral circumstances. 
 
 First, their integrity : A witness, to be faith-worthy, must be Intpgrityof 
 J J ' ..... wxtaesaes. 
 
 both willing and able to declare the truth. His credibility is 
 
 founded, in the first instance, upon experience of human veracity, 
 from which the law presumes that a disinterested witness, who 
 delivers his testimony under the sanction of an oath, and under 
 the peril of the temporal inflictions due to perjury, will speak the 
 truth. 
 
 Although general and peremptory rules of law absolutely ex- 
 clude persons actually convicted of infamous crimes (w?), and such 
 as have a certain leoal interest in the event of the suit, or in the 
 record (w)> yet the credit of a witness not actually excluded is 
 always for the consideration of the j ury. 
 
 (7) Such indirect evidence corresponds prccstans qud colligitur aliud per aliud, et 
 
 with the signa of tlie Roman law, and with qxue qnod est dublum per id quod dubium 
 
 the (TtJixEia or TiKfujpia of the Greelis, non est confiriiiat."—See Glassford's Essay 
 
 and supplied principally the materials of on the Principles of Evidence, 5G3. 
 
 the artijicialis probatio of the Roman (?n) Supra, tit. Witness. 
 
 lawyers. Argument, according to Quiuc- (n) lb. 
 tilian, is defined to be " ratio probationem 
 
 VOL. I. N N
 
 646 PROOFS : 
 
 Integrity of A witness of depraved and abandoned character may not be 
 witnesses, unworthy of credit, where it appears that there is not the shghtest 
 motive or inducement for misrepresentation ; for there is a natural 
 tendency to declare the truth, which is never wholly eradicated, 
 even from the most vicious minds ; and the danger of detection, and 
 the risk of temporal punishment, may operate as restraints upon 
 the most unprincipled, even where motives for veracity of a higher 
 nature are wanting. 
 
 But it is to be remarked, that it is difficult to detect the motives 
 which may influence a depraved and corrupted mind ; and hence 
 it is for the jury to consider, whether the apparent want of motive 
 to deceive be sufficient to accredit an exceptionable witness, and 
 whether some assurance of the actual absence of such a motive 
 be not necessary to warrant their confidence. A jury may, no 
 doubt, in a criminal case, convict on the testimony of an accom- 
 plice, but then it is expected that the tainted credit of the witness 
 should be supported by circumstances confirmatory of his testi- 
 mony in material points ; so that in practice such a witness is con- 
 sidered to be, not incompetent, but incredible, unless his testimony 
 and his character be supported by undoubted facts and unex- 
 ceptionable witnesses. 
 Influence It frequently happens that a witness labours under some influ- 
 
 ence arising from natural affection, near connexion, or mere expec- 
 tation of contingent benefit or evil, which may afford a much 
 stronger temptation to perjury than that which would arise from 
 many defined and vested legal interests, which yet would have 
 absolutely excluded his testimony. This is a necessary conse- 
 quence resulting from the consideration that the law must operate 
 by means of certain definite and peremptory rules, and the great 
 mischief and inconvenience which would result from laying down 
 rules too wide and exclusive in their operation. When, therefore* 
 the peremptory rules of law cease to operate, it is for the jury to 
 estimate the degree of influence by which the testimony of a wit- 
 ness is likely to be corrupted, and to determine whether, under all 
 the circumstances, he be the witness of truth (o). 
 
 (o) The Roman law, De testibus, pro- facile admittat; vel an inimicus ei sit 
 
 videsthus: "Testium fides diligenter ex- versus quem testimonium fert, vel amicus 
 
 aminanda est. Ideoque in personii eorum ei sit pro quo testimonium dat- Nam si 
 
 exploranda erunt imprimis conditio cu- careat suspicione testimonium, vel propter 
 
 jusque; utrum quis decurio an plebeius personam a qua fertur quod honesta sit, 
 
 sit, vero et an honestaa et inculpatse vitse, vel propter causam quod neque lucri neque 
 
 an notatus quis et reprehensibilis ; an gratiaj neque iiiimicitias causa fit, admit- 
 
 ocuples vel egens sit ut lucri causS. quid teudura."
 
 FORCE OF TESTIMONY. 547 
 
 In arriving at this conclusion, a consideration of tlie demeanour Manner of 
 of the witness upon the trial, and of the manner of giving his evi- 
 dence, both in chief and upon cross-examination, is oftentimes not 
 less material than the testimony itself (p). An over-forward and 
 hasty zeal on the part of the witness in giving testimony which 
 will benefit the party whose witness he is, his exaggeration of 
 circumstances, his reluctance in giving adverse evidence, his slow- 
 ness in answering, his evasive replies, his affectation of not hear- 
 ing or not understanding the question, for the purpose of gaining 
 time (q) to consider the effect of his answer ; precipitancy in an- 
 swerino- without waitino- to hear or to understand the nature of 
 the question ; his inability to detail any circumstances wherein, if 
 his testimony were untrue, he would be open to contradiction, or 
 his forwardness in minutely detailing those where he knows con- 
 tradiction to be impossible ; an affectation of indifference ; are all 
 to a greater or less extent obvious marks of insincerity. 
 
 On the other hand, his promptness and frankness in answering 
 questions without regard to consequences, and especially his un- 
 hesitating readiness in stating all the circumstances attending the 
 transaction, by which he opens a wide field for contradiction if his 
 testimony be false, are, as well as numerous others of a similar 
 nature, strong internal indications of his sincerity. The means 
 thus afforded by a viva voce examination, of judging of the credit 
 due to witnesses, especially where their statements conflict, are of 
 incalculable advantage in the investigation of truth ; they not un- 
 
 (p) Sir W. Blackstone, 3 Comm. 373, intervention of an interpreter, but the 
 observes, " In short, by this method of ex- witness has time to collect and prepare his 
 amination, and this only, the persons who answer. An ignorant witness will, how- 
 are to decide upon the evidence have an ever, frequently express himself with doubt 
 opportunity of observing the quality, age, and hesitation, out of mere awkwardness, 
 education, understanding, behaviour, and or from superabundant caution, especially 
 inclinationsof the witness; in which points, if he imagine that there is any design to 
 all persons must appear alike when their entrap him into expressions contrary to his 
 depositions are reduced to writing, and real meaning. 
 
 read to the Judge in the absence of those " This kind of hesitation is very general 
 
 who made them, and yet as much may be with such persons when plied with ques- 
 
 frequently collected from the manner in tions of an hypothetical nature, and when 
 
 which the evidence is delivered as the the answer is not so much an act of tes- 
 
 matter of it." tiraony as of reasoning ; such as. If it had 
 
 (q) Mr. Evans (2 Pothier, 258,) observes been so, must you not have recollected, 
 
 that " a Welch witness, who intends to &c. "Where proof is actually given of a 
 
 give unfair testimony, always affects an fact which a witness could not but know 
 
 ignorance of the English language ; in con- and recollect, his expressing himself with 
 
 sequence of which, the effect of cross- doubt and uncertainty is to be regarded as 
 
 examination is not only weakened by the an act of wilful misrepresentation." 
 
 N N 2
 
 witnesses. 
 
 548 proofs: 
 
 frequently supply tlie only true test by which the real characters 
 of the witnesses can be appreciated (r). 
 Ability of Secondly, their abiJiti/ : The ability of a witness to speak the 
 truth must of course depend on the opportunities which he has had 
 of observing the fact {s), the accuracy of his powers of discern- 
 ing {t), and the faithfulness of his memory in retaining the facts, 
 once observed and known. 
 
 Where a witness testifies to a fact which is wholly or partially the 
 result of reason exercised upon particular circumstances, it is obvi- 
 ous that the reasons of the witness for drawing that conclusion are 
 of the most essential importance for the purpose of ascertaining 
 whether his conclusion was a correct one. 
 
 These observations apply with peculiar force to all questions of 
 skill and science, and even to many of mere ordinary fact : thus 
 where a witness is called to state that another witness is not to 
 be believed upon his oath, his grounds for arriving at that con- 
 clusion are of the highest importance. Where, on the other 
 hand, a witness states the impression on his senses, by any subject- 
 matter of frequent experience, his reasons are of little weight ; he 
 will frequently assign a bad reason where his knowledge is certain. 
 
 The probability that the witness had originally a clear perception 
 of the fact and its circumstances, is strengthened and confirmed by 
 the consideration that they were of such a nature as were likely to 
 attract his attention. On the other hand, it is diminished by the 
 consideration that the transaction was remote, and such as w^as not 
 likely to excite notice and observation {u). 
 
 (r) Tu magis scire potes quanta fides ferent effect upon different persons; in 
 
 habenda sit testibus que et cujus dignitatis some it prevents the clear perception, 
 
 et quantse sestimationis sunt et qui sim- whilst in other instances it assists in 
 
 pliciter visi sunt dicere, utrum unum making an indelible impression, 
 
 eundemque meditatum sermouem attulerint {t) See Gil. L. Ev. 151, 2d ed. 
 
 an ad ea quae interrogaveras ex tempore (u) C. B. Gilbert, in his Law of Evi- 
 
 verisimilia responderint." Adrian's Epistle dence, 151, 2d edit., says, "another thing 
 
 to Varus, legate of Cilicia. Ff. 22 ; 5. 3. that would render his (a single witness's) 
 
 (s) When the guilt of the prisoner de- testimony doubtful, is the not giving the 
 
 pends wholly on proof of identity, it is reasons and causes of his knowledge ;" and 
 
 impossible to inquire too minutely into the again, " the same may be said as to persons 
 
 means and op]jortunity which the wit- who take upon them to remember things 
 
 nesses had of observing the person, so as to long since transacted, for if the matter be 
 
 be able to speak with certainty. Many in- frivolous they ought to tell the causes of 
 
 stances have occurred in which well-inten- their memory, otherwise the memory is 
 
 tioned witnesses have sworn positively in little to be accredited ; for they are rather 
 
 this respect, and yet have been mistaken. I to be supposed as rash persons who take 
 
 have frequently heard Mr. J. Bayley ob- upon them to swear what they do not per- 
 
 serve to juries, that fear has a very dif- fectly remember, than that they are really
 
 FORCE OF TESTIMONY. 540 
 
 Such considerations operate strongly where detailed evidence is Ability of 
 given of oral declarations, after the lapse of a considerable interval ^^t^^^^^^- 
 of time. Every man's experience teaches him how fallible and 
 treacherous the human memory in such cases is. In its freedom 
 from this defect consists one great excellence of documentary evi- 
 dence, and its main superiority over that which is merely oral ; and 
 on this principle it is, that the law, out of policy, frequently deems 
 mere oral evidence to be too weak, and requires a written voucher 
 to prove the fact (x). 
 
 Of all kinds of evidence, that of extra-judicial and casual decla- 
 rations is the weakest and most unsatisfactory ; such words are 
 often spoken without serious intention, and they are always liable to 
 be mistaken and misremembered, and their meaning is liable to be 
 misrepresented and exaggerated (?/). 
 
 A hearer is apt to clothe the ideas of the speaker, as he under- 
 stands them, in his own language, and by this translation the real 
 meaning must often be lost. A witness, too, who is not entirely 
 indifferent between the parties, will frequently, without being con- 
 scious that he does so, give too high a colouring to what has been 
 said. 
 
 The necessity for caution cannot be too strongly and emphati- 
 cally impressed, where particular expressions are detailed in evi- 
 
 under the awe and conscience of an oath ; numero di clrcostanze si adducono in 
 
 for there they would be able to tell the prova, tanto maggiori mezzi si somniis- 
 
 reason and certain marks of their re- trano al reo per giustlficarsi. Beccaria, 
 
 membrance." sec. 13. 
 
 (x) See the statute of Frauds, &c. On I once heard a learned Judge (now no 
 
 this ground, also, it is that mere words more), in summing up on a trial for for- 
 
 will not constitute an overt act of treason. gery, inform the jury that the prisoner, in 
 
 (y) Finalmente e quasi nulla la credibilita a conversation which he had had with one 
 
 del testimonio, quando si faccia delle of the witnesses, had said, " I am the 
 
 parole un delitto, poiche il tuono, il gesto, drawer, the acceptor, and the indorser of 
 
 tutto cio che precede, e cio die siegue, le the bill :" whilst the learned Judge was 
 
 different! idee, che gli uomini attacano commenting on the force of these expres- 
 
 alle stesse parole, alterano, e modificano sions, he was, at the instance of the pri- 
 
 in maniera i detti di un uomo, che e quasi soner, set right as to the statement of the 
 
 impossibile, il ripeterle, quali precisamente witness, which was, that the prisoner had 
 
 furon dette. Di piii le azioni violenti, e said, " I kyiow the drawer, the acceptor, 
 
 fuori deir uso ordinario, quali sono i veri and the indorser of the bill." Had the 
 
 delitti, lascian traccia di se nella mol- witness, and not the Judge, made the mis- 
 
 titudine delle circonstanze, e negli effetti take, the consequences might have been 
 
 che ne derivano, ma le parole non riman- fatal. The prisoner was acquitted. See 
 
 gono che nella memoria per 16 piii infidele the observation of Park, J., as to the cau- 
 
 e spesso sedotta dagli ascoltanti. Egli e tion with which such evidence ought to 
 
 adunque di gran lunga piu facile una be received, 5 & P. 542 ; and those of Mr. 
 
 calunnia sulle parole, che sulle azioni di J. Foster, in liis Treatise on the Law of 
 
 un uomo, poiche di queste quanto maggior Treason. 
 
 N N 3
 
 witnesses. 
 
 650 PROOFS : 
 
 deuce, which were used at a remote distance of time, or to which 
 the attention of the witnesses was not particularly called, or where 
 misconception was likely to arise from their situation and the cir- 
 cumstances under which they were placed, or from the prejudice 
 of the witness, especially if his object was to extract an admission 
 for the purposes of the cause (z). 
 
 Such evidence is fabricated easily, contradicted with difficulty. 
 In cases of this kind, the conduct of the parties, and those facts 
 and circumstances of the case which are free from suspicion, are 
 frequently the safest and surest guides to truth. Evidence of this 
 nature is of the very weakest kind, where it is doubtful whether 
 the party making the admission knew his legal rights and situa- 
 tion (a). 
 Number of Thirdly, their number and consistency : The testimony of a single 
 witness, where there is no ground for suspecting either his ability 
 or his integrity, is a sufficient legal ground for belief; that it is 
 strong enough to produce actual behef, every man's experience 
 will vouch. 
 
 It has been alleged (b) that two witnesses are essential to convict 
 a man of a crime ; for if there be but one, it is no more than the 
 assertion of one man against that of another. 
 
 It is not easy to comprehend how the mere denial of guilt by 
 an accused person, whose life may depend upon the credit attached 
 to that denial, is to be placed in competition with the testimony 
 of a witness examined upon oath. According to this species of 
 logic, if six men were to commit a crime, it would require the tes- 
 timony of at least seven witnesses to convict them upon their joint 
 trial (c). 
 
 (2) The admitting evidence of loose witnesses, according to its universal 
 
 conversations to revive an antiquated debt maxim, " Unius respunsio testis omnino 
 
 which would otlierwise have been barred non audiatur." Sir W. Blackstone ob- 
 
 by lapse of time, has nearly had the effect serves, 3 Comm. 370, that to extricate 
 
 of overturning the provisions of a most itself out of this absurdity, the practice of 
 
 wholesome statute. See the observations tlie Civil-law Courts has plunged itself 
 
 of the Court, 4 B. & A. 571. into another. For as they do not allow a 
 
 (a) As where, in a settlement case, the less number than two witnesses to be plena 
 declaration of an inhaliitant is given in probatio, they call the testimony of one 
 evidence : or a party makes admissions in- sendplena probatio only, on which no scn- 
 volving matter of law as well as matter teuce can be founded : to make up there- 
 of fact ; as in reference to marriage. See fore, the necessary complement of wit- 
 Vol. II. tit. Polygamy. Marriage. Or nesses, where they have one only to a sin- 
 a discharge under an insolvent Act. gle fact, they permit the party himself, 
 Summerset v. Adainson, 1 Bing. 73. plaintiff or defendant, to be examined on 
 
 (&) Montesquieu, Sp. of Law, b. 12, his own behalf, and administer to him 
 
 C. 3. what is called the suppletory oath ; and 
 
 (c) The civil law requires proof by two if liis oath happen to be iu his own favour,
 
 FORCE OF TESTIMONY. 561 
 
 But although the testimony of a single witness, whose credit is 
 untainted, be sufficient to warrant a conviction, even in a criminal 
 case, yet undoubtedly any additional and concurrent testimony 
 adds greatly to the credibihty of testimony, in all cases where it 
 labours under doubt or suspicion; for then an opportunity is 
 afforded of comparing the testimony of the witnesses on minute 
 and collateral points, on which, if they were the witnesses of truth, 
 their testimony would agree, but if they were false witnesses, would 
 be likely to differ (d). 
 
 Where direct testimony is opposed by conflicting evidence, or 
 by ordinary experience, or by the probabilities supplied by the cir- 
 cumstances of the case, the consideration of the number of wit- 
 nesses becomes most material. It is more improbable that a 
 number of witnesses should be mistaken, or that they should have 
 conspired to commit a fraud by direct perjury, than that one or a 
 few should be mistaken, or wilfully perjured. In the next place, 
 not only must the difficulty of procuring a number of false witnesses 
 be greatly increased in proportion to the number, but the danger 
 and risk of detection must be increased in a far higher proportion ; 
 for the points on which their false statements may be compared 
 with each other, and with ascertained facts, must necessarily be 
 greatly multiplied. 
 
 The consistency of testimony is also a strong and most important Consisten- 
 test for judging of the credibility of witnesses. Where several timonv^^" 
 witnesses bear testimony to the same transaction, and concur in 
 their statement of a series of particular circumstances, and the 
 order in which they occurred, such coincidences exclude all appre- 
 hension of mere chance and accident, and can be accounted for 
 only by one or other of two suppositions ; either the testimony is 
 true, or the coincidences are the result of concert and conspiracy. 
 If, therefore, the independency of the witnesses be proved, and the 
 supposition of previous conspiracy be disproved or rendered highly 
 improbable, to the same extent will the truth of their testimony be 
 established (e). 
 
 this immediately converts the half proof rule : the former, upon grounds of strict 
 
 into a whole one. By this ingenious de- principle, for there the oath of one witness 
 
 vice satisfying at once the forms of the is opposed to the oath of another witness ; 
 
 Roman law, and acknowledging the supe- and in the latter, as a mere rule of policy 
 
 rior reasonableness of the law of England, devised for protecting the liberty of the 
 
 which permits one witness to be suilicient subject. 
 
 where no more are to be had, and to avoid (rf) Quia a cordato judice mendacia tes- 
 
 all temptations of perjury, lays it down as tium deprehcndi possunt si diversi inter- 
 
 an invariable rule that " netno testis esse rogantur cum contra unus facile sibi con- 
 
 debet in propria causei." The instances of stare possit. Puffendorf, 668. 
 perjury and treason are exceptions to the (e) See Ld. Mansfield's remarks in R. 
 
 N N 4
 
 652 
 
 PKOOFS 
 
 Effect of 
 inconsist- 
 cacy. 
 
 Partial 
 Tariances. 
 
 So far does this principle extend, that in many cases, except for 
 the purpose of repelHng the suspicion of fraud and concert, the 
 credit of tlie witnesses themselves for honesty and veracity may 
 become wholly immaterial. Where it is once established that the 
 witnesses to a transaction are not acting in concert, then, although 
 individually they should be unworthy of credit, yet if the coinci- 
 dences in their testimony be too numerous to be attributed to mere 
 accident, they cannot possibly be explained on any other supposi- 
 tion than that of the truth of their statement. 
 
 The considerations which tend to negative any suspicion of 
 concert and collusion between the witnesses, are either extrinsic of 
 their testimony, such, for instance, as relate to their character, 
 situation, their remoteness from each other, the absence of previous 
 intercourse with each other or with the parties, and of all interest 
 in the subject-matter of litigation ; or they aiise internally, from 
 a minute and critical examination and comparison of the testimony 
 itself. 
 
 The nature of such coincidences is most important : are they 
 natural ones, which bear not the marks of artifice and premedita- 
 tion ? Do they occur in points obviously material, or in minute 
 and remote points which were not likely to be material, or in mat- 
 ters the importance of which could not have been foreseen ? The 
 number of such coincidences is also worthy of the most attentive 
 consideration : human cunning, to a certain extent, may fabricate 
 coincidences, even with regard to minute points, the more effectually 
 to deceive ; but the coincidences of art and invention are neces- 
 sarily circumscribed and limited, whilst those of truth are indefinite 
 and unlimited : the witnesses of art will be copious in their detail 
 of circumstances, as far as their provision extends ; beyond this 
 they will be sparing and reserved, for fear of detection, and thus 
 their testimony will not be even and consistent throughout : but 
 the witnesses of truth will be equally ready and equally copious 
 upon all points. 
 
 It is here to be observed, that partial variances in the testimony 
 of different witnesses, on minute and collateral points, although 
 they frequently afford the adverse advocate a topic for copious 
 observation, are of little importance, unless they be of too promi- 
 nent and striking a nature to be ascribed to mere inadvertence, 
 inattention, or defect of memory. 
 
 T. Genge, Cowp. 16. " It is objected that 
 these books are of no authority; but if 
 both the reporters were the Avorst tliat ever 
 reported, if substantially they report a case 
 
 in the same way, it is demonstrative of the 
 truth of what they report, or they could 
 not agree."
 
 FORCE OP TESTIMONY. 
 
 553 
 
 It has been well remarked by a great observer (/), that "the 
 usual character of human testimony is substantial truth under cir- 
 cumstantial variety." It so rarely happens that witnesses of the 
 same transaction perfectly and entirely agree in all points connected 
 with it, that an entire and complete coincidence in every parti- 
 cular, so far from strengthening their credit, not unfrequently 
 engenders a suspicion of practice and concert. 
 
 The real question must always be, whether the points of variance 
 and of discrepancy be of so strong and decisive a nature as to 
 render it impossible, or at least difficult, to attribute them to 
 the ordinary sources of such varieties, inattention or want of 
 memory. 
 
 It would, theoretically speaking, be improper to omit to observe Aggregate 
 that the weight and force of the united testimony of numbers, upon ^°^*^*^' 
 
 (/) " I know not (says Dr. Paley) a 
 more rash or unphilosophical conduct of 
 the understandmg than to reject the sub- 
 stance of a story by reason of some diver- 
 sity in the circumstances with which it is 
 related. The usual character of human 
 testimony is substantial truth under cir- 
 cumstantial variety. This is what the 
 daily experience of courts of justice teaches. 
 W^hen accounts of a transaction come from 
 the mouths of different witnesses it is sel- 
 dom that it is not possible to pick out 
 apparent or real inconsistencies between 
 them. These inconsistencies are studiously 
 displayed by an adverse pleader, but often- 
 times with little impression on the minds 
 of the Judges. On the contrary, a close 
 and minute agreement induces the suspicion 
 of confederacy and fraud. When written 
 histories touch upon the same scenes of 
 action, the comparison almost always af- 
 fords ground for a like reflection. Nu- 
 merous, and sometimes important, varia- 
 tions present themselves ; not seldom also 
 absolute and final contradictions ; yet 
 neither the one nor the other are deemed 
 sufficient to shake the credibility of the 
 main fact. The embassy of the Jews to 
 deprecate the execution of Claudius's order 
 to place his statue in their temple, Philo 
 places in harvest, Josephus in seed-time; 
 both cotemporary writers. No reader is 
 led by their inconsistency to doubt whe- 
 ther such an embassy was sent, or v^hethcT 
 such an order was given. Our own history 
 
 supplies examples of the same kind : in the 
 account of the Marquis of Argyle's death, 
 in the reign of Charles the second, we have 
 a very remarkable contradiction. Lord 
 Clarendon relates that he was condemned 
 to be hanged, which was performed the 
 same day : on the contrary, Burnet, Wood- 
 row, Heath and Echard, concur in stating 
 that he was beheaded; and that he was 
 condemned upon the Saturday, and exe- 
 cuted upon the Monday. Was any reader 
 of English history ever sceptic enough to 
 raise a doubt whether he was executed or 
 not?" 
 
 It may not perhaps be deemed irrelevant 
 to mention a circuit anecdote in illustration 
 of the foregoing observations. Not long 
 before the death of Mr. Justice Le Blanc, 
 and whilst he was presiding as one of the 
 Judges of assize at Lancaster, he had a 
 fainting fit. Some time afterwards, the 
 circumstance being the topic of conversa- 
 tion amongst a considerable number of the 
 members of the bar who had been present, 
 a doubt was started, whether the fact had 
 taken place in the ordinary Civil Court or 
 in the Crown Court, in which civil causes 
 were usually tried after the termination of 
 the business on the Crown side ; and those 
 who had been actual spectators were 
 divided as to their recollection in which of 
 the two courts the circumstance had oc- 
 curred, many asserting that it took place 
 in the one court, and nearly as many that 
 it occurred in the other court.
 
 654 PROOFS : 
 
 abstract mathematical principles, increases in a higher ratio than 
 that of the mere numbers of such witnesses. 
 
 Upon those principles, if definite degrees of probability could be 
 assigned to the testimony of each witness, the resulting probability 
 in favour of their united testimony would be obtained not by the 
 mere addition of the numbers expressing the several probabiUties, 
 but by a process of multiplication. 
 
 Such considerations, however, are of little practical importance. 
 The maxim of law is ponderantur testes non numerantur. No 
 definite degrees of probability can in practice be assigned to the 
 testimonies of witnesses ; their credibility usually depends upon 
 the special circumstances attending each particular case, upon 
 their connexion with the parties and the subject-matter of litiga- 
 tion, their previous characters, the manner of delivering their evi- 
 dence, and many other circumstances, by a careful consideration 
 of which the value of their testimony is usually so well ascertained 
 as to leave no room for mere numerical comparison. 
 
 In some instances, nevertheless, where from paucity of circum- 
 stances the usual means of judging of the credit dvie to conflicting 
 witnesses fail, it is possible that the abstract principles adverted to 
 may operate by way of approximation, especially in those cases 
 where the decision is to depend upon the mere preponderance of 
 evidence. 
 Conformity Fourthly, the conformity of their testimony with experience : As 
 one principal ground of faith in human testimony is experience, it 
 necessarily follows that such testimony is strengthened or weak- 
 ened by its conformity or inconsistency with our previous know- 
 ledge and experience. A man easily credits a witness who states 
 that to have happened which he himself has known to happen 
 under similar circumstances ; he may still believe, although he 
 should not have had actual experience of similar facts ; but where, 
 as in the familiar instance stated by Mr. Locke {g), that is asserted 
 which is not only unsupported by common experience, but contrary 
 to it, belief is slow and difficult. 
 
 In ordinary cases, if a witness were to state that which was 
 inconsistent with the known course of nature, or even with the 
 operation of the common principles by which the conduct of man- 
 kind is usually governed, he would probably be disbelieved ; for 
 
 ((/) Vol. II. p. 276. "The Dutch am- I have believed the strange things you have 
 
 bassador told the king of Siam that in his told me, because I looked upon you as a 
 
 country the water was so hard in cold so))er fair man, but now I am sure you 
 
 weather, that it would bear an elephant if lie." 
 he were there. The king replied, Hitherto 
 
 with expe- 
 rience
 
 FORCE OF TESTIMONY, 
 
 555 
 
 it might be more probable in the particular instance that the 
 witness was mistaken, or meant to deceive, than that such an 
 anomaly had really occurred. But althouoh the improbability of 
 testimony, with reference to experience, aftbrds a just and rational 
 ground for doubt, the very illustration cited by Locke shows that 
 mere improbability is by no means a certain test for trying the 
 credibiHty of testimony, without regard to the number, consist- 
 ency, character, independence, and situation of the witnesses, and 
 the collateral circumstances which tend to confirm their state- 
 ment (A). In ordinary cases, where a witness stands wholly unim- 
 
 (7i) In observing upon the general prin- 
 ciples on wMch the credibility of human 
 testimony rests, it may not be irrelevant to 
 advert to the summary positions on this 
 subject advanced bj Mr. Hume. He says, 
 in his Essay, vol. 2, sec. 10, " A miracle is 
 a violation of the laws of nature ; and as a 
 firm and unalterable experience has esta- 
 blished these laws, the proof against a 
 miracle, from the very nature of the fact, 
 is as entire as any argument from e.f pe- 
 rience can possibly be imagined." As a 
 matter of abstract philosophical considera- 
 tion (for in that point of view only can the 
 subject be adverted to in a work like this), 
 Mr. Hume's reasoning appears to be alto- 
 gether untenable. In the first place, the 
 very basis of his inference is that faith in 
 human testimony is founded solely upon 
 experience ; this is by no means the fact; 
 the credibility of testimony frequently de- 
 pends upon the exercise of reason, on the 
 effect of coincidences in testimony, which, 
 if collusion be excluded, cannot be ac- 
 counted for but upon the supposition that 
 the testimony of concurring witnesses is 
 true ; so much so, that their individual 
 character for veracity is frequently but of 
 secondary importance, supra, 551. Its 
 credibility also greatly depends upon con- 
 firmation by collateral circumstances, and 
 on analogies supplied by the aid of reason 
 as well as of mere experience. But even 
 admitting experience to be the basis, even 
 the sole basis, of such belief, the position 
 built upon it is unwarrantable, and it is 
 fallacious, for if adopted it would lead to 
 error. The position is, that human testi- 
 mony, the force of which rests upon expe- 
 rience, is inadequate to prove a violation 
 of the laws of nature, which are esta- 
 
 blished by firm and unalterable experience. 
 The very essence of the argument is, that 
 the force of human testimony (the efficacy 
 of which in the abstract is admitted) is 
 destroyed by an opposite, conflicting and 
 superior force, derived also from experi- 
 ence. If this were so, the argument would 
 be invincible ; but the question is, whether 
 mere previous inexperience of an event 
 testified is directly opposed to human 
 testimony, so that mere experience as 
 strongly proves that the thing is not as 
 previous experience of the credibility of 
 human testimony proves that it is. IVow 
 a miracle, or violation of the laws of 
 nature, can mean nothing more than an 
 event or effect never observed before, and 
 to the production of which the known laws 
 of nature are inadequate ; and on the other 
 hand, an event or effect in nature never 
 observed before is a violation of the laws of 
 nature : Thus, to take Mr. Hume's own 
 example, " it is a miracle that a dead man 
 should come to life, because that has never 
 been observed in any age or country :" pre- 
 cisely in the same sense, the production 
 of a new metal from potash, by means of a 
 powerful and newly-discovered agent in 
 nature, and the first observed descent of 
 meteoric stones, were violations of the laws 
 of nature ; they were events which had 
 never before been observed, and to the 
 production of which the known laws of 
 nature were inadequate. But none of these 
 events can, with the least propriety, be said 
 to be against or contrary to the laws of 
 nature, in any other sense than that they 
 have never before been observed, and that 
 the laws of nature, as far as they were pre- 
 viously known, were inadequate to their 
 production. The proposition of Mr. Huma
 
 556 
 
 PROOFS : 
 
 peached by any extrinsic circumstances, credit ought to be given 
 to his testimony, unless it be so grossly improbable as to satisfy 
 
 ought then to be stated thus : human tes- 
 timony is founded on experience, and is 
 tlierefore inadc<iiiate to prove that of wliich 
 there has been no previous experience. 
 Now whether it be plain and self-evident 
 that the mere negation of experience of a 
 particular fact necessarily destroys all faitli 
 in the testimony of those wlio assert the 
 fact to be true ; or whether, on the other 
 hand, this be not to confound the principle 
 ofbelief with the subject-matter to which 
 it is to be applied, and whether it be not 
 plainly contrary to reason to infer the de- 
 struction of an active principle of belief 
 from the mere negation of experience, 
 which is perfectly consistent with the just 
 operation of that principle; whether, in 
 short, this be not to assume broadly that 
 mere inexperience on the one hand is ne- 
 cessarily superior to positive experience on 
 the other, must be left to every man's 
 understanding to decide. The inferiority 
 of mere negative evidence to that which is 
 direct and positive is, it will be seen, a 
 consideration daily acted upon in judicial 
 investigations. Negative evidence is, in 
 the abstract, inferior to positive, because 
 the negative is not directly opposed to the 
 positive testunony; both may be true. 
 Must not this consideration also operate 
 where there is mere inexperience, on the 
 one hand, of an event in nature, and po- 
 sitive testimony of the fact on the other? 
 Again, what are the laws of nature, es- 
 tablished by firm and unalterable experi- 
 ence ? That there may be, and are, general 
 and even unalterable laws of providence 
 and nature, may readily be admitted ; but 
 that human Tinowledge and experience of 
 those laws is unalterable (which alone can 
 be the test of exclusion) is untrue, except 
 in a very limited sense; that is, it may 
 fairly be assumed that a law of nature 
 once known to operate, will always operate 
 in a similar manner, unless its operation be 
 impeded or counteracted by a new and 
 contrary cause. In a larger sense, the 
 laws of nature are continually alterable : 
 as experiments are more frequent, more 
 perfect, and as new phamomena are ob- 
 served, and new causes or agents are dis- 
 
 covered, human experience of the laws of 
 nature becomes more general and more 
 perfect. How much more extended and 
 perfect, for instance, are the laws which 
 regulate chemical attractions and affinities 
 tliau they were two centuries ago ! And 
 it is probable that in future ages ex- 
 perience of the laws of nature will be more 
 perfect than it is at present; it is, in short, 
 impossible to define to wliat extent such 
 knowledge may be carried, or whether, 
 ultimately, the whole may not be resolv- 
 able into principles admitting of no other 
 explanation than that they result imme- 
 diately from the will of a superior Being. 
 This at all events is certain, that the laws 
 of nature, as inferred by the aid of expe- 
 rience, have from time to time, by the aid 
 of experience, been rendered more general 
 and more perfect. Experience, then, so 
 far from pointing out any unalterable laws 
 of nature, to the exclusion of events or 
 phsenomena which have never before been 
 experienced, and which cannot be accounted 
 for by the laws already observed, shows 
 the very contrary, and proves that such new 
 events or phaenomena may become the 
 foundation of more enlarged, more general, 
 and therefore more perfect laws. But 
 whose experience is to be the test ? That 
 of the objector ; for the very nature of the 
 objection excludes all light from the expe- 
 rience of the rest of mankind. The credi- 
 bility, then, of human testimony is to de- 
 pend not on any intriusic or collateral con- 
 siderations which can give credit to testi- 
 mony, but upon the casual and previous 
 knowledge of the person to whom the tes- 
 timony is oiFered ; in other words, it is plain 
 that a man's scepticism must bear a direct 
 proportion to his ignorance. Again, if Mr. 
 Hume's inference be Just, the consequences 
 to which it leads cannot be erroneous ; on 
 the other hand, if it lead to error, the in- 
 ference must be fallacious. Tlie position is, 
 that human testimony is inadequate to 
 prove that which has never been observed 
 before ; and this, by proving far too much 
 for the author's purpose, is felo de se, and 
 in effect proves nothing : for if constant 
 inexperience amount to stronger evidence
 
 FOKCE OF TESTIMONY. 
 
 557 
 
 the jury that he is not to be trusted. Thus, notwithstanding the 
 general presumption of law in favour of innocence, a defendant 
 may be convicted of a heinous and even improbable crime upon the 
 testimony of a single witness. 
 
 on the one side than is supplied by positive 
 testimony on the otlier, the argument ap- 
 plies necessarily to all cases where mere 
 constant inexperience on the one hand is 
 opposed to positive testimony on the other. 
 According, then, to this argument, every 
 philosopher was bound to reject the testi- 
 mony of witnesses that they had seen the 
 descent of meteoric stones, and even acted 
 contrary to sound reasrn in attempting to 
 account for a fact disproved by constant 
 inexperience, and would have been equally 
 foolish in giving credit to a chemist that 
 he had produced a metal from jrotash by 
 means of a galvanic battery. It will not, 
 I apprehend, be doubted, that in these and 
 similar instances the effect of Mr. Hume's 
 argument would have been to exclude tes- 
 timony which was true, and to induce false 
 conclusions ; the principle, therefore, on 
 which it is founded, must of necessity be 
 fallacious. Nay, further, if the testimony 
 of others is to be rejected, however un- 
 likely they were either to deceive or be 
 deceived, on the mere ground of inexperi- 
 ence of the fact testified, the same argu- 
 ment might be urged even to the extrava- 
 gant length of excluding the authority of a 
 man's own senses ; for it might be said, 
 that it is more probable that he should 
 have laboured under some mental delusion, 
 than that a fact should have happened 
 contrary to constant experience of the 
 course of nature. 
 
 In stating that the inference attempted 
 to be drawn from mere inexperience is fal- 
 lacious, I mean not to assert that the ab- 
 sence of previous experience of a particular 
 fact or phaenomenon is not of the highest 
 importance to be weighed as a circum- 
 stance in all investigations, whether they 
 be physical, judicial, or historical : the 
 more remote the subject of testimony is 
 from our own knowledge and experience, 
 the stronger ought the evidence to be to 
 warrant our assent. Neither is it meant to 
 deny that in particular instances, and un- 
 der particular circumstauces, the want or 
 
 absence of previous experience may not be 
 too strong for positive testimony, especially 
 where it otherwise labours under suspicion. 
 What is meant is this, that mere inexperi- 
 ence, however constant, is not in itself, 
 and in the abstract, and without conside- 
 ration of all the internal and external pro- 
 babilities in favour of human testimony, 
 sufficient to defeat and to destroy it, so as 
 to supersede the necessity of investigation. 
 Mr. Hume's conclusion is highly objec- 
 tionable in a philosophical point of view, 
 inasmuch as it would leave phsenomena of 
 the most remarkable nature wholly unex- 
 plained, and would operate to the utter 
 exclusion of all inquiry. Estoppels are 
 odious, even in judicial investigations, 
 because they tend to exclude the truth ; 
 in metaphysics they are intolerable. So 
 conscious was Mr. Hume himself of the 
 weakness of his general and sweeping po- 
 sition, that in the second part of his 10th 
 section he limits his inference in these re- 
 markable terms, " I beg the limitations 
 here made may be remarked, when I say 
 that a miracle can never be proved so as to 
 be the foundation of a system of religion ; 
 for I own that otherwise there may pos- 
 sibly be miracles or violations of the usual 
 course of nature of such a kind as to admit 
 of proof from hmna?i testimony." 
 
 In what way the use to be made of a 
 fact when proved can affect the validity 
 of the proof, or how it can be that a fact 
 pi'oved to be true is not true for all ])ur- 
 poses to which it is relevant, I pretend 
 not to understand. Whether a miracle, 
 when proved, may be the foundation of a 
 system of religion, is foreign to the pre- 
 sent discussion; but when it is once 
 admitted that a miracle 7)iay be proved by 
 human testimony, it necessarily follows, 
 from Mr. Hume's own concession, that his 
 general position is untenable ; for that, if 
 true, goes to the full extent of proving 
 that human testimony is inadequate to 
 the proof of a miracle, or violation of the 
 laws of nature.
 
 558 
 
 PROOFS 
 
 Conformity 
 witli cir- 
 cum- 
 stances. 
 
 Circum- 
 stantial 
 evidence. 
 
 As experience shows that events frequently occur which would 
 antecedently have been considered most improbable, from their 
 inconsistency with ordinary experience, and as their improbability 
 usually arises from want of a more intimate and correct knowledge 
 of the causes which produced them, mere improbability can rarely 
 supply a sufficient ground for disbelieving direct and unexception- 
 able witnesses of the fact, where there was no room for mistake. 
 
 Fifthly, Conformity with collateral circumstances : Direct testi- 
 mony is not only capable of being strengthened or weakened to an 
 indefinite extent, by its conformity on the one hand, or inconsist- 
 ency on the other, with circumstances collateral to the disputed 
 fact, but may be totally rebutted by means of such evidence. 
 These positions lead immediately to an inquiry into the nature and 
 force of indirect or circumstantial evidence. 
 
 Circumstantial, or, as it is frequently termed, presumptive evi- 
 dence, is any which is not direct and positive (i). 
 
 An inference or conclusion from circumstantial or presumptive 
 evidence, may be either the pure result of previous experience of 
 the ordinary or necessary connexion between the known or admitted 
 facts and the fact inferred ; or of reason exercised upon the facts ; 
 or of both reason and experience conjointly. And hence such an 
 inference or conclusion differs from a presumption, although the 
 latter term has sometimes, yet not with strict propriety, been used 
 in the same extended sense : for a presumption in strictness is an 
 inference as to the existence of one fact, from a knowledge of the 
 existence of some other fact, made solely by virtue of previous 
 experience of the ordinary connexion between the known and 
 inferred facts, and independently of any process of reason in the 
 particular instance (k). 
 
 The consideration of the nature of circumstantial evidence, and 
 of the principles on which it is founded, merits the most profound 
 attention. It is essential to the well-being, at least, if not to the 
 very existence of civil society, that it should be understood, that 
 the secrecy with which crimes are committed will not ensure 
 impunity to the offender. At the same time it is to be emphati- 
 cally remarked, that in no case, and upon no principle, can the 
 policy of preventing crimes, and protecting society, warrant any 
 inference which is not founded on the most full and certain con- 
 viction of the truth of the fact, independently of the nature of the 
 
 (i) For a more copious statement of the 
 principles on which the force of circum- 
 stantial evidence depends, illustrated by 
 numerous cases, the reader is referred to 
 
 a very interesting book, intitled " An 
 Essay on the Rationale of Circumstantial 
 Evidence," by Mr. Wills. 
 {k) Vide Vol. II. tit. Pkesumftions.
 
 FORCE OF TESTIMONY 
 
 559 
 
 offence, and of all extrinsic considerations whatsoever. Circum- 
 stantial evidence is allowed to prevail to the conviction of an 
 offender, not because it is necessary and politic that it should be 
 resorted to {I), but because it is in its own nature capable of pro- 
 ducing the highest degree of moral certainty in its application. 
 Fortunately for the interests of society, crimes, especially those 
 of great enormity and violence, can rarely be committed without 
 affording vestiges by which the offender may be traced and ascer- 
 tained (m). The very measures which he adopts for his security 
 not unfrequently turn out to be the most cogent arguments of guilt. 
 On the other hand, it is to be recollected that this is a species of 
 evidence which requires the utmost degree of caution and vigilance 
 in its application, and in acting upon it, the just and humane 
 rule impressed by Lord Hale (n) cannot be too often repeated : 
 " tutius semper est errare in acquietando, quam inpuniendo, ex parte 
 misericordicB quam ex partejustiti(s." 
 
 By circumstantial or presumptive proof, is meant that measure Grounds of 
 and degree of circumstantial evidence which is sufficient to pro- stentl^i 
 
 proof. 
 
 (Z) It is almost superfluous to remark 
 upon the absurd and mischievous doctrine, 
 that the nature of tlie crime ought at all 
 to influence the measure of proof, and that, 
 out of policy, slighter proof is sufficient 
 in proportion to the atrocity of the 
 offence, according to the pernicious 
 maxim, iii atrocissimis leviores conjec- 
 tures siiffioiunt et licet judici jura trans- 
 gredi. Where any doubt exists as to the 
 corpus delicti, whether any crime has 
 been committed, the very reverse of the 
 above position is true ; the more atrocious 
 the nature of a crime is, the more repug- 
 nant it is to the common feelings of 
 human nature, the more improbable it is 
 that it has been perpetrated at all. " La 
 credibilita, di un testimonio diviene tanto 
 sensibilmente minore quanto piii cresce 
 I'atrocita di un delitto e rinverisimiglianza 
 delle circonstanze ; tali sono per esempio 
 la magia, e le azioni gratuitamente cru- 
 deli." Beccaria, s. 13. But when it has 
 once been clearly established that a 
 heinous crime has been perpetrated, and 
 the only question is as to the perpetrator, 
 it is manifest that the atrocity of the 
 crime in the abstract raises no probability 
 either for or against the accused, although 
 
 under particular circumstances it may be 
 a matter of great importance. 
 
 Thus on a charge of infanticide, where 
 there is a doubt whether the child was 
 destroyed by design, or by accident, during 
 a secret delivery, the very atrocity of the 
 offence raises a strong degree of probabi- 
 lity in favour of the latter conclusion. 
 On the other hand, were it clear from the 
 circumstances under which a body was 
 found, that the party had been murdered, 
 then the corpus delicti being established, 
 the atrocity of the offence would in the 
 abstract raise no probability either in 
 favour of or against any individual; but 
 if in the particular instance the question 
 were, whether the son of the deceased, or 
 a stranger, was the guilty agent, then a 
 probability from the particular circum- 
 stances would operate in favour of the son. 
 It would, without reference to circum- 
 stances, be more probable that a stranger 
 had committed the heinous crime of mur- 
 der, than that a son had committed that 
 horrible offence upon the person of his 
 own father. 
 
 (m) See the observations of Beccaria, 
 supra, 549. 
 
 (ji) Hale, 290.
 
 560 
 
 PROOFS 
 
 Grounds 
 circum- 
 stantial 
 proof. 
 
 of duce conviction in the minds of the jury of the truth of the fact in 
 question. 
 
 To the vaHdity of every such proof it is essential, first, that 
 a basis of facts be estabhshed by sufficient evidence ; and in the 
 next place, that the proper conclusion should be deduced by the 
 aid of reason and experience, from those facts and circumstances 
 so established. 
 
 The force and tendency of circumstantial evidence to produce 
 conviction and belief depend upon a consideration of the coinci- 
 dence of circumstances with the fact to l)e inferred, that is, with 
 the hypothesis, and the adequacy of such coincidences to exclude 
 every other hypothesis (o). 
 
 AH human dealings and transactions are a vast context of 
 circumstances, interwoven and connected with each other, and 
 also with the natural world, by innumerable mutual links and ties. 
 No one fact or circumstance ever happens which does not owe its 
 birth to a multitude of others, which is not connected on every 
 side by kindred facts, and which does not tend to the generation 
 of a host of dependent ones, which necessarily coincide and agree 
 in their minutest bearings and relations, in perfect harmony and 
 concord, without the slightest discrepancy or disorder. 
 
 It is obvious that all facts and circumstances which have really 
 happened were perfectly consistent with each other, for they did 
 actually so consist. It is therefore a necessary consequence, that 
 if a number of the circumstances which attended a disputed fact 
 be known and ascertained, and these so coincide and agree with 
 the hypothesis that the disputed fact is true, that no other hypo- 
 thesis can consist with those circumstances, the truth of that 
 hypothesis is necessarily established. 
 
 And again, where the known and ascertained facts so coincide 
 and agree with the hypothesis that the disputed fact is true, as to 
 render the truth of any other hypothesis, on the principles of 
 reason and experience, exceedingly remote and improbable, and 
 morally, though not absolutely and metaphysically, impossible, 
 
 (o) In one respect, proof by circum- 
 stantial evidence is analogous to the indi- 
 rect proof, or reductio ad dbsurdum, in 
 geometry : in each case the truth of the 
 proposition is attained to by negativing 
 and excluding the truth of any other 
 hypothesis; in the one case to a meta- 
 physical and absolute, in the other to a 
 moral certainty. In another and essential 
 point they usually differ: in the geomc' 
 
 trical proof the exclusion of one other 
 hypothesis frequently excludes all others, 
 and thus at once establishes the truth of 
 the proposition ; in the case of moral cir- 
 cumstantial proofs it may not only be 
 necessary to exclude several different 
 hypotheses by as many different pro- 
 cesses of reasoning, but a doubt may still 
 exist whether some other hypotliesia may 
 not remain unanswered.
 
 Force of. 
 
 CIRCUMSTANTIAL EVIDENCK. 561 
 
 the hypothesis is estabhshed as morally true. It also follows, 
 that if any of the established circumstances be absolutely incon- 
 sistent with the existence of the supposed fact, the hypothesis 
 cannot be true, notwithstanding the degree and extent of coinci- 
 dence in other respects ; for if that fact really existed, it was 
 necessarily consistent with all the circumstances. 
 
 Thus, in the first place, it sometimes happens that the coinci- Coincklen- 
 dence between the known facts and the hypothesis is such as tju, facts 
 absolutely and demonstratively to exclude any other. If, for »"•' *''<^ 
 
 ■ 1 1 J T-» 1 hypothesis. 
 
 instance, it were to be proved, that A. B. entered a room con- 
 taining a watch, and that the watch was gone upon his departure, 
 and it were also proved that no agent but A. B. in the interval 
 had had access to the room, the proof that A. B. took the watch 
 would be conclusive and complete ; for the supposition that 
 it had been removed by any other agent would be entirely 
 excluded. 
 
 Ill the next place, the nature and degree of coincidence between 
 the circumstances and the hypothesis may oftentimes be sufficient 
 to exclude all reasonable doubt, and thus generate full moral 
 conviction and belief, although it be not, as in the former case, of 
 an absolute and demonstrative nature. The probability of the 
 hypothesis must always be proportioned to the nature, extent and 
 number of its coincidences with the circumstances proved (p). 
 
 (jp) All theories which explain the con- bility that all the minute coincidences be- 
 nexion between natural phBenomena and tween tlie phoenoineua and the hypothesis 
 their causes are of this description. They should be merely fortuitous, and that they 
 consist in showing the existence and ope- should have resulted, not from a cause 
 ration of a cause, and its adequacy to ex- known to exist, and which is adequate to 
 plain the phoenomena; in other words, their produce them, but from some other cause 
 coincidence with the hypothesis. Evidence, unobserved and unknown. To a certain ex- 
 therefore, of the truth of any such theory tent, philosophical proofs as to the relations 
 is in no case demonstrative, although it of cause and effect in the natural world, are 
 reach to the highest degree of moral cer- similar to circumstantial judicial proofs ; 
 tainty. The most splendid, important, and in each case the basis of proof consists in 
 beautiful of all philosophical theories, that the coincidences proved to exist between 
 of Sir Isaac Newton, for explaining the the phoenomena or circumstances and the 
 solar system, as exliibited by that great hypotiiesis. Beyond this point, and with 
 philosopher, amounts simply to this : a respect to the effect of sucli coincidences, 
 cause, viz. gravitation, exists. It is mat- they frequently differ essentially. The 
 ter of demonstrative proof, that if such a philosophical proof rests on mere coin- 
 cause did really operate upon the system, cidences, indefinite in point of nnmber, and 
 it would produce all the effects or phae- the absence of any other cause adequate 
 nomena which are actually observed ; that to account for the phoenomena ; but the 
 is, the supposed cause is sufficient to ex- agency of some other, but unknown, cause 
 plain all the phoenomena. Hence it is can never be absolutely excluded. On the 
 inferred to be true, and the force of this other hand, although circumstautial proof 
 inference is in proportion to the improba- must rest on a limited number of coin- 
 VOL. I.
 
 ,'',62 PROOFS : 
 
 Coinci- Connexions and coincidences between the circumstances and 
 
 tw"en\ht t^e hypothesis which they tend to prove, are either those of a 
 ciicum- natural or mechanical nature, which are the objects of sense, or 
 tiiThypo" they are of a moral nature. Tliose of the first class may consist 
 tiicsis. generally in proximity in point of time and space, and all other 
 circumstances which show that the supposed agent had the means 
 and opportunity of doing the particular act, and connect him 
 with it. As common instances, the possession of stolen goods, in 
 case of robbery, and stains of blood upon the person, the posses- 
 sion of deadly weapons recently used, marks of conflict and vio- 
 lence, in case of homicide, may be cited. Happy it is for the 
 interests of society that forcible injuries can seldom be perpetrated 
 without leaving many and plain vestiges by which the guilty 
 agent may be traced and detected. Instances of this nature, 
 where apparently shght and unexpected circumstances have led 
 to the detection of offenders, are familiar to all who are concerned 
 in the practical administration of justice. In a case of burglary 
 the thief had gained admittance to the house by opening a 
 window by means of a penknife, which was broken in the 
 attempt, and part was left in the wooden frame : the broken 
 knife was found in the pocket of the prisoner, and perfectly cor- 
 responded with the fragment left. A murder had been committed 
 by shooting the deceased with a pistol, and the prisoner was 
 connected with the transaction by proof that the wadding of the 
 pistol was part of a letter belonging to the prisoner, the remainder 
 of which was found upon his person (q). In another case of 
 murder, one of the circumstances to prove the prisoner to have 
 been the criminal agent was the correspondence of a patch on 
 one knee of his breeches, with impressions made upon the soil 
 close to the place where the murdered body lay. In a case of 
 
 cidences, yet their nature and force are after the commission of the felony, are 
 
 frequently such as wholly to exclude the found in the possession of the prisoner, 
 
 ' truth of any other hypothesis. who gives no account for the purpose of 
 
 Lord Coke, as an instance of presump- explaining that possession ; although the 
 
 live judicial proof, supposes the case where coincidences between the hypothesis that 
 
 a man is found dead in a house, having he was the thief, and the circumstances, 
 
 been stabbed with a sword, and another is be but two in number, viz. his possession 
 
 seen coming out of the house with a bloody of the property, and his omission to ac- 
 
 sword in his hand, no other person having count for that possession, yet the latter is 
 
 been in the house. Here the circum- of an exclusive nature and tendency ; it 
 
 stances, and consequently the coincidences, forcibly tends to exclude any supposition 
 
 are few, but they are of such a nature as of an honest posession. 
 
 wholly and necessarily to exclude any but {q) This case was cited by the Lord 
 
 one hypothesis. So in the ordinary case Chancellor, in the course of a debate in 
 
 of larciny, where stolen goods, recently the House of Lords, 1820.
 
 CIRCUMSTANTIAL EVIDENCE. ,5fi3 
 
 robbery, it appeared that the prosecutor when attacked, had, m 
 his own defence, struck the robber with a key upon the face, and 
 the prisoner bore an impression upon liis face wliich corresponded 
 with the wards of the key. All circumstances of this nature are, 
 as it were, mechanical hnks or ties which connect the supposed 
 agent with the act which is the subject of inquiry. Further 
 observations on this branch of the subject would be superfluous, 
 and inconsistent with the object of the present work. There are, 
 in fact, no existing relations, natural or artificial, no occurrences 
 or incidents in the course of nature, or dealings of society, which 
 may not constitute the materials of proof, and become important 
 links in the chain of evidence. 
 
 Circumstances of the above description, although they may be Moral co- 
 in themselves of an imperfect and inconclusive nature, frequently '"'^' c^^f^^^s. 
 derive a conclusive tendency from those which are of a moral kind, 
 and which depend upon a knowledge and experience of man as a 
 rational and moral agent. Experience points out some laws of 
 human conduct almost as general and constant in their operation 
 as the mechanical laws of the material world themselves are. That 
 a man will consult his own preservation, and serve his own inte- 
 rests ; that he will prefer pleasure to pain, and gain to loss ; that 
 he will not commit a crime, or any other act manifestly tending to 
 endanger his person or property, without a motive ; and conversely, 
 that if he has done such an act he had a motive for doing it ; are 
 principles of action and of conduct so clear that they may be pro- 
 pei'ly regarded as axioms in the theory of evidence. 
 
 The presumption that a man will do that which tends to his 
 obvious advantage, if he possess the means, supplies a most impor- 
 tant test forjudging of the comparative weight of evidence. It is 
 to be weighed according to the proof which it was in the power of 
 one party to have produced, and in the power of the other to have 
 contradicted (r). 
 
 If, on the supposition that a charge or claim is unfounded, the 
 party against whom it is made has evidence within his reach by 
 which he may repel that which is oflTered to his prejudice, his 
 omission to do so supplies a strong presumption that the charge or 
 claim is well founded ; it would be contrary to every principle of 
 reason, and to all experience of human conduct, to form any other 
 conclusion. This consideration in criminal cases frequently gives a 
 conclusive character to circumstances which would otherwise be of 
 
 (r) See Lord Mansfield's observations in Blatch v. Archer, Cowp. 65. 
 
 O O 2
 
 iiK'Kleuces. 
 
 561 PROOFS : 
 
 iMoriil CO. an imperfect and inconclusive nature (s). Thus, where the evidence 
 aoainst a prisoner on a charge of larciny consists in his recent 
 possession of the stolen property, his very silence as to the fact 
 of possession raises a strong- presumption against him ; for if his 
 possession was an innocent one, as the fact must necessarily be 
 within his knowledge, he might show, by statement, at all events, 
 if not by proof, that such possession was consistent with his inno- 
 cence. The same observations apply in general where appearances 
 are proved against an accused person, which he refuses to accoxuit 
 for or explain ; such as marks of blood and violence on his dress and 
 person, the possession of concealed weapons, and the like. 
 
 The same principle applies where a party, having more certain 
 and satisfactory evidence in his power, relies upon that which is of 
 a weaker and inferior nature. So pregnant with suspicion is con- 
 duct of this nature, that the law, as has been seen, has laid down 
 an express and peremptory rule upon the subject, which in cases 
 within the scope of its operation actually excludes the inferior evi- 
 dence. It is for the jury, in their discretion, to apply the principle, 
 in cases which do not fall within the defined limits of the rule. 
 Although a party may not be compellable to produce evidence against 
 himself, yet if it be proved that he is in possession of a deed or 
 other evidence, which, if produced, would decide a disputed point, 
 his omission to produce it would warrant a strong presumption to 
 his disadvantage (t). Again, the maxim of law is, omnia prcBsu- 
 muntur contra spoliatorem (?/)• 
 
 In the case of Haricood v. Goodright (.r), it was found by 
 a special verdict that the testator made his v. ill, and gave the pre- 
 mises in question to the plaintiff in error, but afterwards made 
 another will different from the former, but in what particulars did 
 not appear ; tlie Court decided that the devisee under the first will 
 was entitled against the heir-at-law. But Lord Mansfield said, 
 that in case the defendant had been proved to have destroyed the 
 last will, it would have been good ground for the jury to find a 
 revocation. And as the destruction or withholding of evidence 
 creates a presumption against the party who has had recourse to 
 such a practice, so a fortiori does the actual fabrication or cor- 
 ruption of evidence (?/). 
 
 " {s) Notisi die le prove impcrfette drlle (v) Sec Lord Mansfield's observations 
 
 qnale puo il reo giustificarsi e non lo in Halilane v. Harvey, Burr. 2484. 
 
 faceia dovere divengono perfette. Bee- {x) Cowp. 8G. 
 
 caria, s. 14. {y) See the judicious remarks of Mr. 
 
 (0 See Lord Mansfield's observations Evans (2 Pothier, by Evans, 337). He 
 
 ia Hoe d. Hahlave v. Harvey, Burr. justly observes, tbat one of the most diffi- 
 
 2484. cult points iu the Douglas cause arose
 
 CIRCUMSTANTIAL EVIDENCE. 
 
 565 
 
 The discovery of such practices must naturally and unavoidably 
 -excite a considerable degree of jealousy and suspicion, and ought 
 undoubtedly to be most seriously wciglied in estimating the degree 
 of credit to be attached to other evidence adduced by the same 
 party, where it is in its own nature doubtful and suspicious, or is 
 rendered so by conflicting evidence. A considerable degree of cau- 
 tion is nevertheless to be applied in cases of this description, more 
 especially in criminal proceedings ; for experience shows that a 
 weak but innocent man will sometimes, when appearances are 
 against him, have recourse to falsehood and deception, for the 
 piu'pose of manifesting his innocence (z) and ensuring his safety. 
 
 The connexion between a man's conduct and his motives is also Conduct 
 one of a moral nature, pointed out by experience. It is from their ^."'^ ^^teor 
 -experience of such connexions that juries are enabled to infer 
 a man's motives from his acts, and also to infer what his conduct 
 was, from the motive by which he was known to be influenced. In 
 criminal cases, proof that the party accused was influenced by a 
 strong motive of mterest to connnit the oflence proved to have 
 been committed, although exceedingly weak and inconclusive in 
 
 from Sir John Stewart's having fabricated 
 several letters as received from La Marre, 
 the surgeon ; and cites the following pas- 
 sage from Mr. Stuart's observations on the 
 sulyect :"— 
 
 " I had been accustomed to think, that 
 in julginsr npon evidence, a matter of such 
 infinite importance in the constitution and 
 jurisprudence of every well-regulated 
 State, there were certain rules established, 
 which in every court, and in every coun- 
 try, were received as most invaluable 
 guides for the discovery of truth. For in- 
 stance, when it appeared that on the one 
 side there was Jhrgery and fraud in some 
 of the material parts of the evidence, and 
 especially when that forgery could be 
 traced up to its source, and discovered to 
 be the contrivance of the very person 
 whose guilt or innocence was the object of 
 inquiry ; in such a case I have always 
 understood it to be an established rule, 
 that the whole of the evidence on that 
 side of the question must be deeply affected 
 by a deliberate falsehood of this nature. 
 
 " The natural and necessary effect of 
 such a practice upon the mintis of judges 
 possessed of discernment and candour, is to 
 jnake them extremely suspicious of all the 
 
 evidence tending to the same conclusion 
 with the forged evi 'ence. Parol testimony 
 in support of it will be little regarded ; 
 the forgery of the written evidence con- 
 taminates the testimony of the witnesses 
 in favour of the party who has made use 
 of that forgery ; and nothing will gain cre- 
 dit on that side, but either clear and con- 
 clusive written evidence, free from sus- 
 picion,, or tlie testimony of such a number 
 of respectable, disinterested and consistent 
 witnesses, speaking to decisive and cir- 
 cumstantial facts, as leaves no room to 
 doubt of the certainty of their knowledg\3, 
 and the truth of their assertions. 
 
 " On the other hand, the proof of a 
 forgery, such as has been described, must 
 also have the effect to gain a more ready 
 admission to the evidence of the other 
 party. If that evidence be consistent, if 
 it be established by the concurring testi- 
 mony of a crowd of witnesses, and sup- 
 ported by various articles of written and 
 unsuspected evidence, the bias of a fair 
 mind will be totally in favour of the party 
 producing such authorities, and against 
 that which had been obliged to have re- 
 course to the forged evidence." 
 
 (z) Sujrra, 52. 
 
 o o 3
 
 566 proofs: 
 
 itself, and although it be a circumstance which ought never to 
 operate in proof of the corpus delicti, yet when that has once 
 been established aliunde, it is a circumstance to be considered in 
 conjunction with others which plainly tend to implicate the 
 accused (a). 
 
 Again, presumptions of great importance, especially in criminal 
 proceedings, arise frequently out of the connexion between the 
 acts of a party, and his intentions, consciousness and knowledge. 
 That a rational agent must be taken to contemplate and intend 
 the natural and immediate consequences of his own act, is a pre- 
 sumption so cogent as to constitute rather a rule of law than of 
 mere evidence (6). Again, the usual connexion between the con- 
 duct of a criminal agent and the supposition of his guilt, are of 
 too obvious a nature to be dwelt upon. The seeking for oppor- 
 tunities fit for the occasion ; the providing of poison, or instru- 
 ments of violence, in a secret and clandestine manner ; the 
 subsequent concealment of them ; attempts to divert the course 
 of inquiry (c), or prevent investigation as to the cause of death ; 
 not unfrequently excite just cause of suspicion : above all, the 
 restless anxiety of a mind conscious of guilt very frequently 
 prompts the party to take measures for his security which even- 
 tually supply the strongest evidence of his criminality. 
 Coinci- In judicial investigations, as well as in the ordinary course of 
 
 ordinary 1^^^, that is more or less probable and likely, and is therefore, in 
 t'xpeneuce. ^ greater or less degree, an inducement to belief, which more or 
 less agrees with former observation. This is a ground of assent, 
 warranted as well by philosophy as by ordinary experience. It 
 is probable that whatever has happened will again happen under 
 similar circumstances, however ignorant we may be of the nature 
 or necessity of the connexion ; the very frequency of the associa- 
 tion is evidence of the connexion ; there is no association what- 
 
 («) On the other hand, the total absence (b) See Vol. II. tit. Intention — 
 
 of any apparent motive must always ope- Malice. 
 
 rate strongly as a circumstance in favour (c) I have remarked that persons of the 
 of the accused, especially where there is lowest classes of society, before the corn- 
 no reason to apprehend any unsoundness mission of premeditated murder, not un- 
 of intellect. A fortiori, does the prin- frequently throw out some dark and mys- 
 ciple operate where the supposed agent terious hints as to the death of the in- 
 was actuated by contrary motives. And tended victim. This is a circumstance 
 even in cases which involve a conflict of which I apprehend is to be attributed 
 motives, such as infanticide, where natural principally to an expectation tliat by this 
 feelings on the one hand are opposed to a means less of surprise and of inquiry will 
 desire of avoiding shame and detection on take place when the crime has been accom- 
 the other, the former are necessarily enti- plished. 
 tied to the highest consideration.
 
 CIRCUMSTANTIAL EVIDENCE. 567 
 
 soever, whether it be moral, natural or artificial, whether it 
 depend on the nature and constitution of the human mind, the 
 laws of natuie, or the artificial manners and habits of society, 
 which is not rendered probable in proportion to the frequency 
 and constancy of the connexion. Hence it is, that where circum- 
 stances found to be usually associated with the fact in qiiestion 
 are known to exist, such associations are connectino- links between 
 the known circumstances and the fact, and render its existence 
 more or less probable {d). On the other hand, it is scarcely 
 necessary to remark, that experience of the usual or constant 
 disunion of particular facts and circumstances necessarily renders 
 their future association unlikely and improbable, and is a proper 
 inducement to disbelief more or less strongf according to circum- 
 stances. 
 
 It is further to be remarked, that the force of evidence resulting Absence of 
 from the concurrence of circumstances depends not merely upon ^g^ln"^ to 
 the degree of improbability that those coincidences were merely a different 
 casual and fortuitous, but frequently also upon that improbability, 
 compounded with the further improbability that another hypo- 
 thesis is true which is not supported by any circumstances. 
 Thus in a criminal case where all the circumstances of time, place, 
 motive, means, opportunity and conduct, concur in pointing out 
 the accused as the perpetrator of an act of violence, the force of 
 such circumstantial evidence is materially strengthened by the 
 total absence of any trace or vestige of any other agent, although, 
 had any other existed, he must have been connected with the 
 perpetration of the crime by motive, means and opportunity, and 
 by circumstances necessarily accompanying such acts, which 
 usually leave manifest traces behind them. 
 
 In estimating the force of a number of circumstances tending Dependent 
 to the proof of the disputed fact, it is of essential importance to p"njient'^" 
 consider whether they be dependent or independent. If the facts circum- 
 A.^ B., C, Z>., be so essential to the particular inference to be 
 derived from them, when established, that the failure in the proof 
 of any one would destroy the inference altogether, they are 
 dependent facts ; if, on the other hand, notwithstanding the 
 failure in proof of one or more of those facts, the rest would still 
 afford the same inference or probabihty as to the contested fact 
 
 (rf) A striking instance to show the ex- From a single fossil bone of an animal 
 tent to which philosophical inferences may whose very species is extinct, a skilful 
 be carried by means of careful observation anatomist is able to represent the original 
 and analogical reasoning, may be derived animal perfect in all its parts. — SeeCuvier's 
 from the science of comparative anatomy. Fossil Remahis. 
 
 O o 4
 
 568 
 
 PROOFS : 
 
 Indepen- 
 dency of 
 tlie circum- 
 stances. 
 
 Force of 
 concurring 
 probabili- 
 ties. 
 
 which tliey did before, they would be properly termed indepen- 
 dent iacts (e). The force of a particular inference drawn from 
 a number of dependent facts is not augmented, neither is it 
 diminished, in respect of the number of such dependent facts, 
 provided they be established ; but the probability that the infer- 
 ence itself rests upon sure grounds, is, in general, weakened by 
 the multiplication of the number of circumstances essential to 
 the proof; for the greater the number of circumstances essential 
 to the proof is, the greater latitude is there for mistake or 
 deception. On the other hand, where each of a number of 
 independent circumstances, or combinations of circumstances, 
 tends to the same conclusion, the probability of the truth of the 
 fact is necessarily greatly increased in proportion to the number 
 of those independent circumstances (/). 
 
 It seems to have been considered, that even mere coincidences, 
 although not of an exclusive nature, may by their number and 
 joint operation be sufficient to constitute a conclusive proof (^). 
 It rarely, however, happens in practice, that circumstantial proofs 
 consist purely in mere natural and mechanical coincidences, uncon- 
 nected with any of a moral nature and conclusive tendency. 
 
 The probability derived from the concurrence of a number of 
 independent probabilities increases not in a merely cumulative, 
 but in a compounded and multiplied proportion (70. This is a 
 
 (e) Quando le prove di un fatto tutte 
 dipendono egualmente da una sola, il nu- 
 mero delle prove non aumente ne sminuisce 
 la probabilita del fatto, perche tutto il loro 
 valore si resolve nel valore di quella sola da 
 cui dipendono. Quando le prove sono in- 
 dipendenti, Tuna dall' altra, cioe quando 
 gli indizi si provana altronde clie da se 
 stessi, quanto maggiori prove si adducono 
 tanto pill cresce la probabilita del fatto, 
 perche la fallacia di una prova non influisce 
 suir altra. Beccaria, s. 14. 
 
 (y) Ivfra, note (/i). 
 
 (gr) Matthffius de Crim. : Possunt diversa 
 genera ita conjungi ut quje singula non 
 nocerent ea universatanquam grando reum 
 opprimunt. — According to Beccaria, chap. 
 14: Possono distinguersi le prove di un 
 reato in perfetteed inimpcrfette. Chiamo 
 perfette quelle clie escludono la possibilita 
 che un tale non sia reo ; chiamo iniperfetto 
 quelle che non la escludono. Delia prima 
 anche una sola e sufficiente per la condanna, 
 delle seconde tante son necessarie quantc 
 
 bastino a formarne una perfetta, vale a dire 
 que se per ciascuna di queste in particolare 
 e possibile che uno non sia reo, per I'unione 
 loro nel medesimo soggeto e impossibile 
 che non lo sia. Beccaria, s. 14. — Singula 
 levia sunt et commiinia, universa vero 
 nocent etiam si non ut fulmine, tamen ut 
 grandine. Quinctil. 
 
 {h) According to the principles of pure 
 abstract mathematical reasoning, the pro- 
 bability arising from the concurrence of a 
 number of independent circumstances, each 
 of which induces a probability in favour of 
 a particular event, is compounded of all 
 the probabilities incident to the individual 
 circumstances. When, therefore, the cir- 
 cumstantial probabilities are each consider- 
 able, the compound probability in favour 
 of the event increases by a rapid progres- 
 sion. If the circumstances A, B, C, seve- 
 rally induce probabilities in favour of an 
 
 event represented hy ^ , that is, if 
 
 m m VI 
 
 in every m cases the circumstance A, ne-
 
 CIRCUMSTATSTIAL EVIDBI^CE. 
 
 509 
 
 consequence derived from pure abstract aritlimetical ]irinciplcs. form of 
 For ulthough no definite iirithmeticul ratio can be assigned to each probabili- 
 
 ties. 
 
 cessarily involved the event in question 
 
 rt times, and excluded it vi — a times, and 
 so on, and the circumstances ^, B, C, were 
 wholly independent of each other, then the 
 probability of the event, arising from the 
 happening of all these circumstances, would 
 be to the probability against it as >«' — 
 
 m — a . m — b . vi — c to in — a . m — b . 
 
 m — c. 
 
 If the witnesses A,B,C, bore testimony 
 to independent facts, each of which, if true, 
 involved the truth of a particular event, 
 and .4. were the witness of truth in a cases, 
 
 and his testimony were false in m — a cases, 
 and so of the testimony of B, and of C, 
 then the probability of the event, arising 
 from their joint testimony, would be to the 
 probability against it in the ratio above 
 expressed. 
 
 And if ?«=2 and a=6=c=l, the pro- 
 bability in favour of the event would be to 
 the probability against it as 7 : 1. 
 
 Again, if the probability in favour of a 
 particular fact, arising from the testimony 
 of ^, were to the probability against it as 
 
 a : VI — a, and so on, as to the testimony of 
 B, and C, the probability of the fact from 
 their united testimony would be to the 
 
 probability against it as a . ft . c to »;t — a 
 
 .VI — b . VI — c. And if vi=2 and 
 a=:^b = c= 1, the ratio would be that of 
 1:1; that is, their united testimony would 
 produce no increase of probability in fa- 
 vour of the fact. 
 
 Such considerations admit but of a very 
 partial and limited application in the inves- 
 tigation of questions arising out of the 
 common concerns of life. The basis of all 
 such calculations is a comparison of all the 
 different cases which involve the particular 
 event with those which exclude it, which 
 assumes the possibility of resolving all pos- 
 sible cases, which either involve or exclude 
 the event, into a definite number of the 
 
 one class and of the other, each of which is 
 equally likely to hapjjcn *. The most com- 
 plicated and laboured analytical results on 
 the subject of probabilities, are little more 
 than modifications of this comparison. It 
 is obvious, upon the slightest consideration, 
 that the probability of error or mistake ou 
 the part of a witness, or of his honesty and 
 sincerity, usually admits of no sucli com- 
 parison; still less can the complicated 
 transactions of life, dependent as they are 
 upon an almost infinite variety of circum- 
 stances and motives, be subjected to such an 
 analysis. But the principle may no doubt 
 operate by way of approximation, although 
 the concurrent probabilities may admit of 
 no numerical measure; and whenever pro- 
 babilities are deducible from independent 
 circumstances, the degree of probability 
 must necessarily be multiplied by their 
 concurrence. In criminal cases, however, 
 it seems to be perfectly clear in principle 
 that the conjoint effect of circumstances, 
 which individually are inconclusive in their 
 nature, cannot in its nature be conclusive, 
 unless the resulting probability be indefi- 
 nite, and exceed the powers of calculation. 
 Wliere mere independent and unconnected 
 circumstances are in their nature imperfect 
 and inconclusive, the degree of probability 
 which results from their united operation, 
 although greatly increased in degree, must 
 still in its nature be definite and inconclu- 
 sive, and therefore inadequate to the pur- 
 poses of conviction. Let it, for instance, 
 be supposed, that A. is robbed, and that 
 the contents of his purse were one penny, 
 two sixpences, three shillings, four half- 
 crowns, five crowns, six half-sovereigns and 
 seven sovereigns, and that a person, appre- 
 hended in the same fair or market where 
 the robbery takes place, is found in pos- 
 session of the same remarkable combina- 
 tion of coin, and of no other, l)ut that no 
 part of the coin can be identified, and that 
 no circumstances operate against the pri- 
 soner except his possession of the same 
 
 * Wood's Algebra. La Place, Thoorie Aualiti(iue des Probabilites.
 
 570 
 
 PROOFS : 
 
 Force of 
 co!i'urrii!g 
 probabili- 
 ties. 
 
 independent p'-obability, yet the principle of increase must obtain 
 wherever independent probabilities in favour of an event concur, 
 althoue;h they cannot be precisely measured by space or numbers; 
 and even although every distinct probability which is of a con- 
 clusive tendency exceeds every merely definite numerical ratio. 
 
 It is, however, to be remarked, that wherever mere inconclusive 
 probabilities concur, the result, however the degree of probability 
 may be increased by the union, will still be of a definite and in- 
 conclusive nature. And hence it seems, that in criminal cases the 
 mere union of a limited number of independent circumstances, 
 each of which is of an imperfect and inconclusive nature, cannot 
 aiibrd a just ground for conviction. 
 
 On the other hand, the force of circumstances of a conclusive 
 nature may be greatly confirmed and strengthened by their com- 
 bination with other and independent circumstances, which render 
 the fact probable, although the latter be in themselves of an im- 
 perfect and inconclusive nature. Again, it is to be observed, that 
 althouoh in the course of judicial proofs the number of concurring 
 probabilities is usually limited, yet that cases may be put where 
 the number and extent of the coincidences are so great as to 
 exceed all definite limits, and where, consequently, the resulting 
 probability is of a conclusive nature [i). 
 
 It is to be remarked, that in thus referring to the doctrine of 
 
 combination of coin : here notwithstanding 
 the very extraordinary coincidences as to 
 the number of each individual kind of coin, 
 although the circumstances raise a higli 
 probability of identity, yet it still is one of 
 a definite and inconclusive nature. 
 
 On the other hand, evidence of a con- 
 clusive nature and tendency is restricted 
 by no limits of mere probability. In the 
 case of tlie ordinary presumption, that an 
 admission of a fact made by a party con- 
 trary to his obvious interest, is truly made, 
 the probability that the admission is true 
 far exceeds the limits of mere numerical 
 comparison. In some instances mere me- 
 chanical coincidences are of this descrip- 
 tion. Thus, in the ordinary case where 
 cloth is cut and stolen from a loom, the 
 perfect coincidence between tbe cloth found 
 in the possession of the prisoner and the 
 remnant left behind, is of this description ; 
 the probability of identity arising from the 
 perfect coincidence of the severed threads 
 exceeds the bounds of arithmetical calcu- 
 
 lation, and deprives the mind of all power 
 of attributin;;- such a series of coincidences 
 to mere accident. 
 
 But even in criminal cases, where a 
 high degree of probability results from 
 repeated coincidences, although that pro- 
 bability be of a definite and numerical na- 
 ture, such coincidences may, in conjunction 
 with others, constitute a complete and 
 satisfactory proof. Thus, in the case al- 
 ready supposed, of a singular coincidence 
 between the quantity and description of 
 coin stolen with that found in the possession 
 of the prisoner, although the fact, taken 
 nakedly and alone, without any collateral 
 evidence, would in principle be inconclu- 
 sive, yet, if coupled with circumstances of 
 a conclusive tendency, such as flight, con- 
 cealment of the money, false and fabricated 
 statements as to the possession, it might 
 afford strong and pregnant evidence of 
 guilt for the consideration of the jury. 
 
 (i) See the preceding Note.
 
 CIRCUMSTANTIAL EVIDENCE. 571 
 
 numerical probabilities, it is the principle alone wliich is intended 
 to be applied, in order that some estimate may be formed of the 
 force of independent and concurring probabilities. The notions 
 of those who have supposed that mere moral probabilities or rela- 
 tions could ever be represented by numbers or space, and thus be 
 subjected to arithmetical analysis, cannot but be regarded as 
 visionary and chimerical. 
 
 From this short view of the subject it appears to be essential Basis of 
 to circumstantial proof. First, that the circumstances from which stances. 
 the conclusion is drawn should be fidly established. If the basis 
 be unsound, the superstructure cannot be secure. The party upon 
 whom the burthen of proof rests is bound to prove every single 
 circumstance which is essential to the cenclusion, in the same 
 manner and to the same extent as if the whole issue had rested 
 upon the proof of each individual and essential circumstance. It 
 is obvious that proof of this nature is more strong and cogent 
 where the circumstances are numerous, and derived from many 
 different and independent sources, than where they are but few, 
 and depend on the credit and testimony of one or two witnesses. 
 Where all the circumstances rest on the testimony of a single 
 witness the evidence can never be superior to the lowest degree of 
 direct evidence, and must frequently fall below it : for in addi- 
 tion to the question whether the witness was faith-worthy, another 
 question would arise, that is, whether the inference was correctly 
 drawn from the facts which he was supposed to prove. 
 
 It is obvious that the number of circumstances stated by a 
 witness does not add to the force of his direct testimony, unless 
 they be such as admit of contradiction if his testimony be false. 
 
 The number of circumstances is not only essential, inasmuch Number of 
 as it repels any suspicion of fraud, but from the consideration Tq"™' 
 that the greater the number of circumstances is, the greater will 
 be the certainty as to the conclusion deduced. A few circum- 
 stances may be consistent with several solutions ; but the whole 
 context of circumstances can consist with one hypothesis only ; 
 and the wider the range of circumstances is, the more certain will 
 it be that the hypothesis which consists with and reconciles them 
 all is the true one. 
 
 Although all facts and circumstances connected with the sub- False 
 ject of inquiry be admissible in evidence to explain its nature, stances" 
 and although all facts must necessarily be consistent with truth, 
 yet it is to be recollected that facts themselves may be simulated 
 and fabricated with a view to deceive and mislead. Such facts, 
 however, are necessarily exposed to great danger of detection, from
 
 572 PROOFS : 
 
 the obvious difficulty of unitinp; by artful uionns tluit which is false 
 with that which is genuine, and thus substituting a false and arti- 
 ficial for a real consistency and context of circumstances. 
 
 The great difficulty of practising frauds of this description, and 
 their liability to detection from a careful examination and com- 
 parison of circumstances, will be best elucidated by a few ex- 
 amples. Attempts at this kind of deception have not unfre- 
 quently been made with a view to conceal the ciime of murder? 
 and in order to produce belief that the party died from natural or 
 accidental causes, or was felo de se : in the detection of such 
 impostures the testimony of medical practitioners cannot be too 
 highly appreciated. 
 
 The remarkable case of Sir Edmundbury Godfrey may be cited 
 as an instance of this kind (k). The deceased was found in a ditch 
 at Chalk Farm, in the neighbourhood of London, his own sword 
 passing through his body, so that the end projected two hands' 
 breadth behind the back ; his gloves and some other things were 
 laid on the bank, so as to excite a belief that he had destroyed 
 himself. But there was no blood about the place, and upon draw- 
 ing the sword out of the body no blood followed. The body was 
 discoloured and bruised, and the neck so flexible that the chin 
 could be turned from one shoulder to the other. The deceased 
 had in fact been strangled. 
 
 In the State Trials a very singular case of the same description 
 is also mentioned, of a woman who was found in bed with her 
 throat cut: her husband's relations (the husband being absent 
 from home at the time) occupied the apartment adjoining to the 
 chamber of the deceased, and there was no access to her chamber 
 but through their apartment. The relations who thus occupied the 
 adjoining apartment, had arranged matters so that it might be 
 supposed that the deceased had destroyed herself; but one cir- 
 cumstance amongst others was conclusive to destroy this suppo- 
 sition, for on the left hand of the deceased was observed the bloody 
 mark of a left hand, which of course could not have been that of 
 the deceased. 
 
 Another instance, cited in a lately published and able work on 
 Medical Jurisprudence (Z), is to this eftect : — A citizen of Liege was 
 found shot, and his own pistol was discovered lying near him, and 
 no person had been seen to enter or leave the house of the de- 
 
 (A) In the State Trials. the same subject, by Dr. Smith and 
 
 (0 By Dr. Paris and J. S. M. Fon- Dr. Male, 
 blantiuc. See also the publications ou
 
 CIRCUMSTANTIAL EVIDENCE. 573 
 
 ceased ; from these circumstances it was concluded that he had 
 
 destroyed himself, but on examning the ball by which he had 
 
 been killed it was found to be too large to have been discharged 
 
 from that pistol, in consequence of which suspicion fell upon the 
 
 real murderer. 
 
 Second Iv : It is essential that all the facts should be consistent Consist- 
 •777'^ ,. T-, 111- 111 ency oHfse 
 
 loitk the hypothesis, ror as all things which have happened were facts with 
 
 necessarily congruous and consistent, it follows, that if any one t|'*^ I'yiw- 
 
 established fact be wholly irreconcileable with the hypothesis, the 
 
 latter cannot be true. Such an incongruity and inconsistency is 
 
 sufficient to negative the hypothesis, even although it coincide and 
 
 agree with all the other facts and circumstances of the case to the 
 
 minutest extent. Undoubtedly such an intimate coincidence in 
 
 other respects would suggest the necessity of investigating the 
 
 truth of the incongruous circumstances with great caution ; yet if 
 
 the incongruity could not eventually be removed, the hypothesis 
 
 would fall, although no other could be suggested (m). 
 
 Thirdly : It is essential that the circumstances should be of a con- Conclusive 
 elusive nature and tendency. Evidence is always indefinite and ™^'^'"fy- 
 inconclusive, when it raises no more than a limited probability in 
 favour of the fact, as compared with some definite probability against 
 it, whether the precise proposition can or cannot be ascertained. It 
 is on the other hand of a conclusive nature and tendency, when the 
 probability in favour of the hypothesis exceeds all arithmetical or 
 definite limits. 
 
 Such evidence is always insufficient, where, assuming all to be 
 proved which the evidence tends to prove, some other hypothesis 
 may still be true : for it is the actual exclusion of every other hypo- 
 thesis which invests mere circumstances with the force of proof. 
 Whenever, therefore, the evidence leaves it indifferent which of 
 several hypotheses is true, or merely establishes some finite jDroba- 
 bility in favour of one hypothesis rather than another, such evidence 
 cannot amount to proof, however great the probability may be. To 
 hold that any finite degree of probability shall constitute proof ade- 
 quate to the conviction of an offender, would in reality be to assert, 
 that out of some finite number of persons accused, an innocent man 
 should be sacrificed for the sake of punishing the rest ; a propo- 
 
 (m) It was on this principle that the proved to be by actual observation. It 
 
 French philosophers opposed Newton's was afterwards discovered that the error 
 
 system of the world. They objected that was in neglecting a tangential force in the 
 
 the calculations formed upon his hypo- calculation ; and it was found that when 
 
 thesis made the motion of the moon's this was taken into the account, the 
 
 apsides but one-half as great as they were theoretical result coincided with the fact.
 
 teiulencv 
 
 574 PROOFS : 
 
 Conclusive sitioii which is as inconsistent witli the humane spirit of our law, as 
 it is with the suggestions of reason and justice. The maxim of law 
 is, that it is better theit ninety-nine {i. e. an indefinite number of) 
 offenders should escape, than that one innocent man should be 
 condemned. 
 
 Thus, in practice, where it is certain that one of two indivi- 
 duals committed the offence charged, but it is uncertain whether 
 the one or the other was the guilty agent, neither of them can be 
 convicted. 
 
 The principle extends to all cases where the ultimate tendency of 
 the evidence is of an inconclusive nature, that is, where admitting 
 all to be proved which the evidence tends to prove, the guilt of the 
 accused would be left either wholly uncertain, or dependent upon 
 some merely definite probability (n). 
 
 It is very possible, indeed, that mere coincidences may be so 
 numerous, as by force of multiplied probability to exclude all reason- 
 able doubt; but this can never happen in the absence of circum- 
 stances of a conclusive tendency, unless the probability be increased 
 to an indefi[nite extent beyond the reach of mere calculation. When- 
 ever the probability is of a definite and limited nature (whether in 
 the proportion of one hundred to one, or of one thousand to one, or 
 any other ratio, is immaterial), it cannot be safely made the ground 
 of conviction ; for to act upon it in any case would be to decide, 
 that for the sake of convicting many criminals, the life of one inno- 
 cent man might be sacrificed. 
 
 The distinction between evidence of a conclusive tendency 
 which is sufficient for this purpose, and that which is inconclu- 
 sive, seems to be this : the latter is limited and concluded by some 
 degree or other of finite probability, beyond which it cannot go j 
 
 (n) The very remarkable case of Mr. rant a conviction. The prisoner was, 
 Barnard, who was tried on a charge of nevertheless, put upon his defence, and 
 sending a threatening letter to the Duke produced evidence to show that those 
 of Marlborough, affords an illustration of coincidences were purely accidental, 
 these positions. The Duke was twice Perhaps the real clue to the transaction 
 required, by letter, to meet the writer, may be this, that the prisoner was a party 
 and on both occasions was met by the to the transaction, although no real in- 
 prisoner : the one place of assignation was tention existed of profiting by the con- 
 near a particular tree in Hyde Park ; the trivance. The rank and situation of the 
 other, in an aisle of Westminster Abbey. prisoner in society, and the obvious im- 
 That Mr. Barnard should, by mere acci- possibility of his ever enjoying that which 
 dent, have been at both places at the very he demanded, are circumstances strongly 
 time appointed for the meetings, was cer- tending to exclude such a supposition, and 
 tainly most remarkable : yet, notwith- the nature and style of the demand ren- 
 standing the strong degree of suspicion der it probable that the real object of the 
 created by such coincidences, they were writer was not personal gain. 
 cl«arly insufficient, without more, to war-
 
 CIRCUMSTANTIAL EVIDENCE. 575 
 
 the former, though not demonstrative, is attended with a degree Conclusive 
 of probabihty of an indefinite and unbmited nature. ^" ^"'^^' 
 
 It frequently happens, as has been seen, that where the evi- 
 dence of the circumstances attending the transaction itself would 
 be imperfect and inconclusive, it derives a conclusive nature and 
 tendency from a consideration of the conduct of the accused. 
 The ordinary motives of self-preservation and self-interest, com- 
 mon to all mankind, furnish the strongest presumption that a 
 party would explain, by statement at all events, and by proof 
 where it was practicable, such evidence as tended to his preju- 
 dice. Hence it is that circumstances, which abstractedly consi- 
 dered would be inconclusive, acquire a conclusive character and 
 tendency from the silence of the adversary, or his failure in 
 attempting to explain them (o). 
 
 Where the evidence to prove larciny consists in the recent 
 possession of the stolen property, it is in itself imperfect and in- 
 conclusive. But if the evidence of possession be coupled with 
 the consideration, that the party fcharged, having it in his power 
 to account for the possession, if it really consist with his innocence, 
 either refuses to account for the possession, or attempts to impose 
 a false account, the evidence is then conclusive in its nature and 
 tendency, and is proper for the consideration of the jury. 
 
 Fourthly : It is essential that the circumstances should, to a Exclusion 
 moral certainty, actually exclude every hypothesis but the one ^^ ^ moral 
 proposed to be proved. 
 
 Hence results the rule in criminal cases, that the coincidence The corpus 
 of circumstances tending to indicate guilt, however strong and be proved! 
 numerous they may be, avails nothing unless the corpus delicti, 
 the fact that the crime has been actually perpetrated, be first 
 established. So long as the least doubt exists as to the act, 
 there can be no certainty as to the criminal agent. Hence, upon 
 charges of homicide, it is an established rirle, that the accused 
 shall not be convicted unless the death be first distinctly proved, 
 either by direct evidence of the fact, or by inspection of the body : 
 a rule warranted by melancholy experience of the conviction and 
 execution of supposed offenders, charged with the murder of 
 persons who survived their alleged murderers ; as in the case of 
 the uncle already alluded to, cited by Sir Edward Coke and 
 Lord Hale (p). So Lord Hale recommends that no prisoner 
 shall be convicted of larciny in steahng the goods of a person 
 
 (o) Supra, 5G3. (p) Supra, 52, and Vol. II. tit. Mur- 
 
 der.
 
 676 proofs: 
 
 vinknown, unless the fact of the robbery be previously proved (^y). 
 The same principle requires that upon a charge of homicide, even 
 when the body has been found, and although indications of a 
 violent death be manifest, that it shall still be fully and satis- 
 factorily proved that the death was neither occasioned by natural 
 causes (r), by accident, nor by the act of the deceased himself. 
 In considering the probability of the latter supposition, it is to be 
 recollected, that it is by no means improbable that a person bent 
 on self-destruction would use precautions to protect his memory 
 from the ignominy, and his property from the forfeiture, conse- 
 quent on a verdict offelo de se (s). 
 Inquiry as The force of circumstantial evidence being exclusive in its na- 
 hvpotheses ^^^^f ^^^^ *^^6 mere coincidence of the hypothesis with the circum- 
 stances being in the abstract insufficient, unless they exclude every 
 other supposition, it is essential to inquire, with the most scrupulous 
 attention, what other hypotheses there may be which may agree 
 wholly or partially with the facts in evidence. Those which agree 
 even partially with the circumstances are not unworthy of examina- 
 tion, because they lead to a more minute examination of those 
 facts with which at first they might appear to be inconsistent ; 
 and it is possible that upon a more minute investigation of those 
 facts their authenticity may be rendered doubtful, or may be even 
 altogether disproved. In criminal cases the statement made by 
 the accused is in this point of view of the most essential import- 
 ance. Such is the complexity of human affairs, so infinite the 
 combinations of circumstances, that the true hypothesis which is 
 capable of explaining and reconciling all the apparently conflicting 
 circumstances of the case, may escape the acutest penetration ; 
 but the prisoner, so far as he alone is concerned, can always afford 
 a clue to them ; and though he be unable to support his statement 
 by evidence, his account of the transaction is for this purpose 
 
 (q) Vol. II. tit. Larciny. tlie year 1642. According to that state- 
 (r) See the trial of Spencer Cowper, inent, Harris kept a public-house, and was 
 esq., for the alleged murder of Mrs. Sarah charged by his man-servant, Morgan, with 
 Stout; St. Tr. The doubt which arose having strangled James Gray, a travelling 
 in that case upon the conflicting evidence, guest, in his house; upon the testimony of 
 whether the death of the deceased had Morgan, aided by some circumstantial evi- 
 been occasioned by mere accident, or by dence, as to the prisoner's having on the 
 her own act, or by the act of another, same morning concealed some money in 
 afforded, as it seems, a decisive ground of his garden, the prisoner was convicted 
 acquittal. and executed, although no marks ofvio- 
 («) In a little work, intitled. The The- lence appeared on the body of the de- 
 cry of Presumptive Proof, is cited the ceased, and who had in fact died of apo- 
 case of Thomas Harris, who was executed plexy, as appeared by the subsequent 
 at York, for the murder of James Gray, in confession of the witness himself.
 
 CIRCUMSTANTIAL EVIDENCE. 577 
 
 always most material and important. The effect may be on tlie 
 one hand to suggest a view of the ca^^e which consists with the 
 innocence of the accused, and which might otherwise have escaped 
 observation ; on the other hand, its effect may be to narrow the 
 question to the consideration whether that statement be or be not 
 excluded and falsified by tlie evidence. 
 
 The recent possession of stolen property is, independently of the 
 conduct and declarations of the accused, or of his silence, very 
 imperfect evidence of guilt ; the apparent possession may have 
 resulted from the malicious act of some other person. In a case, 
 therefore, where no act of concealment or assumption of property 
 can be proved, and the accused is consistent in denying all know- 
 ledge of possession, such a defence becomes entitled to the most 
 serious attention, and exacts a most rigorous inquiry as to its truth 
 or probability ; where, on the other hand, the prisoner admits the 
 possession, and attempts to account for it by a false statement, the 
 necessity for such an inquiry does not arise (t). 
 
 What circumstances will amount to proof can never be matter of To the ex- 
 sreneral definition ; the le^al test is the sufficiency of the evidence ^''•*'"" ^f 
 
 ■ o ^ T 1 ■ PI- ^ all reason- 
 
 to satisfy the understandmg and conscience oi the jury. On the able doubt. 
 
 one hand, absolute, metaphysical and demonstrative certainty, is 
 not essential to proof by circumstances. It is sufficient if they 
 produce moral certainty to the exclusion of every reasonable 
 doubt ; even direct and positive testimony does not afford grounds 
 of belief of a higher and superior nature. To acquit upon lio-ht, 
 trivial and fanciful suppositions and remote conjectures, is a virtual 
 violation of the juror's oath, and an offence of great magnitude 
 against the interests of society, directly tending to the disregard 
 of the obligation of a judicial oath, the hindrance and disparage- 
 ment of justice, and the encouragement of malefactors. On the 
 other hand, a juror ought not to condemn unless the evidence 
 
 (J.) A lamentable case occurred some victed, principally upon the presumption, 
 
 years ago (I state from common report from the state of the doors and windows, 
 
 only) which strongly illustrates the neces- that no one could have had access to the 
 
 sity of exerting the utmost vigilance in house but herself, and she was accordingly 
 
 negativing satisfactorily every other pos- executed. It afterwards appeared, by the 
 
 sible hypothesis, in a case of purely cir- confession of one of the real murderers, 
 
 cumstantial evidence. A servant girl was that they had gained admission to the 
 
 charged with having murdered her mis- house, which was situated in a narrow 
 
 tress. The circumstantial evidence was street, by means of a board thrust across 
 
 very strong ; no persons were in the house the street, from an upper window of the 
 
 but the murdered mistress and the pri- opposite to an upper window of the house 
 
 soner, the doors and windows were closed of the deceased ; and that the murderers 
 
 and secure, as usual; upon this and some retreated the same way, leaving no trace 
 
 other circumstances the prisoner was con- behind them. 
 
 VOL. I. P P
 
 678 
 
 rnooFS 
 
 Circum- 
 stantial 
 rvitlcnce 
 ought not 
 to super- 
 seile direct 
 evidence. 
 
 OhstTva- 
 tioiis on 
 Ci nflictin^ 
 evidence. 
 
 Conflicting 
 testimony. 
 
 exclude from his mind all reasonable doubt as to the guilt of the 
 accused, and, as has been well observed, unless he be so convinced 
 by the evidence that he would venture to act upon that conviction 
 in matters of the highest concern and importance to his own 
 interest ; and in no case, as it seems, ought the force of circum- 
 stantial evidence, sufficient to warrant conviction, to be inferior to 
 that which is derived from the testimony of a single witness, the 
 lowest degree of direct evidence. 
 
 Lastly : It seems that mere circumstantial evidence ought in no 
 case to be relied on where direct and positive evidence, which might 
 have been given, is wilfully withheld by the prosecutor. Where 
 direct evidence is attainable, circumstantial evidence is of a second- 
 ary nature ; besides, the great excellence of indirect evidence is its 
 freedom from suspicion, and no greater discredit can be thrown 
 upon it than by the withholding of direct evidence. 
 
 In cases of conflicting evidence, the first step in the process of 
 inquiry must naturally and obviously be to ascertain whether the 
 apparent inconsistencies and incongruities which it presents may 
 not without violence be reconciled, and if not, to what extent, and 
 in what particulars, the adverse evidence is irreconcileable ; and 
 then, by careful investigation and comparison, to reject that 
 which is vicious ; and thus, if it be practicable, to reduce the 
 whole to testimony and circumstances of uniform and consistent 
 tendency. 
 
 Where the testimony of direct witnesses is apparently at vari- 
 ance, it is to be considered, in the first place, whether they be not 
 in reality reconcileable, especially where there is no extrinsic 
 reason for suspecting error or fraud. But if their statements upon 
 examination be found to be irreconcileable, it becomes an import- 
 ant duty to distinguish between the misconceptions of an innocent 
 witness, which may not affect his general testimony, and wilful 
 and corrupt misrepresentations which destroy his credit altogether. 
 The presumption of reason as well as of law in favour of innocence, 
 will attribute a variance in testimony to the former rather than the 
 latter origin. Partial incongruities and discrepancies in testimony, 
 as to collateral points, are, as has been already observed, to be 
 expected ; and it is for a jury to determine whether in the particular 
 instance they are of such a nature and character, under all the 
 circumstances, that they may be or cannot be attributed to mistake. 
 In estimating the probability of mistake and ei-ror, and also in 
 deciding on which side the mistake lies, much must depend on the 
 natural talents of the adverse witnesses, their quickness of percep- 
 tion, strength of memory, their previous habits of general attention.
 
 CONFLICT OF TESTIMONY. 579 
 
 or of attention to particular subject-matters. A physician or sur- 
 geon would be much more likely to observe particular symptoms 
 or appearances in a medical or surgical case, and to form from them 
 correct conclusions, than an unskilful and inexperienced person 
 would be likely to do. Much also must depend upon a comparison 
 of the means and opportunity which the witnesses had for making 
 observations, of the circumstances which were likely to excite and 
 engage their attention, and of their reasons and motives for attend- 
 ing ; and here it is to be observed, that there is an important dis- 
 tinction between positive and negative testimony. 
 
 If one witness were positively to swear that he saw or heard a Positive 
 fact, and another were merely to swear that he was present, but ^|^!|. "^^^3^ 
 did not see or hear it, and the witnesses were equally faithworthy, mony. 
 the general principle would in ordinary cases create a preponder- 
 ance in favour of the affirmative ; for it would usually happen that 
 a witness who swore positively, minutely and circumstantially, to 
 a fact which was untrue, would be guilty of perjury, but it would 
 by no means follow that a witness who swore negatively would be 
 perjured, although the affirmative were true ; the falsity of the 
 testimony might arise from inattention, mistake, or defect of 
 memory ; and therefore, even independently of the usual presump- 
 tion in favour of innocence, the probability would be in favour of 
 the affirmative. If, for instance, two persons should remain in the 
 same room for the same period of time, and one of them should 
 swear that during that time he heard a clock in the room strike 
 the hour, and the other should swear that he did not hear the 
 clock strike, it is very possible that the fact might be true, and yet 
 each might swear truly. It is not only possible but probable that 
 the latter witness, though in the same room, through inattention, 
 might be unconscious of the fact, or, being conscious of it at the 
 time, that the recollection of it had afterwards faded from his 
 memory. It follows, therefore, by way of corollary to the last pro- 
 position, that in such cases, unless the contrary manifestly appear, 
 the presumption in favour of human veracity operates to support 
 the affirmative. 
 
 And further, when, in cases of conflicting testimony, upon a 
 comparison between the witnesses in respect of the means and 
 opportunity which they have had of ascertaining the facts to which 
 they testify, it turns out that the one class has had more competent 
 and adequate means of information than the other, or that, under 
 the circumstances, the attention of the latter was not so likely to 
 be so fully excited and particularly directed to the facts, this prin- 
 
 p P 2
 
 680 
 
 PROOFS 
 
 Positive 
 and iicija- 
 live testi- 
 mony. 
 
 C inflict (f 
 testimony. 
 
 ciple co-operates with the weight of evidence in favour of the 
 former, in all cases where there is room for error or mistake. 
 
 The application of this principle supjjoses that the positive can 
 be reconciled with the negative testimony without violence and 
 constraint. Evidence of a negative nature may, under particular 
 circumstances, not only be equal, but superior, to positive evidence. 
 This must always depend upon the question, whether, under the 
 particular circumstances, the negative testimony can be attributed 
 to inattention, error, or defect of memory. If in the instance above 
 supposed, two persons were placed in the room where the clock 
 was, for the express purpose of ascertaining by their senses whether 
 it would strike or not, there would be little room to attribute the 
 variance between their negative testimony and the positive tes- 
 timony of a third witness to mistake or inattention, and the real 
 question would be as to the credit of the witnesses. 
 
 It is also observable that this principle is inapplicable where a 
 negative depends on the establishment of an opposite positive fact. 
 Thus an alibi negatives the actual commission of a crime by the 
 prisoner ; but the evidence is of as direct and positive a nature as 
 that which tends to prove his presence and actual commission of 
 the crime. 
 
 Where the testimony of conflicting witnesses is irreconcileable, 
 and cannot be attributed to incapacity or error, it frequently 
 becomes a painful and difficult task to decide to which class credit 
 is due. And here it is to be observed, in the first place, that all 
 those considerations which have been applied as tests of the credit 
 and veracity of witnesses uncontradicted, are also tests of credi- 
 bility in cases of conflict. The first point of comparison is their 
 character for integrity. This may either depend on positive evi- 
 dence as to their previous situation {u), conduct and character, or 
 
 (?t) The Roman law was far more co- 
 pious than our own is, in its rules of exclu- 
 sion. — Consequens est ut in omnibus causis 
 fidem testium elevet a?tas puerilis, insania, 
 conditio vita3, turpitudo, pmipertas niag- 
 ■tium opjtrohr'mni, &c. IleinLCC. El. J. C. 
 Part IV. sec. cxxxvi. L. 10, ff". L. 10, c. h. t. 
 — Nee servorum testimonio credendum 
 esse nisi alia desit ratio veritatem ei-uendi. 
 lb. sec. cxxxviii. L. 7, ff. h. f. — Vacillare 
 fidem mulieruin qr.aj qiiEestum corpora 
 fecerunt. L. 3, § .'J, h — Eorum qui vitam 
 ad cultrum vel ad depugnandas bestias lo- 
 carunt. L. 3, § 5, h. f. — Omnium viliorum 
 
 et pauperum quamdiu aliorum est copia 
 ad. L. 3, ff. L. 18. c. h t. — Ut merito re- 
 pellantur pater in causa filii, filius in 
 causa patris, aliique potestati vel iniperio 
 alterius subjecti vel dornestici. L. 6, .L. 
 9, L. 24, f. L 3, L. 6, c. h. t— Ut suspecti 
 etiam sunt amici et inimici. L. 3, pr. ff. 
 L. 5, L. 17. — Although a proper sense of 
 the sacred obligation of an oath may be 
 equally strong in every condition of so- 
 ciety, yet the tempiiral consequences of 
 detected perjury or prevarication may fre- 
 quently depend much on the witness's 
 rank or situation in lifi\ To a common
 
 CONFLICT OF TESTIMONY. 681 
 
 may be matter of inference and presumption, from their relative Conflict of 
 situation as to the parties, or the subject-matter of the cause, and *'^'*^'"'""y- 
 the various and almost innumerable circumstances by which their 
 testimony may be influenced or biassed. Where testimony is 
 equally balanced in all other respects, a slight degree of interest or 
 connexion may be sufficient to turn the scale. In such cases 
 also,' any variance in the testimony of the witness from a former 
 statement relating to the same transaction, if it be established and 
 not explained, necessarily tends to impeach either his integrity or 
 his ability. 
 
 All those circumstances which were likely to influence and bias 
 witnesses in favour of the party, are of course entitled to great 
 consideration in weighing their credit, although they do not exclude 
 their testimony. These are of too obvious and extensive a nature 
 to require enumeration : not only may the stronger motives arising 
 from the ties of consanguinity, friendship, or expectation of future 
 gain, cast a doubt upon the credit oi witnesses whose testimony is 
 contrasted with that of persons who stand wholly indifferent, but 
 so also, in cases where in other respects the weight of testimony is 
 nicely balanced, may many considerations of an inferior and weaker 
 description ; such as the interest which the witness may possess in 
 a similar question, or the bias and prejudice which may arise in 
 favour of a party from connexion in the way of trade, profession, 
 or membership of any description (x) : considerations of this kind, 
 which would frequently afford not the slightest ground for ques- 
 tioning the credit of an unimpeached witness, may become of 
 essential importance when the credit of conflicting witnesses is in 
 other respects in a state of equipoise. 
 
 labourer, the temporal consequences of a witness, whether legal or medical, has an 
 
 violation of his oath would probably be con- interest in proving the capacity; for the 
 
 fined merely to temporal punishment, and fact that he had made or even witnessed a 
 
 that only upon a conviction after an expen- will, executed by one utterly incapable of 
 
 sive legal process; whilst to a solicitor or making one, would affect his professional 
 
 attorney, whose professional existence de- character. Such observations apply in 
 
 pends upon his reputation and credit, loss those cases only of doubt and suspicion 
 
 of character consequent upon detection, where the evidence is of a conflicting 
 
 although there should be no conviction, nature. 
 
 might end in his ruin. Considerations of (x) Parimente la credibilita di un testi- 
 this nature must obviously possess a con- monio puo essere alcuna volta sminuita 
 trary tendency where the testimony of a quand' egli sia membro d' alcuna societa 
 witness tends to repel and remove some privata, di cui gli usi, e le massime siano 
 charge of improper conduct, which would o non ben conosciute o diverse dalle pub- 
 otherwise affect his reputation. Thus, liche. Un tal uomo ha non solo le proprie 
 upon a question, whether a testator was ma le altrui passioni. — Beccaria, c. 13. 
 capable of executing a will, a professional
 
 582 
 
 PROOFS 
 
 Demeanour 
 
 ol" tJic wit- 
 uesses. 
 
 Consist- 
 ency of tes- 
 timonies 
 and com- 
 parison 
 witli 
 circum- 
 stances. 
 
 With writ- 
 ten docu- 
 ments. 
 
 Such considerations become still more important where any 
 suspicion arises from tlic manner and demeanour of the witness in 
 delivering his testimony. These, indeed, frequently afford strong 
 tests for judging of his sincerity, although his motive be not ap- 
 parent. Manifestations of warmth and zeal beyond those which 
 the occasion naturally calls for, over-forwardness in testifying 
 that which will benefit the party for whom he testifies, and ill- 
 concealed reluctance in declaring that which tends to his pre- 
 judice, flippancy and levity of manner, coldness and apathy in 
 describing injuries which would naturally excite a contrary feel- 
 ing, indications of subtlety, artifice and cunning, are, with a 
 multitude of others, tests for estimating the true character of 
 a witness and the value of his testimony. 
 
 But above all, where the credit of conflicting witnesses is 
 doubtful, as far as regards their number, their integrity, their 
 means of knowledge, and the consistency and probability of their 
 testimony, a comparison of their statements with each other, 
 and with undisputed or established facts, is a great test of 
 credibility. 
 
 The relative consistency of testimony is a most important test 
 of comparison. The testimonies of witnesses of truth will con- 
 sist with each other, and with all the established circumstances of 
 the case, in numerous and minute particulars, which are fre- 
 quently beyond the reach of invention {y), and will exhibit that 
 degree of solid coherency which necessarily results from a real 
 and actual connexion and congruity in nature, which minuteness 
 and detail of circumstances will serve but to render more com- 
 plete : with false witnesses the very reverse takes place ; their 
 testimony must either be sparing in circumstances, and therefore 
 of a nature obviously suspicious, or be liable to detection from 
 comparing the invented circumstances with each other, and with 
 those which are known to be true. 
 
 In cases of conflicting testimony, and particularly where the 
 subject of litigation is remote in point of time, or the question 
 depends upon the terms of oral communications, the evidence of 
 written documents connected with the transaction are, on account 
 
 {y) Dr. Paley, witli reference to liis- 
 torical evidence says, " Tlie undesigned- 
 ness of coincidences is to be gatliered from 
 their latency, tlieir minuteness, their ob- 
 liquity; the suitableness of the circum- 
 stances in whicli they consist to the places 
 in which those circumstances occur, and 
 the circuitous references by wliich they 
 
 are traced out, demonstrate that they have 
 not been produced by meditation or by any 
 fraudulent contrivance; but coincidences 
 from wliich these causes are excluded, and 
 which are too close and numerous to be 
 accounted for by accidental concurrence 
 of tictiou, must necessarily have truth for 
 their foundation."
 
 REJECTION OF TESTIMONY. 583 
 
 of their permanency, of the most obvious and essential import- 
 ance. Every day furnishes instances of the weakness of human 
 memory in such cases, and great opportunity is afforded for mis- 
 representation or mistake ; whilst writings are permanent, and, 
 as has well been observed, are witnesses difficult to be cor- 
 rupted (z). 
 
 As the depositions of dead or absent witnesses are, in point of 
 law, of a secondary nature to the viva voce testimony of witnesses 
 subjected to the ordeal of cross-examination, so are they inferior 
 and weaker in point of force and effect. So true is it that a wit- 
 ness will frequently depose that in private which he would be 
 ashamed to certify before a public tribunal (a). It is by the test 
 of a public examination, and by that alone, that the credit of a 
 witness, both as to honesty and ability, can be thoroughly tried 
 and appreciated (b). Nam minus ohstitisse videtur j^^dor inter 
 paucos signatores (c), is an ancient and a powerful observation in 
 favour of oral testimony. 
 
 As the credit due to a witness is founded in the first instance Total rejec- 
 on general experience of human veracity, it follows that a witness t|°"o° *^'^^' 
 , who gives false testimony as to one particular, cannot be credited 
 as to any, according to the legal maxim, falsum in uno, falsum in 
 omnibus. The presumption that the witness will declare the truth 
 ceases as soon as it manifestly appears that he is capable of per- 
 jury. Faith in a witness's testimony cannot be partial or frac- 
 tional ; where any material fact rests on his testimony, the degree 
 of credit due to him must be ascertained, and according to the 
 result his testimony is to be credited or rejected. 
 
 It is scarcely necessary to observe, that this principle does not 
 extend to the total rejection of a witness whose misrepresentation 
 has resulted from mistake or infirmity, and not from design ; but 
 though his honesty remain unimpeached, this is a consideration 
 which necessarily affects his character for accuracy. Neither does 
 the principle apply to testimony given in favour of the adversary ; 
 such evidence is rather to be considered as truth reluctantly ad- 
 mitted, and divulged only because it was not in the power of a 
 corrupt witness to conceal it. Hence it is a general principle, 
 that a jury may believe that which makes against his point 
 who swears, although they do not believe that which makes 
 for it (c/). 
 
 (z) Montesquieu, Espr. de Loix, 1. 28, (c) Qulnctil. 1. 5, c. 6. 
 
 c. 44. (d) See Lord Mansfield's observations 
 
 (a) 3 Bl. Comm. 373. in Bermon v. Woodhridge, Uong. 751. 
 
 {l>) Supra, 25. See Pothier, by Evans, 
 vol. -2, p. 235.
 
 r)84 
 
 PROOFS : — CONFLICT OF 
 
 Rejection 
 of testi- 
 mony. 
 
 Compari- 
 son of di- 
 rect witli 
 circum- 
 stantial 
 evidence. 
 
 Tlie rejection of the witness may not be the only consequence of 
 detection; for if there be reason to suppose, from the circumstances, 
 that his pe»jury or prevarication is the result of subornation, it 
 affords a reasonable ground, in a doubtful case, for suspecting the 
 testimony of other witnesses adduced by the same party. This 
 observation has no weight where it is apparent that the imputation 
 is merely personal, and results from collateral motives independent 
 of the cause. 
 
 The presumption is always jjrima facie, and in the absence of 
 circumstances which generate suspicion, in favour of the veracity 
 of a witness ; but where the usual and general presumption is en- 
 countered by an opposite one, it is necessary that the credit of the 
 witness should be established by some collateral aid, to the satis- 
 faction of the jury. The ordinary case of an accomplice affords an 
 illustration of this application of the principle : his testimony is in 
 practice deemed to be insufficient unless his credit be established 
 by confirmatory evidence. 
 
 As it is universally admitted that circumstantial evidence is in its 
 own nature sufficient to warrant conviction, even in criminal cases, 
 and as the test of sufficiency is the understanding and conscience ^ 
 of a jury, it would be superfluous and nugatory to enter into a dis- 
 cussion of the comparative force and excellence of these different 
 modes of proof, where they do not conflict with each other. In 
 the abstract, and in the absence of all conflict and opposition be- 
 tween them, the two modes of evidence do not in strictness admit 
 of comparison ; for the force and efficacy of each may, according 
 to circumstances, be carried to an indefinite and unlimited extent, 
 and be productive of the highest degree of probability, amounting 
 to the highest degree of moral certainty. With regard to the com- 
 parative force and efficacy of these modes of proof, it is clear that 
 circumstantial evidence ought not to be relied on where positive 
 proof can be had, and that so far the former is merely of a 
 secondary nature (e). Hence it seems to be clear that no convic- 
 tion in a criminal case ought ever to be founded on circumstantial 
 evidence, where the prosecutor might have adduced direct evidence; 
 and in civil cases the resorting to such a practice would in a doubt- 
 ful case be a circumstance pregnant with the strongest suspicion. 
 
 The characteristic excellence of direct and positive evidence 
 consists in the consideration, that it is more immediate and more 
 proximate to the fact ; and if no doubt or suspicion arise as to the 
 credibility of the witnesses, there can be none as to the fact to 
 
 (c) n Comm. 371.
 
 DIRECT WITH CIRCUMSTANTIAL EVIDENCE. 585 
 
 which they testify ; tlie only question is as to their credit. On the Compari- 
 other hand, the virtue of circumstantial evidence is its freedom from ^°" *^' .'!l" 
 
 _ _ ' _ rect witli 
 
 suspicion, on account of the exceeding difficulty of simulating a circum- 
 
 number of independent circumstances, naturally connected and evtdelu-e. 
 tending to the same conclusion. In theory, therefore, circumstan- 
 tial evidence is stronger than positive and direct evidence, wherever 
 the aggregate of doubt, arising, first, upon the question whether 
 the facts upon which the inference is founded are sufficiently 
 established ; and, secondly, upon the question, whether, assuming 
 the facts to be fully established, the conclusion is correctly drawn 
 from them, is less than the doubt, whether, in the case of direct 
 and positive evidence, the witnesses are entirely faith-worthy. 
 Where no doubt exists in either case, comparison is useless ; but it 
 is very possible, where there is room for suspecting the honesty or 
 accuracy of direct witnesses, that the force of their evidence may 
 fall far short of that which is frequently supplied by mere circum- 
 stantial evidence ; and whenever a doubt arises as to the credibility 
 of direct witnesses, it is an important consideration in favour of 
 circumstantial evidence, that in its own nature it is much less liable 
 to the practice of fraud and imposition than direct evidence is ; for 
 it is much easier to suborn a limited number of witnesses to swear 
 directly to the fact, than to procure a greater number to depose 
 falsely to circumstances, or to prepare and counterfeit such circum- 
 stances as will without detection yield a false result. The increasing 
 the number of false witnesses increases the probability of detection 
 in a very high proportion ; for it multiplies the number of points 
 upon which their statements may be compared with each other, and 
 also the number of points where their testimony comes in contact 
 with the truth ; and therefore multiplies the danger of inconsistency 
 and variance in the same proportion. 
 
 So, on the other hand, it is exceedingly difficult by artful prac- 
 tice to create circumstances which shall wear the appearance of 
 truth, and tend effectually to a false conclusion. The number of 
 such circumstances must of necessity be limited in their nature ; 
 they must be such as are capable of fabrication by an interested 
 party, and such that their materiality might be foreseen. Hence 
 all suspicion of fraud may be excluded by the very number of 
 concurring circumstances, when they are derived from various but 
 independent sources, or by the nature of the circumstances them- 
 selves, when either it was not in the power of the adverse party ta 
 fabricate them, or their materiality could not possibly have been 
 foreseen, and consequently where no temptation to fabricate them 
 could have existed. 
 
 VOL. I. Q Q
 
 .86 
 
 proofs: 
 
 Consist- 
 ency (if po- 
 sitive testi- 
 mony with 
 circum- 
 stances. 
 
 Conflict in 
 circum- 
 stances. 
 
 The correspondence or inconsistency of direct evidence with well- 
 established circumstances, is the great, and frequently the only 
 test, for trying the truth of direct testimony which labours under 
 suspicion. A perjured witness will naturally, with a view to his 
 own security, so frame his fiction as to render contradiction by di- 
 rect and opposite testimony impracticable. He will also be sparing 
 in his detail of circumstances which are false, and which are capable 
 of contradiction ; the more circumstantial his statement is, the 
 more open it is to detection. Hence it is that circumstantiality of 
 detail is usually a test of sincerity, provided the circumstances be 
 of such a nature as to be capable of contradiction if they be false ; 
 and that, on the other hand, if a witness be copious in his detail of 
 circumstances which are incapable of contradiction, but sparing of 
 those which are of an opposite kind, his testimony must necessarily 
 be regarded with a degree of suspicion. As circumstances are the 
 best and frequently the only means of detecting false testimony, it 
 follows that no fictions are more formidable and more difficult to be 
 detected than those which are mixed up with a large portion of 
 truth ; every circumstance of truth interwoven with the fiction, so 
 far from being merely negative in its effect, in affording no aid for 
 detecting the fraud, actually tends to confirm and support it. 
 
 It is however to be observed, that positive testimony ought not 
 to be rejected on the ground of inconsistency with circumstances, 
 unless the incongruity be of a conclusive and decisive nature. Mere 
 improbability is usually an insufficient ground for the rejection of 
 positive testimony which labours under no suspicion; for experience 
 frequently shows that circumstances do in reality agree and did 
 actually co-exist, although, from ignorance of the numerous links 
 by which they are united and connected, their co-existence would 
 a priori have been deemed to be highly improbable. 
 
 When, however, the positive testimony labours under doubt and 
 suspicion, mere circumstantial evidence is frequently sufficient to 
 prevail, although such testimony be not wholly and absolutely irre- 
 concileable with the facts. Thus in the case of Mr. Jolhffe's will, 
 the will was established on circumstantial evidence, in opposition to 
 the direct testimony of the attesting witnesses. 
 
 Where doubt arises from circumstances of an apparently opposite 
 and conflicting tendency, the first step in tlie natural order of in- 
 quiry is to ascertain whether they be not in reality reconcileable, 
 especially where circumstances cannot be rejected without imputing 
 perjury to a witness : for perjury is not to be presumed ; and in the 
 absence of all suspicion, that hypothesis is to be adopted which 
 consists with and reconciles all the circumstances which the case
 
 FRAUD IN CIllCUMSTANCES. 687 
 
 supplies. In the next place, where the circumstances are incon- Conilict in 
 
 ciri'um- 
 stauccs. 
 
 sistent and irreconcileable, it becomes necessary to in(|uirc which '="■'■"'"" 
 
 of them are attributable to error or design. Here again, in distin- 
 guishing between the real and genuine circumstances, and those 
 w^liich are spurious, regard is to be had to those principles which 
 have already been adverted to : it is rather to be presumed that one 
 witness was mistaken, where there was room for mistake, than that 
 another witness, where the facts exclude all mistake, was wilfully 
 perjured. Where mistake is out of the question, an examination 
 of the different degrees of credit due to the witnesses on whose tes- 
 timony the conflicting circumstances depend, becomes material ; 
 and in such cases a careful comparison of the circumstances which 
 they state, with facts either admitted or fully established, is of the 
 most obvious and essential importance. Every admitted or esta- 
 blished fact affords an additional test for trying the truth and 
 genuineness of those which are doubtful, by means of which those 
 which are genuine may be established and become additional tests 
 of truth, and those which are false may be rejected. 
 
 Whenever any fact is found to be wholly inconsistent with those Rejection 
 which are either admitted or indubitably proved, the mere rejection °! circum- 
 
 . -rr- stances m- 
 
 of that single fact, and the difficulty thus removed, is not the consistent 
 only step gained in the progress towards truth ; the vicious evi- ^Jj^l'.jf I*'^*^ 
 dence must have resulted from error or from fraud ; and whether f"iiy esta- 
 under the circumstances it is to be ascribed to the one source or 
 the other, it affords a test for judging of the ability or integrity of 
 the witness, and not unfrequently affords some insight into the 
 conduct of the party. 
 
 Frauds in circumstantial evidence are of two kinds : a false Fraud in 
 witness may swear to circumstances purely fictitious, or an honest stances" 
 witness may swear to circumstances which he has really observed, 
 but which have been prepared with a view to deceive ; as in the 
 instance already alluded to, where a discharged pistol was placed 
 near the body of a murdered person, to induce a belief that he 
 had destroyed himself. Those of the former description admit 
 of absolute and positive contradiction, or may be detected by the 
 inconsistency of the fictitious circumstances with those established 
 by unexceptionable testimony ; and the witness himself is liable to 
 detection in his attempt to interweave that which he has invented 
 with that which is true. Simulated facts, on the other hand, are 
 in themselves true ; they are false only inasmuch as they tend to 
 induce a false conclusion. These, however, are open to detection 
 by a careful comparison with established circumstances; it is
 
 688 
 
 proofs: — CONFLICT OF CIRCUMSTANCES. 
 
 Conflict of 
 established 
 circum- 
 stances. 
 
 beyond tlie power of human subtlety to create a false consistency 
 of circumstances beyond a very limited extent (/). 
 
 No cases of conflicting evidence are more difficult of solution 
 than those where facts apparently well established lead to opposite 
 conclusions. These, in some remarkable instances, are of such a 
 nature as to leave the mind in a state of perplexity after the most 
 patient and laborious investigation. This more especially happens 
 where the obscurity arises from the conduct of the parties con- 
 cerned ; so difficult is it to ascertain the real motives by which the 
 actors in a distant transaction were influenced^ or even to deter- 
 mine whether their conduct has not resulted from weakness or 
 caprice rather than from any settled and determinate principles of 
 action, or from the operation of mixed, fluctuating and transitory 
 motives, which can no longer be distinctly traced. The celebrated 
 Douglas cause may be cited as a striking instance of this nature. 
 The gross improbability that Sir John Stuart and Lady Jane would, 
 under the circumstances, have attempted a monstrous fraud, 
 the effect of which might be to deprive their own future offspring 
 of their legitimate rights, and the vast danger and difliculty of car- 
 rying such a scheme into execution, by the procurement of two 
 supposititious children, either by stealth or by bribery, situated as 
 they were, with but slender resources in a foreign capital, under 
 the eye of a vigilant police, were circumstances so strong in favour 
 of the legitimacy of the children, that nothing but the strange 
 and unaccountable conduct of the parties could have induced 
 fair and reasonable doubts upon this interesting and important 
 question. To pursue these considerations farther would be incon- 
 sistent with the limits of the present treatise. Suffice it to add, 
 that where conflicting probabilities are nicely balanced, it rarely 
 happens that some rule of legal policy does not turn the scale, even 
 in civil cases ; and that in criminal proceedings, where reasonable 
 doubts exist, mercy ought to prevail. 
 
 (/) Supra, 48. 
 
 END OF VOL. I. 
 
 LONDON: 
 
 Printed by James & Luke J. Hansard, 
 
 near Linculu's-Ina Fields.
 
 [ 689 J 
 
 APPENDIX TO VOL. 1. 
 
 [Note^^ that the savic ArramiCDirnt is observed in the Appendix as in the Text, 
 to the pages of which reference is made-l 
 
 Oath tvhich the Witness considers binding, p. 22. 
 The St. 1 & 2 Vict. c. 105, enacts that in all cases in which an oath may 
 lawfully be administered to any person, either as a juryman or a witness, 
 or a deponent in any proceeding, civil or criminal, in any court of" law or 
 equity in the United Kingdom, or on appointment to any office or 
 employment, or on any occasion whatever, such person is bound by the 
 oath administered, provided the same shall have been administered in 
 such form and with such ceremonies as such person may declare to be 
 binding ; and every person, in case of wilful false swearing, may be con- 
 victed of the crime of perjury, in the same manner as if the oath had been 
 administered in the form and with the ceremonies most commonly 
 adopted. 
 
 Affirmation by a Quaker, p. 23. 
 One who has seceded from the sect of Quakers, although in many 
 particulars he agrees with them, and who will not affirm according to the 
 Stat. 9 Geo. 4, c. 32, or in the form given by the stat. 3 & 4 Will, 4, c. 49, 
 or as a separatist, according to the stat. 3 & 4 Will. 4, c. 82, cannot give 
 evidence on his general affirmation. Doran's Case, 2 Lewin, C. C. 27 ; 
 2 Moody's C. C. 37. 
 
 Subpoena, Jbrm of, p. 78. 
 
 In a subpoena to a witness to give evidence in an action of ejectment, 
 the names of the lessors of the plaintiff should be introduced. 
 
 If the original writ of subpceiia requires the witness to appear on the 
 27th of May, and the copy served requires him to appear on the 24th, 
 an attachment for disobedience cannot be obtained. Doe v. Thomson, 
 9 Dowl. 948. 
 
 Tender of Expense :$, p. 78. 
 If a witness be in couit, having come there on other business, he can- 
 not refuse to be sworn, though his expenses be not tendered. Blackburn 
 V. Hargreave, 2 Lew. Cr. Cases, 259. 
 
 VOL. I. R R
 
 5l>() APPENDIX :—WlTN KSS. 
 
 Expenses of Witnesses, XKihal alluxved, p. 78. 
 
 Where the senior clerk in the Petty-bag-oOice in Chancery attentlcd 
 on a suhpcena duces with the roll of Chancery solicitors at Nisi Prius, 
 such doci.unents being allowed to be produced only on an order by the 
 M. R., and in the custody of ihe clerk; held, that he was entitled to the 
 usual fee allowed by Lord Hardwicke's Orders, 1743, of such attendance, 
 as a reasonable compensation fur a duty on an order of the M. li., as 
 well as in consequence of the siibpcenn. BenlciU v. Sydney, 2 P. & D. 
 416; and lo Ad. & Ell. i6'2. 
 
 The rule of Mil. 4 Will. 4, as to the expenses of witnesses producing 
 documents, does not apply to a party [)roducing ancient records from the 
 Chapter-house, Westminster, and who was required not merely to take 
 care of, but translate and explain them. Bastard v. Smith, 2 P. & D. 
 453. 
 
 Witness'' s Expenses, Action for, p. 79. 
 
 Where upon the witness requiring his expenses to be paid, the clerk of 
 the attorney, by his direction, gave him an I O U, the amount of which 
 the attorney afterwards received from the opposite party on the taxation 
 of costs ; held, that the witness was entitled to recover the amount from 
 him as for money had and received and on an account stated. Evans 
 V. Philpott, g C. & P. 270. 
 
 Witness — Attachment, p. 80. 
 
 A witness, on being served with a sid)pce7ia, received 1 s. only as con- 
 duct-money, and went to the assize town where the trial was to take 
 place, without making any further demand. On the morning of the trial 
 she refused to proceed to the court-house unless she received 9/.; held, 
 that the plaintiff having made no tender to her of a reasonable amount 
 for her expenses in going back, was not entitled to an attachment against 
 her for disobedience to the stibpcena. Neivton and Wife, v. Harland, 
 9 Dowl. 16. 
 
 The Court will only grant an attachment in a clear case of contempt ; 
 where the witness attended on a subpcena duces tecum, but the documents 
 were not produced, and were such as could not have been admitted in 
 evidence, the Court discharged the rule. R. v. Russell, Lord J., 7 Dowl. 
 693. 
 
 Action against for disobeying a Subpcena, p. 80. 
 
 In an action against a party for not appearing to give evidence in obe- 
 dience to a writ of subpcena ad testificandum, it is not necessary to show 
 that the defendant was called on his subpcena by the officer of the Court, 
 if it be shown by other satisfactory evidence that he was not present at 
 the proper time and place when he was required to give evidence ; or 
 even that he was absent when the cause was called on for trial, under 
 such circumstances that lie could not have been forthcoming when 
 required to give evidence. It is not necessary that the jury should have
 
 now PROCURED. 591 
 
 been sworn, and the plaintill" iiousuitL-d ; it is sulficiciit if he withdrew 
 llie record, beiiij^ uiiuble safely to go to (rial in the absence of the witness. 
 l.cunoiil V. Cruoli, G M. & \V. G15 ; 8 Dowl. P. C 737. 
 
 The declaration need not aver in express terms that the snbpcena was 
 served w ithin a reasonable time ; the usual averment that " the defendant 
 could and might have a[)peared, and had no reasonable cause for omitting 
 to do so," is sufficient. Maunsell v. Ainti-worth, 8 Dowl. SLnj. 
 
 NVhcrc the subptena had been altered by the attorney from the original 
 sittings to a subsequent day, without being re-sealed, held, that being a 
 nullity, he was not bound to attend: it is a question fur the .lud^^e 
 whether the subpcena has been served within a reasonable time before 
 trial. Barber v. JVuud, 2 Mo. tV R. 17.2. 
 
 In case for not attending with documents, &c. at the assizes, alleged 
 to have been holden on the 31st March, action is n)iiintainable, although 
 the writ was not served until the id April, the cause not being tried 
 until the 6th. The averment that the defendant could and might have ap- 
 peared and given material evidence. Sec. on the trial, is equivalent to an 
 averment that the trial took place at the time and place mentioned in 
 the subpoena, although the want of an express averment might have been 
 bad on special demurrer ; held also, that the allegation that such docu- 
 ments were material evidence for the plaintiff, and that by reason of the 
 defendant's non-attendance the plaintiff was non-suited, amounted to a 
 sufficient averment that the plaintiff had a good cause of action. Davis 
 V. Lovelli 7 Dowl. 178; and 4 M, & W. 678. And see Mullett v. Hunt, 
 1 C. 6c M. 752. 
 
 After verdict, an allegation that the defendant could have given 
 material evidence, and that the plaintiff could not safely have proceeded to 
 trial without his testimony, is a sufficient allegation of a good cause of 
 action in the original suit: the .ludgc, at Nisi Prius, has clearly juris- 
 diction to allow the witness to be called upon his snbpcena before the jury 
 are sworn, and that the action is maintainable, although the plaintiff' 
 withdrew his record. Mullett v. Hunt, i C. & M. 752 ; and 8 Tyrw. 875 ; 
 overruling Bland v. Swafford,Veake, N. P. C. 60. And see Hopper v. Smith, 
 M. & M. 115. 
 
 Witness, Iioiv jjrocured, p. 8 '2. 
 A magistrate issued a warrant, reciting that on complaint made on 
 oath before him of a misdemeanor, the plaintiff was stated to be a material 
 witness; that the magistrate had issued a summons requiring the plaintiff 
 to appear to testify his knowledge, that the summons was proved before 
 the magistrate to have been duly served, but that the plaintiff did not 
 appear to testify, &c., and said that he would not ; that it was necessary 
 for the ends of justice that the plaintiff should appear at the next assizes 
 to testify, &ic. ; the warrant then commanded the constable to bring the 
 plaintiff before the magistrate or some other justice, to find sufficient bail 
 to appear and give evidence at the next assizes and testify, kc. ; held, 
 that the warrant was bad, for requiring the plaintiff to give bail at this 
 
 u R 2
 
 692 appendix: — witness, how procured. 
 
 stage of the proceedings, assuming that the magistrate had power to bring 
 him up by warrant to give testimony. Evans v. Rees, 12 A. & E. 55. 
 
 And it seems to be doubtful whether a justice has power to issue a 
 warrant requiring the attendance of a witness where his summons has 
 been disobeyed. The power was denied by G arrow and Burton, J. 
 Chester Sp. Ass. 1816; 1 Burn's J. by D'Oyley & Williams, 1073. Lord 
 Denman, C. J. in the above case oi Evans v. Rees, intimated his opinion 
 that such a warrant would be legal, the other three Judges intimated no 
 opinion on the point. 
 
 In 3 Burn's J. (by D'Oyley & Williams), 207, is a note of a case in 
 whicli Graham, B. in his address to the grand jury, censures the prac- 
 tice of committing witnesses in default of sureties as a general practice, 
 though he says that in some cases it maybe justified. The Court seemed 
 to recognize the authority oi' Bennett v. IVatson, 3 M. & S. 1. 
 
 Expenses of Witnesses in Criminal Proceedings, p. 82. 
 
 The Judge before whom a prisoner is tried for returning from trans- 
 portation has power to order the county treasurer to pay the prosecutor 
 the reward under 5 Geo. 4, c. 84, s. 22. R. v. Emmoyis, 2 Mo. &. R. 
 
 279- 
 
 Under the words " in otherwise carrying on such prosecution," in 
 7 Geo. 4, c. 64, s. 22, extra expenses, which had been incurred in getting 
 up a prosecution, were ordered to be reimbursed. l.evoen and others' 
 Case, 2 Lew. Cr. Cases, 164. 
 
 Under s. 23, the expenses of a prosecutor in a case of perjury, where 
 his name has been put into a suhpcena as witness, are not limited to his 
 costs as a witness only, although not bound over by the magistrates to 
 prosecute. R.y. Sheering, 7 C. & P. 440. 
 
 Under s. 28, rewards may be given to witnesses, although they have 
 not been put to expense. R. v. Barnes, 7 C. & P. 166. 
 
 But where the facts on which such an application is made do not 
 appear in evidence, they must be laid before the Judge upon affidavit. 
 R. V. Jones, 7 C. & P. 167. 
 
 On an indictment for an attempt to murder by suffocating, the allow- 
 ance for extra expenses for apprehending the prisoner is within the spirit 
 and intention of the 7 Geo. 4, c. 64, s. 28, though not within the words. 
 Darltins Case, 2 Lew. Cr. Cases, 164. 
 
 Under the word *' exertions," in 7 Geo. 4, c. 64, s. 28, a gratuity was 
 awarded to a prosecutor for his courage in apprehending the prisoner. 
 Womersleys Case, 2 Lew. Cr. Cases, 162. 
 
 The phrase " bullock stealing," in the 7 Geo. 4, c, 64, s. 28, applies to 
 give the rewards mentioned in all cases of cattle of that description, as 
 cows, heifers, &c. R. v. Gillbrass, 7 C. & P. 444. 
 
 A party bound over at the quarter sessions to prosecute at the superior 
 court is entitled to his expenses. R. v. Paine, 7. C. & P. 136. 
 
 Expenses of medical witnesses on inquests are regulated by 6 & 7 
 Will. 4, c. 8().
 
 PROTECTION OF. 693 
 
 IVilncssesJhr the Prisoner, p. 85. 
 
 The Court directed the governor of the gaol to attest a power of 
 attorrey, to enable a prisoner to obtain funds out of a savings bank, to 
 enable him to conduct his defence, or for paying a bond Jide debt. R. v. 
 Coxon, 7 C. ik P. ()5i. 
 
 And where, from the lapse of time, it might be prcsmned that the 
 prisoner obtained a portion of the money found in his possession from 
 other sources than the commission of the crime charged, the Judge 
 ordered five pounds to be given up for his defence. R. v. Rooncy, 7 
 C. c^ P. 51G. 
 
 Suhpcena duces tecum, p. 87. 
 
 It is no sufTicient answer for a witness not obeying a suhpcena duces, 
 &c. that the instrument required to be produced was immaterial. Doe 
 d. Butt V. Kcllij, 4 Dowl. 273. 
 
 Upon a question of fraudulent description on a sale of an under- 
 tenant's equitable interest in a lease which he had mortgaged, it was held 
 that the attorney of ihe superior landlord was not compellable to produce 
 the counterpart of the original lease, nor the equitable mortgagee the 
 lease; but that on their refusal, on being called as witnesses on their 
 subpoenas d. t., secondary evidence of the contents might be given for a 
 party who did not claim under it as one of his title-deeds, nor was privi- 
 leged as the attorney of another who did. Mills v. Oddi/, 6 C. <J^ P. 7-28. 
 
 On the trial of an information by the attorney-general for penalties, the 
 defendant, who had been held to bail, had subpoenaed the officer from 
 the Queen's Remembrancer's OUice to produce the affidavit on which 
 he had been held to bail, with a view of being able to give it in evidence 
 to cross-examine the person who had made the affidavit, if he should be 
 called as a witness on the trial. The person who made the affidavit was 
 called as a witness on the trial, and, for the purpose of cross-examining 
 him, the defendant's counsel wished to put in the affidavit ; held, that 
 the officer was bound to produce it, and that the defendant had a right 
 to make use of it in this way ; but that if the affidavit was made by 
 another deponent besides the witness, and related to other persons besides 
 the defendant, the latter would be only entitled to use so much of the 
 allidavit as was sworn by the witness, and as related to the defendant 
 hiu)self. At turncy -general \. Bond, 9 C. & P. 189. 
 
 A witness called on his suhpcena duces tecum who objects to the produc- 
 tion of documents, has no right to have the question of his liability to 
 produce argued by his counsel retained for that purpose. Doe d. Roxv 
 cliff'e V. Earl of Egremont, 2 Mo. & R. 386. 
 
 Protection of Witness, p. 91. 
 A witness attending an arbitration who stays to wait the event of an 
 application to the Court in consequence of a revocation of the submission 
 and want of pecuniary means of returning, is not privileged from arrest, 
 Spencer v. A^t'io/o/j, 5 Ad. ^: Lll. 818. 
 
 R 1'. 3
 
 594 APPENDIX : — WITNESS. 
 
 Witness — Privilege, p. 91. 
 Where a party attending as a witness having struck a party in the 
 lobby of tlic Court, was committed for the contempt, it was held that 
 he had the privilege as a witness, redeundo from the Court, when released 
 from the imprisonment. R. v. IVigley, 7 C & P. 4. 
 
 Incompetency — Infancy, p. 94. 
 
 The Court, before it will permit a child to be examined as a witness, 
 must be satisfied that, from the course of its religious education, it feels 
 the binding obligation of the oath ; where, before the fiict, there had been 
 an absence of all religious education, and the child had only been in- 
 structed with a view to being examined, but at the trial showed no real 
 understanding on the subject of religion or a future state, the Judge 
 refused to allow him to be examined. R. v. Williams, 7 C. & P. 320. 
 
 Competency — Interest must he direct and certain, 8^c. p. 105. 
 
 A solicitor is competent in the Ecclesiastical Court as a witness to 
 support a codicil, having admitted that he retained the proctor for the 
 parlies propounding the codicil, but not having admitted his responsibility 
 for costs. Allen v. M' Phardu, 2 Curtels, 5 1 3. 
 
 Where a witness on the voir dire stated that, as the plaintiff's agent, 
 he had employed the former attorney in the case, since deceased, that he 
 had not been released, and no demand been made on him ; held, that it 
 not being shown that the witness had clearly made himself liable to the 
 deceased attorney, nor under what circumstances the papers in the case 
 had been transferred by his representatives to the present attorney, nor 
 that the witness was in any way liable to him, and It being equally pro- 
 bable that the lien of the former one had been satisfied, the facts were 
 not sufficient to warrant the rejection of the witness. Shipton v. Thorn- 
 ton, 1 Perr. & Dav. 216. 
 
 Where the lessee entered into an agreement to assign a lease of pre- 
 
 nilscs to B. upon payment of /. by instalments, to indemnify^. 
 
 from liability to the lessor, with a proviso for re-entry on nonpayment 
 of any of the instalments; held to amount to an agreement only, and 
 not an actual assignment ; and that in an action by the lessor against 
 the first lessee, B. was not incompetent as an interested witness; but 
 that if it was equivocal, the objection should be taken on the voir dire, 
 to give the witness an opportunity of explanation. Hartshornc v. Watson, 
 5 Bing. N. S. 477. 
 
 Where the oflficer sold the goods taken in execution, after notice of the 
 bankruptcy, and paid over the proceeds ; held, that in an action against 
 the sheriff for money had, ^c, the officer being substantially the de- 
 fendant in the action, was not a competent witness. Broom v. Brad!ey, 
 8 C. & P. 500.
 
 INTEREST, ;5 1.^- 1 \V. 4, ( . 12. o'Jj 
 
 Direct (iiul Cciiiil/i, J), lo/,. 
 The owner of shares in a railway company transferred liis sliares to 
 P., having been requested so to do, in order to make liim a eompetent 
 witness in an action against the company; he stated on the loir dire that 
 notliing was said as to their being returned, althougli he bch'eved that 
 there was an understanding to tliat effect ; that the return depended on 
 P.'s honour, but that he would have taken steps to compel the re- 
 transfer: the learned Judge i ejected the witness, deeming the re-transfer 
 to be merely colourable, and the plaintiff liad a verdict. The Court of 
 J'.xchequer granted a new trial, on the ground that, although it was per- 
 fectly clear that a witness who had really parted with all interest, legal 
 and equitable, was competent, yet that the fact was, on the report of the 
 learned Judge, left in some degree of ambiguity. Bell v. Hull and Selhi/ 
 liailivay Company, G M. & W. 70 1 . 
 
 Legal Liability resulting, p. 109. 
 
 Trespass for taking and distraining goods, pleas justifying the entry 
 and seizure, 1st, alleging the plaintiff to be tenant under a demise from 
 the defendant, and rent in arrear ; and cd, alleging the i)laintiff's father 
 to be the tenant, and issues thereon denying such tenancy ; held, that in 
 order to show that the plaintiff held under her father, the wife of the 
 latter was incompetent to prove the receipt of rent from the plaintiff, as 
 tenant to her husband, as the latter would be liable to indemnifj' the son 
 for a payment he was rendered liable to by the father's default, so that 
 she had a direct interest in disproving the father's tenancy, which was the 
 fact in issue. JFedgeivood v. Hartlei/, 10 Ad. & Ell. 619 ; and 4 P. & 
 D. 84. 
 
 Liable over, p. 114. 
 
 In case for the obstruction of an casement, a former joint owner in 
 fee with the plaintiff, who had conveyed all her interest in the moiety to 
 the plaintiff with a covenant for title, is not a competent witness for the 
 plaintiff, nor is rendered so by indorsement under 3 & 4 Will. 4, c. 42, 
 ss. 2G, 27. Steers v. Canvardine, 8 C. & P. 570. 
 
 In case against a broker employed by the plaintiff to sell seed, for 
 delivering it without payment ; held, that the lighterman and ledgorraan 
 employed by the defendant in transhipping the seed, being himself liable 
 to the plaintiff, if he did so without authority, was an incompetent witness 
 to prove acts of the plaintiff sanctioning the delivery. Buorman v. 
 Brotone, 1 P. & D. 3G4. And see Morish v. Foote, 8 Taunt. 454.. 
 
 3 ^ 4 fT. 4, c. 42 ; p. 122. 
 Plea, in trespass for breaking plaintiff's two closes, ^c, a public right 
 of carriage-way ; replication, denying the right; it appeared that the 
 closes were in the lordship of 7'., part of the parish of/., and the roads 
 of the lordship were proved to have been imniemorially repaired 1)3' the 
 owners and occupiers in the lordshij), under an agreement, but that iliey 
 
 n R 4
 
 696 APPENDIX : — WITNESS, ST. 3 & 4 WILL. 4, C. 4*2. 
 
 had latterly been assessed to the parish highway rates ; held, that such 
 owners were not competent witnesses on the part of the plaintiff to dis- 
 prove the existence of a public way; as a verdict for the defendant would 
 be evidence of reputation to charge the parish on an indictment for not 
 repairing, and for which the witnesses would be liable to contribute ; 
 and that the case did not fall within the 3 & 4 Will. 4, c. 42, nor were 
 they rendered competent by 54 Geo. 3, c. 170, s. 9. Fowler v. Port, 7 
 C. & P. 792. And see Oxenden v. Palmer, 2 B. & A. 236. But see 
 Stat, 3 & 4 Vict. c. 26, s. 1 ; supra, vol. i. p. 161. 
 
 In an action on a warranty of soundness, the unsoundness being a 
 cough, the party who had sold the horse originally to him to prove the 
 soundness at the time of the sale to him, was held to be incompetent. 
 Biss V. Mountain, 2 M. & R. 302. 
 
 In case for an injury to the plaintiff's cart, by driving against it, held 
 that the plaintiff's servant, who was driving his cart at the time, was 
 incompetent without a release. Harding v. Colley, 6 C. & P. 6C4. And 
 see Wake v. Lock, 5 C. & P. 454. 
 
 Where an Act of Parliament adopts a new rule of evidence, the Court 
 of Equity adopts it ; held, therefore, that the evidence of an interested 
 witness might be read in a suit, and the entry required made. Wheat v. 
 Graham, 7 Sim. 61. But see Warren v. Tayor, 8 Simons, 599. 
 
 Plea in trespass justifying under a right of way for persons inhabiting 
 houses within M. on foot and with horses, for the purpose of carrying 
 goods from a road called N. over the close, &c. unto a navigable river, 
 it was held that an inhabitant householder in M. was a competent witness 
 under 3 & 4 Will. 4, c. 42, s. 26. Knight v. Waore, 7 C. & P. 259. 
 
 In assumpsit, for clothes supplied to the defendant's servant, the ser- 
 vant is a competent witness for the plaintiff, on indorsing his name on the 
 record. Robinson v. Fcrreday, 8 C & P. 7fj2. 
 
 The deposition of a witness examined on interrogatories jointly in- 
 terested with the defendant, may be read in evidence for the defendant, 
 the name of the deponent being indorsed on the record, under stat. 3 & 4 
 Will, 4, c. 4, s. 27. Adams v. Garrard, 2 M. & R. 400. 
 
 Time of Objecting, p, 137. 
 
 Where a witness has been called, and after he has been dismissed by 
 the party calling him, it is discovered from private information, that the 
 witness is incompetent, from interest, and the party for whom he appears 
 recalls him merely to inquire as to the existence of his interest, the 
 objection to the incompetency will not be allowed to prevail. Fellingham 
 V. Sparroto, 9 Dowl. 141. 
 
 Where after a witness for the plaintiff had been examined, it was pro- 
 posed to prove that he was the real plaintiff on the record ; held, that 
 such evidence was propeily rejected, as the objection ought to have been 
 taken on the voir dire, Devodcney v. Palmer, 7 Dowl. 177 ; and 4 M. & W. 
 064.
 
 rniMINAL PROCEEDINGS. 597 
 
 The competency of a witness may be tried either by cxaniininij him 
 on the voir dire, or by evidence aliunde. WakeficUl's Case, 2 Lew, Cr. 
 Cas. 279. 
 
 lie lease, p. 13B. 
 
 Where a witness had rendered himself hable to the attorney, held, 
 that a release by the latter " of all fees, costs, and chaiges," was suffi- 
 cient to render him competent. Doe v. Allbult, G C. h 1\ 131. 
 
 A release executed by several commoners of their separate rights of 
 common over the same waste, is sufficient to make them all competent 
 witnesses in an action touching the extent of the waste, though there be 
 only one stamp. Carpeyiter v. Biiller, 2 M. & R. 298. 
 
 A release of a part-owner generally from all demands, will make him a 
 competent witness, he not being a party on the record. Harrison v. Gor- 
 don, 2 Lew. Cr. Cas. 290. 
 
 Where a witness on the voir dire says he is released, if the release be 
 in court, the insufficiency of the stamp may be objected to as insufficient, 
 but if it be not in court, he may be examined without producing it. 
 Qiiarterman v. Cox, 8 C. & P. 97. 
 
 In an action for wages by the plaintiff, against the defendant as one of 
 the provisional committee of a joint stock company intended to be esta- 
 blished, the defendant called as a witness a party who on the voir dire 
 admitted that he was a iperaber of such committee ; held, that the com- 
 pany not having been established, although he might be liable as a co- 
 contractor, he was not as a co-partner, and upon a release executed was 
 a competent witness. Beckett v. Wood, 6 Bing. N, C. 380. 
 
 A butcher sued three of the directors of a Zoological Society for goods 
 supplied for the animals. For the defence a witness was called to prove 
 that the plaintiff was a shareholder in the society. The witness was him- 
 self a shareholder, and had been released by one of the defendants ; held, 
 that the witness was not conijietent without being released by all the three 
 defendants, but that he would be so if released by all three defendants, 
 without being released by the other shareholders. Belts v. Jones, 9 C. 
 & P. 199. 
 
 Where a witness (an accommodation drawer) appeared to be incompe- 
 tent on the record, but stated that he had a release, and his name was 
 indorsed on the record ; it was held, that it was not necessary to produce 
 the release. Lunniss v. R010, 2 P. & D. 538. 
 
 Bailiff, p. 150. 
 
 The officer sold the goods taken in execution, after notice of the bank- 
 ruptcy, and paid over the proceeds ; in an action against the sheriff for 
 money had, being substantially the defendant in the action, he is not a 
 competent witness. Broom v. Bradley, 8 C. & P. 500. 
 
 Where after a decree in a creditor's suit, a plaintiff' moved to examine 
 a co-plaintiff as a witness before the Master in proof of his debt ; held,
 
 598 APPENDIX : WITNESS, CRIMINAL PROCEEDINGS. 
 
 that ill tlic event of the uhimate dismissal of the suit, being Habic to 
 costs, he could not be examined. Edwards v. Goodwin, lo Sim. 123. 
 
 Crcdilor, p. 151. 
 A creditor of an insolvent, in a suit by his assignees, is an incompetent 
 witness for the plaintiff, and is not made competent by 3 & 4 Will. 4, 
 c. 42, ss. 26, 27. Holden v. Ilcarn, i Beav, 445. 
 
 Criminal Proceedings, p. 152. 
 
 Where one of several defendants, in an action which had been tried, 
 was offered as a witness on an indictment for perjury preferred against a 
 witness in the action, held that he was not rendered incompetent merely 
 on the ground of the debt and costs not having been paid, and that a bill 
 in equity had been filed ; but that if the witness expected that the party 
 would be called on a similar action coming on for trial, it would be such 
 an immediate interest as would disqualify. R. v. Ihilme, 7 C. (S: P. 8 ; 
 questioning 71. v. Dalhy, Peake, N, P. C. 12 ; and R. v. Eden, 1 Esp. 
 N. P. C. 97. 
 
 Devisee, p. 15G. 
 
 In an action of debt against a devisee on a bond of his testator, in 
 which the question is whether the signature of the testator is a forgery 
 or not, a party entitled, under the testator's will, to an annuity charged 
 on his real estate, is not a competent witness for the defendant. Bloor v. 
 Davies, 7 M. & W. 235. 
 
 hihahitant, p. 159. 
 
 Rated inhabitants held admissible to prove that the premises sought to 
 be recovered in ejectment by parish officers, is parish property. Doe v. 
 Adderley, 3 Nev. & P. 629 ; S. P. Doe v. Botvlcs, lb. 632 ; overruling 
 Oxcndcn v. Palmer, 2 B. & Ad. 236. 
 
 Where in replevin on a warrant to levy a highway rate, the defendant 
 in support of his cognizance called the surveyor as a witness ; held, that 
 his incompetency on the ground of being an inhabitant was removed by 
 54 Geo. 3, c. 170, s. 9 ; held also, that a demand of the rate by one of 
 the two surveyors appointed to the ofHce, was sufficient Morrell v. Mar- 
 tin, G Ring. N. C 373 ; and 8 Sc. 688. 
 
 In ejectment for a parish house, held, that since the 54 Geo. 3, c. 170, 
 s. 9, a parishioner having valuable property was a competent witness. 
 Doe V. Murrcll, 8 C & P. 134. 
 
 And see the stat. 3 & 4 Vict. c. 2G, s, i, supra, Vol. I. iGi. 
 
 Joint Interest, p. iGi. 
 
 One of several defendants in an action ex contractu, suffering judgment 
 by default, is not a competent witness for the plaintiff to prove the other 
 defendant's liability us co-partners. Green v. Sutton, 2 JNIo. & R. 2C9. 
 
 Where A., one of two j)artners, on entering the partnership, borrowed 
 a sum of C, and gave her his note, which, after (lie dissolution, wa^
 
 I'Airrv. r>'.)9 
 
 indorsed to B., the continulnj^ pnrttur, :ui<l I)y him m t oil' jij^ainst :i 
 demand arising out of the partncrsl)ii) ; held, tli.u />.'s h ihility to C. bcinjr 
 indcjtcndcnt of tlic result of the action l)etv\cen tlie partners, C. was a 
 competent witness ibr />. to prove the loan and transrcr of tlie note to 
 liim. Hatcher V. Senlon, 2 M. I'v W. 47. 
 
 In an action on a charter-party, a joint-owner with tlic plaintiff, 
 idthough not a registered one, held not a competent witness for the plain- 
 tiff without cross-releases. Jackson v. Gallonmij, 8 C. ik V. 480. 
 
 In assumpsit for repairs against, a partowner, after a release, a co-parl- 
 owncr was a competent witness for the defendant. Jones \ . Prilchard, 
 ■2 iNI. it W. lyg. 
 
 In case for infringing a patent, the purchaser of a license to use it, is a 
 competent witness for the plaintiff. De Rosne v. Fairlie, 1 Mo. Sc II. 
 457- 
 
 Where upon the retirement of one partner. A., the continuing one, /?., 
 admitted another, C., and upon the latter partnership being dissolved, B. 
 became bankrupt ; held, that B. '.vas not a competent witness to prove an 
 agreement by B. and C, to indemnify A. against the partnership debts 
 f>i' A. and B., as tending to exonerate himself. Warren v. 'J'aijlor, 8 Sim. 
 599; and 1 Coop. 174. And such agreement founded on a purchase of 
 an interest in the concern was not a mere guarantee within the Statute of 
 Frauds. 
 
 Legatee, p. 167. 
 
 The estate of a deceased party being liable to the reasonable expenses 
 of the funeral, and not beyond, held, that a residuary legatee was an in- 
 competent witness to fix the whole charge of the undertaker's bill on the 
 defendant, who ordered it. Green v, Salmon, 3 Nev. & P. 388. 
 
 In an action by a bond creditor of the testator against the devisee of 
 his real estate, the question in issue being as to the signature of the 
 testator to the will being a forgery; held, that a party claiming, under 
 the will, an annuity charged on the real estate, having a direct interest 
 in the result of the suit, was incompetent. Bloor v. Duties, 7 INIees. & 
 W. 235. 
 
 Overseer, p. 168. 
 
 Where an overseer was called to prove the notice of appeal ; field, that 
 he was properly rejected, none of the statutes rendering him (a party to 
 the appeal) competent, and there being no distinction as to mere prelimi- 
 nary matters. Jl. v. Bath Recorder, SfC, 1 Perr. «Sr Dav. 4C0. 
 
 Partly, p. 1C8. 
 
 l.Inder circumstances, where parties in a suit charging fraud are made 
 defendants, who might otherwise have been examined as witnesses, the 
 House of Lords will direct issues to be tried, and such parties examined. 
 Rhodes v. De Bcauvuir, 6 CI. & Fi. 532.
 
 600 appendix:— WITNESS, PARTY. 
 
 Remainder-man, p. iG8. 
 Ill an action by a landlord for waste, by his tenant, the landlord being 
 tenant (or life, held that the remainder-man was a competent witness, the 
 damaoe going to the executor of the tenant for life, and not to the 
 remainder-man. Leach v. Thomas, 7 C. & P. 32 1. 
 
 Trustee, p. 1G8. 
 
 Covenant against the representative of a deceased assignee of the 
 lease ; plea, thai the assignment was made to the deceased, and »S'., who 
 was still alive, issue denying such as-igimient ; S. is a competent witness 
 to prove that he never accepted the trust nor acted under the assignment. 
 Folder v. Round, 5 M. & W. 478, 
 
 In a suit to set aside deeds executed by a party alleged to be lunatic, 
 a trustee, although not jiersonally ir,terested, but assisting in procuring 
 the execution, is not a competent witness for the parties taking benefi- 
 cially under such deeds, and the husband's competency failing, his wife 
 must also be rejected. Frank v. Mainwaring, 2 Beav. 126. 
 
 Leading questions on Examination in Chief, p. 170. 
 
 The Court will not direct the name of a witness to be struck off the 
 back of the indictment, being the brother of the prisoner, if he showed 
 any unfeir bias, he might be cross-examined by the counsel for the 
 prosecution, R. v. Chapman, 8 C. & P. 558. 
 
 Leading Questions — Unvoilling Witness, p. 170. 
 
 The situation in which a witness stands with respect to either party, 
 gives no right to cross-examine, unless the witness shows himself an un- 
 willing one, nor can evidence be given for the sole purpose of discrediting 
 him, though others may be called to prove the facts denied, and so inci- 
 dentally to discredit the witness. R. v. Ball, 8 C. & P. 745. 
 
 There is no distinction between civil and criminal cases as to cross- 
 examining, with the Judge's leave, a party's own witncbs when unwilling. 
 R, v. Murphy, 8 C. & P. 297. 
 
 Question of Skill, p. 174. 
 
 A nautical witness cannot be asked on the trial of an action for the 
 negligent management of a ship, whether he thinks, having heard the 
 evidence in the cause, that the conduct of the captain was correct or not. 
 iiiUs v. Brown, 9 C. & P. Goi. 
 
 May refresh his Memory, p. 175. 
 
 A witness was not allowed to refresh his memory from a paper written 
 by himself, but not contemporaneously with the transaction. SlcinkcUcr 
 V. Neivton, 9 C. & P. 313.
 
 BOUNDARY — VEIIDICT. 601 
 
 A witness may refresh his memory from the notes of eounsel taken at 
 a former trial. Laivcs v. Jiccrl, 2 Lew. Cr. Cases, i.'j'i. 
 
 So a witness was allowed to refer to his deposition taken before com- 
 missioners, to refresh his memory as to a date, but not to go through the 
 whole. Smith v. Morgan, 2 Mo. ik R. 2.'39. 
 
 /]., a surveyor, made a survey, a report of which he furnished to his 
 employers ; being afterwards called as a witness he produced a printed 
 copy of this report, on the margin of which he had, two days before, to 
 assist him in giving his explanations as a witness, made a few jottings. 
 The report was made up from his original notes, of which il was in sub- 
 stance, though not in words, a transcript ; held, that he might look at 
 this printed copy of the report to refresh his memory. Home v. Macken- 
 zie, G CI. & Fi. 025. 
 
 Qucrre, whether in a criminal case the prisoner's counsel may submit 
 a deposition to the witness on cross-examination, to refresh his memory. 
 Denied by Parke, B. and Coltman, J., York Summer Assizes 1837. Pat- 
 teson, at a former assizes, had ruled the other way, and in a subsequent 
 case at the same assizes Parke, B. and Coltman, J. allowed it to be done. 
 
 Boundary — Verdict, p. 181. 
 
 Where the boundary between two manors is shown to be a natural 
 boundary, upon a question as to the boundary of one of those manors 
 and an adjoining one, the finding of the former by commissioners of 
 boundaries is admissible in evidence, to enable the jury to s:ty whether 
 the contin\iation of the natural boundary is not also the boundary between 
 the latter manors ; held also, that although the verdict might not strictly 
 be evidence of reputation, yet that it was a record of proceedings of such 
 a public nature as to make it admissible. Brisco v. Lomax, 3 N. & P. 
 388. 
 
 Upon a question of boundary between two farms, evidence of the boun- 
 dary of the plaintiff's farm having been given that it was the same as that 
 of a hamlet; evidence of reputation as to the boundary of the hamlet is 
 receivable as of a fact relevant to the issue. Thomas v. Jenkins, l N. 
 & P. 588. 
 
 Where, upon a former issue, on a question of boundary in an action 
 by a third party against the plaintiff, he obtained a verdict, the cause 
 having been referred ; held, that in the action by the plaintiff against the 
 defendant, raising the same issue, the verdict in the former action was 
 receivable as evidence of reputation, but not the award, which was only the 
 finding of an individual ; also, that an ancient presentment by the homago 
 of a manor, in the form of a book, in which the boundaries were set out, 
 and concluding with an alphabetical list of the parishes and tenants, but 
 the latter part, containing the name of the parish in dispute, muti'ated, 
 was admissible as evidence of the reputed boundary, the part relating to 
 the boundary being perfect. Evans v. Rees, 2 P. & D. 627 ; and 10 Ad. 
 «& Ell. 15 1.
 
 (J02 APPENDIX : — WITNESS, BOUNDARY — VERDICT. 
 
 A perambulation by the loril, including the itcus in quo, was liekl to 
 be admissible as evidence of assertion of ownership, although no person 
 was present on the part of the plaintiff^ nor any proof given that he 
 knew of the perambulation. Wooltoay v. Roive, i Ad. & Ell. 114. 
 
 CuUom — Reputation, p. 181. 
 In an actiun of trover, by the lessee of the tolls of tin mines held under 
 the Duchy of Cornwall, upon the question of admissibility of the ancient 
 answers of conventionary tenants of the manor, stating the rights of the 
 lord ; held, that being made by persons under whose estates the minerals 
 lay, with respect to which the alleged customs existed, they were suffi- 
 ciently connected with the subject to make their declarations evidence as 
 reputation of the custom ; but not where they stated facts only ; and 
 reputation is admissible, although not supported by usage, nor confirmed 
 by proof of facts ; held also, that the declarations of the lord of the manor, 
 as to the extent of his rights, were inadmissible ; aliter, as to the extent 
 of the wastes only ; where a lease had been surrendered, and was entirely 
 at an end, and a new grant made; held, that any admission by the grantor 
 prior to such latter grant, respecting the subject granted, was evidence 
 against the grantee, who claimed by title subsequent under the grantor. 
 Crease v. Barrett, 1 Cr. M. & R. 919. 
 
 To negative, S{c. 
 Reputation being admissible evidence to establish a public right, is 
 equally admissible to negative a right : upon a question, therefore, whe- 
 ther land on a river was a public landing-place or not, reputation that it 
 was the private landing-place of the defendant and his predecessor, is 
 admissible. Drin/nvatcr v. Porter, 7 C. & P. 181. And see R. v. 
 Sutton, 3 N. & P. 569. 
 
 Lis mota, p. a 8-2. 
 Declarations of deceased members of a family, in matters of pedigree, 
 ure inadmissible if made after the state of facts had arisen on which the 
 claim was founded, which for that purpose was to be deemed the com- 
 mencement of the lis mota. Walker v. Beauchamp, 6 C. <fe P. 5G0. 
 
 Not Examined in Chief, p, i86. 
 
 A witness called under a mistake of counsel, as to his being able to 
 speak to a transaction, is not liable to cross-examination, though sworn, 
 if the mistake be discovered before any question is put. Wood v. 
 Mackinson, 2 Mo. & R. 273. 
 
 Where a witness on the bill was tendered, but not examined by the 
 counsel for the prosecution, it was held that he might be cross-examined 
 after being examined for the prisoner. R. v. Harris, 7 C. & P. 581. 
 
 Where a witness called and sworn, and having answered an immaterial 
 question, was stopped by the Judge, it was held that this did not give 
 a right to cross-examine him. Crcevy v. Carr, 7 C. & P. 6j.
 
 CROSS-EXAMINATION. 603 
 
 Cros.s-c.ra»i/ nation, ]). i8(i. 
 
 Upon a joint pita of not guilty, the counsel of each defendant is not 
 allowed either to cross-examine or address the jury separately. Scale v. 
 Evans and another, 7 C. & P. 593. Qu. And sec tit. Akguments of 
 Counsel. 
 
 Witnesses to character should only be cross-examined as to some 
 distinct matter intended to be charged. R. v, Jlodg/ciss, 7 C. cV P. -^yS. 
 
 In trespass for false imprisonment on a criminal charge, the defendant 
 cannot cross-examine as to the bad character of the plaintiff, nor as to 
 previous charges made against him. Doivningv. Butcher, 2 M.& H. 374. 
 
 A witness may be asked as to the circumstances on which he founded 
 a particular belief. R. v. Murphy, 8 C. <S: P. 297. 
 
 Separate Examination, p. 188. 
 Either party, at any period of trial, mjy require witnesses to be ordered 
 out of Court. Southeij v. Nash, 7 C. & P. 632. 
 
 Cross-Examination as to Collateral Facts, p. 189. 
 
 A witness cannot be examined as to what another witness said on other 
 occasions than that which is the subject of the trial. R. v. St. George. 
 9 C. & P. 483. What a witness has said at other times, is only matter 
 for the cross-examination of the witness himself. lb. 
 
 A witness to character cannot be contradicted as to facts collateral to 
 the issue upon the record. Lee's Case, 2 Lew. Cr. Cases, 154. 
 
 Facts collateral to the issue upon the record cannot be given in evi- 
 dence to discredit a witness. Harrison v. Gordon and others, 2 Lew. Cr. 
 Cases, 156. 
 
 Counsel may, on cross-examination, inquire as to a fact, although 
 appearing to be irrelevant, if he undertake to show, by other evidence, 
 that such fact is relevant to the issue. Haigh v. Belcher, 7 C. cc P. 389. 
 
 The daughter, in an action for seduction, denies, on cross-examination, 
 that she knows M. A'., not having been cross-examined as to statements 
 by her relating to M. N., evidence of the fact is inadmissible. Carpenter 
 V. Wahl, 3 P. c^ D. 457 ; 11 Ad. & Ell. 303. 
 
 Where upon cross-examination of the witness, with the view of discre- 
 diting him, he was asked if he would swear he had not said so and so, he 
 replied he would not swear ; held, that the party could not be called to 
 contradict him, unless he swore positively to the flict. Long v. Hitchcock, 
 9 C. & P. C19. 
 
 A Witness is not compellable, Sfc, p. 191. 
 But in case for a libel on the plaintiff as a high constable, purporting 
 to be a memorial from the vestry of P., the vestry clerk cannot refuse to 
 produce the vestry books. Bradshaw v. Maples, 7 C. & P. C12. 
 
 Cross-examination as to Writings, p. 199. 
 Where a paper is put into a witness's hand, and his cross-examination 
 upon it entirely fails, the opposite counsel is not entitled to look at it. 
 R. v. Duncombe, 8 C. .S: P. afK).
 
 G04 appendix: — witness, cross-examination. 
 
 A letter having been put into a witness's hand, on cross-examination, 
 to read, and questions founded on it, a counsel is not bound to have the 
 letter read until after he has addressed the jury. Holland v. Reeves, 
 
 7 C. & P. 3G. 
 
 As to cross examination in criminal cases in respect of depositions, see 
 the resolutions of the Judges, supra, i.429, 1 Ily. tV M. 495; 7 C. & H. 
 6-jG. 
 
 Counsel can only cross-examine from depositions, by making them 
 evidence, and giving the right of reply ; but Judges are not bound by 
 the resolutions adopted upon the passing of the Prisoners' Counsel Bill, 
 and may in their discretion question the witness as to the discrepancies : 
 where cross-examinations of witness are not returned in the depositions 
 by the magistrates, counsel may cross-examine as to them. R. v. Edvoardi, 
 
 8 C. & P. 26. 
 
 A witness cannot be asked as to what he did or did not state before 
 the magistrate ; the deposition must be first put in, and read over to him. 
 R. V. Taijlor, 8 C. & P. 726. 
 
 Where some of the statements made by the prosecutrix, on a charge of 
 rape before borough justices, were taken down, but not signed nor read 
 over, others not, and the prisoner was discharged, but afterwards again 
 taken before the county justices and committed for trial ; held that she 
 might be questioned as to the statements so at first made by her, without 
 producing the paper. Reg. v. Griffith, 9 C. & P. 746. 
 
 Where a party made an affidavit, used on a motion for a new trial, and 
 an office copy was upon summons admitted to be a true copy, it was held, 
 that the party being called as a witness on the second trial, might be 
 cross-examined upon the office copy, without producing the original a(H- 
 davit. Davies v. Davies, 9 C. & P. 253. 
 
 Where depositions have been taken and lost, a witness may be cross- 
 examined from copies. R. v. Shellard, 9 C. & P. 277. 
 
 A prisoner's counsel has no right to ask a witness for the prosecution, 
 whether he has always told the same story, the question ought to be, 
 " Have you always said so except before the magistrates ?" lb. And 
 see R. V. Holden, 8 C. & P. 606. 
 
 In a case of rape it appeared that the prisoner had been taken before 
 the mayor of N., charged with this offence, and that the prosecutrix was 
 then sworn and her statement taken down by the mayor, who then asked 
 her some further questions, the answers to which were not taken down, 
 and the prisoner was discharged. That which was taken down by the 
 mayor was not read over to the prosecutrix, neither was it signed by her 
 or by the mayor. The prisoner was afterwards committed for trial by 
 other magistrates; held, that at the trial the prisoner's counsel might 
 cross-examine the prosecutrix as to what she said before the mayor of 
 N. without the production of that which was taken down in that exami- 
 nation. R. V. Griffiths, 9 C. & P. 746. 
 
 A witness at the trial gave evidence which was different from her depo- 
 sition before the magistrate. '1 he deposition was signed by a mark, which 
 she denied to be hers. Neither the magistrate nor his clerk were at the
 
 WITNESS — CONTRADICTION. 605 
 
 trial ; but a constable proved that he was at the examination, and heard 
 her deposition read over to her, and saw her with a pen in her hand, but 
 did not see her make her mark. I le also proved the magistrate's signature, 
 and after reading the deposition (which preceded his own, which he liad 
 signed) he stated that he believed that that was the deposition which was 
 read over to the witness ; this deposition may be read to the witness by 
 the officer of the court for the Judge to examine her upon it. II. v. 
 Nailer, 9 C. & P. 748. And see further as to cross-examination, from 
 the contents of an affidavit made by the witness, The Altorney-general v. 
 Bond, 9 C. & P. 189. 
 
 Re-examination, p. 208. 
 
 Where the plaintiff's witness had in chief stated the defendant to be 
 the party with whom he contracted on behalf of the plaintiff, which was 
 contradicted by the defendant, the defendant having afterwards come 
 into Court; it was held, that the witness could not be re-examlncd to 
 speak more positively as to identity. Roe v. Day, 7 C. & P. 705. 
 
 The defendants having cross-examined the plaintiffs' witnesses, to 
 show a custom in the Canada trade to carry a deck cargo, it is compe- 
 tent to the plaintiffs, in order to rebut the inference sought to be raised, 
 to inquire whether, where the deck cargo was lost or thrown overboard, 
 it was not usual for the shipowner to pay for it. Gould v. Oliver, 2 Scott's 
 N. R. 241. 
 
 The counr.el calling a witness, who gives adverse testimony, cannot, 
 on re-examination, ask whether the witness had not given a different 
 account to the attorney. Winter v. Butt, 2 M. & R. 357. 
 
 The plaintiff's brother (examined on interrogatories) was cross-examined 
 as to a conversation which the plaintiff represented himself to have had 
 with the defendant relative to the matter in question; nothing of import- 
 ance having been elicited, he was required, on re-examination, to state 
 the tvhule of the conversation ; he did so, and thereby proved an admis- 
 sion by the defendant of a material fact : it was held, that the evidence 
 was legal, but that being mere evidence of a statement made by the 
 plaintiff, not on oath, it was entitled to little consideration by the jury. 
 Gwyn V. 5/?- rr. Houston, 2 Scott's N. R. 548. 
 
 On the trial of A., for attempting to discharge loaded arms at B., B., 
 with a view to discredit his evidence, was cross-examined as to whether 
 he had not used violent language towards his father, which he admitted ; 
 on re-examination, B. may be asked as to how his father had acted 
 towards him before he used the language that he had been cross-examined 
 to. R, v. St. George, 9 C. & P. 483. 
 
 Laying ground Jor contradiction, p. 213. 
 The general rule is, that, if a party to a cause wishes, on the trial, to 
 impeach an adverse witness by proof of his having used certain expres- 
 sions, the witness himself must first be asked whether he used them. 
 Where the witness's moral character is relevant to the issue, such expres- 
 sions may, it seems, be proved without the previous inquiry, if they tend 
 
 VOL. I. S s
 
 000 appendix: — WITNESS, 
 
 merely to disgrace the witness by showing that he has made unbecoming 
 declarations. But even if they be of such a nature, the introductory 
 question must not be dispensed with if they tend likewise to contradict 
 some part of the witness's evidence. 'Ihcrtfore, in an action against A. 
 for seducing and getting with child the plaintiff's daughter, which facts 
 the daughter proves, the defendant cannot give evidence that she has 
 talked of B. as her seducer and father of her child, unless she be first 
 asked in cross-examination whether she ever used those expressions. 
 Carpenter \- Wall, 11 A. & E. 803. 
 
 A witness cannot be called to contradict another with respect to a 
 statement suggested to have been made, if there be not an express denial 
 by the party who is supposed to have made it, of his having done so. 
 Lo7ig v. Hitchcock, 9 C. & P. Gig. But see Crovoleij v. Page, 7 C. & P. 
 701 ; s?ipra, vol. i. p. 213. 
 
 Evidence in contradiction, p. 214. 
 Evidence of statements made by a winess on other occasions relevant 
 to the matter in issue, and inconsistent with his testimony on the trial, 
 are always admissible, whether parol or written ; in the former case he 
 must be asked whether he ever used the expressions suggested to a party 
 named, or under other circumstances, mentioned suflficient to fix the 
 occasion ; in the latter the writing must be put in his hand, and he may 
 be asked if it is in his handwriting ; if he admits the conversation or 
 writing, no other evidence of it need be given. Croxdey v. Page, 7 C. 
 & P. 789. 
 
 Evidence in contradiction — the particular Words, S)'C. p. 214. 
 In the case o( Hallett v. Cousins, 2 Mo. & R. 238, it was ruled that 
 where a witness on cross-examination denies having made particular 
 statements, and a witness is called to prove he did, the particular words 
 cannot be put, but he must be asked what passed. 
 
 A Party not allovoedto discredit his ovoji Witness, 8^c. p. 215. 
 
 "Where a party has placed a witness in the box as a witness of credit, 
 
 he cannot be iaipeached by calling witnesses to show that he has given a 
 
 different account, and it makes no difference that the fact is elicited upon 
 
 cross-examination. Holdsworth v. Mayor of Dartmouth, 2 Mo, & 11. 153. 
 
 Whose Name ivas indorsed on the Indictment, p. 217. 
 The general result of the authorities regarding the practice of calling a 
 witness whose name is indorsed on the indictment, seems to be, that as 
 stated in the text, it is competent to the Judge to call the witness, and 
 as it seems, to the prosecutor's counsel to contradict the witness, and that 
 the calling such a witness is discretionary on the part of the prosecutor's 
 counsel. The counsel for the prosecution declined to call a witness bound 
 over to the assizes, and' whose name was on the bill. Lord L3'ndhurst held 
 the prosecutor was not bound to call the witness, but called the witness 
 on the part of the Crown. R, v. Maddox and others, Lancaster Sum. 
 Ass. 1834.
 
 PUBLIC BOOK. G07 
 
 The calling of a witness, whose name is on the back of the indictment, 
 for the other side to cross-examine, is by no means of course. It is dis- 
 cretionary even in felony, but it is n discretion always exercised, and it 
 seems that the same discretion may well be exercised in misdemeanor. 
 R. V. V'mcoH, y C. & P. 91. 
 
 But see R. v. Jordan, 9 C. & P. 119, where it is said to be incumbent 
 on the prosecutor to pul every witness examined before the grand jury 
 into the box, whether his evidence be favourable or otherwise. 
 
 In criminal cases, though the counsel for the pro&ecution may content 
 himself with putting into the box a witness whose name is on the back of 
 the bill, without asking him any questions on the part of the prosecution; 
 yet, semble, that it is better that he should be examined, whether his 
 evidence be favourable to the prosecution or not, as the only object of 
 the investigation is to discover the truth. R. v. Btill, 9 C. & P. 22. 
 
 Public Judicial Document, p. 223, 
 Where a plan has been filed in support of a motion at the instance of 
 a particular party, and which has been disposed of, the Court will not 
 allow that plan to be taken off the file at the instance of the same party, 
 in order to enable him to make his defence to another proceeding. Price 
 V. Seeley, 8 Dowl. 653. 
 
 Gazette, p. 223. 
 A declaration alleged the division of a parish into several distinct 
 parishes by order of the King in Council, under 58 Geo. 3, c. 45 ; held, 
 that the allegation could not be proved by the production of the Gazette 
 containing a copy of such order. 
 
 Public Books, S^c. p. 228. 
 To prove the acceptance of stock, and identity of the party, a copy of 
 the entry, and evidence of the hand-writing, by a party who had in- 
 spected the entry itself in the bank books, is admissible, without pro- 
 ducing the books themselves. Mortimer v. M^Callan, 6 M. & W. 58. 
 
 Public Acts of the Crotvn, p. 235. 
 In the absence of any patent of creation to support a claim to a peer- 
 age, an instrument under the great seal of Scotland, produced from the 
 repositories of the heir of entail of the family property, was held to be 
 admissible as evidence of the creation of such peer, with limitations in 
 tail niale, as therein stated. Huntley Peerage, 4 CI. & F. 349. 
 
 Journals of the House of Lords. 
 An entry in the Journals of the House of Lords, reciting the limita- 
 tions in a patent of peerage, was admitted by the Committee of Privi- 
 leges, without producing the patent itself. Lord Dujfcrins Case, 4 CI. 
 & F., p. 5()8. 
 
 Book of Ducky Officer, p. 235. 
 In an action to try whether the Queen, in right of the duchy of Lan- 
 caster, has the right to appoint coroners for the duchy, the plaintiff 
 
 s s 2
 
 G08 appendix: — public register. 
 
 insisting that in former times an officer of the duchy, called the feodary, 
 discharged the duties of coroner; l)eld, that a manuscript book, written 
 by one J. S. (a feodary in the reign of Queen Elizabeth), and purporting 
 to contain an account of the duties of his office, and precedents relating 
 thereto, was not receivable in evidence for the plaintiff, who claimed to 
 be duchy coroner, although such book had been kept in the duchy office 
 and referred to there as a book of authority. Jeivison v. Dyson, 2 M. & 
 
 R. 377. 
 
 Note (x) continued, p. 237. 
 It has been frequently asserted that this valuation was too low. See 
 Weston V, Voughton, cited Phill. on Ev. 588, note (2), in which Lord 
 Tenterden observed that it had been generally supposed that Pope 
 Nicholas's valuation was too low. See also Chapman v. Smith, 2 Ves. 
 Sen, 506 ; Bree v. Beck, 1 Cr. & J. 267 ; 6 Price, 483. 
 
 Note (c) continued, p. 337. 
 See Roe v. Ireland, 11 East, 283, where Lord Ellenborough observes 
 upon the extreme accuracy of the Parliamentary survey. Blundell v. 
 JHotvard, 2 M. Sc S. 294 ; whore the same learned Judge observes that 
 the silence of that survey as to a modus affords strong evidence against 
 its existence. 
 
 Commission could not bejoiind, p. 238. 
 
 But upon a question of the locus in quo, being parcel of and within a 
 manor, formerly part of the Duchy of Lancaster, a document produced 
 from the Duchy-ofifice, purporting to be a survey, temp. Eliz., by/. A'^., 
 deputy to the surveyor-general, and signed by persons described as jurors 
 of the Court of Survey, who presented the boundaries, but there was no 
 inquisition nor commission for making it, although there appeared an 
 order by the Queen for payment for making it, was held to be inadmis- 
 sible. Evans v. Taylor, 3 Nev. k P. 174. 
 
 Where a document purporting to be an exemplification of a commis- 
 sion, temp. Eliz,, was produced from the proper custody, but the seal 
 was gone from the usual slip of parchment annexed, the Court held that 
 a complete exemplification might be presumed. Beverley v. Craven, 
 2 M.& R. 140. 
 
 Place ofDefOsit, p. 239. 
 
 Wh.ere, on a former reference of the same cause, the defendant had 
 consented to admit in evidence a will in the custody' of B., a party who 
 appeared to be his mortgagee, and on the trial afterwards the plaintiff's 
 attorney producing the will, admitted that he had received it from B., 
 
 was held to be sufficient prirndfocie evidence of proper custody to ren- 
 der it admissible. Doe v. Oxxien, 8 C. & P. 751. 
 
 Public Registers, p. 243. 
 1 he rule as to proof of marriages, births, &c. by the registers in the 
 absence of living witnesses, held not to apply to Ireland, where such have
 
 JUDGMENT. 60 9 
 
 not been duly kept ; and copies therefore of instriinnents, and evidence 
 of reputation, were received after proof of no registers found after proper 
 search. Vnux Peerage, 5 CI. & F. 526. 
 
 The 6 & 7 W. 4, 0. 86, s. 20, makes it imperative on the parlies named 
 to give information to enable the registrar to make a registry of birth, 
 upon his requesting it to be given, and an indictment lies against the 
 party refusing, although the child may have been already registered in 
 the parish registry. R. v. Price, 3 P. & D. 421 ; and 11 Ad. & Ell. 
 
 727- 
 
 Where the Act for inclosing the Bedford Level directed that all con- 
 veyances of the allotments to the then Earl of B., or any part thereof, 
 entered with the registrar, should have the same force and effect as if 
 enrolled in one of the King's courts of record ; and that no lease of, or 
 charge thereout, should be of force but from the time of its being so 
 entered with the registrar ; held that the conveyances, though not 
 registered, were nevertheless valid, except as to entitling the grantees to 
 the privileges conferred b}' the Act. ll'ilUs v. Broivn, 10 Sim. 127. 
 
 As to non-parochial registers made evidence, and the mode of giving 
 those registers and extracts fiom them in evidence, in the courts of 
 common law, and at the sessions, and the places of deposit of the 
 registers of the Jews, the India registers, and the registers of British 
 embassies and factories abroad, see 3 & 4 Vict. c. 92. 
 
 An examined copy of the register of marriages kept in Barbadoes is 
 admissible. Good v. Good, 1 Curt. 755. 
 
 A Fleet register of marriages is not evidence for any purpose. Doe v. 
 Gatncre, 6 C. & P. 578. 
 
 Commissioners' Books, p. 251. 
 
 A Dock Act requires that the directors shall keep a regular minute and 
 entry of the orders and proceedings at every meeting of the directors, 
 which shall be signed by the chairman at each respective meetirg. 
 A signature by the chairman at a subsequent meeting, at which the 
 minutes of a former meeting were read over and confirmed, is a sufficient 
 compliance with the Act. Southumpton Dock Company v. Richards, 1 
 Scott, N. S. 219. 
 
 Public Histories, p. 251. 
 
 Statements of cotemporary historians are inadmissible in evidence, nor 
 is a copy from the minutes of the Committee of Privileges of an inscrip- 
 tion in a churchyard, then admissible in another case. Vaux Peerage^ 
 4 CI. & F. 526. 
 
 Judgment a Bar, p. 256. 
 
 Where a father during his son's (an infant) absence abroad commenced 
 an action for crim. con., as his prochein amy, held that he was entitled to 
 do so, and that the verdict would be a bar to any action by the son on 
 attaining full age : the prochein amy is a guardian appointed by the 
 Court. Morgan v. Thome, y Dowl. 228. 
 
 s s 3
 
 610 appendix: — JUDGMENT. 
 
 Claiming in Privity/, p. 258. 
 Where A. after 39 years' possession by his father S. and himself, mort- 
 gaged to S, in fee, and one claiming as heir in tail male brought eject- 
 ment, and on reference to a barrister an award was made in his favour, 
 it was held that on an action by S. the award was 7-es inter olios. Doe v. 
 Webber, 1 Ad.& Ell. 733 ; 3 Nev. & M. 746 ; although S. attended as a 
 witness and afterwards laid demises in the name of the mortgagor, IL. 
 
 Manner of the Adjudication, p. i6r^. 
 
 A decree is not evidence unless final. Pm v. Curcll, 6 M. & W. 234. 
 
 The determination of the Privy Council to advise the Crown to grant 
 a petition for a charter under the stat. 1 Vict. c. 7G, 0. 49, is not con- 
 clusive as to its validity. Rutter v. Chapman, 8 M. & W. 1. 
 
 The judgment of a foreign court is not binding if constituted by per- 
 sons interested in the matter in dispute. Price v. Dewhurst, 8 Sim. 279. 
 
 The Judge of the Belper Court of Requests erected by 2 & 3 Vict, 
 c. 18, has no pov/er to alter at one Court without consent a judgment in 
 favour of the defendant into a judgment of nonsuit pronounced by mistake 
 at another, and if he does and the plaintiff proceeds in a second plaint for 
 the same cause of action, the latter proceedings are a nullity, and the 
 defendant may so treat them, and the Court of Queen's Bench will set 
 them aside even after verdict. Webster v. Mason, 8 Dowl. P. C. 705. 
 
 The proceedings by foreign attachment in the Tolzey court, Bristol, as 
 set out upon error, appearing to have been commenced without issuing 
 and returning a writ of summons; this Court set aside the judgment 
 therein, at the instance of the garnishee. Bruce v. Wait, 1 Scott, N. S. 
 81. 
 
 Neither the issue delivered, nor the Nisi Prius record in an action be- 
 tween the same parties, is admissible as proof of the facts stated on the 
 pleadings, where no judgment had been had. Holt v. Miers, 9 C. & P. 
 191. 
 
 Decree oj^ Alimony, Proof of, p. 302. 
 
 A decree of the Court of Arches for alimony is not admissible in evi- 
 dence without proof of the proceedings in the suit. Where a suit is 
 removed by appeal from the Consistory Court to the Court of Arches, 
 the judgment of the Court of Arches is not admissible in evidence, with- 
 out showing that Court to be duly in possession of such suit by producing 
 the proofs of appeal, viz. the transcript of the proceedings sent from the 
 Court below. Leake v. Marquis of Westmeath, 2 Mo. & R. 394. 
 
 Liguisition, p. 306. 
 
 Where the inquisition alleged the offence on a day not arrived, by mis- 
 takingly using the words " year aforesaid," it was quashed. Jt. v. Mitchell, 
 7 C. & \\ 800. 
 
 On a coroner's inquisition, several jurors being of the same name, it is 
 not necessary to distinguish them by their trades or places of abode.
 
 JUDGMENT. 611 
 
 Where it alleged that parties were feloniously present, then and there 
 aiding, &c. ; held insuOicient, as the word " feloniously" only applied to 
 the word " present," and not to the latter words ; but want of time and 
 plaee to the coneluding averment, " and so the jurors, &c." was held not 
 to be material. R. v. Nic/iolas, 7 C. ik W 538. 
 
 If the jurors sign by the initial Christian names, as they usually do, it 
 is suffieient if their names appear at length in the body. 7^ v. Brotvulow, 
 3 P. &D.52 ; and 8 Dowl. 157. 
 
 Deposition, Evidence of Reputation, p. 319, 
 
 In an action for infringement of a ferry, depositions in a suit in the 
 Duchy Court, made after interlocutory orders, for preserving the status 
 quo, until a final decision upon the rights of the parties was had, no final 
 decree ever being made, is inadmissible as evidence of reputation : a 
 judgment of the matter directly in issue, although between other parties, 
 being evidence not of any specific fact existing at the time, but of an 
 adjudication of a competent tribunal upon the state of facts and the ques- 
 tion of usage at that time ; but an interlocutory order of such a nature 
 involves no judgment upon the rights of the parties. Fim v. Curell, 
 G AJ. (.V W.234. 
 
 Pleadings and depositions, and a decree in a former suit, the same sub- 
 ject being in issue, are admissible, as showing the acts of parties who 
 had the same interest in it as the plaintiff. Lo^-tcn, Viscumit, v. Loid 
 Kingdon, 4 CI. & F. 2Gg. 
 
 Examination of Witness, 1 IVill. 4, c. 22, p. 323. 
 It is no ground of objection to a rule for examining a witness viva voce 
 before the master, pursuant to 1 W. 4, c. 22, s. 4, that it is suggested 
 that he is unwilling to submit to cross-examination, or that he is the son 
 of the party applying, if he appears to be independent of his father's 
 influence. Carruihers v. Graham and others, 9 Dowl. 947. 
 
 Examinatioti of Witnesses on Interrogatories, p. 323. 
 
 It is sufficient to obtain a commission, that the witnesses are out of 
 the jurisdiction, and it is immaterial that the action is of a criminal 
 nature. Norton v. Lord Melbourne, 3 Bing. N. C. 67 ; 3 Sc. 398; and 
 5 Dowl. 181. 
 
 It is not necessary to state the names of the intended examiners on 
 applying for a rule for a commission, as it may be done when the rule is 
 discussed. Fearonv, White, 5 Dowl. 713. 
 
 The commission directed to judges of a foreign court need not require 
 the commissioners to be sworn, i'onsford v. 0^ Connor, 5 M. & W. 673 ; 
 and 7 Dowl. 866. 
 
 An order for a commission to examine witnesses abroad was allowed to 
 be extended to liberty to cross-examine viva voce, such examinations to 
 be reduced into writing, and returned with the commission. Foil v. Rogers, 
 3 Bing. N. C. 780; and 5 Dowl. ()32. 
 
 s s 4
 
 612 appendix: — deposition. 
 
 Where the commission required that when the examinations were taken 
 the same should be sent ; held, that copies taken by the foreign Court of 
 Commerce, to whom the commission had been directed, and certified by 
 their officer, and transmitted under the seal of the Court, could not be 
 read. Clau v. Stephenson, 7 Ad. & Ell, 185. 
 
 A witness in imminent danger of death examined de bene esse, is living, 
 and capable of being examined at the hearing of the cause, such examina- 
 tions are inadmissible. Weguelin v. Weguelin, 2 Curt. 263. 
 
 A rule to examine witnesses abroad will be granted, if the names of 
 some of the witnesses proposed to be examined are mentioned in the 
 affidavits, although the names of others are not. Beresford v. Easthope, 
 
 8 Dowl. P. C. 294. 
 
 A rule to examine on interrogatories a witness alleged to be confined 
 to her bed by infirmity, refused without the affidavit of a surgeon stating 
 the nature of the complaint, and belief that the witness would never be 
 able to attend the trial. Davis \. Loxundes, 7 Dowl. 101. And see 
 Desviond v. Vallance, 7 Dowl. 590. 
 
 An examination of a witness, viva vuce, before the master, under the 
 1 W. 4 c. 22, cannot be taken until after issue joined. Mondell v. Steele, 
 
 9 Dowl. 812. 
 
 The Couit will grant a rule in the first instance for quashing a com- 
 mission to examine witnesses pursuant to 1 W. 4, c. 22, s. 4, where the 
 commission has been granted, and the application has been made at the 
 instance of the plaintiff. Hodges v, Daly, 8 Dowl. 308. 
 
 The defendant obtained an order for postponing a trial until the sitting 
 after Hilary term, and for a commission to examine witnesses abroad, 
 the commission was not returned until the following November ; held 
 that the evidence taken under it was inadmissible. Steinkeller v. Neivton, 
 
 8 Dowl. P. C. 579. 
 
 In an action at the suit of the Crown, the Court has no power to issue 
 a mandamus for the examination of witnesses in India. R. v. Wood, 
 
 9 Dowl. 310. 
 
 Froqf of Deposition on Interrogatories, p. 324. 
 
 In order to let in the deposition of a witness examined on interrogato- 
 ries, his absence must be shown by some one who can speak to the fact 
 of his own knowledge ; proof of inquiries made at the residence of the 
 witness and of answers given is not enough. Robinson v. Markes, 2 Mo. 
 & R. 375. 
 
 The depositions of a witness examined on interrogatories are admissi- 
 ble, though it appeared that on his examination he referred to papers 
 which he refused to allow the commissioners to see. Steinkeller v. Neiu- 
 ton, 2 Mo. & K. 372. 
 
 Identity of Parties, p. 326. 
 Where, on a former trial of the title to the same property, on an eject- 
 ment by the same lessors of the plaintiff against a different defendant, a 
 deed was given in evidence on the part of the defendant, and the limi-
 
 ENTRY ACCOMPANYING AN ACT. 613 
 
 tations in it were stated in Court by the defendant's eonnsel ; held, tliat 
 a copy of the short-hand notes of that statement was not receivable in 
 evidence on the part of the same lessors of the plaintiff, in a second eject- 
 ment against another party. Doc v, lioss, 7 M. cS,: W. lO'i. 
 
 But qu. whether such evidence would not have been receivable had the 
 parlies been the same. lb. 
 
 It is no objection at Nisi Prius to the reception of depositions taken on 
 interrogatories, that there was an alleged breach of faith on the part of 
 the defendant in examining witnesses on interrogatories at all. But if 
 there was any irregularity in proceeding with the commission, as for in- 
 stance, if it were executed without any notice to the plaintiff to enable 
 him, if he pleased, to put cross-interrogatories, such irregularity is a good 
 objection to the admissibility of the depositions, and the Court, if they 
 have been received at Nisi Prius, will grant a new trial, and direct a fresh 
 commission to be issued. Stcinkeller v. Newton, 9 C. & P. 313, 
 
 Where a witness, who had been examined on interrogatories in a foreign 
 country, stated in one of his answers the contents of a letter which was 
 not produced ; it was held, on the trial of the cause in England, that so 
 much of the answer as related to the contents of the letter was not re- 
 ceivable in evidence, although it was urged in support of its admissibility 
 that there were no means, as the witness was out of the jurisdiction of the 
 English courts, of compelling the production of the letter. 
 
 Pleadings not Evidence, p. 337. 
 Where a special plea has been demurred to, the defendant's counsel has 
 no right at the trial to allude to the statement in it, in his address to the 
 jury. Ingram v. Laivson, g C. & P. 326. 
 
 Entry or Declaration by a Third Person, p 346. 
 
 Tn the case of Furdson v. Clegg, ext. after Michaelmas Term 1841, the 
 question was much discussed whether there was any substantial distinc- 
 tion between a written entry and an oral declaration by a witness of the 
 fiict of his having, as the agent of another, received rent in respect of 
 particular land. The declaration was made by a yeoman who had been 
 employed for two years by a steward to collect the rents, and the decla- 
 ration to the steward proposed to be given in evidence was, *' M. N. paid 
 me the half year's rent, and here it is." The Court heard the question 
 argued, 1st. on the admissibility of the evidence as being a declaration 
 against interest, and afterwards whether it was admissible as a declaration 
 made in the course of discharging a duty. The Court took time to con- 
 sider, intimating a present opinion in favour of the admissibility of the 
 evidence. 
 
 Parol evidence is admissible of declaration made by a devisee to prove 
 that she was merely a trustee. Strode v. Winchester, 1 Dick. 3^7, against 
 interest. 
 
 Entry accoynpanying an Act, SfC. p. 351. 
 
 Upon an assignment of perjury iu an answer in Chancery, by the de«
 
 614 appendix: — entry accompanying an act. 
 
 fendant, it being material whether an annuity payable to the ilefendant or 
 
 B. his trustee, had been paid; held, that the clerk of JS. might be asked, 
 " at the time he received money from B. to pay in at his bankers, what 
 did he say about the money ?" held, that the answer was receivable as a 
 declaration made by an agent, acting at the time within the scope of his 
 authority. R. v. Hall, 8 C. & P. 3,58. 
 
 Where the defendant's son was alleged to have warranted a horse, as 
 agent to the defendant, and, to prove the authority, evidence was offered 
 of the son's declaration to a stranger, held inadmissible, as not made in 
 the course of any bargain and sale for the horse. Allen v. Denstone, 8 
 
 C. & P. 760. 
 
 Declaration bij an Owner not Evidencejbr one tvho claims through him 
 against one tvho docs not claim in Privity, 8^c. p. 354. 
 
 Declarations by persons holding negotiable securities under the same 
 title are admissible, but the right of a party holding under a good title 
 is not to be cut down by an acknowledgment from the owner that he had 
 no title. Per Parke, B. Woollwaij v. Rotoe, 1 Ad. & Ell. 114, 
 
 Declaration by an Intestate as to Property. 
 Where the intestate had long lived with the defendant, and owed her 
 for five years' rent, and it was proved that some time before his death he 
 had said that she should have what property he had on the premises for 
 what he owed, and the jury having found a verdict for the defendant, 
 the Court held that there was a sufficient delivery if the jury believed the 
 witness as to the declaration, and refused to disturb the verdict. 
 Royston v. Hanlcey, 2 M. & Sc. 381. 
 
 Declaration by one no longer interested. 
 Where a party, after a post-nuptial settlement, mortgaged the same 
 premises ; held that as his declarations could only bind him whilst the 
 interest remained in him, his declarations as to the consideration paid by 
 the subsequent purchaser were inadmissible against the claimants under 
 the settlement, which would be^^ to enable him to cut down his own 
 previous acts. Doe v. Webber, 3 Nev. & M. 586. 
 
 Entries by Parties, p. 3,35. 
 
 A letter written by a party can only be made evidence for him in his 
 own cause as a notice or demand. Richards v. Frankum, g C. & P. 221. 
 
 So as a general rule an entry by a party or his agent not after his death 
 admissible in favour of his representative. An exception obtains in the 
 case of a vicar or rector. 
 
 A bill is filed by a vicar for tithes, an account given in by a seques- 
 trator to the bishop in the year 1600, containing a charge and discharge, 
 is evidence for the vicar. Finch v. Messing, cited in Sharp v. Lee, 
 2i.k W. 472. 
 
 Entry by a Steward, p. 357* 
 
 NVhere the entry of a deceased steward showed the balance in his own
 
 BY AN AGENT. G15 
 
 favour, held that it did not affect the admissibihty of a particular entry 
 charging liimsclf. Williams v. Greaves, 8 C. & 1*. 592. 
 
 Entries made by a steward in his books in his own favour, and uncon- 
 nected with other entries a«,^^iM.st him, held not admissible as evidence of 
 the focts stated in them. Knight v. Marquis of Walerford, 4 Youngc & 
 C. 284. 
 
 Upon a covenant in a lease of a colliery for payment of one-third of 
 the money arising from tlie sale of coals raised and sold, coupled with 
 another to keep true accounts of all coals raised, and to deliver true 
 copies to the lessor ; held, that the calculation must be made on the 
 amount of coals sold, and not of the money actually received ; held also, 
 that the accounts kept by the account keeper appointed by the parties 
 working the colliery were, after his death, admissible in evidence, as 
 charging himself, and as admissions made by the lessee's agent. Edivards 
 V. Rces, 7 C. & 1'. 340. 
 
 Entry in course of Business, p. 359. 
 
 On an indictment against the keeper of Newgate for refusing to re- 
 ceive parties committed by Middlesex justices on misdemeanors, it being 
 the course of business of the office of the city solicitor to indorse notices 
 and orders when served, the Judge (although there were no corrobo- 
 rating circumstances, received the indorsements as evidence of service, 
 the solicitor, the clerk, and the keeper being all dead. R. v. Cope, 7 C. 
 & P. 720. 
 
 Bij an Agent, S^c. p. 361. 
 
 In the case of Kudd v. Wright, cor. Lord Lyndhurst, July 11,1 832 
 (cited Phill. on Ev. 328. 8th Edit.), a survey made for Trinity College, 
 Cambridge, impropriators of the living of which the plaintiff was vicar, 
 stated certain closes as titheable to the vicar, Lord Lyndhurst said, that 
 although this would be evidence against the College in a suit between 
 them and the vicar, it would admit of consideration whether it was evi- 
 dence against a third person. He held, that a marginal note which stated 
 that the closes specified as titheable to the vicar formed part of a certain 
 close mentioned in the terriers, was not admissible, being in the nature of 
 a collateral and incidental observation made by the party who procured 
 the survey. It is observable, that independently of this objection, there 
 appears to have been no sufficient ground for admitting what, as against 
 a land-owner, was but a declaration by the College that the incumbent 
 of their own living was entitled to tithe in kind out of particular land. 
 
 In the case o? Doe v. Vowles, 1 Mo. & R. 261, the question was, whe- 
 ther the defendant had enjoyed a possession adverse to the mortgagee 
 for more than 20 years. To prove that the mortgagee had interfered with 
 and repaired the premises, a carpenter's bill debiting the mortgagee, with 
 a receipt thereon in the carpenter's writing, for work done on the pre- 
 mises, was offered in evidence. The carpenter was dead, and the bill and 
 receipt came from the papers of the mortgagee in the hands of his re- 
 presentative. Littlodalc, J. rejected the evidence, saying " the cases
 
 (J16 appendix: — entries. 
 
 have gone far enough. There would be no limit if such a paper as this 
 were admitted." It is to be observed, that in this case there was no 
 evidence nliunde to show that the carpenter in fact ever did the work ; 
 the foundation was wanting upon which the reception of such entries 
 seems in other cases to have been built ; and in the case of Highcim v. 
 Ridgvoay (as is observed in a note by the learned reporters of Doe v. 
 Vowles), Lord Ellenborough in giving judgment relied on the fact that 
 the work had been done to which the entry of charges related. 
 
 Ejectment for a cottage, alleged to be a parish house, and into which 
 paupers had been placed by tlie parish officers, which the lord of the 
 manor alleged (but without proof) he had done jointly with them, it 
 appeared that the lord had induced the pauper in possession to leave, and 
 had put the defendant in ; held, that a private entry of a deceased 
 builder of repairs done, and paid by the lord, was inadmissible ; held 
 also, that the lord having come in under a person occupying under the 
 parish, was estopped from disputing their title. Doe d. Uaden v. Burton, 
 9 C. & P. 254. 
 
 Js to ivhatjhcts admissible, p. 363. 
 A. and B. having joined in a note to C, the amount of which was paid 
 by A. on indorsement by C. (since deceased) of the receipt of the money 
 as originally advanced to B., is evidence as well of the payment by A. 
 as of the liability of B. to A. Davies v. Humphreys, 6 M. & W. 153. 
 
 In the above case, Parke, B. observed, that the authorities had gone 
 far beyond the extent of making a memorandum of receipt or payment 
 to be evidence of the mere fact of payment, and that the entry of a pay- 
 ment against the interest of the party making it, has been held to have 
 the effect of proving the truth of other statements contained in the same 
 entry, and connected with it, as in the cases of Higham v. Ridgvoay and 
 Doe v. Robson ; and that, without over-ruling those cases, the Court could 
 not hold the memorandum in question not to be evidence of the truth of 
 the whole statement in it, and consequently to be evidence not merely of 
 the payment of the amount by A. to C, as for a debt due from B. as 
 principal, but also of the fact that the debt was due from B. to A. The 
 e^ect of the evidence was for the jury. 
 
 In trover for plates, etchings, and engravings; plea, that they were 
 detained upon an agreement as a security for a sum due from plaintiff, 
 and issue as to the sufficiency of a sum tendered in discharge of the lien ; 
 held, that the amount of the sum tendered was a material fact to be 
 traversed, and was not the less material by being laid under a videlicet; 
 the plea also alleging a retainer of the defendant on divers days and times 
 to execute particular works, whereby the plaintiff became indebted, &c., 
 and that the defendant detained the plates, &c. as a security ; held, that 
 a replication, alleging that the work was done under distinct contracts, 
 was not an immaterial issue j held also, that an entry by the plaintiff's 
 deceased clerk, admitting the receipt of a sum for the purpose of the 
 tender, and going on to say that it was not accepted, was admissible as
 
 ENTRIES BY THIRD PERSONS. G17 
 
 an entry of a fact within the party's knowledge, and subjecting liim to 
 a pecuniary demand. Marks v. Lafiee, 3 Bing. N. C. 408 ; and 4 Sc. 137. 
 
 jBy a deceased Occupier, p. 365. 
 
 In ejectment the declarations of a deceased occupier as to the party of 
 whom he held them as tenant, are admissible. Doc d. Marjoribanks v. 
 Green, 1 Gow's C. '227. 
 
 Statements of a deceased occupier as to the party of whom he held, 
 being admissible to cut down his own title, held admissible on a writ of 
 right by a party claiming through the same party, whatever might be 
 their effect. Came dem. Nicfwll ten., 1 Bing. N. C. 430. 
 
 The question being whether Scorhill was parcel of the plaintiffs 
 estate, or part of the waste of Morrall, the plaintiff having no other in- 
 terest than the right to turn on cattle, evidence was admitted of declara- 
 tions by a former owner and occupier of the plaintiff's estate, that he had 
 no right to enclose the Down (the locus in quo), although the owner 
 was living and in Court. This was admitted on the ground of identity 
 of interest. Woollway v. Roive, 1 Ad. & Ell. 114. 
 
 Proof by Attesting Witness ivhen necessary, p. 370. 
 
 "Where a deed executed by a corporation contained a memorandum 
 written on the paper to which the seal was affixed, purporting that it was 
 sealed by order of, &c., and subscribed " A. B., secretary ;" held not to 
 be an attestation, but merely a memorandum that the act was done by 
 the order, &c. Doe d. Bank of England v. Chambers, 4 Ad. & Ell. 410 ; 
 and 6 N. & M. 539. 
 
 Where ^., an equitable mortgagee, gave a schedule of the deeds depo- 
 sited, describing one as executed by B. ; in ejectment by the mortgagee 
 against a party coming in under the mortgagor ; held, that the subscribing 
 witness ought to be called. Doe v. Penfold, 8 C. & P. 536. 
 
 Where secondary evidence, by proof of the copy of an original deed, 
 not produced, is admitted, it is unnec€!ssary to call the attesting witness, 
 although the original appears to have been subscribed by one, Poole v. 
 Warren, 3 Nev. & P. 693. 
 
 A subscribing witness who resides in Dublin is out of the jurisdiction 
 of the Courts of this country, so as to lot in proof of his handwriting, the 
 same as if he were dead. Doe d. Counsell v. Caperton, 9 C. tS: P. 112. 
 
 If, since the execution of a deed, the subscribing witness to it has 
 become blind, a party suing on the deed must, if non est factum be pleaded, 
 call the subscribing witness, and it is not enough to prove the handwriting 
 of the parties executing the deed and of the subscribing witness. Crank 
 V. Frith, 9 C. & P. 197. 
 
 Deedf Proof by attesting Witness, p. 373. 
 A party shortly before his death executed an irregular deed of gift, and 
 delivered it before the attesting witnesses as his last act and deed, but 
 upon its being suggested that if delivered to the party it would take the pro-
 
 618 ATPENDIX : —ATTESTING WITNESS. 
 
 perty from him in his lifetime, he desired a third party to keep it, and not 
 to give it to the grantee in his Hfetime ; held that the delivery was com- 
 plete ; held, also, that if a party execute a deed, supposing it to operate 
 in one way, whereas it really operated in another, such instrument would 
 be invalid. Doe v, Bennett, 8 C. & P. 124. 
 
 Where the attestation of a deed is in the usual form, and the attesting 
 witness recollects seeing the party sign the deed, but does not recollect 
 any other form being gone through, it will be for the jury to say on this 
 evidence whether the deed was not duly signed, sealed, and delivered, as 
 all that is very liicely to have occurred, though the witness did not remem- 
 ber it. Burling v. Pater son, 9 C. & P. 570. 
 
 Secondary Proof in Absence, SfC. p. 379. 
 
 A deed executed in the presence of a subscribing witness proved to be 
 abroad at the time of the trial, is admissible, on proof of the witness's 
 writing, notwithstanding the power to examine on interrogatories under 
 1 W. 4, c. 22, s. 4. Glubb v. Edwards, 2 Mo. &. R. 300. 
 
 It is extremely injudicious to have a will attested by marks, on account 
 of the difficulty of proving their identity. A will was attested by the 
 signature T. B. V., and the marks of C. and M. D. All these were 
 dead ; the signature of Mr. V. was proved, and the daughter of C. and 
 M. D. proved that they were both dead, and that when alive they lived 
 near the testator, no other persons of those names living anywhere in that 
 neighbourhood; and this witness also stated that M. D. could not write, 
 and C D. could write his name only : held sufficient. Doe d. Coiinsell 
 v. Caj^erton, 9 C. & P. 112. 
 
 Thirty Years Old, p. 381. 
 
 Letters more than thirty years old, produced from the proper custody, 
 require no proof. Doe v. Beynon^ 4 P. & D. 193. Beer v. Ward, Phill. 
 on Ev. 652, note (?<). 
 
 Evidence that the party to whose mother letters were addressed was 
 living with her mother at the time of her death, when the keys and papers 
 were given up to her, is sufficient evidence of proper custody to warrant 
 the reading of the letters. Doe v. Brynder, 4 P. & D. 193. 
 
 Where, in ejectment by mortgagee, a prior deed of settlement was 
 produced, found amongst the papers of the mortgagor, lately deceased, 
 he being the tenant for life under it ; held, that the custody was suffi- 
 cient to render it admissible without proof of execution, being above 
 thirty years old. Doe v. Samples, 3 Nev. & P. 254. 
 
 Proof in case of Loss, p. 387. 
 
 Where the copy of an ancient grant in the chartulary of an abbey had 
 been received, among other documents, to establish the antiquity of a 
 weir on a public river, and objection was made to the whole class of 
 evidence, which was afterwards held to have been properly received, and 
 the objection as to the reception of the copy, no search having been first 
 proved to have been made for the original, was not particularly pressed,
 
 INSTRUMENT — POSSESSION. 619 
 
 the Court would not allow it afterwards to prevail, it being one of many 
 others unquestionable, and its rejection not sufficient to have varied the 
 verdict. IViUiams v. IVilcov, 3 Nev. cS: P. 60G. 
 
 In an action against carriers for breach of an entire contract to carry 
 goods, to be delivered at two places, the plaintiff pniduced at the trial a 
 note containing the terms of carrying the one moiety, and it was proved 
 that the usual note was delivered with the other moiety ; held, that it 
 appearing to contain the terms of the contract as to that part, and that 
 no sufficient search had been made for it, secondary evidence of its con- 
 tents could not be received. T/iovipson v. Travis, 8 Sc. 85. 
 
 Where an objection to the admissibility of a copy of an ancient grant, 
 on the ground of no search having been made for the original, was not 
 particularly called to the attention of the Judge at the trial, and being one 
 of many documents tending to prove a right which was unquestionable, 
 and the admission could not have varied the verdict, the Court refused, 
 on motion for a new trial, to allow the objection to prevail. Wilcox v. 
 Wilcoxy 8 Ad. & Ell. 314. 
 
 Secondary Evidence, p. 393. 
 
 An examined copy of an entry in the Middlesex registry of deeds was 
 received as secondary evidence of the original, which could not be 
 obtained. Collir,s v. Maule, 8 C. & P. 502. 
 
 So entries of the admission of a party to the freedom of a city com- 
 pany, duly vouched by other freemen, was admitted, not on the ground 
 of hearsay, but as of an act done by the company, viz. receiving the 
 party as of a certai'n description, who and what he was, to be entitled to 
 admission. Collins v. Maule, 8 C. & P. 502. 
 
 There are no degrees of secondary evidence ; but where a party is 
 entitled to give secondary evidence at all, he may give any species of 
 secondary evidence within his power ; a deed may be proved by parol, 
 although an attested copy exists. Doe v. Ross, 8 Dowl. 389; and 7 M. 
 cSc W. 102. 
 
 Where the surrender of a copyhold was by a power of attorney, it 
 was held that the court-roll, stating it to be by power of attorney, was 
 secondary evidence of the' power of attorney, if it could not be found. 
 Doe v. Caperton, 9 C.& P. 115. 
 
 Notice having been given to produce letters written by the defendant 
 to the defendant's agents in America, the defendant agreed to produce his 
 letter- book at the trial ; the letters contained in the letter-book produced 
 are secondary evidence, but the defendant is not entitled to read other 
 letters contained in it, the fact of the copies being contained in a 
 merchant's letter-book is evidence against the party that the letters had 
 been sent. Slurge v. Buchanan, 2 P. & D. 573. 
 
 A party after refusal to produce a document, and secondary evidence 
 given of its contents, cannot afterwards produce the document as his own 
 evidence. Doe v. Hodgson, 4 V. & D. 142.
 
 620 APPENDIX : — INSTRUMENT.— POSSESSION. 
 
 The copy of a copy o^aji.fa. is not receivable in evidence. Evering- 
 ham V. Ruundell, 2 Lew. Cr. Cases, 157. 
 
 Where the witness to prove a parol letting stated that the plaintiff at 
 the time read some minutes taken down in pencil, to which the defen- 
 dant assented, and they were afterwards entered by the witness in a book 
 from which he refreshed his memory ; held, that there being no proof 
 what the minutes were, the parol evidence was admissible, and that the 
 minute need not be produced. Trevohitt v. Lambert, 10 Ad. & Ell, 470 ; 
 and 3 P. & D. 676. 
 
 The Court will not receive secondary evidence of an instrument with- 
 out notice to produce, upon the mere proof of its being in the possession 
 of the opposite party. Knight v. Marquis of IVatetford, 4 Younge & C. 
 284. 
 
 Notes on the back of the brief of counsel on a trial at law, held ad- 
 missible evidence in a suit in equity. Cattell v. Corrall, 3 Younge h C. 
 4^3. 
 
 Possession ly the Adversary, 8^c. p. 398. 
 
 Where a deed is in the hands of an attorney, who holds it not merely 
 as attorney, but as a security for money owing to him from his client, 
 and the attorney, being called on a sybpcena duces tecum, refuses to pro- 
 duce the deed on the ground of his own lien, the party calling for the 
 production of the deed is entitled to give secondary evidence of its 
 contents. Doe v. Ross, 7 M. & W. 102. 
 
 Where a document, being scheduled in an answer in a suit in equity, 
 was deposited in that Court, and an order made for delivering it to the 
 party ; held, that it was so far within his control ; that, on failure to pro- 
 duce it on notice, secondary evidence of it might be given. Rush v. 
 Peacock, 2 M. & R. 162. 
 
 Where the minute-books of the directors of an intended joint-stock 
 company were seen, four months before the trial, in the desk of the secre- 
 tary, at the office of the company, and it was proved that he had given 
 up the key of the desk into the hands of the manager, it was held to be 
 sufficient to let in secondary evidence of the minutes, after refusal upon 
 notice to produce. Bell v. Francis, 9 C. tS^ P. 66. 
 
 Where of two defendants, G.andL., L. had suffered judgment by default, 
 a Judge's order of admission was made under the rule Hil. 4 W. 4, 20, 
 on notice that the defendant G. proposed to adduce the documents spe- 
 cified (which might be inspected), and that the plaintiiF would be required 
 to admit that they were copies of, or extracts from, original documents 
 (as they purported to be) ; and the documents were described as " copies 
 of, or extracts from, letter from plaintiff to defendant, dated, &c. :" held, 
 that this did not authorize the giving in evidence such copy, without fur- 
 ther proof of the original, though notice had been given to produce, it 
 not being proved that plaintiff had the original. Sharpe v. Lamb, 11 A. 
 & E. 805.
 
 NOTlCi; lO l'l<(JL)U(,'li. (j-il 
 
 Notice was f^ivcii lo produce IcUcrs writfcn to tlie dt (cndant's partnern 
 in New South Wales, and upon a summons to admit copies, the dclcndant 
 agreed to produce his Icltcr-book at the trial ; held, first, that proceed- 
 ings in Chancery having taken place in iS.je, when also ihe action was 
 commenced, in rtliLrencc to those letters, tiicy were to be presumed to 
 have been received back, and that a four days' notice to produce was 
 sufficient. Sturge v. Buchanan, 2 P. & D. 573. 
 
 Where a document is called for after notice to produce by the plaintiff, 
 the defendant may, during the plaintiff's case, produce evidence to show 
 the document lawfully out of his possession ; and on such evidence It is 
 solely for the Judge to determine whether secondary evidence be admis- 
 sible, and it gives the plaintiff's counsel no reply to the jury, llarvci/ v. 
 Mitchell, 2 xM. & R. 3GG. 
 
 The non-production of an original document, althougli letting in 
 secondary evidence, does not open the door to any loose secondary 
 evidence, as of a paper purporting to be only substantially a copy of" the 
 original. Everingham v. Rouudell, 2 Mo. & R. 138. 
 
 Notice to produce, p. 400. 
 
 Where enough is stated in the notice to produce to leave no doubt but 
 that the party must be aware of the particular instrument intended to be 
 called for, held feunr)cient to let in secondary evidence. Rogers v. Cus- 
 tance, 2 Mo. & R. 179. 
 
 A notice to produce all letters written by the one party to and received 
 by the other between the years 1837 and 1841, both inclusive, was held 
 sufficient to entitle the party to call for a particular letter. Morris v. 
 Hauser, 2 Mo. «k R, 392. 
 
 If a notice to produce has been duly served on a party in the cause, it 
 is not nullified by a subsequent bad service of notice on the attorney. 
 Hughes V. Budd, 8 Dowl. 315. 
 
 A notice to produce served on the party himself a week before a 
 trial is in sufficient time, although he has employed an attorney in the 
 cause. Hughes v. Budd, 8 Dowl, P. C. 315. 
 
 A cause was tried at the assizes on a Monday, the commission-day 
 being on the Thursday before. A paper was called for under a notice 
 to produce, which was served on the Saturday before the trial. The 
 attorney on whom the notice to produce was served, and also the party 
 who was his client, lived in the assize town. Held, that the service of 
 the notice to produce was not too late, and that the question in such 
 cases is, whether, under all the circumstances, reasonable notice has been 
 given. Firkin v. Edivards, 9 C. & P. 478. 
 
 In a town cause, a notice to produce a paper which might be pre- 
 sumed to be in the hands of the opposite attorney, was served at 8 p.m. 
 on the evening before the trial, at his office, on one of his clerks, who 
 had the management of the cause ; held, that the service was not too 
 late, and the paper not being produced, secondary e\idcnce was given of 
 its contents. Gibbo)is v. Poivcll, ;) C. &: P. (>34. 
 
 VOL. I. T T
 
 622 appendix: — notice to produce. 
 
 Where none of the parties Hved in the assize town, tlie plaintiff's attor- 
 ney served the defendant's attorney in the assize town, on the com- 
 mission-day, with notice to produce a paper, and offered to pay the 
 expenses of going to fetch it. The defendant's attorney said that that 
 was of no use, as the paper was not in existence ; held, that the plaintiff, 
 on the trial, might give secondary evidence of the contents of the paper, 
 as the statement of the defendant's attorney, that the paper was not in 
 existence, got rid of any objections as to the lateness of the service of 
 the notice to produce. Foster v. Pointer, 9 C. & P. 718. 
 
 Where the notice to produce was served upon the defendant at five 
 o'clock on the commission-day, he having left home for the assize town 
 nine miles distant from his ofiice, it was held to be too late. George v. 
 Thompson, 4 Dowl. 656. 
 
 A notice to produce, served late in the evening at the attorney's office, 
 after he had left, although before nine o'clock, held too late. Holt v. 
 Miers, 9 C. & P. 191. 
 
 In trespass for shooting a dog, the Judge received a copy of a notice 
 on a board fixed in the plantations, without notice to produce the 
 original. Bartholome'w v. Stephens, 8 C. & P. 728. 
 
 Proof of Deed coming Jrom the Adversary's Possession, p. 405. 
 
 Where both parties in ejectment claimed under a lease produced by 
 the defendant on notice, held that the plaintiff was not bound to prove it. 
 Boe v. Wilkins, 5 Nev. & M. 434. 
 
 Enrolment, Proof by, p. 410. 
 
 An enrolment of the deed of disposition under 3 & 4 W. 4, c. 74, 
 relates back to the date of its execution, and when enrolled within the six 
 months, enables a tenant in tail to make a good title, although the entail 
 is not barred under the statute. Cattell v. Corrall, 4 Younge & C. 228. 
 
 To prove the enrolment of a deed under the 9 Geo. 2, c. 36, the deed 
 was produced with the following memorandum indorsed thereon : " Inrolled 
 in his Majesty's High Court of Chancery the 17th day of December 1836, 
 being first duly stamped, according to the tenor of the statutes made for 
 that purpose. D. Drew." Evidence was given, that Mr. Drew was a 
 person who at the time of the trial acted as the clerk of the inrolments 
 in the Court of Chancery, and that, on the memorandum being produced 
 to him a short time before the trial, at the Six Clerks' Ofiice, which is 
 under the same roof as the Inrolment Office, i\lr. Drew acknowledged the 
 name to be his signature : held sufficient ; the memorandum having been 
 made by the proper officer, in the execution of his duty. Doe d. 
 Williams v. Lloyd, 1 Scott, N. S. 505. 
 
 The Whole to be read, p. 414. 
 See the Attorney General v. Bond, 9 C. & P. 189.
 
 RIOriT TO rjKOTN. (523 
 
 Onus Vrobaudi, p. 418. 
 
 Where an avcinicnt is essential to the claim made or plea set up, and 
 such averment is denied by the advers-ary, it seems to be generally true 
 that the proof lies on the party so averring, for otherwise his claim or 
 defence fails ; and this seems to hold, whether such essential fact be 
 averred positively or negatively. 
 
 Assinnpsit, for not delivering hay of a certain (puility ; plea, that 
 defendant tendered hay of that quality, and that the plaiiitill refused to 
 receive it ; held that, being a traverse of an allegation in the declaration, 
 the issue lay on the plaintiff. Croxvhi/ v. Page, 7 C. i<. P. 790. 
 
 liight to begin, p. 418. 
 
 In asstr))i])sit on a building agreement, the issue being whether it was 
 executed according to the specification, it was held that the plaintiff 
 was to begin. Smith v. Davies, 7 C. & P. 307. 
 
 Assumpsit by the holder against the acceptor of a bill of exchange, the 
 declaration stated that llie drawer indorsed it to the plaintiff. Plea, that 
 the bill was drawn and accepted for his accommodation, and handed to 
 the drawer that he might get it discounted; that the drawer indorsed it 
 in blank, and delivered it to one A. to get it discounted, who, against 
 good faith, delivered it to the plaintiff for a purpose unknown to the 
 defendant, of all which facts the plaintiff had notice ; the defendant 
 must begin. Lees v. Hoffstadt, g C. & P. 599. 
 
 In assumpsit the defendant pleads his discharge under the Insolvent 
 Debtors' Act, and the plaintiff by his replication denies the plea ; the 
 defendant must begin. Lambert v. Hale, 9 C. & P. 506. 
 
 The plaintiff is to prove his case to the satisfaction of the jury ; and if 
 he leave it doubtful, either from the circumstances which surround it, or 
 from the character of his witness, the defendant is entitled to the verdict. 
 Long v. Hitchcock, 9 C. & P. Gig. 
 
 Assumpsit by the marshal of the Queen's Bench prison, that in con- 
 sideration that the plaintiff would allow J. W., a prisoner for debt, to reside 
 within the rules, the defendant promised to indenuiify the plaintiff from 
 any escape of J. W. That the plaintitl' did allow /. JV. to reside in the 
 rules, and that he escaped, and the plaintiff was obliged to pay the 
 amount for which ,/. IV. was imprisoned, and other expenses. Plea, that 
 A., the execution creditor and others, conspired to cause another creditor 
 of J. W. to sue out a bailable writ against /. W. and to cause him (it he 
 should go beyond the rules) to be arrested and detained out of the rules 
 till A. could commence an action against the marshal for the escape of 
 J. IV., and that in pursuance of that conspiracy a bailable writ was sued 
 out by L., a creditor of J. JV., and a warrant granted thereon, upon 
 which J. JV. was arrested and detained out of the rules till the marshal 
 was sued for the escape ; and that /. /r. could and would have returned 
 into the rules before any action could have been commenced against the 
 marshal if he had not been so arrested ; and that the plaintiff well knew 
 
 T T '2
 
 f324 APPENDIX :— RIGHT TO BEGIN, 
 
 the premises, and would not plead the same as a defence to A.'s aciioii 
 jigainst him, and would not allow the defendant to defend that action. 
 Replication, admitting the writ and warrant, with de injuria as to the 
 residue : held, that on these pleadings the defendant should begin, not- 
 withstanding that the plaintiff would have to prove the amount of his 
 damages if the defendent failed in proving his plea. Chapmanv. Emdcn, 
 9C. &P.712. 
 
 Action for breach of contract; plea, that it was obtained by fraud and 
 covin ; ihe defendant is entitled to begin. Steinkeller v. Newton, g C. & P. 
 313- 
 
 Issue in an action on a charter-party, whether the defendant furnished 
 a sufficient cargo, and the plaintiff, after notice, refused to receive the 
 cargo offered ; the plaintiff is entitled to begin. Ridgway v. Etobank, 
 •2 INIo. &R. 217. 
 
 But where the declaration on an issue averred that the goods were not 
 the property of the plaintiffs, or eiiher of them ; plea, that the goods 
 were the property of the plaintiffs, or one of them ; it was held, that the 
 defendent has a right to begin, the affirmative lying on him, Hudson 
 V. Brown, 8 C. & P. 774. 
 
 Covenant for not leaving in repair; the plaintiff alleged that the pre- 
 mises were dilapidated, and the defendant that they were not ; the plain- 
 tiff is entitled to begin. Sotvard v. Leggatt, 7 C. & P. 613. 
 
 In an action of covenant the declaration stated, that the defendant 
 covenanted to occu[)y demised premises in a proper manner, and to keep 
 them in repair. I'-reaches, that the defendant did not occupy in a proper 
 manner, and did not keep the premises in repair. Plea, that the 
 defendant did occupy in a proper manner, and did keep the premises in 
 repair. Held, that on these issues the plaintiff had the right to begin. 
 Doe d Trustees of Worcester School v. Rowlands, 9 C. & P. 734. 
 
 Ejectment by the heir against a party claiming under a will, the latter 
 is entitled to begin (having admitted the lessor of plaintiff to be heir), 
 although the plaintiff profess to claim under an outstanding term of part 
 of the premises. Doe v. Smart, 1 Mo. & R. 476. 
 
 Where the accounts of trustees under a local Act were directed to be 
 audited, and allowed at the sessions; held, nevertheless, that they were 
 compellable to produce them before the auditors of the parish accounts 
 under the 1 & 2 Will. 4, c. 60, s. 34 (Vestry Act), but that a mandamus, 
 issued against them, ordering more than was warranted either by the 
 grievance recited or by the provisions of the Vestry Act, was bad : 
 and it was held that wherever there is anything in the shape of a return, 
 the counsel for the Crown are entitled to begin. R. v. St. Pancras 
 Trustees, 1 N. & P. 507. 
 
 To a mandamus to restore a parish clerk to the office, the rector returned 
 that he was guilty of habits of intoxication ; in an action for a false 
 return, the declaration negativing the allegations in the return, which 
 the defendant repeated in his plea ; the defendant is entitled to begin. 
 Bowles V. Neale, 7 C. & P. 263.
 
 AUGL'MENTS or COUNSEL. 025 
 
 Upon tlic pica only of payment, it is for the dcrciulant to begin ; 
 having admitted the existence of a debt, it is his duty to discharge 
 himself from it. Richardson \. Fdl, 4 Dowl. 10. 
 
 In trespa'is for takiwg goods as a distress for an annuity, and also for 
 rent, it was held that, upon the issues, the annuity not in arrear, and 
 noil tenuit, the defendant is entitled to begin. Aslon v. Vcrkcs,\) C. & 
 P. 231. 
 
 In debt for a penalty under the statute against the sheriH for carry- 
 ing the plaintiff to prison within 24 hours, and plea, that it was with 
 his consent, on which issue was joined ; it was held, that the defendant 
 was entitltd to begin. Silk v. Middlesex Sheriff, 7 C. & P. 14. 
 
 Where the action is brought to recover substantial damages, and the 
 plaintiff is under the necessity of satisfying the jury as to what amount 
 they ought to be, he has a right to begin. Hoggett v. Oxley, 2 Mo. & 
 R. 251 ; and 9 C. tS: P. 324. 
 
 Arguments (ff Counsel, p. 422. 
 
 Where one of several pleas was demurred to, and issue taken on 
 others ; it was held, that notwithstanding the venire to assess damages 
 on the former, the plaintiff was not entitled to advert, at the trial, to the 
 matters in the j)lea as being admitted by the demurrer. Ingram v. 
 Latvson, 2 Mo. & R. 253. 
 
 Stmhle, where a party in a civil suit conducts his own case, counsel 
 ought not to be heard as to points of law. Moscati v. Laivson, 7 C. 
 & P. 32. 
 
 The duty of a counsel in a prosecution is, to assist in the furtherance. 
 of justice, without considering himself as acting for any side or party. 
 R. V. Thursfield, 8 C. & P. 269. 
 
 Wherever there is counsel f.)r the prisoner, the case should be opened 
 by the counsel for the prosecution. R. v. Gascoine, 7 C. <S: P. 772. 
 
 So although there be none, if the circumstances of the case are pecu- 
 liar. R. v. Bowler, lb. 773. 
 
 In opening- the case for the prosecution, counsel is entitled to state to 
 the jury declarations by the prisoner, as well as facts, i?. v. Orrell, i 
 iMo. & R. 467. 
 
 The counsel for the prosecution, in opening a case of murder, has a 
 right to put hj'pothetically the case of an attack upon the character of 
 any particular witness for the Crown, and to state that if such attack 
 should be made he shall be prepared to rebut it. He has also a right to 
 read to the jury the general observations of a learned Judge, made in a 
 case tried some years before, on the nature and effect of circumstantial 
 evidence, if he adopts them as his own opinions, and makes them part 
 of his own address to the jury. R. v. Courvuisier, 9 C. & P. 362. 
 
 Where no counsel is engaged for the prosecution, and the depositions 
 arc handed, by direction of the Court, to a gentleman at the bar, he 
 tihould, it is said, consider himself as counsel for the Crown, and act in 
 all respects as he would if he had been instructed by the [jrosecutor; and 
 
 T T 3
 
 626 appendix: — arguments oi? counsel. 
 
 should not consider himself merely as acting in assistance of the Judge, 
 by examining the witnesses. R. v. Littleton, 9 C. & P. 671. 
 
 Where different defendants appear by separate counsel, the issues 
 raised by their respective pleas being the same, only one counsel will be 
 allowed to address the jury. Sparkes v. Barrett and another, 8 C. & P. 
 442. And see Mason v. Dildibourne, 1 Mo. & R. 4G-2 ; Scale v. Evans, 
 7C. & P.593. ^ 
 
 A prisoner, since the statute, is not entitled to the privilege of two 
 statements, one by himself and another by his counsel. JL v. Biirroivs, 
 2 Mo. & R. 124; 72. V. Rider, 8 C. l^ P. 539. 
 
 His counsel cannot state the prisoner's story, nor anything which he is 
 not in a condition to prove. R. v. Beard, 8 C. & P. 142. 
 
 But where no person was present at the time to contradict the prose- 
 cutor's statement, the prisoner has been allowed to make his statement 
 before his counsel addressed the jury. -R. v. Malings, 8 C. & P. 242. 
 
 After the prisoner's counsel has addressed the jury, the prisoner cannot 
 also be heard. R, v. Boucher, 8 C. & P. 14 1 ; il. v. Rider, 8 C. cV P. 539. 
 
 Evidence and Arguments in Reply, p. 423. 
 
 In trespass for taking; goods which in one plea the defendants justified 
 on the ground of their having been fraudulently removed to avoid dis- 
 tress, it was held th.at the plaintiff might reserve his answer in reply. 
 Ashmore v. Handy, 7 C. & P. 501. 
 
 In strictness the counsel may reply, although the evidence called on the 
 part of the prisoner is only to character, although the Court would recom- 
 mend the right to be exercised only under special circumstances, it. v. 
 Stannard, 7 C. & P. G73. But see Patteson's Case, 2 Lewin's Cr. C. 262. 
 
 And the right to reply will be on the whole case, and not only on the 
 evidence to character. R. v. JVhiling, 7 C. & P. 771. 
 
 Where the order for trial of an issue directs all witnesses to be 
 examined, and the plaintiff, conceiving his case made out, declines call- 
 ing some, the Judge will do so, and the plaintiff may make observa- 
 tions thereon, and the defendant may reply on such observations. Groom 
 v. Chambers, 2 M. & Ayr. 742. 
 
 Where evidence is called only to character, the prosecutor is strictly 
 entitled to reply, although it may be for his discretion whether he will 
 do so or not. In cases of Crown prosecutions, the prosecutor is entitled 
 in strictness to reply, whether the prisoner calls witnesses or not. 1 Ry. 
 & iM. 495 ; 7 C. & P. 676. 
 
 On an indictment against two for stealing sheep, and two for receiving 
 parts of the sheep stolen, the latter of whom only called witnesses ; held, 
 that the counsel for the prosecution, although entitled to the general 
 reply, was bound to confine himself to the case of the paity calling wit- 
 nesses, the offences being separate, and the subject of distinct indict- 
 ments. R. v. Hayes and others, 2 Mo. & R. 155. 
 
 A. was charged with feloniously carnally knowing and abusing a girl 
 under ten. B. was charged with being present, aiding and abetting, yi/s
 
 VAiavNcr;. ({27 
 
 counsel c;illc(l no witnesses. /,', who luul no counsel, called a witness 
 to prove an alibi for A.', Iieltl, that this evidence was in ettcct evidence 
 for A.t and that in strictness the counsel for the prosecution liad a right 
 to reply on the whole case, but that it was .summumjus, and ought to be 
 exercised with great forbearance. R. v. Jordan, 9 C. cS: P. 118. Qii. 
 
 In case for an injury by negligent driving at L., the defendant set up an 
 alibi, viz. at /(• ; it was held, that this being a question on a new fact 
 disclosed in the defence, the plaintiff was entitled to call evidence in con- 
 tradiction of such new fact, although the general nature of the defence 
 liad been disclosed by the cross-examination, f^rig^s v. AijUiXvorlh, 
 •2 Mo. & R. 108. 
 
 A prosecutor is not entitled to call witnesses to strengthen his 
 case after the prisoner's case is concluded. The calling witnesses to 
 contradict the prisoner's witness, admits of a different consideration. 2 
 Lew. Cr. Cases, 151. 
 
 Order ofPrnnfiKshere there are several Issues, p. 424. 
 
 The same rule is held to prevail in replevin as in other actions, that 
 where any one issue is on the plaintiff, he is entitled to begin. James v. 
 Salter, 1 Mo. 6: R. 501. 
 
 / Appcaly j). 4'i8. 
 
 Wliere A. presents a petition of appeal, and B. presents a counter peti- 
 tion, praying that the former may be dismissed as incompetent, li. is 
 entitled to begin on th'e argument as to the competency of the appeal. 
 Gray v. Forbe^, 5 CI. & F. A pp. Cas. 357. 
 
 On the trial of an issue directed by the Court of Chancery to try whe- 
 ther the plaintiff was the next of kin of J. *S. (with the usual order for 
 indorsing any special matter on the record), one defendant, A. B., claimed 
 to be as nearly related to,/. 6'. as the plaintiff was, the other defendant CD. 
 set up a claim inconsistent with the cases both of the plaintiff and A. B. ; 
 held, that at the close of the plaintiff's case, C. D. should not only open 
 but prove his case, and that then A. B. should do the like, the plaintiff 
 having the general reply to both. Phillips v. Willetts, 2 IVIo. & R. 319. 
 
 Matter in Issue — Relevancy, p. 430, 
 An issue ought not to be allowed by the Court to be tried at Nisi 
 Prius which is not raised by the pleadings, unless the parties amend the 
 pleadings. Per Patteson, J. in Ellison v. Isles, 11 Ad. & Ell. GO'5. 
 
 Election by a Prosecidor, p. 430. 
 The application for a prosecutor to elect is to the discretion of the 
 Judge ; w here several houses had been burnt, and the setting each on 
 fire was alleged in distinct counts, being one transaction, the Judge 
 refused the application. R. v. Trueman, 8 C. & P. 727. 
 
 Variance, p. 430. 
 The w^ord " sheep " is nomen generalissimum, and includes all ages and 
 sexes. M^ Cully s Case, 2 Lew. Cr. Cas, 272 ; overruling Piiddefvol's 
 Case, Ry. & M. Cr. C. 247. 
 
 T T 4
 
 528 APPENDIX : — AMENDMENT. 
 
 The word '* accuse " is to be construed to have the same meaning as 
 " impute," in 7 & 8 Geo. 4, c. 29, s. 8. 
 
 In case against the sheriff for a false return, the declaration being 
 dated in ihe reign of the Queen, alleged the judgment in the reign of 
 the late King, as appeared by the record " still remaining in the said 
 Court of our said Lord the late King ;" held, that there being such a re- 
 cord, there was no variance. Leivis v. Jlcoc/c, 6 Dowl . 78 ; and 3 M. & 
 W. 188. 
 
 Amendment, p. 496. 
 
 The power of amending under the 3 & 4 Will. 4, c. 42, s. 23, is not 
 confined to any stage of the proceedings ; it was held, therefore, that the 
 Judge might amend the Nisi Priiis record, by insei ting the date of the 
 writ of summons. Cox v. Painter, 1 Nev. & P. 581. 
 
 A judge cannot give leave to amend, under 4 & 5 W. 4, c. 42, after 
 verdict. Doe v. Long;, 9 C. & P. 777. 
 
 In cases of doubt the Judge at the trial will allow amendments; because 
 that section provides a remedy if the Judge allows an amendment which 
 ought not to be made, but gives no remedy in any case in which the 
 Judge has refused to allow an amendment. Jenkins v. Phillips, 9 C. & P. 
 766.° 
 
 The record was allowed to be amended by inserting a count for goods, 
 which was in the declaration, and issue delivered. Ernest v. Brotvn, 
 2 Mo.6i R. 13. 
 
 An amendment by substituting a count in trover for one for negli- 
 gence in tlic custody of the plaintiff's goods, was allowed after issue 
 joined, and a peremptory undertaking to try. Storj/ v. Watson, 2 Sc. 
 842. 
 
 In Assumpsit. 
 
 Assumpsit on warranty of soundness of a horse on a contract of ex- 
 change of horses, the omission to allege as part of consideration, the 
 plaintiffs undertaking to warrant is a fatal variance, and Coleridge, J., 
 refused to amend. Liv. Sp. Ass. 1838. 
 
 A declaration stated that the plaintiff became and was tenant to the 
 defendant on the terms contained in articles of agreement, whereby the 
 defendant agreed to grant the plaintiff' a future lease for 21 years, and 
 averred that the defendant promised that he should hold the premises 
 without hindrance, &c. from the defendant, and alleged as a breach 
 that the plaintiff was ejected by a person having title under a previous 
 lease. Held, that a Judge had no power under the 3 & 4 W. 4, c. 42, 
 s. 23, to amend the declaration by such alterations as were necessary in 
 order to treat the agreement, not as a demise, but as a contract for a 
 future lease, and make the breach consist in the defendant having no 
 title to grant the lease. Brashier v. Jackson, S Dowl. P. C. 784. 
 
 Where the amendment sought to be made, stated virtually a new con- 
 tract and a new breach, the case Mas held ncit to be witliin the statute; 
 held, also, that an amendment of the record must be made during the
 
 AMENDMENT. 629 
 
 trial and before verdict, and the Judge cannot give a party leave to 
 amend on a future day, Drashicr v. Jackson, 6 M. & W. ^^g. 
 
 Where in assumpsif for money advanced to a third party, on the de- 
 fendant's guarar.tce, the effect of it, as stated in the declaration, being to 
 extend the liability beyond the fair import of the terms of the instrument 
 when produced in evidence; it was held, that it was a case within the 
 () Geo. 4, c. 15, and that the record might be amended at the trial, but 
 that the defendant should be allowed the costs occasioned by such mis- 
 statement of the claim. Smith v. Brandram, 9 Dowl. 430. 
 
 The declaration on a charter party (on a voyage from A. to some port 
 in 0; to touch at C. for orders as to the loading, and with option then to 
 determine the voyage,) went on to allege a promise to have an agent at C. 
 to give such orders or exercise the option, which the Judge considered 
 to be only intended as a statement of the legal effect, and not of a sub- 
 stantive part of the contract; held, that he had the right, and had pro- 
 |ierly exercised the power, of amending the declaration by striking out 
 t!ie allegation and inserting a correct one as to the legal effect, although 
 the defendant had gone to trial with the intention of contesting the original 
 allegation. WhitxviU v. Scheer, 8 Ad. & Ell. 301 ; and N. & P. 398. 
 
 In assmnpsit on a wager that a railroad would be completed by a cer- 
 tain day for the general conveyance of passengers, and the wager proved 
 was simply that it would be completed, the Judge permitted an amend- 
 ment by striking out those words ; and it was held to have been properly 
 done, as imposing an increased burthen on the plaintiff", and not being 
 an amendment in any material particular. Evans v. Fryer ^ 2 P. & D. 541. 
 
 Where in assumpsit the declaration stated the undertaking to erect 
 a building, and fit it up according to certain plans, by a day stated, for 
 the sum of 20 1., plea, non assumpsit^ and that the agreement was re- 
 scinded ; the contract proved was for the erecting certain seats (for the 
 coronation) to be completed four or five days before, &c., for the sum of 
 25Z., and it appeared that no plans were ever agreed upon; held, that the 
 judge properly allowed the record to be amended according to the true 
 contract, it not being material to the merits of the case. Ward v. Pear- 
 son, 5 M. & W. 16 ; and 7 Dowl. 382. 
 
 The plaintiff", a journeyman carpenter, sued his master on the custom 
 of the trade, by which the master, when the journeyman is sent to work 
 in the country, has to pay the coach-fare of the man back to London, 
 and also the back carriage of his tools. It appeared that this custom 
 did not apply where the man, while in the country, was dismissed for 
 misconduct, or dismissed himself. The declaration was founded on a 
 supposed general custom without these exceptions ; but the Judge at Nisi 
 Prius allowed the declaration to be amended by inserting these exceptions, 
 and adding averments that the plaintiff" was not dismissed for cause, and 
 did not dismiss himself, the plaintiff" paying the costs occasioned by this 
 amendment. Read v. Dunsmore, 9 C. & P. 588. 
 
 The omission in an action on an agreement (containing various stipula-
 
 630 APPENDIX : — AMENDMENT. 
 
 tions on either side, not dependent on each other) is not a around of 
 nonsuit; and if it were, might it seems, be amended at tl)c trial. Clarke 
 V. MorrcU, 2 Scott N. S. 17. 
 
 Bill r>f Exchange. 
 Declaration on a promissory note for 250 /., made by the defendant, 
 dated the 9th of November 1838, payable to the plaintiff:? or their order on 
 demand. Flea, that the defendant did not make the note. 'I'he proof at 
 the trial was of a joint and several promissory note for 250 /., made by 
 the defendant and his wife, dated the 6th of November 1837, payable 
 twelve months after date. There was no proof of any other note between 
 the parties : — Held, that this was a variance properly amended at Nisi 
 Prills. Beckett v. Button, 7 M. & W. 157 ; 8 Dowl. 865. 
 
 Distringas. 
 
 An amendment was allowed at nisi prius by indorsing on the distringas 
 the execution by the sheriff, and the record re entered. Masters v. 
 Lctois, 2 iMo. t!^' R. 59. 
 
 Ejectment. 
 
 Where the demise in ejectment was laid on a day, omitting the year, 
 held that it was not a case within the Act, for amending by inserting the 
 year, as to which the title was proved, but that the omission was not a 
 ground of nonsuit ; and sembh:, the defendant might apply to have the 
 correct year inserted. Doe v. Heather, 8 M. & W. 158. 
 
 Where at the trial it appeared that the day of the demise was antece- 
 dent to the right of entry for forfeiture, it was held to be a case for 
 amendment, under 3 & 4 Will. 4, c. 42, s. 28, and that the terms of the 
 rule to confess, &c., would apply themselves to the declaration when 
 amended. Doe v. Leach, y Dowl. 877. 
 
 The Court refused to allow a declaration in ejectment to be amended 
 by inserting the name of John for James, although no party had appeared. 
 Doe d. Street v. Roe, 8 Dowl. 444. 
 
 Fraudulent Representation. 
 In case for a fraudulent misrepresentation, the declaration being sub- 
 stantially proved, the Judge allowed the statement of the terms of the 
 representation to be amended under 3 & 4 \\ ill. 4, c. 42, s. 23. Mash 
 v. Densham, 1 Mo. & R. 442. 
 
 Indictment. 
 Where an indictment against the prisoner for the murder of her hus- 
 band described her as "the wife of," &c., the Judge directed the 
 description to be amended, by describing hcr as " widow." R. v. Or- 
 chard, 8 C. & P. ^(^5. 
 
 Issue, 
 After an issue delivered in the usual form for trial at nisi prius, and a 
 subsequent order for trial before tlic sheriff; held that the former issue
 
 AMENDMENT. 631 
 
 ought to have been amended, and tliat the dehvcry of il; in the original 
 form was irreguhir, IVurdv. Peel, i M, & W. 743; 1 T. & G. 1135; 
 and 5 Dowl. 169. 
 
 A copy ot" the issue dehvered with the teste, and return, writ being left 
 in blanks, was allowed to be amended. IVatts v. Ball, 1 Sc. N. S. 173 ; 
 and 8 Dowl. 589. 
 
 Libel 
 
 In an action for a libel ihe declaration stated, that the defendant pub- 
 lished a libel, "contained in, and being an article in, a certain weekly 
 printed publicatidn, or paper, called the Paul Pry." At the trial it was 
 proved that the defendant gave a printed slip of paper, which appeared 
 to have been cut from the Paul Pry, to several persons for them to read, 
 and that they read it: — Held, that the Judge at the trial might properly 
 allow the record to be amended by striking out the above-mentioned 
 allegation, that the libel was contained in, and was an article in, the 
 Paul Pry. Foster v. Pointer, 9 C. & P. 718. 
 
 Where the declaration for slandi r, stated the words in English, 
 although spoken in Welsh, the Judge allowed the declaration to be 
 amended by inserting the Welsh words of the English translation, but 
 on payment of the costs of the day to be taxed, and a sum deposited for 
 such costs, and if the defendant would undertake to justify the Welsh 
 words, then to put the plaintiff' to withdraw the record. Jenkins v. 
 Phillips, 9 C.& P. 766. 
 
 In such a case the amendpient ought actually to be made by trans- 
 lating the English words in the declaration into Welsh words of the 
 same meaning, and inserting those Welsh words in the declaration. 
 Ibid. 
 
 So in case for slander, where the words slated in the declaration 
 varied from those proved, the case was held to be within the statute, 
 which is to receive a liberal construction. Smith v. Knoxcelden, 9 Dowl. 
 40. 
 
 The Lord Chief Justice refused at the trial to allow an amendment, by 
 striking out several innuendoes, admitted to have no reference to the 
 plaintiff". Frudhomme v. Fraser, i Mo. & R. 435 ; S. C. 2 Ad. & Ell. 
 
 645. 
 
 ^lisnomcr. 
 
 In an action brought against the secretary of an incorporated company, 
 for the infringement of a patent by the latter, the Court, after a verdict 
 with nominal damages, reluctantly and on payment of the costs, and of 
 waiving the costs of the trial, allowed the plaintiff to amend by intro- 
 ducing an averment that the company was incorporated, and a proper 
 description of the defendant as the registered officer according to the 
 statute. Gallowaij v. Bleaden, 1 Sc. N. S. 171. 
 
 Where the assignees issued a sci. fa, on a judgment obtained before 
 the bankruptcy, but omitted to join the official assignee, an amendment 
 by adding his name, was allowed on payment of costs. Holland v. 
 Philips, 'i P. & D. 33() ; and 10 Ad. & Ell. 149.
 
 (J32 appendix: — amendment. 
 
 Penal Action. 
 It is as much of course to allow amendment in a penal as in other 
 actions, unless there has been unnecessary delay; and the Court, in an 
 action for penalties under 18 Geo, 2, c. 20, s, 3, against a magistrate 
 tor acting without qualification, allowed the declaration to be amended 
 after a former application, and although the plaintiff was sworn to be in 
 indigent circumstances, refused to impose the term of security for costs. 
 Jones V. Edmirds, 3 M. & W. 218 ; and 6 Dowl. 3G9. 
 
 Perjury. 
 
 On a charge of perj ury, alleged to have been committed before com- 
 missioners to examine witnesses in a Chancery suit, the indictment stated 
 that the four commissioners were commanded to examine the witnesses. 
 Their commission was put in, and by it the commissioners, or any three 
 or two of them, were commanded to examine witnesses : it was held to 
 be a fatal variance, and the Judge would not allow it to be amended 
 under the stat. 9 Geo. 4, c. 15. R. v. Heivins, 9 C. & P. 786. 
 
 Amendments in criminal cases should be made very sparingly ; one 
 objection to amending an indictment being, that it is an alteration of a 
 presentment on the oath of the Grand Jury. Ibid. 
 
 The Judges are unwilling to allow the amendment of variances, which 
 might have been avoided by ordinary care. Ibid. 
 
 Replevin. 
 
 The Judge refuses to amend in replevin in respect of a variance in the 
 terms of a tenancy, but directs the jury to find the facts specially ; the 
 Court has no power to give judgment according to the justice of the case 
 if the opposite party may have been prejudiced by the mis-statement. 
 Knight v. M'Dotvall, 4 P. & D. 168. 
 
 The Court in such case has no power to strike out the indorsement. 
 Ibid. 
 
 In replevin, an amendment was allowed by altering the allegation of 
 amount of rent. Per Parke, B., York Summer Assizes, 1836. 
 
 Where, the declaration being dated before the first day of Easter, 1834, 
 the defendant was not precluded from avowing doubly, and the jury 
 found a less rent due than was claimed by the avowry, and the defend- 
 ant did not apply to amend, the contest being, in fact, as to what was 
 the rent, the Court refused an apphcation for a new trial, and to amend 
 the avowry. Serjeant v. Chafy, 5 Ad. & Ell. 354. 
 
 Where the issue at the trial was as to the amount of the rent, which 
 was found according to the avowry, but the jury found a different 
 holding ; held, that the case was within the spirit of 3 & 4 Will. 4, c. 42, 
 s. 24, and that it was too late for the plaintiff to take advantage of the 
 latter variance, and that the defendant might amend the avowry on 
 record, although the plaintiff had given notice that he should rely on the 
 variance, and no application to amend had been made at the trial. 
 Gaylcr v. Furrant, 4 Bing. N. C. 286 ; and 6 Dowl, 42t),
 
 AMENDMENT. r>33 
 
 rirplicntion. 
 An amendment of the prayer of the rcphcation to a plea o( tiul lid re- 
 cord was allowed after trial of the issue. George v. Rookes, 8 Dowl. 50J. 
 
 Simililer. 
 
 Where the issue contained an " &c." after the replication, and no 
 similiter >vas added, but it was properly added on the nisi priu.s record, 
 it was held, that there was sufficient to justify the presumption of a 
 perfect record, or that the party would make a perfect one, and rule for 
 arresting the judgment discharged ; and scmb., the rule of Trin. 2 Will. 4, 
 s. 65, was intended only to apply to cases tried in term. Brook v. Fiiich, 
 6 Dowl. 313. 
 
 Where the record at the trial appeared to be defective for want of a 
 similiter, amendment allowed by inserting it, but the jury re-sworn. 
 Dyson V. IV arris, \ M. & R. 474. 
 
 SumS' 
 Where the particulars showed the exact amount claimed, the Judge 
 allowed the declaration to be amended, by increasing the sums stated in 
 each count. Dew v. Katz, 8 C. & P. 315. 
 
 Time. 
 Where in trover by the assignee the conversion was laid in his time, 
 being in fact before the insolvency, the Court, considering that the real 
 question to be tried was not thereby varied, allowed the plaintiff to 
 amend. Norcutt v. Mottram, 7 Sc. 176, 
 
 Trover. 
 
 Trover against a collector of customs, upon a question as to the 
 sufficiency of the amount of duty tendered, the proceedings being sus- 
 pended until the decision of an action in the King's Bench, upon the 
 same question, it having been decided that the action should be in case 
 for nonfeasance and not in trover, the Court, though reluctantly, after 
 the delay allowed an amendment by substituting a count for nonfeasance 
 for the one in trover. Legge v. Boyd, 6 Bing. N. C. 240 ; and 8 Dowl. 
 272. 
 
 Verdict. 
 
 An amendment of the postea may be made in a crinn'nal case from 
 a Judge's notes, but it is matter of discretion not to make such an amend- 
 ment from mere recollection. R. v. Virrier, 4 P. & D, i6i. 
 
 Where the Judge on the trial had directed the jury that the plaintiff 
 was entitled to nominal damages, as to one count at least, and they gave 
 a verdict for is., which was entered generally on the postea; held, that 
 the Judge might amend the record according to the manifest intention of 
 the jury, by directing the verdict to be entered on one count, with da- 
 mages, for the plaintiff, and for the defendant on the others. Ernest v. 
 Broxvn, 6 Bing. N, C. 162.
 
 034 appendix: — amrndmf.nt. 
 
 Where one of two counts was bad, the evidence applicable to both, 
 and the verdict general ; the Court would not amend the postea by 
 ordering the verdict to be entered on the good count. Etnpso)i v. Griffin, 
 3 P. tS: D. iCo; doubting the awihur'xty oi IV iUiamsv Brecdon, i B. & P. 
 
 3'^ 9. 
 
 After the trial, at which the defendant appeared and defended, the 
 
 Court refused to set aside the verdict on the ground of variance between 
 the writ of summons and writ of trial, but gave leave to amend on pay- 
 ment of costs. Percival v. Connell, 3 Bing. N. C. 877. 
 
 Writ — Time. 
 
 A variance between the issue and the writ of trial may be amended at 
 any time. Farivigv. Cockerton, G Dowl. 337 ; and 3 M. & W. i6g. 
 
 Where the date of the suing out the writ, the commencement of the 
 action, was not stated on the record, the Judge allowed the plaintiff to 
 amend, by annexing the writ thereto at the trial. Cox v. Painter, 7 C. 
 & P. 7G7. 
 
 A Judge has power to amend the writ of summons, as to date, to make 
 it conformable to the prcecipe ; as where the latter was dated 4th April, 
 and the former, by mistake, the 4th April. Kirk v. Dolby, 6 Mees. & W. 
 636 ; and 8 Dowl. 767. 
 
 If the sum indorsed on the writ of summons exceeds 20 I., a peremp- 
 tory undertaking to try before the sheriff cannot be required, but the 
 Court will amend by reducing the sum indorsed, and direct that the 
 writ of trial shall go, unless the substituted sum, with costs of the writ, 
 be paid within a stated time. Frodsham v. Round, 4 Dowl. 569. 
 
 Where, upon a writ of trial before the under-sheriff, the particulars 
 claiming i6/. 105. 8r/., the writ of summons being put in, appeared to be 
 indorsed for 58 Z., and after verdict found for the defendant a new trial 
 was ordered, the Court allowed the indorsement to be amended, without 
 applying to a Judge. Edge v. Shaxu, 2 Cr. M. & R. 415 ; and 4 Dowl. 
 189. 
 
 Where the remedy was still open on the bond, although six years had 
 elapsed, the Court refused to amend the writ, which had been sued out 
 on promises instead of debt. Partridge v. IValbank, 3 Cr. JNI. & R. 316. 
 
 Best Evidence, p. 500. 
 Where the plaintiff as secretary sued some out of several parties liable, 
 being the committee of a charitable society, it was held, that having been 
 appointed by a resolution entered in a book, he was bound to produce 
 it, and that, it being in the custody of parties not sued, notice to the 
 defendants to produce it did not entitle him to give secondary evidence 
 of its contents. Whitford v. Tiitin, 10 Bing. 395. 
 
 Judicial Notice, p. 507. 
 
 It seems that in general a Court will notice what ought to be generally 
 known within the limits of its jurisdiction, and that a Court of Error will
 
 BILL OF EXCEPTIONS. (KIT) 
 
 take notice of what ought to be generally known within the limits of the 
 jurisdiction where the cause coiiimeiiccd. A Court of Krror will take 
 judicial notice that the County Court has no authority to give leave to 
 plead double. Cliittij v. Dcndij, 3 Ad. & Ell. 319 ; and 4 N. &. M. 84-2. 
 
 The Courts will take judicial notice of the signature of the marshal and 
 his deputy, and a defendant was discharged without an allidavit verifying 
 the copy of causses certified by the latter. Alcock v. ly/tatmorc, 8 Dowl. 
 615. 
 
 The Courts will take notice that by the Kingdom of Ireland is meant 
 that part of the United Kingdom of Great Britain and Ireland called 
 Ireland. Whyte v. Rose, 4 P. (S: D. 199. 
 
 They will not notice that a particular street is not in a certain county, 
 although it may be generally known to be situated in another. Ilum- 
 phret/s V. Biiiltl, 9 Dowl. lOOO. 
 
 Nor the stamp upon a copy of a Judge's oider, it not being the seal 
 of the Court, but the mark of the Judge's clerk. Companj/ of Proprie- 
 tors oftlie Barrett Navigation v. Shower, 8 Dowl. 173. 
 
 5 Laiv a)id Fact, p. ^10. 
 
 Where the plaintiff by letter offered "a cargo of good barley" at a 
 certain price, and the defendant, in answer, agreed to accept the cargo, 
 adding, " expecting you will give us fine barley, and full weight ;" this 
 the plaintiff declined doing, insisting, and which the Court found, that 
 there was a known diatinction in the trade between good and fine barley ; 
 and it was held, that although the jury were to say what meaning was to be 
 given to the terms of the contract, yet it was for the Court to put a con- 
 struction on it, and that the defendant's letter was not such an acceptance 
 as was binding on the plaintiff. Hutchison v. Uvivker, 5 M. (Sc W. 535. 
 
 Upon a contract to serve as a news reporter, at certain wages, for one 
 whole year, and so from year to year so long as the parties should respec- 
 tively please, it was held to be a yearly service, which could not be termi- 
 nated but at the end of the current year. The usage in the case of menial 
 servants, to discharge the contract at a month's notice, is only matter of 
 fact, triable by the jury, and not matter of law ; and if put on the record 
 as matter of law, the Court could not distinguish it from any other yearly 
 contract of service. Williams v. Byrne, 2 N. & P. 139. 
 
 Bill of Exceptions, p. 529. 
 
 A bill of exceptions tendered to the direction given by the Judge to the 
 jury, set forth the pleadings and evidence, and then referred to a lease, 
 part of which was inserted by way of extract. The judgment of the 
 Court on the bill of exceptions having been brought up by writ of error 
 to this House, the counsel for the plaintiff in error proposed to read a 
 part of the lease not extracted into the bill of exceptions. Held, that 
 they were not at liberty to do so. Galxwy v. Baker, 5 CI. & Fi. App. 
 Cas. 157.
 
 (i3(; APPENDIX : NEW TRIAL. 
 
 Netu Trial, p. 534. 
 The defendant being secretary of a joint-stock banking company, went 
 ivith the cashier to the office of a branch bank, and was found by the 
 plaintiff, one of the directors, moving books, &c., who thereupon gave 
 both into custody on a charge of felony, in an action of trespass and false 
 imprisonment, the plaintiff gave in evidence that the defendant had, on the 
 following morning, gone to the London house and broken open the plain- 
 tiff's desk and- taken away papers, which the Judge received as showing 
 malicious motives throughout the transaction, and the defendant having 
 on cross-examination elicited evidence showing the state of the balances 
 of him the defendant at the county bank, but as vouchers were pro- 
 duced, held no ground for a new trial, nor would the Court interfere on 
 the ground of excess of damages not appearing gross. Edgell v. Francis, 
 1 Sc. N. S. 118. 
 
 Nonsuit, p. 535. 
 
 Where the facts alleged in the declaration do not, if proved, amount to 
 a cause of action, the Judge is not at liberty to nonsuit on that gi'ound, 
 but the defendant ought to demur or move an arrest of judgment. 
 Lumbi/ V. Allday, 1 Cr. & J. 301 ; and i Tyr. 217. 
 
 Circumstantial Proof, p. 559. 
 
 Where a charge depends upon circumstantial evidence, it ought not 
 only to be consistent with the prisoner's guilt, but inconsistent with any 
 other rational conclusion. Hodges Case, 2 Lew. Cr. Cases, 227.
 
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