,^WEUNIVER%. vj,lOSAKCEl£r/ O ■< ^lOSANCEier^ o ^fiUDNVSOV"^ "^AaiAINftJ^V .\WEUNIVERy/A - v>;lOSANCEli-x>, ■*^/.Ja3AlNftMV ^.OFCAIIFO% ^0FCAIIF0% ^vNlUBRARYOc, ^ 1 l<-^ ^ -j^lUBRAfiYOc. § 1 1^*^ ^ ^AOJITVDJO^ ^^m\mi^ "^i^iUQNVSOl^ .^WE■UNIVERS•/A '^<'7139NVW=^ O u- ^lOSANCElix^ 8 ^^ — ^^ MNfl^WV. ^5S\EUN(VER5y4 .^lOSANCEUr^ ii2^l i^-t s'lk;'! rOr:' , &Aavaaiii^^ "^t^Aavjiaiv^^ "^i'iUDNvsoi^ ^ :^ ^^OJIIVOJO'^ ^OFCAEIFO/?^ \W[UNIVtK'% v^llTiANCtlfJ^^ ^WEUNIVERS/A "^J3130NVS01^ %a3AINn3WV ^lOSANCEl^^ o %aaAiNrt-3Wv -^lUBRARYO/ ^OFCAIIFO/?^ g g ^lOSANCfUf^ o ^tUBRARYf?/^ "^/SaBAINn-aftV^ ^<«0JI1V3J0=^ ^^OJIIVDJO'^ %iiaAiNa3v\v^ ^<3Aavaaii# ^^\E•UNIVERS/A o ^^,OFCAUF0% A-OfCAllFOftfc, ^AWM)NIVER5//i O ^^ sS- ^j^VUBRARYQa^ § 1 ir^ ^ ^^OJI1VDJO'«^ ^OFCAlIFOff^ ■/''/'AHvaaii'iV^ /\MEUNIV!R% ) . And the same principle has been applied to the existence of wars between two foreign nations, or between a foreign nation and this country (r) . Whether a fact should be judicially noticed or not must often be a question of degree. This is well illustrated by cases as to the period of gestation, the judge having in some cases taken judicial notice that a certain alleged period is impossible, and in others admitted evidence upon the matter {d). («) CoUier V. A^'okcs (1849) 2 C. & K. 1012 ; Tutton v. Darke (1860) 5 H. & N. 647, 619, 650. (b) City of Berne v. Bank of England (1804) 9 Ves. 347 ; Yrisarri v. Clement (1826) 3 Bing. 432, 437, 438. (c) Bolder v. Huntingjield (1805) 11 Ves. 283, 292 ; R. v. Be Berenger (1814) 3 M. & S. 67, 69. {d) E. V. Luffe (1807) 8 East, 193, 201, 207 ; Bosvile v. Att.-Gen. (1887) 12 P. D. 177. 21 CHAPTER II. THE OBLIGATION AND THE RIGHT TO BEGIN. § 1. — The Obligation to Begbi. § 2. — The Right to Begin. § 1.— The Obligation to Begin {a). Every issue consists of an allegation of fact made by one party and denied by bis opponent ; and tbe general rule as to tbe onus of proof and tbe consequent obligation of beginning is tbis, tbat tbe proof of sucb fact lies on tbe partyjwbo alleges it, not on bim wbo denies it : ei incnmhif prohailo qui dicif, iion qui i/er/af. And it is immaterial wbetber tbe allegation wbicb is denied is coucbed in affirmative or in negative terms. Tbus in an action by a landlord against a tenant for breacbes of a covenant to repair, it is indifferent wbetber tbe plaintiff alleges in affirmative terms tbat tbe defendant permitted certain wants of repair and committed certain acts of dilapidation, or in negative terms tbat be did not execute tbe repairs and maintain tbe premises in tbe good state and condition prescribed by tbe covenant. And it is equally immaterial wbetber tbe defendant pleads a bare denial of tbe plaintiff's allegation or meets it witb a specific affirmation of tbe execution of all tbe repairs wbicb tlie plaintiff alleges be bas not executed. In eitber case tbe plaintiff is tbe party wbo alleges tbe facts in issue, and (a) The term more commonly used is Burden of Proof ; but it luis been preferred to apply the latter title to the whole subject-matter of this Part. 22 BURDEN OF TROOF. Fart I. tlio defendant is the party who denies them, and the onus of proof and obligation to hegin therefore rest on the plaintiff (/>). Apart from the presumptions to be mentioned in the next chapter, there is at common law no exception to this rule. And even in the case of statutes making it criminal to commit some act without some particular ground of justifi- cation, it has sometimes been held, in accordance with the general principle, that proof of the want of justification lay on the prosecution. Thus in the case of statutes making it criminal to kill deer, take fish, cut timber, or do certain other acts "without the consent of the owner," it was held that, as the absence of consent was an essential part of the definition of the crime, it lay on the prosecution to prove it (c). But in each case it will depend on the construction of the par- ticular statute on whom the burden of proof lies in respect of any such condition. In a prosecution upon 5 Ann. ch. 14 s. 2, the effect of which statute together with 22 & 23 Car. 2 ch. 25 s. 3 was to make it penal for a carrier to be in possession of any game unless he were the owner of lands of a certain value or brought himself within the terms of several other conditions, it was held that the number of these, and the fact that they all related to matters specially within the knowledge of the party charged, were grounds for holding that, although the absence of them formed an essential part of the description of the offence, it lay on the defendant to prove the existence of any of them, not on the complainant to prove the absence of them all {d) . In later times this view has been made the basis of express enactment, and in numerous cases the legislature has cast on the defendant the burden of proving the affirmative of a condition, notwith- {b) Smith V. Davies (1836) 7 C. & P. 307 ; Sowardv. Leggatt, ibid. 613. (c) R. V. Allm, ^-c. (1826) 1 Moo. C. C. 151 ; R. v. Uazg (1820) 2 C. & P. 458. {^d) R. V. Turner (1816) 5 M. & S. 20G. Chap. II. § ]. OBTJGATION AND ElffllT TO KEGIN. 23 standing that the ahsence of it is an essential part of the definition of the crime. Thns there are many statutes Avliieh have made various acts criminal if done " without lawful excuse," such as being found by night in the possession of house-breaking implements (e), or in possession of instru- ments adapted and intended for making counterfeit coin (/) ; and there are others by which particular acts are declared to be criminal if done " with intent to defraud," such as the forging or falsely aj^plying of marks to merchandise {(/) ; and many others, defining other crimes with similar conditions or exceptions ; in all of which it is expressly provided, contrary to the general principle, that the proof of the lawful excuse or authority, or the absence of fraudulent intent, as the case may be, shall be on the party charged, although by the terms in which the crime is defined they are expressly made elements of the offence. Besides these particular enactments, more general ones have been passed with similar pui'pose. Thus by the Sum- mary Juiisdiction Act, 1848 {h), it is enacted that, if the information or complaint shall negative any exemption, exception (;'), proviso, or condition in the statute on which the same shall be framed, it shall not be necessary for the prosecutor or complainant in that behalf to prove such negative, but the defendant may prove the affirmative thereof in his defence if he would have advantage of the same. So by the Prevention of Crimes Act, 1871 (/>■), it is provided that any exception, exemption, proviso, excuse, or qualification, whether it does or does not accompany the description of the (e) 24 & 25 Vict. c. 96, s. 58. (/) 24 & 25 Vict. c. 99, ss. 14 and 24. iff) 50 & 51 Vict. c. 28, s. 2. (A) 11 & 12 Vict. c. 43, s. 14. (i) As to what constitutes an exception, see Davies v, Scrace (1869) L. R. 4 C, P. 172 ; 3Iorgan v. Hcdger (1870) L. R. 5 C. P. 485 ; Copley v. Burton, ibid. 489. {k) 34 & 35 Vict. c. 112, s. 17, subs. (3). 24 BURDEN OF PROOF. Part I. offence in the act, may be proved by tlie defendant, but need not be specified or negatived in the information or complaint, and if so specified or negatived no proof in relation to the matters so specified or negatived shall be required on the part of the informant or prosecutor or complainant. § S.— The Right to Begin. "When the party on whom lies the obligation of beginning is prepared with adequate evidence, to begin is generally an advantage, since it enables him to impress his case first on the minds of the jury, and, if avidence be given on the other side, to have also the last word. From this point of view it is called the right to begin. The rules with regard to it are but a development, chiefly in connection with civil cases, of the general principles stated in the last section. A defendant may meet a claim against him either by denying it, which is called a traverse, or by admitting it and pleading other matter which in law is an answer to it, called a confession and avoidance, or he may both traverse it and in the alternative plead matters which avoid the effect of it if true. If the defendant traverses any material part of the allegations in the plaintiff's claim, the plaintiff has the right to begin, and the rule applies not only where there is a denial of any part of the cause of action, but also where any consequent claim to damages is in issue, so that if these are unliquidated and are not admitted to the amount claimed, the plaintiff will be entitled to begin (/). If, on the other hand, it appears that they are mere matter of computation, or that they must be merely nominal, then the plaintiff cannot, merely because they are not admitted, claim the right to begin (in). (/) Mercer v. TFhaU (1845) 5 Q. B. 447. (m) Foivlcr v. Coster (1828) M. & M. 241 ; Chapman v. Eaicson (1846) 8 Q. B. 673. Chap. n. § 2. OBLIGATION AND EIGHT TO BEGIN. 2.3 The right to begin was always determined by reference to the pleadings and not by any admissions the defendant might choose to make in court {n), save in the exceptional cases where the defendant was not entitled to plead. One of these cases was where the plaintiff claimed damages which were not essential to his cause of action ; the rule of pleading was that the defendant could not plead to such claim of damages, because the plea would be no answer to the action (o). And hence it followed that whenever the right to begin turned on the denial or admission of damages which could not be pleaded to, the defendant was entitled to make the admission orally when the case was called on (p). Now however Eule 4 of Order XXI, which still dispenses a party from denying damages, provides that they shall be deemed to be put in issue in all cases unless expressly admitted, and hence it would appear that the defendant can no longer acquire the right to begin by admitting the damages at the liearing, since he may admit them expressly on the pleadings. Another case where the defendant could not plead was the action of ejectment, in which there were no pleadings. Here too the old rule as to gaining the right to begin by an admission in open court is abolislied by the introduction of pleadings, including the right to make admissions on the record (q). The judge has however the power to allow an amendment of the pleadings at the trial, and can by exercising it confer the right to begin on the party who then for the first time admits the facts pleaded by his opponent, wherever tlie nature of the case renders it desirable. If the defendant confesses the whole of the allegations comprised in the plaintiff's claim, and seeks to avoid their (h) Pontifex V. Jolly (1839) 9 C. & P. 202 ; Price \. Seaward (18-11) C. & M. 23. (o) BuUen & Leake, 3rd od. p. 11. [p) BonfieU v. Smith (1843) 2 M. & R. 519. (y) See Order XXI r. 21. 26 BURDEN OF PROOF. Part I. effect by an affirmative case of his own, the right to hegin belongs to him. Tlius, where the pLaintiff sued the defen- dant for trespassing on his land and destroying a dam thereon, and the defendant pleaded that he was entitled in respect of his mill to receive water from a certain watercourse which flowed by the plaintiff's land, and that the plaintiff by his dam had wrongfully obstructed the flow of water to which the defendant was entitled, whereupon he had abated the same, it was held, upon the plaintiff admitting that he did not claim substantial damages, that the defendant was entitled to begin (/•). So in an action of ejectment by heir-at-law against a defendant claiming under a will of the plaintiff''s propositus, if the defendant has admitted that the latter died entitled to the property, and that the plaintiff is his heir-at- law, he has the right to begin {s) . But where each party claims as heir-at-law, and the sole point in question is the defendant's legitimacy, the defendant's case is deemed a traverse rather than a confession and avoidance of the plaintiff's claim, and the plaintiff is entitled to begin {f). The same has been held, though with less reason, where the plaintiff claims under a will of the testator which the defendant does not deny in fact, but seeks to displace by proof of a subsequent codicil {u) . Whenever either party claims the right to begin, he thereby undertakes to offer evidence on that issue in respect of which he has claimed it {x) ; he cannot claim the right to begin in the sense of merely addressing the jury on the issue. (>•) Chapman v. Rawson (1846) 8 Q. B. 673, (s) Doe V. Barnes (1834) 1 M. & Rob. 386. Aliter, wtere defendant does not admit that the deceased was entitled at the date of his death. Doe v. Lewis (1843) 1 C. & K. 122. (0 Doe V. Braij (1828) M. k M. 166, (m) Doby. Bmync (1848) 5 C. B. 6o5. {x) R. V. Tooke (1794) 25 St. Tr. 446, 447 ; Smart v. Rayner (1834) 6 C. & P. 721 ; Oakeley v. Ooddeen (1861) 2 F. & F. 656. Chap. ir. § 2. OBLIGATION AND EIGHT TO BEGIN. 27 Where tlierc are several issues, some of wliicli arc ui^on the plaintiff, and some upon the defendant, the plaintiff may begin bj proving those only which are upon him, leaving it to the defendant to give evidence in support of those issues upon which he intends to rely ; and the plaintiff may then give evidence in reply to rebut the facts which the defendant has adduced in support of his defence {//). If however the plaintiff in such a case gives in the first instance any evidence on the issues which lies on the defendant, he is bound to complete his whole case, and will not be entitled to call a portion of his evidence in reply (:;). {>/) Shmv V. Beck (1853) 8 Ex. 392. {z) JJrotaie v. Miarai/ (1825) Ey. & M. 254. 28 BUEDEN OF PROOF. Part T. CHAPTER III. PRESUMPTIONS. The term presumption denotes an inference of the existence of some fact which is in question drawn without evidence merely from some other fact ah'eady proved or assumed to exist. In our law, following the civil, presumptions are divided into three kinds : presumptions of fact or natural presumptions, rebuttable presumptions of law, and conclusive presumptions of law(r/). Presumptions of fact consist of those inferences which have never hardened into rules of law, and as to which therefore the judge is not entitled to direct the jury that they are bound as a matter of law to draw them ; in other words, they are common probabilities of fact which the jury may draw or not, as in their judgment the circum- stances of the case may appear to warrant. Rebuttable pre- sumptions of law, on the other hand, consist of inferences which, either from their frequent probability or on some ground of policy, have been adopted by the law, so that the judge is entitled and bound to direct the jury to draw them, subject to their being rebutted either by some evidence or by some more powerful presumption to the contrary. Conclusive presumptions of law are inferences which the law will not allow to be contradicted by any evidence whatever. Conclusive presumptions of law hardly apj)ear to belong to the law of evidence at all, since they do not differ from rules of substantive law, except that they are expressed in terms («) The civil terms were prcsumptiones facti or natur(V, presumpiiones Juris, and presumptioiies Jia-is et de jure. Chap. III. PEESUMPTIONS. 29 belonging to the law of evidence. The following may suffice as examples of this class. By the common law it is conclu- sively presumed that an infant under the age of seven years cannot be guilty of felony, and that a boy under the age of fourteen is unable to commit the crime of rape (/>). 13y 7 & 8 Vict. c. 45 s. 2 it is enacted with regard to certain dissenters' meeting-houses that Avhen the instrument of trust does not fix the doctrine and worship to be observed, the actual usage observed for twenty-five years preceding any suit with rela- tion thereto shall be taken as conclusive evidence that the doctrines and worship used may be properly taught and observed at such meeting-houses. Presumptions of fact are almost infinite in number, corre- sponding to the innumerable circumstances of human life, and their discussion would require a special treatise on circumstan- tial evidence (c). But while many of them are as special in their character as the circumstances in which they arise, others are of such common occurrence that they are among the com- mon-places of the law courts, and tend to assume the character of fixed rules. Such is the presumption based on recent pos- session, according to which, in prosecutions for theft, when the prosecutor has proved that shortly after his goods were stolen they were found in the possession of the prisoner, a presump- tion is raised against the latter of having stolen or received them, according to the circumstances of the case, a presumjD- tion of fact which is considered sufficient to warrant his conviction, if he does not displace it by some explanation consistent with his innocence {d). It is convenient to refer to some presumptions of this kind in treating of rebuttable presumptions of law, as they run very closely into one another, {b) 1 Hale, 27, 630 ; li. v. Groombridge (1836) 7 C. & P. 582. (e) For a systematic analysis of circumstautial evidence, including pre- sumptions of this class, see "An Essay on tlie Principles of Circumstantial Evidence, illustrated by numerous cases," by the late WiUiam Wills. [(I) li. V. Lane/mead (1864) L. & C. 427. 30 BURDEN OF PEOOF. Part I. and it is often diiScult to say whether a presumption is one of law or fact. For this reason some writers have suggested a further class, consisting of mixed presumptions of law and fact ; but it seems more reasonahle to consider that a pre- sumption must be wholly either one of law or one of fact, and to admit that with regard to some it is not yet determined to which of the two classes they beloug. It is difficult to lay down any general rule as to the effect of a rebuttable presumption of law upon the burden of proof (e) . In some cases, as that of the presumption of legitimacy (./'), the burden of proof appears to be shifted absolutely away from the party in whose favour it operates. In other cases, as in that of the presumption that the holder of a bill of exchange is a holder in due course {[/), it is only shifted conditionally, so that in an action by the holder the onus is cast on the de- fendant of giving sufficient evidence to rebut the p)-i)iui facie presumption ; when that has once been done the burden of proof shifts back to the holder in whose favour the presump- tion operated, and on whom, but for the presumption, it would from the beginning have lain, and remains thenceforth con- stant in point of law, so that it is now for him to make out his case in the ordinary way. On the other hand, a presumption of fact, however strong, does not shift the burden of proof in law. In an action by the owner of a vessel against insurers for a total loss by perils of the sea, the defendants pleaded unseaworthiness at the commencement of the voyage. The vessel had had to put back eleven days after leaving port, and upon examination two or three weeks after her return was condemned as unseaworthy. The plaintiff's contention was that her con- dition when examined was due to the bad weather encountered during the voyage ; the defendants' was that the bad weather (c) See SuUon v. Sadler (1857) 3 C. B. N. S. 87. (/) See below, p. 37. {ff) See below, p. 36. Chap. III. PEESUMPTIOXS. 3L was not of sucli a character as to compel the return of any souud vessel, and tliat slio must have Leeu unseaAvorlliy at the commencement of the voj'agc. At the trial the judge directed the jury that though the burden of proving un- seaworthiness was in the hrst instance on the defendants, yet the inability of the vessel to proceed at so early a period in her voyage raised such a presumption that the inability was due to causes existing before she started, that the burden of l^roof was consequently shifted. The jury found for thei defendants, but the court ordered a new trial on the ground of misdirection, and held that although the inability to proceed might in the circumstances be cogent evidence of unseaworthiness, it had not the effect of shifting the burden I of proof in law {//). The following are some of the more important rebuttable presumptions, most of them of law, some of fact, and some of uncertain character. The presumption of innocence, by which it is deemed that a person is innocent until proof to the contrary has been given, applies not in criminal cases alone, but also in all civil cases where an allegation of illegality ia made(/). It seems doubtful whether this presumption is not merely another mode of stating, with regard to issues of a particular class, the general rule as to the burden of proof. And it is doubtful whether they ever conflict, except that it may per- haps sometimes happen in a civil case that a party alleging his innocence of some criminal act may be entitled to have the burden of proving his guilt cast on his ojii^onent, instead of having himself to prove his innocence as the party alleg- ing it. An infant between the age of seven and fourteen is pre- sumed incapable of criminal intent, and upon any indict- • ment, therefore, it lies on the prosecution to satisfy the jury {h) Fickup V. Thames and Mcriscy Mar. Ins. Co., Ld. (1878) 3 Q. B. D. 594. (?) Williams v. East India Go. (1802) 3 East, 192. 32 BUEDEX OF PEOOF. Part I. to the contrary (/.). To tliis presumption the same observa- tion apphcs as to the last. A married woman who in the presence of her husband commits a theft, or receives stolen goods knowing them to be stolen, is presumed to have acted under his coercion (/). With regard to things which in the ordinary course of events are likely to endure for some period of time, it is often inferred from their proved existence at one point of time that they have continued down to some later moment. This presumption has been applied to a person's tenure of office {ill), and to the derangement of a man's mental faculties {n). It is however a presumption of fact, the strength of which must dej)end on the natural duration of the subject in question, the period of time elaj^sed, and the other circumstances of the case. It would seem to assume the character of a presumption of law only in respect of such a subject as a custom, which may endure for as long a period in the future as it has in the past (o). The most important subject to which this presumption of fact is applied is the duration of human life (7;). In the absence of any ground for infeivring the contrary, the life of a person proved to exist at a particular moment is presumed to continue for some time (q) ; but the strength of any pre- sumption that a person's life has continued for any particular period must always depend on his age, health, and the other circumstances of his life (r). And of course, whether a j)arty {k) Steph. Dig. Cr. Law, Art. 26. (Z) Steph. Dig. Cr. Law, Art. 30. {m) Steward v. Bimn (1844) 12 M. & W. 655. {n) Ait. -Gen. v. Parnther (1792) 3 Bro. C. C. 441 ; TVItite v. Wilson (1806) 13 Ves. 187. (o) Scales v. Key (1840) 11 A. & E. 819. [p) See observations upon it by Bowen, J. in Dalton v. Angus (1881) 6 App. Cas. 740, 781. (tioii, civil and criminal. The same j^nnciple has been adopt e), nor the degree of particularity which must be observed in presenting the items of evidence, since they vary to some extent according to the circum- stances of the case ; but this qualification does not affect the validity of this broad distinction between the facts in issue and the relevant facts. In some cases it hajjpens Lhat the fact in issue is of so simple a character that the details which go to make it up are very few, while in others, where it is more complex, they are very numerous. If, for instance, the fact in issue be the writing and publication of a libel contained in a letter, the relevant facts may be merely that the letter is in the handwriting of the defendant, that it was received and read by the particular person to whom it is alleged to have been published, and that it had been dispatched to him by the defendant. But if the fact in issue be whether a business sold with a representation as to the amount of its turnover was or was not of the value represented, the relevant facts may consist of a very large number of details ranging over a considerable period of time. § 2. — Possession. The general rule is well illustrated by cases of possession, and especially by the possession of real rights, whether incor- poreal, as an ancient watercourse or a right of common, or {b) See as to this, Order XIX rr. 4, 6, 15, 20, 22—24 ; Blake v. Albion life Ass. Soc. (1876) 45 L. J. C. P. 667 ; Fhillips v. Phillips (1878) 4 Q. B. D. 127. Claap. I. § 2. GENERAL RULE. 41 corporeal, as a field or a road strip. In such cases every act of enjoyment or possession is a relevant fact, since the right claimed is constituted by an indefinite number of acts of user exercised animo domini. But inasmuch as such acts are more or less discontinuous in their character — and in the case of ancient rights the evidence of them is by lapse of time rendered even more so — the question for the jury is whether the acts proved are so numerous and so connected that the right of possession may be inferred from them. If they are so frequent and of such a character as to indicate that they were the exercise of one continuous open claim at all times when it would be natural for the person claiming it to exer- cise it, the jury will ordinarily infer the general right, inas- much as the mere discontinuity of the evidence is not in itself any ground of suspicion. The acts of enjoyment from which the ownership of real property may be inferred are very various, as, for instance, the cutting of timber (f) , the repairing of fences or banks ((/), the perambulation of boundaries of a manor or parish (f), and the granting to others of licences ( /') or leases [g) under which possession is taken and held ; for all these acts are fractions of that sum total of enjoyment which characterises dominium. And successful claims to exercise possessory rights are equally relevant facts when they are exercised through the intervention either of customary courts or of the courts of the land. Thus, where the issue was as to the existence of a custom within a manor for the lord to have a heriot on the death of each of his freehold tenants, presentments of the deaths of manorial tenants, and of the consequent payment of heriots to the lord, were admitted in (c) Stanley v. White (1811) 14 East, 332. {(T) Jones V. Williams (1837) 2 M. & W. 326. \e) Weeks v. Sparke (1813) 1 M. & S. 679, 689; Woolway v. Rowe (1834) 1 A. & E. 114 ; and see below, pp. 172, 174. (/) Rogers v. Allen (1808) 1 Camp. 309. [g) Bristow v. Cormican (1878) 3 App. Ca. 641. 42 THE RELEVANT FACTS. Part II. evidence to prove the custom {//). So, on an issue as to tlie terms on whicli customary tenants within a manor were entitled to obtain renewals of leases, presentments of such renewals and of the fines paid thereon were admitted as relevant (/) . In like manner it has been frequently held that verdicts and judgments in actions of trespass to heredita- ments (/.'), convictions for the non-repair of public ways (/), and verdicts and judgments for the recovery of prescriptive tolls {ni), are admissible as relevant facts when the right to the land, the way, or the toll respectively is in question. Adjudications of this kind are referred to again in the chapter on Reputation in Part III {n). § 3.— Circumstantial Evidence. Eelevant facts are sometimes divided somewhat loosely into two classes, direct evidence and circumstantial, according as the relation of the relevant facts to the facts in issue is more or less proximate or remote. When every part of a fact in issue is presented to the cognizance of the court by means of the statements of those who witnessed it, the evidence is said to be direct. The only question for the jury is whether the statements are accurate. If they are, no further inference has to be drawn, for the transaction has been presented to the court in all its completeness just as it happened. If, on the other hand, there is no evidence avail- able of any person who witnessed the fact in issue, it may stiU be possible to prove a number of facts which though not {h) Damerellv. Frothcroe (1847) 10 Q. B. 20. (i) Freeman v. Fhillips (1816) 4 M. & S. 486. {h) Rogers v. Allen (1808) 1 Camp. 309 : Kclll v. Devonshire (1882) 8 App. Ca. 135. (Z) R. V. Brirjhtside Bierlow (1849) 13 Q. B. 933. \m) City of London v. ClarJie (1691) Garth. 181 ; Laybourn v. Crisjj (1838) 4 M. & W. 320. («) See pp. 176, 177. Chap. I. § 3. GENERAL RUI.E. 43 exactly constituting the fact in issue, are so closely connected with it that it is reasonable to infer from their existence the existence of the fact in issue. Such facts are called circum- stantial evidence, as if they formed not so much a part of the central fact in issue as the surrounding fringe and incidents of it (o) . Circumstantial evidence is resorted to either by reason of the lack of direct evidence to prove the facts in issue or some part of them, or to supplement and corroborate direct evidence when doubt is attempted to be cast upon it. The want of direct evidence is often illustrated by criminal cases. Thus a man is found slain, suspicion attaches to one of his neighbours, and the suspected man is put on his trial for mm'der. No one beheld the deed, save the man who is now dead, and the man, whoever he was, who slew him. The deceased made no statement about it to any living person, and the prisoner has disclosed nothing. Here the act of murder, which is the fact in issue, cannot be proved by direct evidence ; it must be proved, if at all, by inference from other facts. The prosecution will be entitled ' to prove as relevant all facts which may tend to show that the prisoner had a motive for the murder, tliat he expressed an intention to commit it, that he made preparation, and that he had opportunity {p) ; and, conversely, any facts which tend to disprove any of these circumstances, or to explain them in prisoner's favour, will in like manner be relevant. The other ground for resorting to circumstantial evidence is illustrated daily in the courts. It is brought into full play (o) The term Direct Evidence is also used, in opposition to the term Hearsay, to denote the evidence of an eye-witness deUvered by himself on oath in Court, as opposed to evidence of his declarations tendered as proof after his death, and other forms of Hearsay. See pp. 94—99, below. These two senses of the term should be carefully distiiig'ui.shed. (p) The circumstances of his subsequent conduct, tending to show a sense of guilt, are also admissible, but belong to the head of admissions. See pp. 107, 108. Circumstantial relevant facts and circumstantial admissions, commonly termed admissions by conduct, together make up the great bulk of what is called circumstantial eA-idence. 44 THE RELEVANT FACTS. Part II. wlien witnesses are called on both sides, and eacli party throws doubt upon material j)ortions of the evidence adduced by his opponent. In such case the minor circumstances of the transaction in question may become just as relevant as in those cases whore there is hardly any direct evidence at all as to the facts in issue. Thus, in an action for money lent, where the defence was a denial of the loan, the defendant tendered evidence as to the pecuniary circumstances of the plaintiff during the seven years preceding the date of the alleged loan. He proved that the plaintiff neither had any property of his own, nor had taken any benefit under his father's will, that he had been a labourer at one shilling a day, and that his means of livelihood were very precarious ; and it was held by the full coui't that the evidence had been rightly admitted as circumstantial evidence in support of the negative of the issue (q). In one class of cases circumstantial evidence must from the nature of the case be given. They are those Avhere the state of mind of a particular person is in issue, as, for instance, where it is alleged that a party did a particular act with a fraudulent purpose, or where, to establish the commis- sion of a particular crime, it is necessary to prove that the prisoner, when he committed the physical act, did so with some particular guilty intent. In these cases no one save the party charged can, strictly speaking, give direct evidence of his mental state ; and, when he denies the charge, it has to be proved by inference from his conduct (>-). Circumstantial evidence is not confined to the proof of a fact in issue. Grenerally, any fact which is relevant to the issue may be proved by circumstantial evidence. But the series of subordinate inquiries thus logically admissible is subject in practice to reasonable limitations. The line is (q) Bowling v. Bowling (1860) 10 Ir. C. L. R. 236. (r) Cp. what is said at pp. 52 — 55, and pp. 142 — 152. Chap. I. § 3. GENERAI. RULE. 45 drawn where the extent of the inquiry becomes -wholly dis- proportionate to the importance of the fact to be proved (.s). § 4.— Similar Facts when Connected. ^Vliether the evidence be direct or circumstantial, it must be confined to the facts in issue. To admit evidence of other transactions, however close the analogy or resemblance between them and that in issue, would be a violation of the general principle. Thus, where the question was as to the existence of a custom in a particular manor, it was held that evidence of a like custom existing in an adjoining manor within the same parish and leet was not admissible, even though the latter manor were shown to be a subinfeudation of the former, there being no evidence that the separation took place after the time of legal memory {f). "Where however the particular facts in issue form in some sense a part of some larger whole, of which all the parts possess for the purpose in hand a similar character, so that what is true of one part will be true of the others, the facts in issue may be supported by evidence of the similar facts thus connected with them. Thus, if a right be claimed in resj^ect of a par- ticular piece of land and it can be shown that such piece is but a portion of some larger area possessing a common character, facts relating to other parts of that area may be relevant to the issue as to the smaller portion. A leading case on this point is Jones v. Williams («<). There the plaintiff sued the defendant for trespass to the bed of a stream which divided their respective farms. The plaintiff claimed the entire bed. The defence was that the defendant was the owner of the stream nsque ad medium filum from his side, («) Tlie whole subject of circumstantial evidence is analysed and illustrated in the work referred to above, p. 29, note (c). {t) Anglesey v. Hatherton (1842) 10 M. & W. 218. (») (1837) 2 M. & "W. 326. 46 THE RELEVANT Fx\.CTS. Part II. which, if true, would have entitled him to commit the acts complained of. The plaintiff's farm extended along the stream not onl}^ for the whole length of the defendant's farm, but also beyond it and opposite to another farm adjoining the defendant's. The plaintiff tendered in" evi- dence repairs and other acts of ownership exercised upon the whole bed and the banks of the stream alongside the farm beyond the defendant's, and upon a fence which was a con- tinuation of the fence which divided the defendant's farm from the stream. The evidence was objected to and rejected, and a verdict was found in favour of the defendant. But on an application by the plaintiff for a new trial, the court held that it should have been admitted. Parke, B., said : — I think the evidence offered of acts in another part of one continuous hedge, and in the whole bed of the river, adjoining the plaintiff's land, ■were admissible in evidence, on the ground that they are such acts as might reasonably lead to the inference that the entire hedge and bed of the river, and consequently the jiart in dispute, belonged to the plaintiff. Ownership may be jiroved by proof of possession, and that can be shown only by acts of enjoyment of the land itseK; but it is impossible, in the nature of things, to confine the evidence to the very precise spot on which the alleged tresjoass may have been committed ; evidence may be given of acts done on other parts, provided there is such a common character of locality between those parts and the spot in question as would raise a reasonable inference in the minds of the jury that the place in dispute belonged to the plaintiff if the other parts did. In ordinary cases, to prove his title to a close, the claimant may give in evidence acts of ownership in any part of the same in- closure ; for the ownership of one part causes a reasonable inference that the other belongs to the same person ; though it by no means follows as a necessary consequence ; for different persons may have balks of land in the same enclosure ; but this is a fact to be submitted to the jury. So I apprehend the same rule is applicable to a wood which is not inclosed by any fence ; if you prove the cutting of timber in one part, I take that to be evidence to go to a jury to prove a right in the whole wood, although there be no fence or distinct boundary surrounding the whole; and the case of Stanley v. White {x), I con- ceive, is to be explained on this principle : there was a continuous belt (x) (1811) 14 East, 332. Chap. I. § 4. GENEEAJ; RULE. 47 of trees, and acts of ownership on one part were held to be adniissiLlo to prove that the phiiutiff was the owner of another part on which the trespass was committed. So I should apply the same reasoning to a continuous hedge, though no doubt the defendant might rebut the inference that the whole belonged to the same ijcrson by showing acts of ownership on his part along the same fence. In another case the question was whether certain strips of land along the roadside belonged as waste land to the owner of the adjoining enclosure, or were the property of the lord of the manor. The lord, who was the defendant in the action, tendered evidence of acts of ownershij) exercised by him from time to time on several similar strips of land in various parts of the manor. Three of these strips lay alongside a continua- tion of the road on which lay the strip in question, about two miles distant from the locus in quo; but no evidence was given to show in what part of the manor the remaining strijis were situate. It was held that the three stri^^s had sufficient com- munity of locality mth the strij) in question to render the evidence with regard to them admissible ; but as to the others, the locality of which was not proved, if was held that no evidence was admissible, since the mere fact that they were situate within the same manor created no reasonable jDrob- ability that the lord had retained and dealt with them in the same way as with the strip in question (//). § 6.— Identification and Explanation. Pacts which are not otherwise relevant to the issue are admissible when they can be shown to be for the jiarticular -puri^ose in hand identical with some relevant fact. Thus, where the issue was as to the line of boundary of a particular estate, evidence having been given that the estate was con- terminous with a certain hamlet, evidence was admitted to prove the boundary of the hamlet (z). So, where the date {i/) Doe V. Kemp (1835) 2 Bing. N. C. 102. [:) Thomas v. Jenkins (1837) 6 A. «S; E. 525. 48 THE RELEVANT FACTS. Part II. of a particular event was in question, and a witness deposed that, although he could not state the date, he knew that it was contemporaneous with a marriage between A and B, evidence was admitted to show on what date A and B were married [a). It is on a similar principle that documents not otherwise relevant to the issue are admissible for the purpose of com- parison of handwriting when proved to be in the handwrit- ing of the party whose signature is in question {b) . In like manner any fact which is necessary in order to explain any fact in issue or an}^ relevant fact, is itself rele- vant ; and it not infrequently happens that for this purpose a large number of facts become relevant, where an issue is raised as to the character or quality of some particular person or thing. This head of evidence may be said to bear some analogy to that which is admitted for the purpose of interpreting documents by clearing up a latent ambiguity (e) . {a) Doe V. Barnes (1834) 1 M. & R. 386. {b) Birch V. Ridgway (1858) 1 F. & F. 270. \c) See pp. 70—73. 49 CHAPTER 11. CONDUCT AND CHAKA.CTER. § 1. — Conduct on other Occasions. § 2. — Character. (i) Evidence for the Prisoner of his own Good Character. (ii) Evidence for the Prisoner, on an Indictment for Rape, ^c, of the Immoral Character of the Prosecutrix. In the last chaj)ter it was shown that facts are not deemed relevant by reason merely of their similarity to those in issue, unless some specific connection can be shown to exist between them. How is this principle applied in the case of human actions ? When the issue is whether a person has or has not done a particular act, is it admissible to establish that he has a disposition to do acts of that kind, by proving either that on some other occasion he has done similar acts, or that he has the reputation of being a man who does them ? On the one hand, a man's character does ordinarily present a certain degree of uniformity ; on the other, it is common enough for a man who has done an act of a particular kind on one, or it may be more than one, occasion, to abstain from further repeating such acts, so that his past conduct and character aro an uncertain guide. The principle adopted by our law is that a person's conduct on other occasions than that in question, and his character (by which is here meant his reputation) , are not, save in certain exceptional cases, relevant to the issue whether he has done a particular act on a particular occasion. v,'. E 50 THE RELEVANT PACTS. Part 11. § 1. — Conduct on other Occasions. A leading case on this point is Il olUngham v. Head [a). It was an action for the price of guano sold and delivered by the plaintiff to the defendant ; and the defence was that the plaintiff ]iad sold the guano on the terms that it was not to be paid for unless equal to Peruvian guano, which the defen- dant alleged it was not. The defendant, in order to prove that the plaintiff had contracted with him on these terms, tendered evidence to show that the plaintiff had sold other parcels of the same guano to other persons on that particular condition. This evidence was rejected, and the court upheld the rejection of the evidence. Willes, J., said [h) : — It is not easy in all cases to draw tlie line, and to define with, accuracy wliere probability ceases and sijecrdation begins ; but we are bound to lay down tbe rule to the best of our ability. No doubt, the rule as to confining the evidence to that which is relevant and pertinent to the issue is one of great importance, not only as regards the par- ticular case, but also with reference to saving the time of the court, and preventing the minds of the jury from being drawn away from the real point they have to decide. . . . Now, it appears to me that the evidence proposed to be given in this case, if admitted, wo\ild not have shown that it was more probable that the contract was subject to the condition insisted upon by the defendant. The question may be put thus — Does the fact of a person having once or many times in his life done a particular act in a particixlar way mate it more probable that he has done the same thing in the same way upon another and different occasion P To admit such sjjeculative evidence would, I think, be fraught with great danger. ... If such evidence were held admissible it would be difficult to say that the defendant might not in any case, where the question was, whether or not there had been a sale of goods on credit, call witnesses to prove that the plaintiff had dealt with other persons upon a certain credit; or, in an action for an assault, that the plaintiff might not give evidence of former assaults committed by the defendant upon other persons, or upon other persons of a particular class, for the purpose of showing that he was a quarrel- some individual, and therefore that it was highly probable that the particular charge of assault was well founded. The extent to which («) (1858) 4 C. B. N. S. 388. [h) Ibid. p. 391. Chap. ir. § 1. COXDUCT AND CHARACTER. 51 this sort of thing might bo carried is inconceivable (c). . . . To obviate the i^rejudice, the injustice, and the waste of time to which the admission of such e'vidence would lead, and bearing in mind the extent to which it might bo carried, and that litigants are mortal, it is necessary not only to adhere to the rule, but to lay it down strictly. I think, therefore, the fact that the plaintiff had entered into contracts of a particular kind with other persons on other occasions could not properly be admitted in evidence, where no custom of trade to make such contracts, and no connection between such and the one in ques- tion, was shown to exist. So in a penal action for usury alleged to have been committed in a contract between the defendant and the Marquis de Chambonas, the plaintiff called the Marquis to prove the usurj, namely, a loan by the defendant to tlie witness at 120 per cent, per annum. The defence was that it was no loan, but a partnership transaction ; and the defen- dant, in order to lay a foundation for giving evidence of other partnership transactions in which he alleged the Marquis had been engaged, and from which the character of the trans- action in question might be inferred, proposed to cross- examine the Marquis as to them. The evidence, however, was disallowed as irrelevant, and its rejection was upheld by the court. It was held that it could only have been relevant had the witness first admitted that such other contracts were made in similar terms to that with the defendant {d). So in an action against a married woman for goods sold and delivered, where the question was whether the defendant had falsely represented to the plaintiff that she was a feme sole, it was held by Parke, B., that the plaintiff could not give evidence of the defendant having made such representations to other tradesmen, unless they were so made as to come to the plaintiff's knowledge {e) . Again, where the question was whether the defendant's alleged acceptance of a bill of exchange was, as he contended, (c) For what follows, see the report in 27 L. J. C. P. p. 'Ii2. {(l) Spenceleij v. Be JFillott (ISOC) 7 East, 108. {e) Bardin v. Kcverhcrcj (1836) 2 M. & W. Gl, G3, 04. K 2 52 THE EELEVANT FACTS. Tart II. forged, it was held that lie could not give in evidence that the plaintiff had in his possession, and had circulated, a number of other bills with forged acceptances of the defendant, unless it was first shown that this bill had formed part of the collec- tion (/'). And in an action for assault to the plaintiff's wife, where the defendant on cross-examination denied that he had assaulted other women in a like manner, it was held that this evidence was not relevant to the issue, so as to entitle the defendant to call witnesses to rebut, or the plaintiff to call witnesses to substantiate, the imputations thus made {g) . On a prosecution for the theft of a shilling, the proj)ertj of one Spencer, the prosecutor tendered evidence to show that when the shilling, which had been previously marked, was found on the prisoner, he was asked by the constable who arrested him if he had any more money of Mr. Spencer's about him, and that the prisoner thereupon produced some half-crowns, and made a statement in regard to them. There was apparently nothing to show that the shilling and half-crowns were taken at the same time. The evidence was objected to as tending to prove a distinct felony from that charged, and the objection was upheld (//). Where however several takings form part of one entire transaction, they may all be proved, although they may not all form the subject of indictment (/). And the same principle is applied to other crimes, as arson {k), and burglary (/), as well as to civil cases {))i). Intention. — There is however one important exception to the general rule against evidence of conduct on other occasions. (/) Griffits V. Payne (1839) 11 A. & E. 131 ; cp. Vineij v. Barss (1795) 1 Esp. 293. {g) Tolman v. Johstonc (1860) 2 F. & E. 66. (/() It. V. Butkr (1846) 2 C. & K. 221. [i) R. V. Ellis (1826) 6 B. & C. 145 ; R. v. Mansfield (1841) C. & Marsh. 140 ; R. V. Firth (1869) L. R. 1 C. C. R. 172. (A') R. V. Long (1833) 6 C. & P. 179. {I) R. V. Cohden (1862) 3 F. & F. 833. [in) Mcagoe y. Simmons (1827) 3 C. & P. 75. Chap. II. § 1. CONDUCT AND CIIAEACTEE. .53 Whenever a party is charged with the commission of some tort or crime which involves guilty Icnnwiedge or intention, if proof has been given that he did the physical act, but it still remains to be shown whether he committed it with a guilty or an innocent mind, evidence is admissible of the commission by him of similar acts, for the purpose of showing that on the occasion in question he must have acted not inadvertently but with design. Thus in an action against a life insurance society to recover a sum of money proved to have been obtained by them from the plaintiff, and alleged by the plaintiff to have been so obtained through a fraud of the defendants' agent committed with their knowledge and for their benefit, it was held that evidence of similar frauds committed on other persons than the plaintiff by the same agent and in the same manner, with the knowledge and for the benefit of the [ defendants, was admissible in support of the plaintiff's allegation of fraud {n'^. The same principle has been applied in actions of libel and slander (o), in which evidence is ad- mitted of other defamatory words published either before or after the defamation in question, in order to .prove malice. In criminal cases such evidence is most common in prosecu- tions for knowingly uttering forged documents and base coins; but it is also frequently applied in other cases, as false pretences {p), embezzlement (j)), arson (q), and nim'- der {)'). In JR. v. Gcering (.s) the prisoner Mary Ann Geeriug was indicted for the murder in September 1S48 of her husband Richard Geering by the administration of arsenic. It would appear that evidence was given tending («) Blake v. Albion Life Assurance Society (1878) 4 C. P. D. 9-i. (o) Pearson v. Lemaitre (1843) 5 M. & G. 700 ; Rustell v. Macquister (1807) 1 Camp. 48, note. {p) R. V. Francis (1874) L. R. 2 C. C. R. 128, 132. {q) R. V. Richardson (1860) 2 F. & F. 343. (r) R. V. Graij (1866) 4 F. & F. 1102. (s) R. V. Geering (1849) 18 L. J. M. C. 215 ; cp. R. v. Gamer (1863) 3 F. & F. 681 ; R. v. Cotton (1873) 12 Cox, 400 ; R. v. Heeson (1878) 14 Cox, 40. 54 THE EELEVANT FACTS. Part II. to show that the deceased had died of arsenical poisoning, and also that the prisoner had lived with him and had generally made tea for him, cooked his victuals, and supplied him with food on his leaving his home to go to work in the morning. The prosecution also tendered evidence to show that the prisoner's three sons, George, James, and Benjamin, had in like manner lived with the prisoner, and been pro- vided for by her ; and that in December 1848 George, and in March 1849 James, had died from arsenical poisoning, and in April 1849 Benjamin had been rendered very ill from the same cause. These other cases formed the subject of three other indictments. On the part of the defence this evidence was objected to, but Pollock, C.B., held that it was admissible as relevant to the question whether the taking was accidental or not, and his ruling was subsequently approved by Talfourd and Alderson, B.B. The conduct from which the guilty knowledge or intention is to be inferred ought to be of the same character as that which is the subject of the inquiry, and on this ground, in prosecu- tions for receiving goods knowing them to have been stolen, it was held that evidence was not admissible to prove that other stolen property was found in the prisoner's possession, if there was no evidence that he had received such property from the persons who had stolen it (f) . In order however to enable such evidence of mere finding to be given in evidence in certain cases, it has by sect. 19 of the Prevention of Crime Act, 34 & 35 Yict. c. 112, been provided that — Where proceedings are taken against any person for having received goods knowing them to be stolen, or for having in his posses- sion stolen property, evidence may be given at any stage of the pro- ceedings that there was found in the jiossession of such person other property stolen within the preceding period of twelve months, and such evidence may be taken into consideration for the purpose of proving that such person knew the property to be stolen which forms the subject of the proceedings taken against him. {t) li. V. Odd>/ (18.31) 2 Den. C. C. 264. Chap. II. § 1. CONDUCT AND CHARACTER. 55 Where the prisoner has had other stolen property in his possession, but has parted with it before the date of the stealing of the property for the receiving of which he is indicted, this section has no application (u). The same section also enacts a further exception to the general rule against evidence of conduct on other occasions than that in question, by j)roviding that — Where proceedings are taken against any person for having received goods kno-wing them to be stolen, or for having in his posses- sion stolen propertj', and evidence has been given that the stolen pro- perty has been found in his possession, then, if such person has "within five years immediately preceding been convicted of any offence involving fi'aud or dishonesty, evidence of such previous conviction may be given at any stage of the proceedings, and may be taken into consideration for the piu'iwse of proving that the person accused knew the projierty which was proved to be in liis possession to have been stolen, provided that not less than seven days' notice in writing shall have been given to the person accused that proof is intended to be given of such previous conviction ; and it shall not be necessary for the purposes of this section to charge in the indictment the previous conviction of the j^erson so accused. § 2.— Character. The term character denotes not a man's inward disposition, nor the opinion entertained of him by this or that particular person alone (as we speak of a servant's character), but the general reputation and opinion held of him by those who are acojuainted with him. The rule which excludes evidence of character applies to both parties, so that whether the alleged act is good or bad, neither may give evidence to show that the person who is alleged to have done it has a disposition or character which makes it probable that he would or would not have done the act in question. The rule is so long and firmly established that the books present few illustrations of it. On the trial of a jirisoner for wounding a constable who had arrested him on suspicion of (m) Jt. V. Carter (1884) 12 Q. B. D. 523. 56 THE RELEVANT FACTS. Part II. felony, the counsel for the prosecution asked the constable the following question : " What do you know has been the prisoner's previous character?" The question was objected to on behalf of the prisoner, but allowed. The answer was, " I know the prisoner to be a very bad character." After conviction it was held by the court that this evidence was in- admissible, although the prisoner might have cross-examined the constable as to the grounds of his suspicion ; and the con- viction was accordingly quashed (.r) . So on a prosecution for an unnatural offence, an admission by the prisoner that he had a tendency to such practices was held inadmissible {y) . Con- versely, in an action of ejectment by an heir-at-law claiming to set aside a will for fraud and imposition committed by the defendant, it was held that the latter was not entitled to call witnesses to prove his general good character (s). And on an information (held to be civil in its character) for the recovery of penalties for the keeping of false weights, it was held that the defendant could not call witnesses to character for the purpose of showing that he was incapable of the offence imputed to him {a). So in an action of slander for having charged the plaintiff with the theft of certain money, to which the defendant pleaded a justification, it was held that the plaintiff could not call witnesses to prove his general good character for honesty {h). There are however two exceptions to this rule, by the first of which evidence of good character is admitted in favour of the defendant in all criminal proceedings, and by the second a prisoner indicted for rape is entitled to call evidence as to the immoral character of the prosecutrix. (i) Evidence for the Prisoner of his own Good Character. — In criminal cases, although the general rule precludes evi- (x) li. V. Turherfield (1864) 34 L. J. M. C. 20. \y) R. v. Cole (1810) Phill. Ev. vol. i. p. 508. {z) Goodwright v. HicJcs (1789) B. N. P. 296. («) Att.-Gen. v. Bouman (1791) 2 B. & P. 532, note (a). [b) Cormvall v. Richardson (1825) Ry. & Moo. 305. Chap. II. § 2. CONDUCT AND CHARACTER. 67 dence of the prisoner's Lad disposition or character being given as part of the case for the prosecution, the prisoner is always at liberty to call evidence to show that he has a good character with reference to conduct of the description charged. This exception appears to have been at first admitted in capital cases only, but it has since been extended to all criminal proceedings. Should the prisoner avail himself of his right to offer such evidence, the prosecution is entitled to rebut it by evidence that the prisoner does not really possess the character alleged, as it would be unjust that he should have the advantage of a character which in point of fact is undeserved (c) . The evidence offered for the prisoner, and that adduced by the prosecution in reply, must be of the same description, that is, it must in each case consist of evidence of general reputation only ; no evidence on either side is admissible either of particular acts of conduct on the part of the prisoner, or of the personal opinion of the witness alone as to the prisoner's disposition, however exceptional may have been his opportunities of observation. Hence the proper question to ask, after ascertaining that the witness is competent to speak as to the prisoner's character, is this : " What is the prisoner's general character for honesty (or as the case may be) ? " If the witness's answer expresses only his own personal judgment, as, for instance, "My oj)inion of him is that he is thoroughly honest," it is in strictness inadmissible, although such answers are not infrequently admitted without objection. Again, as it is said that the best character is that which is least talked of, the witness is often permitted to give his evidence in the following form : " I never heard anything against the character of the man for honesty (or as the case may be)." (ii) Evidence for the Prisoner, on an Indictment for Bape, 8fc., of the Immoral Character of the Prosecutrix. — In prosecutions (c) E. V. Jiowion (1865) L. & C. 520, 529. 68 THE RELEVANT FACTS. Part II. for rape, or for attempting to commit rape, or for indecent assault, the defendant is entitled to call evidence to show that the prosecutrix has a general bad character in respect of chastity and morality, as, for instance, to prove that she is a common prostitute ; but he may not give evidence of specific acts of immorality, unless they were committed with himself, in which case they are held to be relevant, but only upon the question of consent. If such evidence of bad character is called by the defendant, the prosecution may call evidence to rebut it (r/). The two exceptions just mentioned, in which evidence of character, in the sense of general reputation, is held to be relevant to the issue whether a particular act has been com- mitted, must be distinguished from cases where the character of a party is expressly put in issue in the case, as happens sometimes in actions of libel or slander; and from cases where character is virtually in issue, in the sense that the amount of damages recoverable depends upon it, as, for instance, in actions for defamation (e), seduction (/), or breach of promise of marriage (g), or in claims of damages for adultery against a co-respondent, which proceed on the same principles as the old action for criminal conver- sation (/#). In all these cases the evidence is admitted on different grounds from those discussed in this chapter ; the character is either the subject of the inquiry or an element in I the estimation of the damage suffered, and does not tend in any way to prove the commission or non- commission of any act. (d) R. V. Eolmes (1871) L. R. 1 C. P. 334, and cases there cited. [e) Scott V. Samson (1882) 8 Q. B. D. 491 ; Wood v. Durham (1888) 21 Q. B. D. 501. (/) Bamjieldv. 3Iassey (1808) 1 Camp. 460; Bate v. Hill (1823) 1 C. & P. 100 ; Verrey v. Watkins (1836) 7 C. & P. 308. {g) Foulkes V. Sellwaij (1801) 3 Esp. 236 ; Leeds v. Cook (1803) 4 Esp. 256. {h) 20 & 21 Vict. c. 85, s. 33 ; B. N. P. 27, 296. 59 CHAPTER III. RES GEST,^ AND XARRATIVE. The distinction between relevant facts and media of proof, explained in the introduction {a), implies that in any trans- action which is the subject of litigation a line can bo drawn between such statements of the parties or their agents as form part of the transaction, and are therefore relevant facts, and such as consist of contemporary or subsequent references to it, and are only admissible, if at all, as media; of proof. The words which constitute a slander, a fraudulent misrepresentation, or a provocation to assault, are clearly relevant facts in any proceedings founded on those torts ; they are acts in law just as much as trespasses to person or property ; so are the statements which are made in the course of negotiations leading up to an oral agreement, and which are understood by the parties to form terms of the contract. But the references that the parties may subse- quently make to such statements, at any time before the trial of the matters in dispute, are merely narrative in character, and will be admissible in evidence, if at all, under the head of admissions. Statements which have, in the above sense, the character of acts are frequently distinguished from those which are merely narrative by the technical term res gestce. This term appears to denote all acts which are relevant facts, whether consisting of statements or not (b), but is seldom used except for the purpose of emphasizing the distinction in question. (a) Page 9, above. {b) Wright v. Doe (1837) 7 A. & E. 313, 355. 60 THE RELEVANT FACTS. Part II. The practical importance of this distinction lies in this, that as soon as a statement is shown to be a relevant fact it is at once admissible in evidence as such ; whereas if, on the other hand, it is shown to be a narrative statement, it is not necessarily admissible merely because it refers to the facts in issue ; every medium of proof has its own special conditions intended to insure credibility, and unless there- fore it can be shown to satisfy the definition of some one of these media of proof, it is not admissible. In many cases this distinction is lost sight of by reason of its being of no practical importance. This is generally the case with the statements and conduct of the parties them- selves. Inasmuch as all such statements and conduct, sub- sequent and relating to the transaction in question, are admissible, if not privileged, under the head of admissions or confessions either express or implied, it is immaterial for the most part, save where any question of privilege may arise, to consider where the res rjcstce cease, and narrative references begin (c). Where on the other hand the state- ment is a statement by the opponent's agent (whose authority is in most cases confined to acting, and does not extend to the making of admissions as to his principal's affairs), the distinction is not unfrequently brought into play. Thus A sues a tramway comi^any for injury caused to him by the tramcar having started whilst he was alighting. Shortly after the accident the engine-driver and the conductor make statements in the hearing of A as to the cause of it. Here it is clear that the statements are no part of the trans- action in respect of wliich A sues, and unless the company's servants had express authority to make admissions about their affairs, they cannot be treated as the admissions of the defendants. [c) But for instances, cp. pp. 10, 209, 214. Chap. III. EES GESTAE AND NARRATIVE. 61 The following- are some examples from the books. In an action in 1840 by a stock-jobber for 5,000/., the price of certain stock alleged to have been sold and trans- ferred to the defendant, the defence was that the plaintiff had given credit to one Taylor and not to the defendant. It appeared at the trial that a stock-broker of the name of Taylor had applied to the plaintiff for 5,000/. of stock for the defendant, that the plaintiff had procured the same and transferred it in the books of the Bank of England into the name of the defendant, and that the latter had accepted the stock so transferred. The plaintiff's case was that, although it was usual for the seller in such cases to look to the broker, he had in this instance not done so, but had given credit to the defendant alone. On this point evidence was tendered on behalf of the plaintiff of a conversation which had taken place between him and Taylor immediately after the transfer, on the occasion of his asking for payment. The plaintiff requested Taylor to give him the cheque of his principal, whereupon Taylor gave him his own cheque, requesting that it might not be presented until the next day. The evidence was objected to on the ground of the conversation having been subsequent to the transfer ; but the objection was over- ruled, and the ruling of the judge was upheld by the court. Lord Abinger, C. J., said : — The third point is as to the admission of the evidence of what occuiTed between Taylor and the plaintiff, immediately after the transaction. As a general principle, it is undoubtedly true that conversations with an agent after the transaction are not evidence against the principal ; but the question is, whether this be not a part of the res gestce ? It is part of the evidence to show that the plaintiff did not trust Taylor, and 1 do not know how it could have been shown j otherwise. It is before the transaction is concluded, that is, before j payment is made ; and I think it is receivable ; it is not a conversation j between an agent and principal after the transaction is concluded, but i a conversation at the time he is dealing with him, and a part of the res gestoi (d). {d) jVortimer v. MvCallcH (1840) 6 M. & W. 58, 69. 62 THE EELEVANT FACTS. Part II. In an action for damage brought by the owner of the steam- ship 21a fij Nixon against tlie steamship Dovglas and her freight the ease was this : about six o'clock on an evening in October the steamship Douglas sank in Gravesend Reach and lay in mid- channel with one mast above water obstructing the naviga- tion. Shortly after midnight the Mary Nixon came into collision with the wreck and suffered damage, for which her owners now claimed compensation on the ground inter alia of negligence on the part of those in charge of the Douglaa in not taking proper steps to warn approaching vessels of the position of the wreck. To meet this charge of negligence the defendants tendered evidence to show that the mate of the Douglas, soon after the sinking of his vessel, instructed the master of a tug called the Endeavour to report the fact to the harbour-master at Grravesend, and request him to take care of the wreck, and that shortly afterwards the captain of the Endeavour reported to him, as the fact was, that the harbour- master had said that the proper wi'eck-lights would be imme- diately sent to the Douglas. This evidence was rejected at the trial on the ground, apparently, that, as hearsay, it was inadmissible; but on an application by the defendants for a new trial it was held by the court that it ought to have been admitted as being a relevant fact to disprove negligence on the part of those in charge of the Douglas {/) ; the statements in question were themselves acts of diligence, measures taken towards making the navigation of the river safe. Further illustrations of the distinction in the case of the statements and conduct of agents will be found in Part III in the chapter on Admissions {g), which should be referred to here. The distinction is no less valid when conduct, equivalent to admissions or declarations of fact or ojiinion, takes the place of oral statements. Thus in an action of ejectment brought (/) The Douglas (1882) 7 P. D. 151. {i) ; (c) it is not necessary that the whole con- tract should be in writing, or that it should be signed by both parties; it is sufficient that the memorandum contains the particulars held requisite for compliance with the statute, and that it be signed by the party who is sought to be charged or his agent in that behalf (o) ; (d) the absence of writing is a defence which the defendant may waive, and which he must specially plead if he intends to rely on it (p). It is obvious therefore that in cases falling within this class, when once it has been determined that the memorandum of the transaction satisfies the statute, the further question may still arise whether oral evidence is admissible of other terms than those contained in it, or, in other words, whether the memorandum, besides complying with the statute, was also intended by the parties to be the complete and sole record of the bargain between them. This question must be determined in ac- cordance with the rules already stated (q) . The rule under discussion is however subject to certain exceptions, some of which are applicable to all documents which are res gestce, and others to contracts only, as herein- after mentioned. These exceptions are as follows : — (i) Identification. — Oral evidence is always admissible in order to show what the subject-matter is to which the instru- {m) Maddison v. Alderson (1883) 8 App. Ca. 467, 488. («) Lucas V. Bixon (1889) 22 Q. B. D. 357. (o) See the statute itself. The effect of sect. 17, and of the numerous decisions on it, were digested by Mr. Justice Stephen and Sir F. Pollock, and will be found in Vol. I. of the Law Quarterly Review, p. 1. {p) R. S. C. Ord. XIX rr. 15, 20 ; Clarke r. Callow (1876) 46 L. J. Q. B. 53; Daivkins v. Fenrhyn (1878) 4 App. Ca. 51, 58, {q) Pages 68, 69. Chap. IT. DOCUMENTS AS EES GEST.^. 11 ment is applicable, so that it may be read with reference thereto. Tims with regard to wills it is held tliat oral evidence is admissible to prove all material facts in existence at the date of the will and relating either to the family of the testator or to the subject-matter of the devise, as, for instance, that the property was or was not in the possession of the testator, the mode of acquiring it, and its local situa- tion and distribution, as well as any facts which may have affected changes in the family or in the property between the dates of the will and of the death, and any other facts neces- sary to be known in order that the will may be correctly applied (r) , In like manner in an action on a covenant in a lease to keep in tenantable repair oral evidence may be given of the character, age, and condition of the premises at the time of the demise, in order that the covenant may be correctly applied to its subject-matter (.s). On the same principle oral evidence has been admitted to ascertain the meaning and application of the terms " your wool " {f), and "your employ" (ti), contained in written contracts. A fami- liar illustration of the rule is supplied by the cases where evidence is admitted to ascertain whether a particular piece of land is " parcel or no parcel " of a certain estate granted by some description or local designation which needs eluci- dation, such as " Trogue's farm"(r), or "all those brick- works, &c. now in the possession of A. B." (//). And on the same principle stands the evidence admitted to explain old charters by reference to the user and possession had under (»•) Doe V. Huthwaitc (1820) 3 B. & A. 632 ; Boe v. Martin (1833) 4 B. & Ad. 771, 785; Stringer v. Gardiner (1859) 27 Beav. 37; Webber v. StanUy (1864) 33 L. J. C. P. 220. (s) Biirges v. WicJcam (1863) 3 B. & S. 669, 698, per Blackburn, J. (t) IfcDonald v. Longbottom (1859) 28 L. J. Q. B. 293 ; 29 L. J. Q. B. 256. (?<) Mumford v. Gething (1859) 29 L. J. C. P. 105. \x) Goodliile v.' Southern (1813) 1 M. & S. 299. ((/) radchck V. Iranihy (1830) 1 C. & J. 90 ; cp. Doe v. Uubbard (1850) 15 Q. B. 227. 1J2 THE RELEVANT FACTS. Part II. them, as, for instance, to prove the extent and meaning of the terms "terra dv Gowcr'" (-), " inhahitants " {a), "three acres of meadow" {b). Under the same head fall cases of so-called latent ambiguity, that is, cases where the words of the instrument are in them- selves clear, hut there exist more than one person or thing to -which the instrument may be applied, so that oral evidence is necessary to solve the ambiguity. It is difficult to classify the different cases which have been decided under this rule. The simplest case is where the description is correct but equivocal ; as where the devise was " to George Grord, the son of Gord," and there were two George Gords, one the son of John Gord and the other of George Gord (c) , or where the devise was of " the close in Kirton, now in the occupation of J. W.," there being two closes in Kirton belonging to the testator each in the occupation of J. "W. at the date of the will {(l). Sometimes however the difficulty may -be complicated by inaccuracy of description. Whether an inaccurate description will vitiate an intended grant or devise (whether there exist ambiguity or not) will depend on whether the part of the description which is accurate is such a complete description that the misdescribiug part may be justly regarded as a mistake and rejected as a " false demonstration" in order to prevent the failure of the instrument {e) . If on the other hand the misdescription is such that the proof of the grantor's or devisor's real intention would amount to setting up an oral grant or devise, the evidence will be rejected (/). Assuming [z) Beaufort v. Swansea (1849) 3 Ex. 413 ; cf. Calmad>j\. Roive (1848) 6 C. B. .861 ; and Hastings v. Ivall (1874) 19 Eq. 658. (a) Att.-Gen. v. Farher (1747) 3 Atk. 576 ; R. v. Mashitcr (1837) 6 A. & E. 153 ; R. V. Bavie, ibid. 374, 386. {b) Stammers v. Bixon (1806) 7 East, 200. \c) Doe V. Needs (1836) 2 M. & W. 129. [d) Richardson v. Watson (1833) 4 B. & Ad. 787. . . \e) Webber v. Stanletj (1864) 33 L. J. C. P. 217, 220. (/) Miller V. Travers (1832) 8 Bing. 244. Chap. lY. DOCUMENTS AS EES GESTJE. 73 however that the iuaccm-ate part can bo thus rejected, then, if the accurate part applies equally to two persons or things, the latent ambiguity may be solved as before by oral evidence (//) . A somewhat different difficulty is that which is introduced by the use of a word in a non-natural sense. If it can be shown that by constant user within a certain locality or among a certain class of persons a word has acquired an arti- ficial sense, and it appears that the instrument was made under such circumstances that the ^\'ord may be presumed to have been therein used in that sense, then (whether there be any other source of ambiguity or not) the court will act on the evidence so admitted and construe the document accordingly. On this principle the words " a thousand rabbits " in the lease of a rabbit warren have been held to mean twelve hundred {//), and " year" in an actor's engage- ment to mean the theatrical season (/). Somewhat similarly oral evidence has been held admissible to prove that a testator alone habitually used a certain misdescription found in his will, as, for instance, where he always spoke of his wife's nephew as his nephew, although he had a nephew of his own of the same name, a\ ith whom however he was not on terms of intimacy (A-). And where the misdescription is such that it is capable of correction by means of evidence, and after it has been so corrected it still appears that there are two objects to which the term may have been intended to be applied, a case of latent ambiguity arises which may be solved accord- ing to the rule by oral evidence (/). (ii) Custom of Localitij or Trade. — AVherever there exists in a certain locality, or among a certain class of men, as, for instance, those engaged in a certain trade, a usage so general that it may be presumed that parties contracting with {g) Re Feltham's Trusts (1855) 1 K. & J. 528. (A) Smith V. Wilson (1832) 3 B. & Ad. 728. (i) Grant v. Maddox (1846) 15 M. & W. 737. [k) Grant v. Grant (1869) L. R. 2 P. & D. 8. {I) Charter v. Charter (1871) L. R. 2 P. & D. 315. 74 THE EELEVANT FACTS. Part II. relation to that wliicli is the subject-matter of the custom must have contracted with reference to the custom, the terms of the custom will be deemed to have been incorporated in the contract, provided the ■s^Titten terms of the contract are not inconsistent with it, and oral evidence may be given as to its scope and effect (in). The most conspicuous instances of this rule are the agricultural customs of different parts of the country, held to be incorporated in leases between landlord and tenant, and the numerous commercial usages to be found in almost every trade in the kingdom (ii). (iii) Collateral Agreement. — Notwithstanding that a written contract appears on the face of it to be a complete record of the agreement of the parties, it may be proved that it was made subject to some condition or agreement which was intentionally omitted from the document. In cases sought to be brought within this exception it is a question of fact whether the term or condition of which oral evidence is tendered, was on the one hand either mere negotiation or an honourable understanding, or was on the other hand intended by the parties to be a legal obligation collateral to their written contract. The courts have been somewhat liberal in particular cases in adopting the latter view ; but it would seem that the principle to be deduced from the cases is this, that the condition will be deemed collateral, and so provable by oral or written evidence dehors the main agree- ment, whenever it can be shown (a) that it is not incon- sistent with the terms of the written contract, (b) that it was intended to operate as a legal obligation, and (c) that it was intended to be collateral and deliberately omitted from the written contract (o). So defined, this exception may be regarded as a case of one major agreement severed into (m) Sutton V. Warren (1836) 1 M. & W. 466, 475. («) Wi(/gJesworth v. Dallxson (1779) 1 Sm. L. 0. (o) Morgan v. Grrffith (1871) L. R. 6 Ex. 70 ; Ershine v. Acleane (1873) 8 Ch. 756 ; Angell v. Dtthe (1875) L. B. 10 Q. B. 174 ; 32 L. T. 320. Chap. IV. DOCUMENTS AS EES GESTiE. 75 two minor ones, one of wliieli forms the consideration for tlio other; the major agreement having by common accord been reduced into writing only as to one part of its terms, oral evidence is, in accordance with the general rule before stated, admissible to prove such terms of it as liave not been reduced to writing. All the foregoing cases in which oral e\ddence is admitted have this common characteristic, that they are cases in which the instrument is not reprobated, but relied on and affirmed, the object of the oral e"\idence being to explain its terms and interpret them correctly. They must accordingly be distinguished from numerous other cases where oral evidence is admitted, as for the purpose of rectifying the instrument, or for the purpose of showing that it is invalid, or that, although valid, it has been discharged by matter subsequent. It is obvious that none of these cases form exceptions to the rule excluding oral evidence of the trans- action recorded and constituted by the document, but are matters belonging rather to the law of contract than the law of evidence. 76 Part III. THE MEDIA OF PROOF. Inspection or View : (i) View during Trial. (ii) View before Trial — (a) In Civil Cases. (b) In Criminal Cases. The most direct way of all in which relevant facts can be brought to the cognizance of the judge and jury is by inspection or view. It is obvious that where this is available it must be a better means of knowledge than any of those forms of testimony which are the subject of this Part, in so far as the subject-matter of inspection is by itself completely intelligible ; and that even where testimony is required for the purpose of explanation, inspection will still be on many points the most direct mode of gaining information. Where therefore the issue relates to some physical object, the identity, quality or condition of which is or may be relevant, and which can be inspected, this means of information is frequently resorted to. With regard to portable objects it is a common practice for the party who has the possession of them to bring them into court where the judge and jury may inspect them during the course of the proceedings. Every one is familiar with this kind of evidence ; the production in court of the weapon with which injury has been inflicted on person or property, or of articles alleged to have been stolen or damaged, and the like. Part III. THE MEDIA OF rR001'\ 77 Witli regard to all oLjccts which either cauuot be, or in fact are not, brought into court, a view may be bad out of court, either during the trial itself, or in certain cases at some prior stage of the proceedings. (i) Vie/c (hiring Trial. — During the trial the judge lias jui'isdiction by the common law, both in civil and criminal proceedings, to adjourn the court for the purpose of a view by the jury of any property or thing of wliicli it is reasonable and convenient in all the circumstances of the case that a view should be had [a). Generally the most convenient time for such a view is after the questions in issue have been explained to the jury, but before the evidence has been given ; but it may be lawfully had at any time before verdict, and may therefore immediately precede the summing- u}) of the judge {h). (ii) Vieiv before tJte Trial. — By the common law the court had no power to order an inspection before trial, but the jurisdiction has now been conferred upon it in certain cases by statute and rules of court. (a) In civil cases ample powers for prociu-ing inspection by the judge and jury before trial are now supplied by the combined effect of the following rules of Order L : — EuLE 3. It shall be lawful for tlie Court or a judge, uj^ou the appli- cation of any party to a cause or matter, and upon such terms as may be just, to make any order for the detention, j^reservation, or inspection of any propertj^ or thing, being the subject of such cause or matter, or as to which any question may arise therein, and for all or any of tho purjioses aforesaid, to authorize any persons to enter upon or into any land or building in the possession of any party to such cause or matter, and for all or any of the purposes aforesaid to authorize any sample to be taken, or any observation to be made or exijeriment to bo tried, which may be necessary or expedient for the purpose of obtaining full information or evidence. Rule 4. it shall be lawful for any judge, by whom any cause or matter may be heard or tried with or without a jury, or before whom (a) R. V. Whalleif (1847) 2 C. .& K. 37G ; R. v. Martin (1872) L. E. 1 C. C, R. 378. (4) R. V. Martin (1872) L. R. 1 C. C. R. 378. 78 THE MEDIA OF PEOOP. Part III. any cause or matter may be brought by way of appeal, to inspect any proiicrty or thing concerning which any question may arise therein. EuLE 0. The provisions of Eule 3 of this Order shall apply to inspection by a jury, and in such case the Court or a judge may make all such orders upon the sheriff or other person as may be necessary to procure the attendance of a special or common jury at such time and place and in such manner as they or he may think fit. (b) In criminal cases the powers of tlie Court are mucli more limited. By sect. 23 of 6 Geo. 4 c. 50 (which formerly- applied also to civil proceedings), it was enacted that — Where in any case, either civil or criminal, or on any penal statute, depending in any of the said Coiu-ts of Eecord at Westminster (c), it shall appear to any of the respective Courts, or to any judge thereof, in vacation, that it will be proper and necessary that some of the jurors who are to try the issues in such case should have the view of the place in question, in order to their better understanding the evidence that may be given upon the trial of such issues, in every such case such Court, or any judge thereof in vacation, may order a rule to be drawn up containing the usual terms, and also requiring, if such Court or judge shall so think fit, the party applying for the view to deposit in the hands of the under-sheriff a sum of money to be named in the rule for payment of the expenses of the view. The section then provided that the rule should be followed by the issue of a special writ to secure the attendance of the jurors to view the place in question ; but this provision has been repealed, and the procedure relating to the view is now regulated by Rules 159 and 252 (q) of the Crown Office Eules, 1886. These provisions are however of a very limited character, as they do not extend to Courts of Assize {(I), but apply only to proceedings on the Crown side of the Queen's Bench Division. Moreover they authorize only the inspection of such property as answers the descrip- tion of " the place in question " (e). (c) The jurisdiction of these Coiirts is now, by virtue of the Judicature Acts, vested in the Supreme Court. (d) As to the removal of indictments into the Queen's Bench Division for the purpose of obtaining an order for a view, see C. 0. R. 29 ; and Short & Mellor's Cro. Pr. pp. 94, 95. (e) Stones v. Menham (1848) 2 Ex. 382. 79 CHAPTEK I. DIRFXT ORAL EVIDENCE. § 1. The Witness must J,? competent. (i) Mental Incompetency. (a) ChUdhood. (b) Insanity. (c) Deafness and Bumlness. (d) Illness. (ii) Incompetency from Interest. (a) CifiV Proceedings. (b) Criminal Proceedings. § 2. TTic Evidence must be on Oath or yljfirmation. h 3. The Evidence must be Direct and (e) Drunkenness. must be given in Open Court. All relevant facts, except such as can be viewed by the judge and juiy in the manner just described, must obviously be brought to the cognizance of the court by means of some form of statement, -orai or d ocumen tary.; and the law lias accordingly defined the kinds of statements admissible for this piu'.pose. The various forms of narrative or record so defined are called the Media of Proof, for the reasons stated in the introductiou, where the general relations to each other of these different forms of testimony are discussed {a). The rules which define them are all based on the principle that the best evidence must be given that the nature of tlie case will admit of ; in other words, they are all devised to secure, as far as may be possible, the credibility of the information conveyed to the court. The principal of these media of proof is direct oral evi- dence, that is, the direct evidence of a competent witness given on oath or afilrmation in open court {li). It will be (ff) See pp. 5 — 8. {b) Otttram v. Moreivood (1793) 5 T. E. 121, 123; Berkeley Peerage Case (1811) 4 Camp. 401, 414 ; Wright v. Doe (1837) 7 A. & E. 313, 3S4 ; May v. Taylor (1843) 6 M. & G. 261, 265 ; Polini v. Gray (1879) 12 Ch. D. 411, 420. 80 THE MEDIA OF PEOOF. Part HI. convenient to consider separately tlie three requisites com- prised in this definition, namely, competency, the oath or affirmation, and the condition that the evidence must be direct and given in open court. § 1. — The "Witness must be Competent. Incompetency denotes the incapacity to give evidence, whether it be general, such as idiocy, or due to a special relation between the person and the proceeding, as in the case of the defendant to a criminal prosecution. The grounds of incompetency were formerly very numerous, and many cir- cumstances which are now regarded as affecting only the weight of a witness's testimony were treated as reasons for disqualifying him altogether (c). Most of the disqualifica- tions however not arising from natural causes have now been removed, and the only heads of incompetency at present remaining are mental incapacity and interest. In all other cases persons are competent to give evidence {d) . (i) Mental Incornpetcncij. — Persons whose understanding is too feeble for any reliance to be reasonably placed on any evidence they may give are incompetent to testify. Such are or may be children of tender years, and persons who are insane, deaf and dumb, ill, or drunk. (a) Childhood. — It was formerly attempted to fix the age at which children should be deemed competent to give evidence, but it is now settled that their competency depends not on their age, but on the degree of intelligence they possess {c). (b) Inscoiity. — Persons who sufPer from insanity are not necessarily incompetent. Whether they are fit to testify (c) Gilb. Ev. 4tli ed. 119—144; cp. Berkeley Peerage Case (1811) 4 Camp. 401, 415 ; Jacobs v. Laijborn (1843) 11 M. & W. 685, 691. {d) Qu. as to persons tmder sentence of death. See li. v. JJ^ebb (1867) 11 Cox, 133 ; 6 & 7 Vict. c. 85, s. 1 ; 33 & 34 Vict, c 23. {e) R. V. Brasier (1779) 1 Lea. C. C. 199. Chap. I. § 1. DIEECT ORAL EVIDENCE. 81 depends on the character and extent of the insanity. An insane person may be quite competent to testify during what are called lucid intervals (/) ; and even during tho con- tinuance of the insanity, if it be such as not to render his testimony wholly untrustworthy {(j) . In the case of H. v. Silf, cited below, a witness named Donelly had a settled delusion that he was attended by thousands of spirits wlio entered his body and came round his head and were inces- santly speaking to him. He gave a connected and rational account of the transaction he was called to prove, although on one point at any rate, namely the date of the occurrence, he drew a distinction between his own recollection and the suggestions of the spirits, who, he said, assisted his memory. It was held by the court that his testimony had been rightly admitted. (c) Deafness and Dumbness. — Persons deaf and dumb from birth were formerly presumed to be idiots until the contrary was shown {h) ; but now it is simply a question, as in other cases, to be decided by the judge, whether they have sufficient intelligence, as well as capacity to communicate theu' thoughts to others, to justify the reception of their evidence. Their evidence may be given either by means of signs made to some person sworn to interpret them to the court, or by means of writing, as the judge may direct (/). A person who is only deaf or dimib is of course competent to testify, subject to the like conditions. (d) Illness. — It is clear that anyone may be rendered temporarily incompetent by illness. (e) Dnmkenness. — The same may be said of drunkenness. (/) Com. Dig. Testmoigne A. 1. iff) Att.-Gen. v. mtcheock (1847) 1 Ex. 91, 95; R. v. HiU (1851) 2 Den. C. C. 254. {h) Hale, P. C. 34. (0 R. V. Ruston (1786) 1 Lea. C. C. 403 ; Morrison v. Lcnnard (1827) 3 C. & P. 127 ; R. V. Whitehead (1866) L. R. 1 C. C. R. 32. w. a 82 THE MEDIA OP PEOOF. Part HI. The question whether a witness is competent or not, like all questions of the admissibility of evidence, is for the judge alone. For the decision of this question he may examine the proposed witness himself and also hear evidence (k). This inquuy is called the examination on the voire dire (/). Formerly it was necessary that it should he held before the witness was sworn and had begun to give evidence upon the issue, but it is now settled that it may be held at any stage of his examination whenever disqualification is first sus- pected {lii) . And even although the witness should have been examined on the voire dire before the commencement of his evidence, and held competent, yet if it is subsequently discovered that he is in fact incompetent, his evidence will be struck out (n). The test of mental capacity most frequently applied has generally been the capacity of the proposed witness to understand the nature of an oath. The degree of intelligence necessary for this purpose is probably somewhat greater than that requisite for giving such testimony as is worthy of some consideration (o) ; at any rate it has generally been deemed a sufficient test of the capacity to testify. The presence of the two distinct conditions, general mental competency, and the religious sanction of the oath, which is discussed below, are thus conveniently tested by a single inquiiy. And hence (A) Jacobs V. Lcnjborn (1843) 11 M. & W. 685, 692 ; Att.-Gen. v. Hitchcock (1847) 1 Ex. 91, 95 ; It. v. Hill (1851) 2 Don. C. C. 254. {I) I.e., " truth to tell." Voire is the Old French feminine of vrai. {m) Seeching v. Gower (1816) Holt, N. P. C. 313 ; Jacobs v. Lcujborn (1843) 11 M. & W. 685. (») R. V. Whitehead (1866) L. E. 1 C. C. E. 33. (o) This seems to be implied in the provisions contained in sect. 4 of the Criminal Law Amendment Act, 1885, 48 & 49 Vict. c. 69, and in sect. 8 of the Prevention of Cruelty to, and Protection of Children. Act, 1889, 52 & 53 Vict. c. 44, which provide that in prosecutions under those sections the evidence of a child of tender years may be received, although she (or he) does not understand the natiu'e of an oath, if in the opinion of the Coui't she (or he) is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth. Chap. I. § 1. DIRECT ORAL EVIDENCE. 83 it is not the practice to swear a proposed witness for liis examination on the voire dire (p). (n) Incompetency from Interest. — In order to understand the rules as to this ground of incompetency it is necessary to take note of the state of the common law, which is only in part abrogated. The general rule of the common law was that any person who was interested in the result of the proceedings was incompetent to testify {q) . By interest was intended not a mere sentiment of partiality, but any certain advantage or disadyantage recognized by the law as resulting from the determination of the proceedings. Thus one who had guaranteed the payment of the costs of one of the parties {r) , or who had agreed mtli the plaintiff or defendant for a lease of the premises sought to be recovered in the proceedings (s), or who was m. jjarijurc with one of the litigants, so that the judgment could be given in evidence for or against himself in futm'e proceedings {t), was deemed a j^erson interested. But the most important application of this principle was this, that every party to a cause, whether civil or criminal, was, until the moment when the verdict or judgment had passed for or against him, disqualified by his interest, and was neither competent nor compellable to give evidence for or against himself {u). Nor could a party give evidence for or against any co-plaintiff or co-defendant when their cases were tried together {x) . When this was not the case, as where two defendants to a joint indictment were tried separately, the rule did not apply, because the verdict or judgment upon the first trial could not be pleaded or given in evidence at {p) Jacobs V. Layborn (1843) 11 M. & W. 685, 690. \q) Gilb. Ev. 4th ed. 119 ; Bac. Abr. Ev. (13). (V) Jacobs V. Layborn (1843) 11 M. & W. 685. (s) Gilb. Er. 4th ed. 122. \t) Bent V. Baker (1789) 3 T. R. 27, 32 ; Smith v. Trager (1790) 7 T. R. 60 ; Fowler v. Tort (1837) 7 0. & P. 792. As to the persons deemed in pari jure, see below, p. 176. {u) li. V. JFoburn (1808) 10 East, 396 ; Worrall v. Jones (1831) 7 Bing. 395. {x) jB. v. Fayne (1872) L. R. 1 C. C. R. 349. . g2 84 THE MEDIA OF rROOF. PartlTt.. the second (//) . And an accomplice was never deemed to be disqualified as such by interest (s). So if several defendants jointly indicted for some offence were tried together, and one of them was acquitted (a), or pleaded guilty {h), before the termination of the proceedings against the others, he at once became competent to testify for or against the others, since he had no longer any interest in the result of the proceed- ings. The same result followed if, in lieu of a verdict of acquittal being entered, the Attorney- Greneral entered a nolle prosequi (c) . By the same rule it was held that the husband or wife of a party was, from the identity of their interests, neither com]3etent nor compellable to give evidence for or against such party (d), or the party's co-plaintiff or co-defendant (e). An exception was of necessity admitted in the cases of offences committed by either husband or wife against the person or liberty of the other (/'). But no such exception was allowed in the cases of offences committed by one against the property of the other (g). The prosecutor in criminal proceedings, inasmuch as the Crown, and not he, is in the position of plaintiff, was not disqualified from giving evidence, save in those cases where the proceedings might result in some advantage to himself, such as the restitution of property or a share in a penalty (/?) . (y) Ji. V. Pai/ne (1872) L. R. 1 C. C. R. 349, 354; li. v. Bradlaugh (1883) 15 Cox, 217 ; cp. Winsor v. R. (1866) L. R. 1 Q. B. 390. (2) Gilb. Ev. 4tli ed. 136 ; B. v. Wilkes (1836) 7 C & P. 272 ; R. v. Stubbs (1855) Dears. C. C. 555, 558. (a) R. V. PauUn (1824) R. & M. 128 ; R. v. Rowland (1826) ibid. 401 ; R. v. ffBonnell (1857) 7 Cox, 337, 341, 342. (b) R. V. Sinks (1845) 1 Den. C. C. 84 ; R. v. Gallagher (1875) 13 Cox, 61. (c) Arclib. Cr. PI. 20th ed. 318. {d) Bac. Abr. Ev. A. 1 ; Gilb. Ev. 4th ed. 133 ; O'Connor v. Major ibanks (1842) 4 M. & G. 435. (e) Hawkcsivorth v. Shotvler (1843) 12 M. & W. 45 ; R. v. Thompson (1872) L. R. 1 C. C. R. 377, (/) Hale, P. C. vol. i. p. 301 ; B. N. P. 286, 287; R. v. Jellyman (1838) 8C. &P. 604. ig) GHb. Ev. 4th ed. 123, 124. (/t) Phill. Ev. 10th ed. vol, i. pp. 47—49, Chap. I. § 1. DIRECT OEAL EVIDENCE. 85 These qualifications liowever have been, by a number of statutes passed in this centmy, restricted in criminal and entirely removed in civil proceedings. The legislature has aboKshed successively the incompetency of the following persons, namely : persons who stand /// ^jrrr/ jinx with the parties (/) ; all persons disqualified by crime or by interest, save the parties on the record or persons on whose behalf the proceedings are taken or defended, and their husbands and wives [k) ; the parties to all civil proceedings, and the persons on whose behalf such proceedings are instituted, except in the case of proceedings instituted in consequence of adultery or for breach of promise of marriage (/) ; the husbands and wives of parties to all civil proceedings and of persons on whose behalf such proceedings are brought or defended, except in the case of proceedings instituted in consequence of adul- tery [m) ; the parties to actions for breach of promise of marriage ; and husbands or wives in proceedings to which they are parties instituted in consequence of adultery (>/), and in proceedings for the protection of the property of either of them taken under the Married Women's Property Acts of 1882 and 1884 (o). The effect of these statutes is to render the persons whom they affect compellable as well as competent to give evidence, except only the parties to actions for breach of promise of marriage, and the parties to j)ro- ceedings taken in consequence of adultery, and their hus- (i) 54 Geo. 3, c. 170, s. 9 ; 3 & 4 Will. 4, c. 42, ss. 26, 27 ; 3 & 4 Vict. c. 26. ik) 6 & 7 Vict. c. 85, s. 1. \l) 14 & 15 Vict. c. 99, ss. 1—3 ; Barhat v. Allot (1852) 7 Ex. GOO ; Staplcton V. Croft (1852) 18 Q. B. 367 ; BlacUorn v. Blackhorn (1868) L. R. 1 P. & D. 563; op. Att.-Gen. v. Eadloff (1854) 10 Ex. 84 ; and 28 & 29 Vict. c. 104, s. 34, as to Revenue proceedings. ' (w) 16 & 17 Vict. c. 83. As to County Courts cp. 9 & 10 Vict. o. 95, s. 83. («) 32 & 33 Vict. c. 68, ss. 1, 2, 3. (o) 45 & 46 Vict. c. 75, ss. 12, 10 ; 47 Vict. c. 14, s. I ; and sec R. v. Brittleton (1884) 12 Q. B. D. 26G. 86 THE MEDIA OF PEOOF. Part III. bands and wives (j)). With regard to tlie latter there is also a certain privilege created, whicli will be mentioned later {q). Besides these enactments, a number of others, relating to criminal proceedings for particular offences, have enabled the defendant, and the defendant's husband or wife, to give evidence therein. By some of these statutes the defendant or defendant's husband or wife is rendered both competent and compellable to give evidence, in others competent only, and in a few instances a new distinction has been introduced by rendering the husband or wife of the defendant competent, and, apparently, compellable also, not at his or her own option respectively, but at the option of such defendant. The present state of the law is therefore as follows : — (a) Civil Proceedings. — In actions for breach of promise of marriage the parties are comjoetent but not compellable to give evidence. In proceedings instituted in consequence of adultery (>•) the parties and the husbands and wives of such parties are competent but not compellable (s) . In all other cases all persons whatsoever are both competent and com- pellable to give evidence. (b) Criminal Proceedings. — In criminal proceedings the following persons are competent and compellable to give evidence, namely : the prosecutor, whatever his interest ; any accomplice or accessory of the defendant not jointly indicted with him ; and any person jointly indicted with the defen- dant, and the wife or husband of such person, provided that such person, by reason either of his pleading guilty, or of a verdict of acquittal or a nolle j^rosequi loeing entered in respect {p) 32 & 33 Vict, c. 68, s. 3. (recation), without being required to hold or kiss a Bible (,/'). And by sect. 5 of the Oaths Act, 1888, 51 & 62 Vict. c. 4G, it is now enacted that — If any person to whom an oath is administered desii'es to swear with uplifted hand in the form and manner in which an oath is usually administered in Scotland, he shall be permitted so to do, and the oath shall be administered to him in such form and manner without further question. By the concluding words is meant that no question shall be asked as to his religious belief. Since the taking of an oath implies both the intelligence to understand its meaning, and that belief in.- its obligation without which it is an idle ceremony, any person is disqualified from validly taking an oath who either from mental defect cannot understand, or from want of religious faith does not believe in, its effect. The proper time for ascertaining if a person is thus disqualified is by an examination on the roirc dire, as explained in the last section {g).- If however the witness has once declared that the oath actually administered was binding on his conscience, no question may be put to him nor may evidence be given to show that there is some (e) Omichund y. Barker {ll'ib) I Sm.Jj. C. {(T) R. V. Morgan (1764) 1 Lea. C. C. 54. {e) R. V. Entrehman (1842) C. & Mar. 248. (/) R. V. MiUlrone (1786) 1 Lea. C. C. 412; B. v. Walker, ibid. 498; Mee V. Reid (1791) N. P. C. 23. Circular letter from the Home Office sent to clerks of justices, &c., dated 31st May, 1893. {g) See p. 82. 92 THE MEDIA OF PEOOF. Part III. other form wliich would have been more binding upon his conscience ; but he will be held bound by his oath {h) . And if some ground of objection is first discovered after the conclusion of the case, as, for instance, that a witness sworn on the Gospels was in fact a Jew, no objection can be taken to the evidence on this ground, but the witness will be held bound by his oath {i). Such is the general law in regard to the oath. It was found necessary however in the course' of time to make special provision for two classes of witnesses for whom it was not suited. On the one hand there were Quakers and other persons, who, although possessing both the intelligence and the belief necessary to render an oath valid, objected on grounds of conscience to the taking of one. On the other hand there were atheists and persons of no recognized religious belief, who refused to admit the sanction of the oath, without which the ceremony is meaningless. For both classes provision has now been made by various statutes which permit a solemn affirmation to be made in lieu of the oath in some prescribed form suited to the circumstances of the case, and impose the same liabilities as in the case of perjury, if false evidence be wilfully and corruptly given. As to the first class special provision was first made for Quakers, Moravians (/.•) , and Separatists (/) . This was succeeded by general enactments relating to civil (m) and criminal (n) proceedings respectively, and providing that if a person called as a witness in any action should be unwilling from alleged conscientious motives to be sworn, the judge or other officer, if satisfied of the sincerity of the objection, should (/() Queen's Case (1820) 2 B. & B. 284 ; cp. stat. 1 & 2 Vict. c. 105, above, p. 90. (i) Sells V. Eoare (1822) 3 B. & B. 232. {k) 9 Geo. 4, c. 32 ; 3 & 4 Will. 4, c. 49 ; 1 & 2 Vict. c. 77. {l) 3 & 4 Will. 4, c. 82. {m) 17 & 18 Vict. c. 125, s. 20. («) 24 & 25 Vict. c. G6, s. 1. Chap. I. § 2. DIRECT ORAL EVIDENCE. 9^. permit such person to make in lieu of oath his solemu aflSrmation in a certain prescribed form. As to the second class it was enacted somewhat later that if any person called to give evidence in any court of justice, whether in a civil or criminal proceeding, should object to take an oath, or should be objected to as incompetent to take an oath, such person should, if the jiresiding judge was satisfied that the taking of an oath would have no binding effect on his conscience, make a solemn promise and declara- tion in the form prescribed (o) . These general enactments are now repealed by the Oaths Act, 1888 (51 & 52 Yict. c. 46), which provides in respect of both classes of cases as follows : — Sect. 1. Every person, upon objecting to being sworn, ami stating as the ground of such, objection either that he has no religions belief, or that the taking of an oath is contrary to his religious belief, shall be permitted to make his solemn affirmation instead of taking an oath in all places and for all purposes where an oath is or shall be required by law, which affirmation shall be of the same force and effect as if he had taken the oath ; and if any person making such affirmation shall wilfully, falsely, and corruptly affirm any matter or thing which, if deposed on oath, would have amounted to wilful and corruj^t perjury, he shall be liable to prosecution, indictment, sentence, and punishment in all respects as if he had committed wilful and corrupt perjury. Sect. 2. Eveiy such affirmation shall be as follows: — "I, A. B., do solemnly, sincerely, and truly declare and affirm," and then proceed with the words of the oath prescribed by law, omitting any words of imprecation or calling to witness. Sect. 3. Where an oath has been duly administered and taken, the fact that the person to whom the same was administered had, at the time of taking such oath, no religious belief, shall not for any purpose affect the validity of such oath. In two cases special provision has been made for children of tender years who, though incompetent to understand the nature of an oath, yet appear to have sufficient intelligence to give information to the court about the facts in issue. By (o) 32 & 33 Vict. c. 63, s. -i ; Bradlaugh v. Dc Fun, W. N. (1870) p. 9 ; 33 & 34 Viet. c. 49,3. 1. 94 THE MEDIA OF PEOOF. Part HI. sect. 4 of the Criminal Law Amendment Act, 1885 (^;), it is provided that : — Where upon the hearing of a charge under this section (/. e., for defiling or attempting to defile a girl under thirteen years of age), the girl in respect of whom the offence is charged to have been committed, or any other child of tender years who is tendered as a witness, does not, in the opinion of the court or justices, understand the nature of an oath, the evidence of such girl or other child of tender years may be received, though not given on oath, if in the opinion of the court or justices, as the case may be, such girl or child of tender years is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth. By sect. 8 of the Prevention of Cruelty to, and Protection of, Children Act, 1889 (q), the like provision is made in the case of charges brought under that Act. And this has now been extended by the Prevention of Cruelty to Children (Amendment) Act, 1894. § 3.— The Evidence must be Direct, and must be given in Court. The thu-d requisite of oral evidence relates not to the personal qualification of the witness, but to the contents of his evidence. It really comprehends in one proposition two distinct rules. The first rule is that the "witness may not repeat to the court his own previous narratives or statements concerning the relevant facts made to other persons out of court ; when he is in the witness-box he must take his mind back directly, so to speak, to the facts he is called to prove, and must give to the court his present recollection of those facts. For instance, this rule will preclude the plaintiff in an action for breach of warranty of the soundness of a horse from saying in the witness-box, " After I bought the horse I rode it home, and when I got home / fold mrj wife I noticed {p) 48 & 49 Vict. c. 69. {q) 52 & 53 Vict. c. 44. Chap. I. § 3. DIEECT ORAL EVIDENCE. 95 the Jiovsc iccnt lame." He may prove the lameness, but he may not prove his own previous statements to another person about it. The second rule is that the witness must testify only of those relevant facts which he has himself seen or heard or perceived ; he may not transmit to the court information which he has received from other persons. This rule is familiarly known in the form of the maxim, Ilearmij is no cvidoice. Thus, in the supposed action for breach of warranty, the plaintiff will be precluded from saying in the witness-box, " When I reached home my wife was standing on the door-step ; she at once aslied me what made the horse appear to go so lameT Both rules are based on the same principle, namely, that the law will not (save in exceptional cases to be mentioned in subsequent chapters) receive as evidence of the relevant facts any narrative statement that was not made from personal knowledge and in open court, where evidence can be tested, and, if false, confuted (>•). The statement referred to in the first of the two examples just mentioned was inade from personal knowledge, but it was not made in open court. That referred to in the second example may be criticised equally from two points of view. The wife, whose statement it was, spoke from personal knowledge, but not in open court. Her husband, in repeating her statement, is testifying in open court, but he is vouching the knowledge of another. Therefore, whether the statement be regarded as his evidence or hers, it fails to satisfy the rule. The first rule, which excludes the previous statements of the witness, is of less importance than the second, as the witness is free to give direct evidence from his present recol- lection of the facts to be deposed to. And hence the cases are very few in which such statements have been considered (r) R. V. Eriswell (1790) 3 T. R. 707 ; Berkeley Peerage Case (1811) 4 Camp. 401, 414. 96 THE MEDIA OF PKOOF. Part UI. of sufficient importance to be admitted as exceptional media of proof (v). Moreover, where the previous statement of a witness has taken the form of a written memorandum, the effect of the rule is considerably qualified by another rule, mentioned in the next Part, which permits a witness under certain conditions to refer to his memorandum for the purpose of refreshing his memory (/). To the second rule, which excludes hearsay, a considerable number of exceptions, to be mentioned in the remaining chapters of this Part, have of necessity been admitted. But in cases which do not fall within any of them the rule pre- vails even though its enforcement might have the effect of excluding the only information which is available on the matter in question. Hence hearsay will not, apart from such exceptions, be admitted even though it can be proved that the person who made the statement which the witness is prepared to repeat made it on oath (k), or that it was against his interest when he made it {x), or that he is prevented by insanity or other illness {i/) from giving evidence himself, or that he has left the country and disappeared (z) , or has died («) . And the rule excludes not only statements, whether oral or written, but also a person's conduct whenever it is relied upon for the same purpose as an express statement, that is, as tending to show his knowledge or opinion in regard to the existence of some fact which it is sought to prove. Thus, where the issue was whether a testator was of sound mind at the time (s) See Chapters VI, VII, VIII and XIV, § 2 of this Part. (t) See Chapter I, § 4 of Part IV, at pp. 231—235. {u) S. V. Eriswell (1790) 3 T. R. 707. \x) Barough v. White (1825) 4 B. & C. 325, 327, 328 ; FhiUips v. Cole (1839) 10 A. &E. 106. (y) B. V. Eriswell (1790) 3 T. R. 707. (s) Stephen v. Gwenap (1831) 1 Moo. & R. 120, • {a) Wright v. Boe (1837) 7 A, & E. 313; 4 Bing. N. S. 489; Birheleij Peerage Case, 4 Camp. 403, 414. pc Chap. I. § 3. DIRECT ORAL EVIDENCE. 07 ■\vlien he made his will, a questiou upou which those wlio knew hiui would be entitled to give evidence as to liis habits and conduct and mental condition, it was held that the defendant was not entitled to put in evidence certain letters from friends and acquaintances of the de- ceased which were not proved to have been read and understood by him. The only purpose of tendering them in evidence was to show from the nature of their con- tents that the writers considered the testator as a person of intelligence capable of understanding them ; but it was -p^ ^ *| held that this was equivalent to giving evidence of the statements or opinions of the writers without calling them as witnesses (b). Again, where the assignees of bankrupt partners sued for goods sold and delivered by the bankrupts to the defendants, and the main question was whether there had been any acts of banki'uptcy committed prior to January 1837, the plaintiffs, in order to establish the affirmative, proposed to give evidence to prove that prior to that date the bankrupts had tendered other goods to others of their creditors, who however upon the issue of the fiat of bank- ruptcy had returned them to the plaintiff's attorney. It ^^•as held by the coui-t that as the only materiality of this evidence was to show by the conduct of those creditors that they were of opinion that the debtors were not entitled to transfer the goods to them, the evidence was not admis- sible any more than statements made by them to the same effect would have been (c). Statements and conduct of this description are often termed res inter alios acim in order to emphasize the fact that they have taken place behind the back and without the acquiescence of the party against whom they are tendered in evidence, and to .distinguish them from similar statements (or conduct equivalent to statements) made in the presence (i) Wright V. Doe (1837) 7 A. & E. 313 ; 4 Bing. N. C. 489 ; cp. pp. 62— G4. (c) Backhouse v. Jones (1839) 6 Bing. N. C. 65. W. H 98 THE MEDIA OF PEOOF. Part III. of the oj)posite party against wliom tliey are souglit to be given in evidence, wliich statements or conduct, when taken together with tlio opponent's answer or conduct in reply thereto, may frequently be given in evidence as admissions by conduct made by the latter, as hereinafter mentioned {d). On the same principle it is held that in any action for damages caused to the plaintiff by some act for which the defendant has been convicted and sentenced in a criminal court, the plaintiff is not entitled, in order to prove the com- ' mission by the defendant of the wrongful act, to give the conviction or judgment in evidence against him, if it passed against him in spite of a plea of not guilty. Such a verdict or sentence expresses the opinion of persons who are not now ij before the court, and the ground of whose opinion cannot I now be tested {() . And conversely the plaintiff could not give in evidence a verdict or judgment in his own favour, to which tlie defendant was not a party. The rule against hearsay applies in strictness to the proof of the relevant facts in the course of cross-examination just as much as to their proof by examination-in-chief. That is to say, a party is not entitled to prove his case merely by eliciting from his opponent's witness in cross-examination not his own knowledge on the subject, but what he has heard others say about it, but has not verified for himself. The application of the rule is however obscured by the fact that the opponent is entitled to test the witness's own conduct and consistency, and for that purpose to interrogate him as to statements made to him by other persons, so that the party by whom the witness was called is not entitled to exclude the question, but only to comment to the jury on the effect and {(fj See Chapter on Admissions, at pp. 104 — 107. [e) Smith v. Rimimens (1807) 1 Camp. 9 ; and Hathaway v. Barrow, ibid. 151, explained by Parke, B., in Blakcmore v. Glamorganshire Canal Co. (1835) 2 C. M. & E.. 133, at p. 139. As to issues concerning public or general rights, see Chapter XI, pp. 176, 177. Chap. I. § 3. DIEECT OEAL EVIDENCE. 99 value of the witness's answer (./'). Similar considerations apply with even greater force to tlie witness's admissions in cross-examination of his own previous statements about the relevant facts. Opinion of Experts. — There are many matters which are not the subject of du^ect perception by the senses, and which can only be ascertained by inferences to be di'awn by persons trained in some science, art, or business with which the sub- ject is connected. The authorship of an old work of art, or the extent and character of the pollution of a stream, are examples. On all such subjects as these the evidence of experts is admissible {g). And inasmuch as their evidence is based partly on observation and partly on calculations and inferences derived from others by means of study and special training, it does not comply precisely with all the requisites of direct oral evidence, and is commonly spoken of as the oj^inion of experts. Thus the opinion of engineers is admissible on the question whether a bank erected for the purpose of preventing the over- flow of the sea has caused the choking up of a harbour (//), the opinion of ship-builders and surveyors as to the seaworthiness of a vessel (/), and that of medical men in regard to symptoms of bodily or mental disease (/i) . So, in prosecutions for forg- ing or uttering forged bank notes, or uttering counterfeit money, the opinion of a clerk of the bank, or of an officer connected with the mint, is resorted to. And upon questions as to the infringement of copj'right in a piece of music the opinion of musicians is constantly given in evidence as to whether the piece alleged to have been pirated is original, or (/) See in connection with this the observations at pp. 225 — 228. [g) Carter \. Boehni (1765) 1 Sm. L. C. ; Bcckwith v, Sidcbotham, 1 Camp. 116. {h) Folhes V. Chadd, 3 Dough 157. (t) Tliornlon v. Royal Exchange Assurance Co. (1791) Pea. 25 ; Bcchiviih v. Sidebotham (1807) 1 Camp. 116. [k) Ibid. p. 117 ; R. v. WrUjht (1821) R. & R. 456. h2 100 THE MEDIA OF mOOF. Part III. as to how far the alleged piracy is an imitation (/). And generally as to any question of art, science, or special com- mercial usage, or of foreign law {m), such evidence is admis- sible. The genuineness of handwriting may now he tested by means of comparison made by any witness or by the jurors themselves (/?), but it is also not infrequently treated as a subject for expert evidence. On the other hand, where the question is one with which the jury may be presumed to be as well acquainted as any witness, such as questions of morality or professional honour, no such evidence is admis- sible (o). It is not however easy to define precisely the limits of the admissibility of expert evidence. The difficulty is illustrated by the various decisions on the admissibility of evidence of insurance brokers to prove the materiality of particular statements for the purpose of effecting a policy (^). It follows from what has been said that before such evidence can be given the witness must be shown to have sufficient training and skill to entitle him to speak with some reason- able authority upon the particular subject. Thus it has been held that a witness whose knowledge of medicine or of foreign law is derived solely from study unsupplemented by practice is incompetent to give evidence on those subjects respec- tively (y). {I) PhiU. Ev. 10th ed. I. 522. (»^) Carter v. £oehm, 1 Sm. L. C. ; Ee Bonelli (1875) 1 P. D. 69. (w) 17 & 18 Vict. c. 125, s. 27. See p. 258. (o) Eamadge v. Eijan (1832) 9 Bing. 333. {p) See the cases collected in the notes to Carter v. Boehm, 1 Sm. L. C. {q) Bristou-e v. Sequeville (1850) 5 Ex. 275 ; Me Bonelli (1875) 1 P. D. 69. 101 CHAPTER II. ADMISSIONS, § 1. Definition. ^ 2. Form of Admissions. § 3. Admissions of Hearsay , and of the Contents of Documents. § 4. The whoU Admission must he taken together. § 5. Persons whose Admissions are Evidence. (i) Agents of the Parties. (a) Ordinary Business Agents. (b) Conspirators and Joint Offenders. (c) Counsel and Solicitors. (ii) Parties who are Trustees or Agents. (iii) Persons for whom the Parties are Trustees or Agents. (ir) Predecessors in Title. § 6. Interrogatories and Notices to Admit Facts. § 1. — Definition. The term admission, as liere used, means anj statement made out of the witness-box by a party to the proceedings, whether civil or criminal, or by some person whose statements are 15rnding on the party, against his own interest. It includes therefore admissions made in answer to interrogatories under Order XXXI, or in answer to a notice to admit facts under Order XXXII ; but it does not include admissions of relevant facts made by a party in the witness-box, since these are part of his direct oral evidence ; nor admissions made on the pleadings, since their function is to limit the issues and therewith the scope of the evidence admissible ; nor any admissions made out of court in so far as they are not merely a medium of proof, but create specific rights and liabilities, as acknowledgments under the Statutes of Limita- tions, estoppels in jxii'i, waiver of forfeiture, and the like. 102 THE MEDIA OE TEOOE. Part III. The term confession is frequently applied to admissions made before trial by the defendant in criminal proceedings. The guarantee of credibility of this medium of proof is the fact that the statement is against the interest of the person making it {(') ; and a statement is deemed to be against his interest if it tends in any way towards the disproof of any part of his own case, or the corroboration of any part of his opponent's, in the proceedings in which it is tendered. § 2. — Form of Admissions. No particular form is necessary for admissions ; they may be either in writing or by word of mouth, expres s or m erely implied from conduct. Express admissions hardly require illustration, but the following may be given as examples of such admissions made incidentally by means of a description. In an action brought by the assignee of a bankrupt, Durouveray, to recover the proceeds of goods which had been sold by the defendant, an auctioneer, on the bankrupt's account, it was held sufficient 2)rimd facie evidence of the bankruptcy for the plaintiff to prove that the defendant had in his catalogue of sale incidentally described the goods as being " the property of Durouveray, a bankrupt " (6). And where an action was brought for the breach by the defendant of a contract to carry safely the plaintiff's goods, it was held sufficient prima facie evidence that the defendants were the owners of the vessel, that before action their attorney had incidentally described them as " the owners "in an undertaking to appear on their behalf (r-). Admissions may be im^Dlied from conduct in such an end- less variety of circumstances, that it is only possible to give here a few typical examples. {a) Gilbert, Ev. 4th ed. 137 ; Docy. TFainu'nff/U{\83S) 8 A. &E. 691, 700 ; Slatteric v. Pooley (1840) 6 M. & "W. G6i, 660. [b) MallbijY. Christie {11^5) 1 Esp. 340. (c) Marshall v. Clif {1815) 4 Camp. 133. Chap. II. § 2. ADmSSIONS. 103 One class of sucli admissions consists of tliose cases wlicro a party, by making use of some written document as evidence in his own belialf, is held to have made it available against himself. He is deemed to have thereby ini2)liedly admitted the truth of its contents ('/), although he is uot in like manner bound by all that his witnesses may allege, as he frequently cannot be sm-e beforehand of all they will say (c). Another class consists of those cases where a party performs acts which can only be warranted by his possession of some particular office, and thereby justifies the inference that he is entitled to such office. Thus in an action against a clergyman for non-residence it was held sufficient prima facie evidence of the defendant's official character to prove that he had received the tithes, performed the church services, and in other respects acted as the incumbent (./'). So, in an information against a military officer for making false returns, it was held unnecessary for the plaintiff to produce the defendant's commission, it being sufficient for him to prove that the defendant had as a fact acted as such officer {g). And in a prosecution against a letter-carrier for embezzling an overcharge upon a letter, it was held unneces- sary for the prosecution to prove the prisoner's appointment, in order to prove that he was employed in the public service, one of the witnesses having given evidence that the defendant had in fact acted as a letter-carrier (//). The converse of these cases are those where one party, by his conduct and dealings with the other, clearly, though imjiliodly, attributes to the latter the possession of some particular office or character. Thus, where the plaintiff sued as an assignee in {d) BricMlv. Hulse (1837) 7 A. & E. 454, 457 ; Eichards v. Morgan (1SG3) 33 L. J. Q. B. 114 ; and see p. 112 below. (e) Gardner v. Moult (1839) 10 A. & E. 468 ; E. v. Latchford (1844) 6 Q. B. 667, 577 ; and see pp. 112, 113 below. (/) Bevan v. WilKams (1776) 3 T. R. 635, note («). {(j) R. V. Gardner (1810) 2 Camp. 513. {h) E. y. Borrelt (1833) G C. & P. 124. ^' ^made by the defendants for a new trial it was held that the e\adence was rightly admitted, since the station-master, having the sole management of the station, must be taken , to have had authority to communicate with the police, and ^ to take steps for having Haslam apprehended, and that the statements made by him for the purpose of setting the police in motion, were evidence against the defendants {ii). In the other case the plaintiff sued a railway company for the non- delivery within a reasonable time of certain cattle. To prove the cause of the delay he tendered in evidence a conversation which had taken place between himself and a servant of the defendants, who was acting as their night inspector at Didoot Station, about a week after the date when the cattle had arrived at their destination. The plaintiff had said to the inspector, " How is it you did not send my cattle on ? " and his reply was to the effect that he had forgotten them. It was held that the statement of the night inspector was inadmissible. He was a subordinate ser- vant and not a general manager of the defendants' business at the station, and the statement had been made long after the termination of the transaction to which it related (.r). Since partners and joint contractors are mutual agents for certain purposes, the same rule applies to them, regard being had to the scope of the particular authority in each case. (b) Coiispiraiors and Joint Offenders. — Persons who are guilty of illegally conspiring together or of committing jointly any criminal offence are deemed to be mutual agents or confederates for the purpose only of the execution of the joint purpose. Accordingly any act done by one of them in the execution of the common purpose is deemed the act of the others also, and is consequently admissible in evidence against them ; but since the confederacy does not {u) Kirkstall Brewery Co. v. Fiirness Bail. Co. (1874) L. E. 9 Q. B, 468. ix) Great Western Hail. Co. v. WiUis (1865) 34 L. J, C. P. 195. Chap. n. § 0. ADMISSIONS. 117 extend to the subsequent narration of any such acts, no . statement in the nature of mere narrative by one of them is ( evidence against any other. It is on this princij^le that the ' confession of one party to the commission of a crime is not evidence against any of the other parties concerned in it {>j). The following is a leading case on this rule. Two persons named Blake and Tye were informed against for defrauding the revenue of customs duties upon certain imported goods. Tye was a custom house agent and Blake a landing w'aiter. Blake alone appeared. It was proved that Tye had pur- ported to make on behalf of the importer a *' perfect entry " of the goods, showing their quantities and the duty payable on them ; that Blake, after copying the entry into the " customs blue book," and having pretended to check the goods by means of the latter, had marked the entry as " correct," and that the duties had thereupon been paid in accordance therewith. The prosecution, in order to show that the quantity of goods actually imported was much larger than that so shown, that the defendants had received tlie duties from the importer on the true quantity, and tliat they had divided the difference between themselveB, tendered in evidence — (a) a day-book kept by Tye, containing the entries of the true quantities of the goods and of the true amount of the duties thereon, upon which entries the importer had actually made his payment to Tye ; (b) a counterfoil of a cheque, contained in a cheque-book of Tye's, containing an account or memorandum showing that the corresponding cheque had been drawn for a sum equal to half the total amount of certain sums of money, which included uito' alia the profits made upon this transaction from the alleged fraud, the proceeds of which cheque had been traced to Blake. It was held that the entries in the day-book, being necessary for the purpose of carrying out the fraud, and so forming {y) li. V. Turner (1832) Moo. C. C. 347 ; and sec above, pp. HI, 112 (A). 118 THE MEDIA OF PROOF. Part III. part of tlie transaction, were admissible against Blake ; but that the counterfoil, being simply a record of a past trans- action kept for Tye's own convenience, was inadmissible (s). (c) Counsel and Solicitors. — Counsel has complete authority- over any civil proceeding which lie is retained to conduct, as, for instance, the authority to withdraw the record or with- draw a juror, or to select such witnesses as in his discretion he thinks ought to be called, and to take (my other step properly incidental to the management and conduct of the action {a). He therefore has authority to make any admis- sions on behalf of his client which in the honest exercise of his judgment he considers proper. Thus, where a verdict had been taken for the plaintiff in an action subject to the opinion of the com-t on a special case, and a special case was drafted and signed by the junior counsel of each side, but ovking to the omission therefrom of certain material facts the case had to be sent down for trial, it was held that the special case might be j)nt in at the second trial as evidence of all the facts stated in it (6). And so where it appears from the whole conduct by counsel of any particular proceeding that a particular fact is admitted between the parties, this may be given in evidence as an implied admission of the particular fact ((■) . But this general authority to make admissions may be cm-tailed by special instructions from the client, although, if such instructions should be disregarded, the counsel's want of authority would not debar the opposite party from using the admission, unless he had notice of its impropriety. Solicitors have also an implied authority in civil cases to make any admission for the purpose of obviating the necessity of proving any fact upon the trial, as where a solicitor gives a direct and formal admission of the execution of a deed, or (z) R. V. Blake (1844) 6 Q. B. 126. \a) Swinfen y. Chelmsford (1860) 29 L. J. Ex. 382, 397. (b) Van Wart v. WoUey (1823) Rj. & Moo. 4. \c) Stracy v. Blake (1836) 1 M. & W. 168. Chap. n. §5. ADMISSIONS. 119 of the dishonom' o£ a bill, or wliere lie makes propositions on behalf of his client (d). But, although this applies not only to express admissions but also to those which are made incidentally, it does not cover mere loose conversations which do not aj)pear to be made by him in the exercise of his pro- fessional duty and to promote his client's advantage, although they may relate to the matters in controversy {<) . In making admissions the solicitor is bound as towards his client to act honestly and with reasonable skill (/). But, even if his admission is unauthorized, the other side may still make use of it if he has no notice of the want of authority (r/) . Such admissions however are not generally admissible in criminal cases. Thus in a prosecution for perjury where the solicitors on both sides had agreed to dispense with formal proofs, Lord Abinger, C. B., refused to permit the case to be so proved, saying that he would allow no admissions unless made at the trial by the defendant or his counsel, and accordingly in default of proper evidence the defendant was acquitted (//). In cases of felony however it is the constant practice of the judges at the assizes to refuse to allow even counsel to make any admission (/). (ii) Parties wlio are Trustees or Agents. The extent to which a party may be bound by his admis- sions is sometimes limited by the character in which he sues or defends, as where he sues only as a trustee, agent, or representative of some other person beneficially interested in the subject-matter of the action. In such case only those {d) Young v. Wright (1807) 1 Camp. 139. [c) Ibid.; and J'arkins v. Hawkshatv (1817) 2 St. 239 ; Fetch v. Lyon (1846) 9 Q. B. 147. (/) Fray v. Voivles (1859) 2=i L. J. Q. B. 232. [g) As to the period of such authority see Waystnf v. Wilson (1832) 4 B. & Ad. 339 ; Butler v. Kniyht (ISG7) L. R. 2 Ex. 109. {h) R. V. Thornhiil (1838) 8 C. & P. 575. (i) PhiU. Ev. 10th ed. i. 391. 120 THE MEDIA OF PEOOF. Part in. admissions are receivable in evidence whicli were made during tlie period of sucli nominal party's interest and autliority as such. Thus, although a next friend or guardian suing or defending on behalf of an infant has at least as much autho- rity as a solicitor to make admissions during and for the purpose of the cause (/•), yet as they do but sue as quasi-officers of the court and have no other interest in the subject-matter thereof, any admissions which they may have made before their appointment are not receivable against the infant (/). So too admissions made by a trustee in bankruptcy before his appointment are not admissible in evidence against those he represents {))i). So long as the interest lasts the ordinary rule of course applies. Thus, where a consignor of goods sued the shipowner for negligence in their carriage, but the person who had the substantial interest in the result was the consignee, it was held that admissions made by the consignor that the goods were stowed properly and in accordance with instructions were admissible (;?). The same is true of the admissions of a husband who sues on behalf of his wife (o). And the rule will apply equally in the case of a trustee suing or defending on behalf of his cestui que trust, or in that of a banker who sues as the legal holder of a bill indorsed to him for the purpose of collection. (iii) Persons for ichom the Parties are Trustees or Agents. Where an action is brought or defended by a nominal party on behalf of some other person in whom the beneficial interest in the proceediugs is really vested, it is obviously just that admissions made by the latter should be binding on the party who represents him. Thus in an action by the master {k) Phill. Ev. 10th ed. i. 364. (l) Webb V. Smith (1824) Ry. & Moo. 106. (m) Fenwick v. Thornton (1827) M. & M. 51. {n) Bauerman v. Radenius (1798) 7 T. R. 663. (o) Moriarty r. London, Chatham ^- Dover Rail. Co. (1870) L. R. 5 Q, B. 314. Chap. n. §5. ADMISSIONS. 121 of a ship against a charterer upon a charter-party which the former has made on behalf of the shipowner, the defendant is entitled to give in evidence admissions made by the sliip- owner on whose behalf tlie master is suing {]>). And where a defendant was sued in trover for a deed which he admitted that he was detaining on behalf of a third person interested therein, the declarations of such third person were held to be admissible against him {q). So, too, admissions made by a cestid que tnid are binding on the trustee who sues or defends on the former's behalf ; although it is doubtful whether such an admission is receivable unless the person making it is the only one who stands to gain or lose by the event of the pro- ceedings; it is at any rate clear that its operation if received would be confined to the interests of the person making it(r). The same rule has been applied where the plaintiff sues on a bill of exchange w^hich has been indorsed to him solely for the pm'pose of suing on behalf of another (.s) . And it is in fact applicable in the case of all parties who are mere repre- sentatives of the interests of others. (iv) Predecessors in Title. The same principle has also been extended to statements affecting property made by predecessors in title of the parties. Any statement made by the possessor of property of any descrip- tion tending to limit in any way the complete and unfettered ownership thereof by him is deemed an admission, which may be given in evidence against any party w'ho may subse- quently become entitled to it ; and it makes no difference to the admissibility of such a statement whether the person who made it be living or not. Thus, where the plaintiff sued for trespass to a close of land which he claimed as his exclusive {p) Smith V. Lyon (1813) 3 Camp. 465. {q) Harrison v. Vallance (1822) 1 Bing. 45. (>•) Doe V. Waimvricjht (1838) 8 A. & E. 691 ; May v. Taylor (1843) 6 M. & G. 261. («) Wahtead v. Levy (1831) 1 Moo. & Rob. 138. 122 THE MEDIA OF PEOOF. Part HI. property, the defendant was held entitled to call a witness to prove that the plaintiff's father, from whom the plaintiff had derived his title, had admitted orally to the witness that his close was subject to common rights of pasture, such as the defendant now claimed, and that he had no right to enclose it ; and this, notwithstanding that the father was living and in court at the time (;'). Again, where the plaintiff brought against his brother an action of trover for a watch, alleging it to be a gift to himself from their father, and the defendant as one part of his defence proved that he had taken out letters of administration to his father's estate, it was held that the plaintiff was thereupon entitled to give evidence of oral declarations in his favour made by the father as to the owner- ship of the watch, since the defendant had given evidence to show that he claimed under him (n). On the same prin- ciple it has been held in actions by the indorsee against the maker of a promissory note that the admissibility on the defendant's behalf of admissions of defective title made by the indorser through whom the plaintiff claims, dejoends on the question whether the plaintiff became the holder of the note after it was due or under other circumstances which would entitle the defendant to say that he took no better title than his indorser had, and was therefore identified in interest with him {x). But the statement must be one which directly affects the person's interest in the property itself ; a mere statement against his interest in other respects, as, for instance, that he is in debt, whence it might be inferred that he would be likely to part with or charge his jDroperty, does not come within this rule (//). {t) Wooltvaij V. Eoice (1834) 1 A. & E. 114 ; cf. Boe v. Petiett (1821) 5 B. & A. 223; Maddison v. Nnttall (1829) 6 Bing. 226; Meath v. Winchester (1836) 3 Bing. N. C. 183. (m) Smith V. Smith (1836) 3 Bing. N. C. 29. [x) Barough v. White (1825) 4 B. & C. 325. {y) Beauchamp v. Parry (1830) 1 B. & Ad. 89. Chap. II. § 5. ADMISSIONS. 123 In the converse case, "where the person who makes the admission is not a jiredecessor in title of the party, but has derived his title from him, it would he unfair to hold the party hound hy it unless it were specially authorized (z). Thus in an action by the owner of one close against the owner of the adjoining one, in which the plaintiff claimed the right to water his cattle at a pond on the defendant's land, and tendered in evidence an admission in his favour made hy one to whom the defendant had let his land, it w'as held that, in the absence of evidence of the defendant's tenant having been authorized by him to make such state- ment, it "was not admissible in evidence (a). § 6. — Interrogatories and Notices to admit Facts. By the Rules of the Supreme Court a party to a civil cause is entitled during the pendency of an action and before the trial to call upon his opponent to make formal admis- sions of particular facts relevant to the issues, which, if made, "will be admissible against the latter at the trial just as much as any informal admission of the kinds described in this chapter. Eule 1 of Order XXXI provides that — In any cause or matter the plaintiff or defendant, by leave of the court or a judg«, may deliver interrogatories in writing for the examination of the opposite parties, or any one or more of such parties, and such interrogatories when delivered shall have a note at the foot thereof, stating which of such interrogatories each of such persons is required to answer : provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose : provided also that interrogatories which do not relate to any matters in question in the cause or matter shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross- examination of a witness. (z) Code v. Braham (1848) 3 Ex. 183. (rt) Scholcs v. Chadwicic (1813) 2 Moo. & Rob. 507 ; cp. R. v. Bliss (1837) 7 A. & E. 550. 124 THE MEDIA OF PEOOP. Paxt IH. Eule 2 of tlie same Order provides that — On an application for leave to delivei' interrogatories, tlie particular interrogatories proposed to be delivered shall bo submitted to tbo court or a judge. In deciding ujaon such, application, the court or a judge shall take into account any offer which may be made by the party sought to be interrogated, to deliver particulars, or to make admissions, or to produce documents relating to the matter in question, or any of them, and leave shall be given as to such only of the interro- gatories submitted as the covirt or judge shall consider necessary, either for disposing fairly of the cause or matter, or for saving costs. The forms of the interrogatories and of the affidavit in answer thereto will he found in Appendix B (b). Ptule 4 of Order XXXII provides that — Any party may, by notice in wi-iting, at any time not later than nine days before the day for which notice of trial has been given, call on any other party to admit, for the purposes of the cause, matter, or issue only, any specific fact or facts mentioned in such notice. And in case of refusal or neglect to admit the same within six days after service of such notice, or within such further time as may be allowed by the court or a judge, the costs of proving such fact or facts shall be paid by the party so neglecting or refusing, whatever the result of the cause, matter, or issue may be, unless at the trial or hearing the court or a judge certify that the refusal to admit was reasonable, or unless the court or a judge shall at any time otherwise order or direct : provided that any admission made in pursuance of such notice is to be deemed to be made only for the j^urposes of the particular cause, matter, or issue, and not as an admission to be used against the i^arty on any other occasion, or in favour of any j)erson other than the party giving the notice : provided also, that the court or a judge may at any time allow any party to amend or withdraw any admission so made on such terms as may be just. The forms of the notice and of the admissions will he found in Appendix B {c). {b) At p. 312. (c) Pages 311, 312. 125 CHAPTER III. DECLARATIONS IN THE COURSE OF DUTY. Whex a person in the regular course of his duty or office ; performs some business transaction and makes forthwith a return or record of it which he has no interest to falsify, such return or record is after his death evidence against all persons of the performance of the transaction, and is known/ as a declaration in the course of duty (a). The guarantee off its credibihty consists in the obHgation to discharge the duty faithfully, and the accuracy which is generally produced by business routine. Such declarations may be either written or oral (b). Thus upon the prosecution of one Buckley for the murder of a police-constable named Green on the night- of the 24th of February 1873, in order to show the probability of the deceased and the prisoner having met on that night, the prosecution tendered evidence of an oral statement made by the constable in the course of his duty to his superior officer i on that day to the effect that he had received information that Buckley was at his old game of thieving again, and /X\^fyi that he (the constable) was going that night to watch hisi movements ; and it was held that the statement waal admissible as a declaration in the course of duty (c) . But (a) Frice v. Torrington (1704) 1 Sm. L. C. ; PoUni v. Gray (1879) 12 Cli. D. 411, 429, 430 ; Sturla v. Frcccia (1880) 5 App. Ca. G23, 640. {b) Sussex Peerage (1844) 11 CI. & Fin. 113 ; SlapijUon v. Clough (1853) 2 E. . &B. 933. (c) P. V. Buckley (1873) 13 Cox, 293. 126 THE MEDIA OF PEOOF. Part IH. almost all the examples of the rule will be found to consist of "Written entries. The leading case with regard to these declarations is F^vicc V. End of Torriugfon {(/). There the plaintiff, being a brewer, brought an action against the Earl of Torrington for beer sold and delivered, and the evidence given to prove the delivery to the defendant was that according to the usual practice in the plaintiff's business his draymen came overnight to the clerk of the brewery and gave him an account of the beer they had delivered out, which he set down in a book kept for the purpose, to which the draymen set their names. The draymau who had delivered the beer in question was dead, but the plaintiff's book containing an entry of the delivery, the signature to which was proved to be that of the deceased draymau, was tendered in evidence and admitted as a declaration made in the course of the drayman's duty. So in an action commenced on the 20th of April 1815 on an attorney's bill, where the only question was whether a bill had been delivered according to the statute one month before action, the draft bill liaving been produced containing an indorsement in the handwriting of a deceased clerk of the plaintiff's in the following terms, *' March 4th 1815 delivered a copy to Mr. Peck," and it having been proved that the indorsement was upon the document on the date mentioned, it was held that this was sufficient prima facie evidence of the due delivery of the bill (^O- The office or employment to which the duty is attached may be private, as in the case of an ordinary clerk ; or public, as in that of a sheriff {/), or of a notary public {g). {d) 1 Sm. L. C. (e) Champneys v. Fech (1816) 1 St. 404; cf. Doe v. Turford (1832) 3 B. & Ad. 890. (/) Chambers v. Bernasconi (1834) 1 C. M. & E. 347. (V) Foole V. Dicas (1835) 1 Bing. N. C. 649. Chap. in. DECLARATIONS IN COUESE OF DUTY. 127 It is not enough that the cntiy has been made in the course of business ; it is essential that it should also have been the duty of the declarant to make it. In an action brought against one C. J. Allen and another in order to obtain a declaration that the defendants were bound to indemnify the plaintiff against all liability in respect of "^1 ^^'' ^'^ 200 shares in the International Contract Company (in respect / of which the plaintiff had been fixed upon the " B " list of ^ J /g^^^ contributories) upon the ground that the said shares had been vested in the plaintiff solely as trustee for the defendants, the plaintiff, in order to prove that the shares had been in truth purchased by the said Allen, tendered in evidence the day-book of one Grriffiths, deceased, the stockbroker who had purchased the shares, as the plaintiff contended, on the defendant's behalf. The book contained the following entry: — 26tli AprU, 1864. £ s. d. £ s. (7. International Ct. 18 July £ s. d. Bot. for C. J. AUen C. Allen - 1406 5 200 Inter. Cont. 5 p.c— 2/ = 1400 N. Morris 1400 \ commn. - - - 6 5 Stp. 5 2 6 6 5 The witness who produced the book explained that the entry meant that on the 26th of April 1864 two hundred shares with 5/. paid on them were bought at 2/. premium for 1,400/. fi'om Norman Morris, stockjobber, for C. J. Allen,, and that 0. J. Allen was charged 1,406/. 5s. for the pm*chase- money and half the commission, and that the 18th of July was the settling day. It was held that the entry w^as in- admissible on the ground that there was nothing to show that it was the duty of the broker as between himself and his client Mr. Allen to make any such entries ili) . (/;) mmey v. Allen (1879) 13 Ch. D. 558. 128 THE MEDIA OF PEOOF. Part III. The only apparent exception to this part of the rule is pre- sented by the ease of Doe v. Turford (/). There the question was whether the service of a notice to quit could be proved by means of a memorandum stating the fact and time of such ser\'ice indorsed upon a duplicate of the notice pro- duced from the attorney's office. It was proved that it was the usual course of practice in the office for clerks to serve notices to quit on tenants, and to make indorsements similar to that in question upon duplicates of the notices. In the case in question however the service had been effected, and the indorsement made, by the attorney himself, who had since died. It was held that his indorsement was admissible as a declaration in the course of duty. It appeared that in consequence of the absence of his clerk or for some other reason the principal had in this particular instance performed the clerk's duty for him, and it was held that his indorsement was tantamount to his clerk's, and the case has always been so explained (A-) . It is not sufficient that the declarant should have had personal knowledge of the transaction recorded ; it must be one that he himself has performed, and one of a class which it was his specific duty to perform ; and the entry, unlike a declaration against interest, must have been made at the time of or immediately after the performance of the trans- action (/). The case of the Henry Coxon [m) is a good illustration of some of these points. It was an action by the owners of the steamship Gauge against the owners of the Henry Coxon for damages in consequence of a collision between the two vessels in Sea Eeach in the river Thames (i) (1832) 3 B. & Ad. 890. \k) Ibid. pp. 895, 896 ; B. v. Worth (1843) 4 Q. B. 132, 138, 139 ; Smith v. Makei/ (1867) L. R. 2 Q. B. 326, 333. {I) Boev. Turford (1832) 3 B. & Ad. 890; Brain v. Preece (1843) 11 M. & W. 773 ; Smith v. Blahey (1867) L. R. 2 Q. B. 326 ; PoUni v. Gray (1879) 12 Ch. D. 411 ; Sturla v. Freccia (1880) 5 App. Ca. 623, 610, (m) (1878) 3 P. D. 156. Chap. ni. DECLARATIONS IN COURSE OP DUTY. 1'20 on the 12tli of January 1878. To rebut tlie plaiutiif's allega- tion of negligence the defendants tendered in evidence certain entries made in the log-book of the Henry Coxo)i which had been made therein on Monday the 14th of January 1878, two days after the collision, by the first mate who was since deceased. It was held that the entries were inadmis- sible upon the grounds that (a) the log-book could not as to these entries be considered as a contemporaneous declaration ; (b) that it was the interest of the first mate to represent that the collision had taken place in consequence of the bad navi- gation of the Gauge and not of his own vessel, and (c) that the entries were not confined to acts done by the first mate himself, but related to the conduct of other persons. These declarations, unlike those against interest, are not admissible as evidence of any other matters than the par- ticular transaction which it was the duty of the declarant both to perform and to record, however intimately any such collateral matters may be incorporated in the statements («). («) Chambers v. Bernasconi (1834) 1 C. M. &. R. 3-i7 ; Smith v. BJalcy (1867) L. R. 2 Q. B. 226, 332, 335 ; FoUni v. Gray (1879) 12 Cli.-D. 411, 419—422, 426, 430. W 130 THE I^IEDIA OF PEOOF. Part IH. CHAPTER ly. DECLARATIONS AGAINST INTEREST. § 1. — Against Pecuniary Interest. § 2. — Against Proprietanj Interest. Declarations against interest are statements made by deceased persons adverse to tlieir pecuniary or proprietary interest ; and the guarantee of their credibility consists in the fact that they are thus opposed to the declarant's interest, since it is the general experience of mankind that statements so made are likely to be true [a) . But declarations against interest in any other sense, as for instance an admission of liability to criminal prosecution, do not come within the rule {h). § 1. — Against Pecuniary Interest. A declaration is against the pecuniary interest of the declarant who makes it whenever it has the effect of charging him with a pecuniary liability to another, or of . discharging some other person upon whom he would otherwise have a claim (r) . It is immaterial that the declaration may prove, in the circumstances which have haj^pened at the time when it is sought to be put in evidence, to be for the interest of («) 3IiMleton v. Melton (1829) 10 B. & C. 317, 327 ; Gleadow v. Atkin (1833) 1 C. & M. 410, 425 ; R. v. Birmingham (1861) 31 L. J. M. C. 63, 67 ; Bewley V. Atkinson (1879) 13 Ch. D. 283, 297 ; cp. Eoive v. Brenton (1828) 3 M. & E. 267. {h) Simex Peerage (1844) 11 CI. & Fin. 103, lU, 114. (f) Doc V. Robson (1812) 15 East, 32 ; Lavis v. Llogd (1844) 1 C. & Kir. 275. yt^ Chap. lY. § 1. DECLAEATIONS AGAINST INTEEEST. 131 the declarant's estate, or even that it can bo shoA\Ti by inde- pendent evidence to have been in truth for his interest at the time when it was made, provided that standing by itself it was at the time when it was made against his interest. Thus in an action by the executor of one Taylor, by which it was sought to establish against the defendant a debt of 2,000/. as due to the testator's estate for money lent, and where the defence was that tlie defendant had received it as a gift, the plaintiff tendered in evidence a private account-book of the deceased containing (a) entries of several sums of 20/. each purporting to have been received from the defendant as quarterly pay- ments of interest, and (b) an entry stating that the defen- dant had on a particular date acknowledged that he had borrowed of the testator the sum of 2,000/. The defendant'^^ objected to the admissibility of the book on the ground that the tendency of the entries was to establish the claim for '^ 2,000/. in favour of the estate. But it was held that, since , the entries of the receipt of interest taken by themselves were' at the time when they were made against the interest of the testator, all the entries were admissible (f/). When once it appears that a declaration is against interest, the whole of the statement of which it forms part becomes admissible, even though it should contain a statement of other collateral matters which are not similarly against interest. Thus in the case just cited not only the entries of the receipt of interest were admissible, but also that in the testator's favom' by which he recorded the defendant's acknowledg- ment of the loan. This rule was laid down in the leading case of Higham v. Ridrjwaij (e) . There the question was whether one William Fowden junior was born before or after the 16th of April 1768. The plaintiff, in order to prove that his birth was subsequent to that date, tendered in evidence the following entries from the day-book and ledger {d) Taylor v. irdham (1876) 3 Ch. D. 605. [c) (1808) 2 Sm. L. C. k2 132 THE MEDIA OF PEOOF. Part III. of a man-midwife who had attended the mother of William Fowden junior at his birth, and was since deceased : — Day Book Extries. V 22ncl April, 1768. 38 (/) Eicliard Fallows' wife. Braiuliall. Filiiis circa hor. 9, matutin. cum forcipe, &c. paid. \_Then foUoived in the same page the entry in question, without any intervening date.'\ ^Wm. Fowden, junr.'s(). The presumption in favour of a valid marriage, where these cir- («) Leader v. Barry (1795) 1 Esp. 353 ; Morris v. Miller (1767) 1 TV. Bl. 632 ; Doe v. Fleming (1827) 4 Bing. 266 ; cp. Iloggan v. Craigie (1839) Mae. & Rob. 942, 965; Breadalhane Case (1867) L. R. 1 Sc. App. 182, 211. (*) Read v. Passer (1795) Pea. 230 ; St. Bevereuxv. Much Bew Church (1762) 1 W. Bl. 367. 154 THE MEDIA OF PEOOF. Part HI. ciimstances occur, is so strong that it can only be rebutted by clear proof that no marriage in fact took place (c) . The rule embraces both the declarations and conduct of the particular parties and also the general reputation which is gradually founded on it. The first of these two heads of evidence is almost invariably, though not necessarily and in all circumstances, accompanied by the second. But as their characteristics differ it will be convenient to discuss them separately. § 1. — Declarations as to Marriage. The statements and conduct of the parties, implying the legality of their union and the legitimacy of their children, have sometimes been regarded upon an issue of marriage or no marriage as res gestce (r/). But inasmuch as such state- ments and conduct are admissible although they may have taken place long after the date of the marriage, it appears difficult to reconcile this view with the ordinary meaning of res fjestee. Moreover this head of evidence is so closely con- nected with declarations, express and by conduct, in pedigree cases, as well as with evidence of reputation, both of which have always been considered as media of proof, that it seems most consistent with principle to treat of it in this place. When the parties to the alleged marriage are deceased, their conduct towards each other and towards their children has constantly been admitted as evidence of marriage and legi- timacy respectively (c) . Such evidence may consist of the terms in which the parties have spoken or written to or of each other and their children (c) Fkrs V. Ficrs (1849) 2 H. L. C. 331, 362 ; cp. EcrveyY. Servey (1773) 2 W. Bl. 877. {d) Dysart Peerage (1881) 6 App. Ca. 489, 499 — 504 ; per contra, see judg- ment in Hervey v. Servey, supra. (e) Piers v. Piers (1849) 2 H. L. C. 331 ; Goodman v. Goodman (1859) 28 L. J. Ch. 745 ; Zyle v. Ellwood (1874) 19 Eq. 98; Collins v. Bislw-p (1878) 48 L.J. Ch. 31. Chap. IX. § 1. DECL.VIIATIONS, &c. AS TO MAEEIAGE. 155 either in conversation, in letters, in documents of title, on solemn occasions, as in the witness-box or on registering a birth or a death, or in any other circumstances. Evidence of this description is equivalent to a continuing assertion of the legal character of the relationship between them, and closely resembles the declarations by parents as to the legiti- macy or illegitimacy of their children referred to in the next chapter (./'). But this head of evidence is not confined, like declarations as to pedigree, to cases where tlio parties are dead. The evidence is equally admissible although one or both of them should be living ; the fact that in such cases more direct proof of the celebration of the marriage is not forthcoming affects the weight, not the admissibility, of the evidence. Thus on a prosecution for bigamy the defendant, a woman, was charged with having married one Gotobed in 1848, and after- wards in 1858, while he was still living, having married another man named Wilson. The defence was that at the time of the marriage in 1848 Grotobed was already married to another woman named Guy who was then alive. The evidence of this marriage, which appears" to have been received without objection, was as follows : a witness was called who had known Gotobed at Toronto in Canada in 1837 and for several years subsequently, and who remem- bered him returning about the year 1843 to Toronto, after a temporary absence, accompanied by the woman Guy. Gotobed then stated to him that this woman was his wife ; he treated her as such, and everyone else regarded her in that capacity {(/). In this case it will be noted that both parties to the marriage which was thus proved were strangers to the proceedings in which the evidence was given, and it would seem that at the time of the prosecution Gotobed was still living. The (/) See below, p. 162. Iff) R. V. Wilson (1862) 3 F. & F. 119. 156 THE IklEDIA OF PEOOF. Part HI. evidence however is equally admissible on behalf of the husband or wife when he or she is a party to the record. Thus in an action of debt in 1847, where the defence was that the defendant was a married woman, the defendant was allowed to call evidence to prove that she had for a period of several years lived as wife with a person named Potts, who was still living, and had passed under the name of Mrs. Potts (h). These cases must be distinguished from those where the husband or wife is a party to the record and such evidence is tendered against him or her by way of an admission {i). § 2. — Reputation as to Marriage. Reputation here means the opinion of relatives, friends, and neighbours, that the parties are, as their conduct imports, a married couple. It must not be merely the opinion of A and B in favoiu- of the marriage, opposed perhaps to a contrary opinion entertained by C and D, but must be general in its character (/r). It is not however necessary that the reputation should be imanimous in order to be admissible ; the marriage may be established by a clear preponderance of reputation in its favour (/). It may be proved by any witness who from his residence in the place where it exists, or his connection with the family or other circumstances, can prove the tenor of it from his own direct personal knowledge. So soon as a witness admits that he is only speaking from information given to him by some third person his evidence becomes inadmissible {»/). If how- (A) Woodgate v. Potts (1817) 2 C. & K. 457 ; cp. Be Thorcny. Att.-Gen. (1876) 1 App. Ca. 686. (i) Munro v. Be Cheminant (1815) 4 Camp. 215; cp. Wilson v. Mitchell (1813) 3 Camp. 393 ; R. v. Flaherty (1847) 2 C. & K. 782. [k) Cunninghams v. Cunninghams (1814) 2 Dow 482, 511, 514. [1) Lyle V. Ellu-ood (1874) 19 Eq. 98. (m) Shedden v. Att.-Gen. (I860) 30 L. J. P. M. & A. 217, 231, 232. Chap. IX, § 2. DECLAKATIONS, &c. AS TO MAREIAGE. 157 ever a witness merely says, " I heard that A and B were man and wife," and is not cross-examined as to the meaning or som'ce of his statement, it may be presumed that it is founded on a reputation held Ly himself in common with others [ii). This evidence, like that of cohabitation, is not confined to cases where the parties are deceased ; it is admissible while they are living when they are strangers to the proceedings (o), and seems to be equally admissible on principle where one of them is a party, subject to the qualification mentioned above in the case of criminal charges (p). (m) Eva)is V. Morgan (1832) 2 C. & J. 4.33. (o) Doe V. Flemivg (1827) 4 Bing. 266. [p) See p. 153. 158 THE MEDIA OF PEOOF. Part III. CHAPTER X. DECLAUATIOJiS AS TO PEDIGREE. Upon questions of pedigree tlie statement of a deceased^ person, whether based on his own personal knowledge or on family tradition, is admissible in evidence, provided that the declarant is proved to be related to the person about whose family relations the statement is made and that the declara- tion was made ante litem motam. This exception is due to the frequent difficulty from lapse of time of proving family relationships by means of direct oral evidence or any other medium of proof than the hearsay handed down by members of the family {a). The guarantee of its credibility is said to consist in the fact that the declara- tion was the natural effusion of one who had peculiar oppor- tunity and interest as a member of the family to state correctly matters relating to its genealogy, and that it was made upon an occasion when his mind stood even without bias to exceed or fall short of the truth {h). A 25edigree ordinarily means a simultaneous statement of a succession of births, marriages and deaths making up a family genealogy; but a pedigree case or question arises within the meaning of this rule whenever there is an issue as to the fact or degree of relationship between any two persons. And relationship here comprehends not only («) Eigham v. Ridgway (1808) 10 East, 109, 120; Vowles v. Young (1806) 13 Ves. 140, 143 ; Sturla v. Freccia (1880) 5 App. Ca. 623, 641 ; Dijsart Peerage (1881) 6 App. Ca. 489, 503. {b) JVhitelock v. Baker (1807) 13 Ves. 511, 514; Monckton v. Att.-Gen. (1831) 2 Russ. & Myl. 147, 159 ; Bcrkeletj Peerage (1811) 4 Camp. 401, 406. Chap. X. DECLAEATIONS AS TO PEDIGEEE. 159 relationship in the popular sense by consanguinity or affinity, but also any legal relationship such as heirship to wliioh specific rights are incident connected with the devolution of property. Moreover since the proof of a particular relation- ship often depends on the proof of some specific fact, such as the date of some particular bu'th, marriage or death, or some incident connected therewith, or the place of residence of some particular person or family, these facts are also regarded as matters of pedigree within the meaning of the rule when they thus tend to prove a relationship which is in question {c) . Thus where in an administration action the question was whether two children were legitimate, declarations contained, in letters of their reputed father, since deceased, stating their exact ages and thereby making it clear that they must have been born before the date of liis marriage, were admitted to prove their illegitimacy (c/). In an action of ejectment thej case was this : three brothers, Stephenas, Fortunatus and Achaicus had been born at one birth. Steplienas died without issue. The plaintiff claimed through Fortunatus, and the question was whether he or Achaicus was born first. The plaintiff tendered in evidence declarations by the father to the effect that Achaicus was the youngest of the three and that he had taken these names from St. Paul's Epistles {c) ; also declarations of a deceased relative of the family, one M. F., made shortly after the birth, to the effect that she was present at the birth, and upon the birth of the second child had taken a string and tied it round its arm to distinguish it (/). So declarations have been admitted to (c) Monchton v. Ait.-Gen. (1831) 2 Ruas. & Myl. 147, 156; Bcttijy. Kail (1856) 7 Ir. C. L. 17. {d) Re Turner (1885) 29 Ch. D. 985. Cp. Kidmy v. Cockhurn (1831) 2 Euss. & My. 167; cp. Herbert v. Tuclcal (16G3) T. Raym. 84, cited in Roe v. RauUngs (1806) 7 East, 279, 290 ; and commcuted on in Haines v. Guthrie (1884) 13 Q. B. D. 818, 822. {e) 1 Cor. ch. 16, t. 17. (/) Vin. Abr. Ev. T. b. 91. 160 THE MEDIA OF PEOOP. Part IJI. prove that a person of a particular name was resident in a particular place wlien that fact was relevant for the purpose of proving a step in a genealogy {(j) . On the other hand, neither the relationship between different persons, nor the dates of their births, marriages or deaths can be established by this medium of proof, where the question in issue is not one of pedigree within the meaning of this rule (//). Thus in an action by reversioner against tenant for the term of three lives for use and occupation of the land after the alleged expiration of the lives, the question was whether one of the cesiuis que vie was dead ; it was held that the reputa- tion which existed upon that point in his family was not admissible, the question not being one of genealogy (i) . And in an action for goods sold and delivered, to which the defence of infancy was pleaded, the date of the defendant's birth being in question, it was held that a declaration made by his deceased father was not admissible in evidence (/.). And declarations tending to prove the place of birth have been rejected on the same grounds (J). Before a declaration tending to prove relationship between two persons can be given in evidence it is necessary to prove by some means other than the declaration itself that the declarant is related to one of those two persons, since other- wise it would be possible for a stranger by merely claiming alliance with a family to put himself in a position to affect the rights of its members {m). But it is not necessary to prove that he is related to them both, for this would involve the absurdity of requiring proof of the very question in issue {g) Bishton v. N'esbit (184i) 2 Moo. & Rob. 554 ; Shields v. Boucher (1846) 1 De G. & Sm. 40. (A) Saines v, Guthrie (1884) 13 Q. B. D. 818. (i) TFJiittucJc V. TFaters (1830) 4 C. & P. 375. {k) Saines v. Guthrie (1884) 13 Q. B. D. 818; cp. Fi^ffe v. Wedderburn (1842) 6 Jut. 218. {l) R. V. Erith (1807) 8 East, 539. {in) Monckton v, Att.-Gen. (1831) 2 Russ. & Myl. 147; Doc v. Eandall (1828) 2 Moo. & P. 20, 24. Ghap. X. DECLAEATIONS AS TO PEDIGREE. Ifil as a preliminary to giving tlie evidence wliich is tendered to prove it (h). The relationship of the declarant whicli lias thus to be proved must be a legitimate one, but there is no limit as to its remoteness ; and for the purpose of this rule husband and wife are deemed to be related to each other (o). Hence the husband is a competent declarant in regard to his wife's family (p), and the wife in like manner in regard to her husband's {q) ; but the rule excludes the declarations not only of those who are connected by illegitimate ties with the family to which the declaration relates (>•), but also of friends or dependents, however intimate (s). The preliminary proof of this relationship must be such as to satisfy the judge on whose decision the admissibility of the evidence depends, and will not necessarily be of such a strict character as would be requisite for the proof of a fact in issue. Where the question in issue happens to be the relationship of the declarant himself to some other person, the following problem arises : is the question to be deemed to be a question as to the declarant's family only, or as to the other person's family only, or as to the family of both ? If it is deemed to be a question relating to the declarant's" family only, then his declaration must be admissible forthwith ; for to speak of preliminary evidence to prove that he is related to himself would be absurd. Again if it is deemed to be a question relating to both families, which seems to be the true account of the matter, on the principle laid down in 3IoiicMoii y.The Attorney-GcncmJ {t), the party tendering the evidence (w) MonektoHY. Att.-Gen. (1831) 2 Russ. & Myl. 147, 156, 157. (o) Davies v. Lowndes (1843) 7 Sc. N. S. 141, 181 ; S/in'wsbi(ri/ Peerage (1857) 7H. L. 1,23. {p) Doe V. Harvey (1825) Ry. & Moo. 297 ; VowJes v. Yoiuig (1806) 13 Yes. 140. {q) Shrewsbury Peerage (1857) 7 H. L. 1, 23, 26. (,•) Doe V. Barton (1837) 2 Moo. & Rob. 28. (s) Johnson v. Laivson (1824) 2 Bing. 86. (0 (1831) 2 Russ. & Myl. 147, 156, 157. W, M 162 THE MEDIA OF PROOF. Part HI. should be free to treat tlie declaration as one relating to the declarant's family, and, as before, to tender the declaration forth-with. It is only on the strained hypothesis of regarding the declaration as relating solely to the family of the other party that it can become necessary to tender evidence of the declarant's relationship to such other person as a condition precedent to the admissibiUty of the declaration. The cases however present on this matter a strange diversity of opinion. Thus it has always been held tliat the declarations of a deceased father or mother are admissible to prove the legi- timacy or illegitimacy of their children (provided that they do not contravene the rule which prohibits on grounds of public policy their giving evidence of non-access after marriage), as, for instance, by proving that the children were born before the date of the marriage (?/), or by disproving the existence of any marriage at all {x). In like manner declarations have been admitted to prove that a particular person is the sister of the declarant (//). In this case it was expressly held that no evidence could be necessary to connect the declarant with her own family. It will be noticed that this decision involves the admissibility of declarations as to the marriage of the declarant's parents and the declarant's own legitimacy. So declarations have been admitted to prove that the declarant himself is illegitimate and has no relatives whatever, without apparently any preliminary proof being required as a condition of admitting the declara- tion (2). On the other hand there are several cases in which, perhaps sometimes without discussion as to the necessity of such preliminary evidence, the court has clearly proceeded on the assumption that, in some cases at any rate, before a {u) Goodnglit v. Moss (1777) 2 Cowp. 591 ; Ee Turner (1885) 29 Ch. D. 985. {x) Murray v. Jlibter (1879) 12 Ch. D. 8io. (y) Smith v. Tehbitt (1867) L. R. 1 P. & D. 354. [z) Proc.-Gen. v. Williams (1862) 31 L. J. P. M. & A. 157. Chap. X. DECLARATIONS AS TO PEDIGREE. 1G3 declaration is admissible to prove the relationship of some other person to the declarant, preliminary evidence thereof, independent of tlie declaration itscK, must first bo given. Thus it has been held that a declaration as to the declarant's own legitimacy is admissible after some prihici facie evidence of that fact has first been given, and that it is no objection to the preliminary decision by the judge of this question that it is the very question in issue in the case {a). >So it has been held that a declaration to the effect that the declarant was legally married is not admissible until some preliminary proof of the marriage has been given (/>). In one case the court has held that a declaration stating that a particular person was the illegitimate son of the declarant's brother was inadmissible, on the ground apparently that the declara- tion related to the family of the illegitimate son to whom the declarant had no legal relationshiiJ and not to that of his father (c) ; but this case seems irreconcilable with the other authorities. The declaration must have been made ante litem motam {d). The mere existence of the situation out of which the dispute subsequently arises does not render a declaration inadmis- sible ; nor on the other hand is actual litigation necessary to exclude it ; but so soon as a controversy has actually arisen which would naturally create a bias in the mind of one standing in the relation of the declarant, all subsequent declarations become inadmissible (e) ; and it is immaterial (a) Doe V. Davies (1847) 10 Q. B. 314; Eitchius v. Eardley (1871) L. R. 2 P. & D. 248; cp. Berkeley Peerage (1811) 4 Camp. 401, 403. See form of questions, p. 403, and per Lord Mansfield, 416. (4) Proc.-Gen. v. Williams (1862) 31 L. J. P. M. & A. 157. (c) Crispin V. Boglioni (1863) 32 L. J. P. M. & A. 109. {d) Berkeley Peerage Case (1811) 4 Camp. 401 ; Moncktonv. Att.-Gen. (1831) 2 Russ. & Myl. 147. (r) Monckton v. Att.-Gen., at p. 160; Shedden v. Ait. -Gen. (1860) 30 L. J. P. M. & A. 217, 235. For good illustrations of what constitutes litis contcs- tatio see Butler v. Ifountgarrett (1856) 6 Ir. C. L. 77 ; 7 11. L. Ca. 033 ; Frederick v. Att.-Gen. (1874) L. R. 3 P. & D. 270. . m2 164 THE MEDIA OF PROOF. Part III. wlietlier the declarant is or is not aware of the contro- versy (/). But declarations made before any dispute has arisen, althougli with the express view of precluding contro- versy, are not on that account inadmissible {(j). Hence it has been lield that depositions made for the purpose of another suit are inadmissible if the same point was in issue (A), but otherwise not (?'). But the previous contro- versy, to render the declaration inadmissible, must have been .on precisely the same point [k). It is not necessary that the declaration should contain only matters within the personal knowledge of the declarant. They may be based on statements made to him by a relative who has such personal knowledge (/), or they may be based on tradition involving any number of degrees of hearsay so long as it is the tradition of deceased members of the family and not of strangers {m). But it is not necessary that the declaration should state with exactitude the degree of relationship ; its failure to do so will affect its weight and not its admissibility (»). Nor that the evidence should have any greater precision than the case fairly admits of ; thus in an action of ejectment, where the question was whether, as the plaintiff alleged, one Thomas Grifhn had died without issue, the plaintiff called an elderly lady, one of the family, to prove that Thomas had many years before, when a young man, gone abroad and according to the repute of the family had afterwards died in the West Indies, and that she had (/) BerMey Peerage (1811) 4 Camp. 401, 417. {g) Ibid. ; and Goodright v. Moss (1777) 2 Cowp. 591. (A) Berkeley Peerage (1811) 4 Camp. 401, questioning Goodright v. Moss (1777) 2 Cowp. 591. (i) See Lyle v. Ellwood (1874) 19 Eq. 98. {k) Sheddcn v. Ait.-Gen. (1860) 30 L. J. P. M. & A. 217, 236. (/) Boe V. Bavies (1847) 10 Q. B. 314. (m) Goodright v. Moss (1777) 2 Cowp. 591, 594; Whitelock v. Baher (1807) 13 Ves. 511, 514 ; Monckton v. Att.-Gen. (1831) 2 Rusi. & Myl. 147, 164, 165. («) Vowlcs V. Young (1806) 13 Ves. 140, 147. Chap. X. DECLAEATIONS AS TO TEDIGEEE. 105 never heard in the family of his having been married. It was held by the court, upon an application for a new trial, that this was evidence upon which the jury were entitled to find that Thomas had died unmamed (o). But if, instead of being founded on family hearsay or tradition, the declaration is extracted solely from different documents which are not produced, it will be inadmissible, since it is no more than a reproduction of documents which might indeed be good evi- dence of reputation themselves, but ought for that purpose to be produced in court (p). It follows from what has been said that such declarations are equally admissible whether they are brought home to a particular member of the family or are shown to have been recognized and adopted by the family generally. They may moreover be in any form, either oral or by conduct or in ANTiting. Examples of declarations by conduct are where a parent regularly treats a child as legitimate (q), or as illegiti- mate {)'), as where he says that he does not regard him as a member of his family and omits all mention of him in his will(.s;). Written declarations may be contained in letters (/), wills (?<), deeds (.r), family bibles, or any other book or paper (y). Inasmuch as the family bible is in the nature of a family record to which all the members of the family have access, the entries contained in it are admissible as declara- tions even though their handwriting cannot be proved, on [o) Doe V. GriJiH (1812) 15 East, 293. (p) Davies v. Zoicmles (1843) 6 M. & fi. 471 ; oveiTuling S. C. 5 Bing. N. C. 161. (?) Berkeley Peerage (1811) 4 Camp. 410, 410. (»•) Goodright v. Moss (1777) 2 Cowp. 591. (s) Rohson V. Att.-Gen. (1842) 10 CI. & F. 471, 498, 499. \f) Re Turner (1885) 29 Ch. D. 985 ; Butler v. Mountgarrct (1856) 6 Ir. C. L. 633. [u) Murray v. Milncr (1879) 12 Ch. D. 845; Doe v. Pembroke (1809) 11 East, 504. {x) Smith v. Tebbitt (1867) L. R. 1 P. & D. 354. (y) Berkeley Peerage (1811) 4 Camp. 401, 417. n " 166 THE MEDIA OF PROOF. PartlH. the ground of its general recognition as a family record {z). And it is on the same ground that the coiu'ts have treated as declarations pedigrees or portraits hung up in family mansions, and statements contained on tombstones or monu- mental brasses {a) . {z) Hubbard v. Zees (1866) L. R. 1 Ex. 255, 258. (ff) Goodright v. Moss (1777) 2 Cowp. 591; Monckton \. Alt.-Gcn. (1831) 2 Russ. & Myl. 147, 163 ; Shmey v. Wade (1836) 7 Sim. 595. 167 CHAPTER XI. KEPUTATION AS TO PUBLIC AND GENERAL RIGHTS. § 1. — Scjjiiiation. § 2. — Frescniments of Customary Courts. § 3. — Verdicts, Judgments, and Depositions. § 1.— Reputation. Upon any issue as to the existence of a public or general right the statements of persons who were interested in such right and have since died are admissible in evidence although based on hearsay and tradition of others who came before them and were also interested, provided that such statements are an expression of the common opinion and report of those concerned in the matter, that they state a general conclusion and not a particular fact, and that they were made before the controversy arose in which it is sought to make use of them. This exception therefore involves the admission of hearsay to any number of degrees : not only does the witness who brings the evidence into court state that which another person, the declarant, has said, but the declarant's own state- ment must also embody not his own individual knowledge or belief alone but also the concurring opinions of others similarly interested to himself ; and these opinions in their turn may be based in part on earlier traditions extending back through any number of generations. This is what is understood in this connection by the term reputation : the common hearsay of those interested in handing down from one to another the tradition of a right, the origin of 168 THE MEDIA OF PEOOF. Part IH. which can no longer be proved by direct oral evidence («). And such evidence is of course equally admissible to affirm or to refute an alleged right of this description (b) . The guarantee of its credibility consists in the concurrence of a large number of persons all interested, and therefore likely to ascertain the truth, in an opinion which if untrue woidd be surely challenged (c). Public rights are those in which all the subjects of the Queen are interested, as for instance rights of highway {(/), of taking tolls on the highway {e), of landing on a river bank (/), of using ports, ferries, and the like. General rights are those in which some class of the community has a common interest, as for example, those which are based on the customs of manors (r/), parishes {//), or cities (/), or which are connected with the boundaries of counties (/.•), hamlets (/) and manors or the ancient divisions of manors (?«). When it is said that the persons from whom the reputation proceeds must be interested, this means that they must be either entitled to enjoy or liable to submit to the right in question, or that they must be so situated that their material interests may be affected by its exercise, or that in some other respect they are so concerned with such right that it may be presumed that they had both the means and the {(() Hlghani v. Ridgway (1808) 10 East, 109, 120. \h) Drinkivater v. Fortcr (1835) 7 C. & P. 181. [c) Wright v. Doe (1837) 7 A. & E. 313, 360, 361 ; in H. L. 4 Bing. N. C. 489, 528 ; S. v. Bedfordshire (1855) 4 E. & B. 535, 542. {d) Read v. Jackson (1801) 1 East, 355 ; R. v. Bliss (1837) 7 A. & E. 550. {e) Brett v. Beales (1829) M. & M. 416. (/) DrinJcicaterY. Porter (1835) 7 G. & P. 181. {g) Doe V. Sisson (1810) 12 East, 62 ; Crease v. Barrett (1835) 1 C. M. & E. 919. (/i) Berry v. Bamier (1793) Pea. 156. (i) Layborn v. Crisj) (1838) 4 M. & W. 320. (/>•) Evans v. Rees (1839) 10 A. & E. 151. {J) Thomas v. JenJmis (1837) 6 A. & E. 525. \m) Barnes v, Mawson (1813) 1 M. & S. 77. Chap. XI. § 1. EEPUTATION AS TO PUBLIC EIGHTS. 1G9 motive for giviug a true account of the matter (;/). Thus in the ease of a public right, as a highway, in which all the Uueen's subjects are interested, it would seem that reputation from anyone is strictly speaking receivable, although of course it would be almost worthless unless it came from persons who were shown to have some means of knowledge as by living in the neighbourhood or fi-equently using the road in question (o). So where the question was as to the existence of a particular mining custom in the ancient assessionable manor of Tewington in the Duchy of Cornwall, and the plaintiff to prove the custom tendered as evidence of reputation written answers of the conventionary tenants of the manor to interrogatories relating to the said custom addressed to them by commissioners, the defendant objected that they were inadmissible because the tenants as such had nothing to do with the mines ; but it was held that since the minerals to which the custom was alleged to attach lay beneath their estates, and they were more likely than others living at a distance to become adventurers, and consequently subject to its operation, they were sufficiently connected with the sub- ject to render their answers admissible declarations, especially as they appear to have been consulted as persons having a competent knowledge upon the matters inquired into (p). So where the issue was whether Newcastle was within the Hundred of Broxtowe, the plaintiff tendered as evidence in the nature of reputation five orders of sessions made some 170 years previously from which it more or less directly appeared that it was so included. It was objected by the defendants that it had not been proved that the justices who made the orders resided in the county or had any peculiar knowledge on the subject ; but the court upheld («) NeiccastJe v. Broxtoive (1832) 4 B. & Ad. 273 ; Crease v. Barrett (1835) 1 C. M. & R. 919, 929—930 ; E. v. Bedfordshire (1855) 4 E. & B. 535, 542. (o) Crease v. Barrett (1835) 1 C. M. & R. 919, 929. {p) Ibid. Compare this case with Talbot v. Lcivis (1834) 1 C. M. & E. 495. 170 THE MEDIA OF PROOF. Part HI. the admission of the evidence on the ground that from the nature and character of their office alone they must be presumed to have sufficient acquaintance with the subject to %yhich their declarations related (q) . Should the declaration express merely the declarant's own opinion it would obviously not comply with the definition of reputation. In order to do this it should not only be the declaration of one of the members of that body whose common opinion makes the reputation current in their day, but should also express the concurrent opinion of himself and all others who are similarly interested. But if the declarant's circum- stances were such that he was apparently competent to testify as to what the common report upon the subject was, it will be presumed, till the contrary is shown, that his utterance was an expression of opinion common both to himself and others. For if the mere possibility that the deceased person's inference might proceed from some defective premises were sufficient to exclude it, this head of evidence would be entirely put an end to (r). Thus in an action for trespass to the plaintiff's close in the hamlet of Mortomley, which the defen- dants justified by the plea of a public way across it, the plaintiff called a witness who proved that forty years ago a public meeting- was held in the hamlet to consider whether the road should be repaired or not, and that a document (which was produced in court from the custody of the surveyor of highways) was thereupon signed by himself and twelve other inhabitants since deceased. This document, which was ad- mitted after objection, stated the opinion of those who signed it to be that the road was not and ought not to be a highway. On an application for a new trial on the ground that the document ought not to have been admitted because it did not contain anything which the parties to it had received as {q) Newcastle v. Broxtowe (1832) 4 B. & Ad. 273 ; 1 N. & M. 601 ; compare Eichards v. Wood (1831) 2 B. & Ad. 245. (r) R. V. Bedfordshire (1855) 4 E. & B. 535, 544. Chap. XI. § 1. EEPUTATION AS TO PUBLIC EIGHTS. 171 reputation from others, it was held that it had been rightly admitted. Lord Denman, O.J., said : — I do not agree that it is necessary for persons giving an opinion as to the publicity of a way to state that they found themselves on reputation, although theu" statements ought in reality to bo founded on some reputation. The statement of each of the deceased persons ■was reputation to some extent (s). Not only must the declaration express the common report as opposed to an individual opinion, hut this common report or reputation must assert not particular or individual facts tending to prove or disprove the right, hut a general con- clusion as to the existence of the right itself ; it must be a general verdict not only of all the persons, but also as to the general efPeet of all the facts (t) . Thus upon, an indict- ment for alleged obstruction to a highway, where the question was whether the way was a public or private one, the prose- cution called a witness to prove that one Ramplin, deceased, who in his lifetime occupied the meadow over which the way ran, had planted a willow there at a particular spot 30 years ago. The counsel for the prosecution then asked the witness what Ramplin had said, when he planted the willow, about his planting it. The question was objected to, but admitted; and the witness answered that Ramplin said he j)lanted it to show where the boundary of the road was when he was a boy. The defendant having lost the verdict applied for a new trial, which the court granted on the ground of the misreception of this evidence. Coleridge, J., said : — It is a rule that evidence of reputation must be confined to general matters and not touch particular facts. To try whether the declaration here was admissible according to that rule, let it be severed from the fact of planting which took place at the same time. Then it stands that Kamplin said he planted the tree for a certain purpose ; namely, («) Barraclougli v. Johnson (1838) 8 A. & E. 99. it) BcrMoj Peerage (1811) 4 Camp. 401, 415. 172 THE MEDIA OF rEOOF. Part III. to ^liow the boundary. That is a particular fact ; and evidence given of it is like proof of old persons having been heard to say that a stone was put down at a certain spot, or that boys were whipped, or cakes distributed, at a particular place, as the boundary ; which statements would not be admissible (?'). It is necessary to the admissibility of declarations of this description that they should be made, like those admitted in pedigree cases, before the dispute has arisen in regard to which they are tendered in evidence {x). And by dispute is meant not the litigation but the controversy from which it originated (//). And the declarations in such cases will not be the less inadmissible because the declarant was unaware of the controversy (~). But the litigation, to have this efPect, must be upon the precise point to which the declaration refers ; it will not be sufficient that it was merely closely connected with it (a) . Declarations of this description, like the others we have mentioned, may be either orsi[{b), as statements made in course of a perambulation of boundaries (c) , or written ; and if in writing, in any form, as, for instance, written resolutions passed at a public meeting {d), statements contained in deeds {e), or in orders of sessions (/), or contained in the (?/) B. V. £Uss (1837) 7 A. & E. 550 ; cp. Outram v. Morewood (1793) 5 T. E. 121, 123; NichoUs v. Farker (1805) 14 East, 331 ; Cooke v. Banks (1826) 2 C. & P. 478 ; Crease v. Barrett (1835) 1 C. M. & E. 919, 930. (a) B. V. Cotton (1813) 3 Camp. 444 ; Berkcletj Tccracje (1811) 4 Camp. 401, 416 ; Bichards v. Bassett (1830) 10 B. & C. 657. (y) Berkeley Peerage (1811) 4 Camp. 401, 417. (z) Ibid. (a) Newcastle v. Bro.rtowc (1832) 4 B. & Ad. 273, 280; cp. Freeman v. Fhillips (1816) 4 M. & S. 486. {b) Thomas v. Jc77kins (1837) 6 A. & E. 525. (c) TFeeks v. Sparke {ISU) 1 M. & S. 679,689; TToohcai/ v. Bour {I83i) 1 A. & E. 114 ; see above, p. 41, below, p. 174. {d) Barraclouffh v. Johnson (1838) 8 A. & E. 99. [e) Brett v. Bealcs (1829) M. & M. 416 ; Plaxton v. Bare (1829) 10 B. &C. 17. (/) Newcastle v. Broxtoice (1832) 4 B. & Ad. 272. Cliap. XI. § 1. EEPUTATIOX AS TO PUBLIC EIGHTS. 173 recitals of private acts of parliament (^) , and even iu maps, if it can be satisfactorily shown that they were made or adopted by such persons and under such circumstances as to bring them within the terms of tlie rule (//). The best way to prove ancient rights is to prove particular acts and usage, as far back as living memory goes, and then adduce evidence of reputation in regard to the preceding time(/). It is not however essential to the admissibility of reputation that there should be any evidence of modern user ; the absence of it only affects the weight, not the admissibility of such evidence {k). § 2.— Presentments of Customary Courts. In certain cases the presentments of manorial and other like courts founded on ancient custom are evidence in the nature of reputation of the matters recorded in them. This however is subject to the condition that the court was duly constituted. Thus a survey of a seignory or lordship, which had been granted to Oliver Cromwell, taken by com- missioners whom he had appointed, " being assisted therein by some tenants and officers of the said seignorie," was held not to be admissible in support of a claim by a subsequent owner of the seignory to a customary payment, which it recorded, of fourpence per wey for every wey of coals trans- ported out of the seignory (/). *'If indeed it had appeared distinctly from the finding of a jury of the manor or of per- sons connected with the manor, so as to know its customs, that iff) Carnarvon v. Villebois (1841) 13 M. & W. 313. See below, p. 179, as to private and public Acts. (A) R. V. Milton (1843) 1 C. & K. 58 ; cp. FoUard v. Scott (1791) Pea. 17 ; and Hammond v. Bradstrcct (1854) 10 Ex. 390. (i) Anglesea v. Hatherton (1842) 10 M. & W. 218, 239. (^•) Creases. Barrett (1835) 1 C. M. & R. 910, 930; Bunravcn v. UewcUyn (1850) 15 Q. B. 791, 804. (/) Beaufort v. Smith (1849) 4 Ex. 450. 174 THE MEDIA OF PEOOF. Part III. there was an ancient and customary payment of fourpence per wey for all coal carried over the bar to seaward, that would have been admissible as evidence of reputation, because authenticated by the opinion of a competent jury." The admissibility of these presentments is also subject to the condition that they relate to a matter over which the customary court had jurisdiction. A presentment that certain land within the manor was not the freehold of A, a tenant of the manor, but was parcel of the waste, was held not admissible ; the ownership of the freehold was held not to be within the jurisdiction of the homage, and it was besides a particular fact, and not a matter of general or public right (in). In 1834 some labourers from Carmarthenshire, being on Rossilly sands in the parish of Grower and turning up the sand with their hands, found a great number of Spanish dollars. The lord of the manor brought an action against them claiming the dollars as "^Teck, and tendered in evidence a presentment or survey in the form of answers to articles proposed to the tenants of certain commissioners, in which answers the tenants presented that the lord had a right to such wreck. The document was held inadmissible on the ground that wreck was a private right in which the tenants a^ such had no interest {n). On questions of boundary it appears that presentments are evidence (o), though it would seem that on principle they should not be admissible for this pur- pose except between persons interested in the manor, unless the presentment is accompanied by some open act of claim, as a perambulation {p). In two cases in which presentments or surveys were not admitted as evidence of boundary as against strangers to the manor, it appears that the persons holding the survey were not such a body as would have had (;w) Richards v. Bassett (1830) 10 B. & C. 657. («) Talbot V. Lewis (1834) 1 C. M. & R. 495 ; 6 C. & P. 603. (o) 6 C. & P. at p. 604. \p) See pp. 41, 172. Chap. XL § 2. EEPUTATION AS TO PUBLIC EIGHTS. ITu authority to hold thorn, and the court seems further to have thought that on the questions there in issue no authority less than statutory powers would have been adequate, in which case the siu-vey would have been admissible as a public document {>j) . Such siu^veys however, even though made without jm-isdiction in the sense above mentioned, may bo evidence as admissions when they have been made by the authority of a predecessor in title of the party against whom they are tendered (r). Subject to the conditions aforesaid, any j)resentment of a manorial court will be as admissible as reputation which purports to state the terms of any general customary right prevailing within the manor, as for example the customary mode of descent of lands therein (s), or the nature of a customary toll {f) ; and so will an ancient " eustumary " be evidence, though not forming part of the rolls, but kept and handed down together with them as a record of the customs of the manor (2^). Most examples of presentments however consist of presentments of some particular act, as the seizure of a heriot by the lord on the death of a tenant, or the admission of a tenant who claims lands under a special custom of descent. These presentments of course imj)ly the existence of the custom in pursuance of which they are made, but they do not expressly state it ; on the other hand they involve a successful act of claim on the part of the lord or the tenant, as the case may be, and it is on this ground that they have usually, if not invariably, been admitted in evidence as res gesUe or acts of ownership (.r). [q) Evans y. Taylor (1838) 7 A. & E. 617; Daniel v. Will-in (1852) 7 Ex. 429. •(>•) Bridgman v. Jennings (1G99) 1 Ld. Raym. 731. (s) Roe\. Farlcer (1792) 5 T. R. 2G. {t) Beaufort v. Smith (1849) 4 Ex. 450, 470. (») Xenn v. Sjiray (178G) 1 T. R. 4G6 ; Portland v. Hill (18G6) 2 Eq. 765. {x) See Bamerell v. Frot/icroc (1847) 10 Q. B. 20 ; and pp. 41, 42, above. 176 THE MEDIA OF PEOOF. Part IH. § 3.— Verdicts, Judgments, and Depositions. It is well settled that whenever evidence of reputation in the ordinary sense is admissible, evidence may likewise be given of previous verdicts or judgments between persons who stand in pari Jure or in eodeui Jure, that is to say, persons who had the same relative interests as the present parties, and between whom the same public or general right was con- tested and decided {//) . Thus in an action of trespass to land, where the defendant asserted and the plaintiff denied the existence of a highway over it, the plaintiff was held entitled to give in evidence the record of a previous action brought by himself against another defendant in which precisely the same issue had been raised in regard to the same particular place and the j my had decided in the plaintiff 's favour (s) . The right claimed by the defendants in both actions was the same public right. Both defendants therefore stood in the same relation to the plaintiff. And the same would have been the case had the plaintiff in the second action been successor in title of the plaintiff in the first. And the rule includes not only verdicts, judgments, and decrees (a), but also ancient depositions where the evidence has been recorded in that form (b). This head of evidence is closely analogous to reputation, and has been sometimes spoken of as a kind of reputation (c) . This view however is open to the objection that it must often happen that the jury, when drawn from the county at (y) Pirn V. Curell (1840) 6 M. & W. 234, 266 ; Briscoe v. Lomax (1838) 8 A. & E. 198, 214 ; Freeman v. FhilUps (1816) 4 M. & S. 486. (s) Head V. Jackson (1801) 1 East, 355. {a) Lai/born v. Crisp (1838) 4 M. & W. 320. ib) Freeman v. PhiUips (1816) 4 M. & S. 486; Crease v. Barrett (1835) 1 C. M. & R. 919, as explained in Evans v. Taylor (1838) 7 A. & E. 617, 626 ; Pim V. Curell (1840) 6 M. & W. 234. {c) Laijhorn v. Crisp (1838) 4 M. & W. 320, 326 ; Briscoe v. Lomax (1838) 8 A. & E. 198, 213 ; Pim v. Curell, supra. Chap. XI. § 3. REPUTATIOX AS TO PUBLIC RIGHT.?. 177 lai'ge, are not necessarily interested in the matter, and that whenever the verdict has been preceded by a contest as to the public or general right, its admission would offend against the rule that reputation to be admissible must be a)ifc litem motam {d) . The sounder view appears to be that such adjudica- tions on particular cases are analogous to the presentments of particular acts in customary courts (r), and are to be regarded rather as res ge.sffv or acts of ownership than as reputation. And this is the view that has found most favour with the courts (/). It follows from the above statement that awards are not admissible as reputation, for besides being made post litem motam they have ordinarily no claim in any sense to be public or general in their character {(j) . [d) Briscoe v. Lomax, 8 A. & E. at p. 212; Freeman v. PliiUlps (1816) 4 M. & S. 486 ; Evans v. Rtes (1839) 10 A. & E. 151, 156 ; R. v. Brightside Bierlmv (1849) 13 Q. B. 933, 943. {e) Seep. 173. (/) R. V. Brightside Bierlow (1849) 13 Q. B. 933, and Neillv. Devonshire (1882) 8 App. Ca. 135, 147. {g) R. V. Cotton (1813) 3 Camp. 444 ; Rogers v. IFood (1831) 2 B. & Ad. 245 ; Evans v. Rees (1839) 10 A. & E. 151. W. THE MEDIA OF TEOOF. Part III. CHAPTEE XII. PUBLIC DOCUMENTS. The term public as applied to documents is used in two distinct senses. It may mean tliat a document to which it is applied is evidence either against all the world or against some class of persons of the facts duly stated in it ; or it may mean that the original, being kept in some special custody for the benefit of the public or of some particular class of persons, is not produced in court, like a private document, but is proved by means of some kind of copy. There are many documents which are public in both these senses; there are many others which are only public in the latter sense. A will of j)ersonalty is for instance a public document for the purpose of adduction, the proper mode of proving it in court being the production of the probate merely ; but it is not a public document in the other sense, any more than a deed of assignment of the property comprised in it would be. On the other hand a register of births is not only provable by means of a certified copy, but is also evidence for and against all persons of the births recorded in it. This chapter is concerned only with the effect of public documents which are admissible as media of proof of the facts stated or recited in them ; the mode of their adduction is dealt with in the next Part. Public documents which are available as media of proof consist for the most part either of the proceedings of some Chap. XII. PUBLIC DOCUMEXTS. 179 depcartment of the state or of some public authority acting uuder statutory powers for the benefit of tlie community, or of public records of specific classes of facts duly entered and kept by public officials in pui'suance of a duty imposed on them in that behalf. At the head of the class stand pubhc acts of parliament which are prima facie evidence against everyone of the facts recited in their preambles (a). A private statute on the other hand is only evidence of the facts stated in it as against those who were parties to it, although for the purpose of adduction it may be declared a public act, of which the courts must take notice (b). The gazette, wliieh has long been issued under the authority of the government, is by the common law prima facie evidence of all acts of state which are published in it, though not of other matters (c) ; and it has fiu'ther been made by statute a medium of proof for a large number of other matters of fact (d). The book of registry at Stationers' Hall is evidence against all the world of the copyright in the books there registered. Such public documents are in principle but a kind of hearsay evidence, like the other exceptional forms of testimony already referred to, although this is perhaps somewhat lost sight of by reason of the official form of the entries contained in them, and from the fact that in the case of many of them it is not necessary to verify the official copies by which they may be proved but merely to produce them in court. The very gist of such documents however is that they contain a statement of some matter of fact by a person duly authorized to make it, who is not, save in very exceptional cases, called as a witness. And the guarantee of their credibility consists in the public duty of the official who keeps them to ascertain {a) R. V. Sutlon (1816) 4 II. & S. 532. {b) Brett V. Beetles (1829) M. & M. 416, 421 ; Ballard v. ll'ai/ (1836) 1 M. & W. 520, 529. Cp. pp. 18, 304. (c) R. V. Eolt (1793) 5 T. R. 436 ; E. v. Gardner (1810) 2 Camp. 513. \d) See pp. 294, 308. . n2 ISO THE MEDIA OF TROOF. Fart III. the truth of the matters recorded for the benefit of the public, and to make accurate entries of them (e). Besides the public documents which rest on such authority as is above mentioned there are some which have their origin in immemorial custom, such as the rolls of manorial courts. These however are public documents oidj within certain limits, that is to say, they are evidence of the facts which are duly recorded in them only for and against all persons interested in the manor (/) , and their custody, being for the benefit of those persons alone, is not public in the same sense as that of the others. Corporation books at common law are public documents in the same limited sense (fj). And the same limitation, though not expressed, would probably be held to be implied in the case of the minute-books of ordinary incorporated trading companies which are made by statute 2)>'iniu facie evidence of the facts stated in them (//), and in other like cases. It would however be inconsistent with the scope of this book to discuss these distinctions in detail. It appears sufii- cient to append a list of some of the principal public docu- ments (using the term in both the senses explained above), together with a statement of their source, and of their effect in evidence. This has accordingly been done in Appendix A. The same appendix also sets forth their mode of adduction respectively, as mentioned in the next Part {i). (e) The Irish Society v. The £ is hop of Berry (1845) 12 CI. & F. G41, CCS ; Sturla V. Freccia (1880) 5 App. Ca. at p. 642. (/) Sturla T. Freccia (1880) 5 App. Ca. at p. C43. [g) Ibid. \h) See pp. 297, 298. (ij Page 288. 181 CHAPTER XIII. EVIDENCE TAKEN BEFORE TRIAL. § 1. Depositions in Civil Cases. (i) Evidence informer Proceedings. (ii) Depositions before an Examiner. (iii) Perpetuation of Testimomj. § 2. Depositions in Criminal Cases. (i) Lidictable Offences Act, 1848. (ii) Coroners Act, 1887. (iii) Perpetuation of Testimomj. The preceding cliapters of this Part have been devoted to describing the various media of proof which may be adduced in court at the trial of a civil or criminal cause. But in some cases it is permissible to present to the court evidence which either happens to have been already taken in some previous proceedings between the parties or their j)redeeessors, or which has been taken at some previous stage of the same proceedings for the express purj^ose of being put on record and preserved, in case the witnesses should be unable to attend at the trial. The several kinds of depositions thus admissible form the subject of this chapter. § 1.— Depositions in Civil Cases. (i) Evidence in former Proceedings. — Where there have been former civil proceedings between the same parties who are now at issue and in relation to the same subject-matter, and the witnesses who then gave evidence are now unable to appear, it is admissible in certain prescribed cases to prove 182 THE MEDIA OF PROOF. Part III. in the present proceedings tlio terms of sucli previous evidence (a). It is immaterial that in the previous proceed- ings some other person was a party ; but if the converse be the case, the evidence will not be allowed to be used against such of the present parties as were not parties to the former action {b) . The rule also extends to cases where the former proceedings were between predecessors in title on one or both sides of the parties to the present suit. Thus where a suit was brought in 1815 by some of the customary tenants of a manor on behalf of themselves and all other customary tenants against the lord to establish their right to work minerals under the manor without his consent, and subse- quently in 1871 a bill of the same nature was filed against the successor in title of the former lord by some of the customary tenants who did not derive title under any of the persons named as plaintiffs in the former action, it was held that the evidence given in the former suit by witnesses who had since died was admissible in the later one, the parties on each side in the later suit being held to be privies in estate to the parties in the earlier one (c). It seems that such former evidence is admissible if the witness is for any cause not producible, as for instance in case of his death, insanity, secretion by the opposite party, illness, disappearance, or absence from the jurisdiction (rf), although a narrower view has been expressed, according to which it would be admissible in the first three alone of the above-mentioned events {e). In the Court of Chancery it was necessary to obtain an {n) Strutt Y. Bovingdon (1803) 5 Esp. 5G ; Wright \. Doe (1834) 1 A. & E. 3 ; Doe V. Derby, ibid. 783 ; cp. Boncaster v. Bay (1810) 3 Taunt. 262. {b) Wright v. Doe, supra; Brown v. White (1876) 24 W. E. 456. (e) Llanorery. Ilomfray (1881) 19 Ch. D. 224; cp. Boncaster \. Bay (1810) 3 Taunt. 262. {(l) Llanover y. nomfray {\%%l) 19 Ch. D. 224, 230; Slrutt v. Bovingdon (1803) 5 Esp. 56 ; Fry v. Wood (1737) 1 Atk. 445 ; Godbolt, Ca. 418 ; (1623) p. 326 ; B. N. P. 239. {e) B. V. Scaife (1851) 17 Q. B. 230, 243 ; 11. x. JLirshaU (1841) C. & M. 238. But these were criminal cases ; see below, p. 187. Chap. XIII. § 1. EVIDENCE TAKEN BEFORE TRIAL. 183 order to read evidence taken in former proceedings (./"). But now by Eule 3 of Order XXXVII it is provided that — Au order to read evidence taken in another cause or matter shall not bo necessary, but such evidence may, saving all just exceptions, be read on ex parte applications by leave of the court or a judge, to bo obtained at the time of making any such application, and in any other case upon the party desii-ing to use such evidence giving two days' previous notice to the other parties of his intention to read such evidence. This order would appear however to be confined to depo- sitions or evidence taken on affidavit. Such previous testimony, if taken orally in court in the ordinary way, must be proved by some person who heard it, and can speak to it either from recollection alone or by refreshing his memory from the notes he took of it. It has also been said that it may be proved by means of the judge's notes {g), but this would seem to require the consent of both the parties and the judge. The rule applies a fortiori to evidence given on previous proceedings in the same case, as for instance where there is a second trial, either in consequence of a disagreement of the jury, or after the verdict has been set aside "and a new trial ordered. In regard to civil actions Eule 25 of Order XXXYII provides that — All evidence taken on the hearing or trial of any cause or matter may be used in any subsequent proceedings in the same cause or matter. This rule re-enacts the effect of Rule 15 of the Order of Court of February 18G1. It is wide enough to include evidence taken by oral examination at the hearing, and in the Court of Chancery the evidence could be so taken by special order, although the ordinary mode of taking it (/) Cons. Ord. (Order XIX r. 4) ; see Morgan's Ch. Acts and Orders, 3rd ed., 1862. ig) Doncastcr v. Da>/ (1810) 3 Taunt. 262. 184 THE MEDIA OF PROOF. Part III. was Ly affidavit or by e.r 2)ai-ie examination before an examiner (//). (ii) Dqjositions be/ore an Examiner. — In civil causes or matters, whenever it seems probable that any intended witness will from any cause be unable to attend and give evidence at the trial, the court has power to make an order at the instance of the party who desires that the evidence may be recorded, that the witness's examination shall be taken beforehand. Eules 5 to 24 of Order XXXVII deal with such examinations. EuLE 5. The court or a judge may in any cause or matter wliere it shall appear necessary for the purposes of justice, make any order for the examination upon oath before the court or judge or any officer of the coirrt or any other person and at any place of any witness or j^erson, and may empower any party to any such cause or matter to give such depositions in evidence therein on such terms, if any, as the court or a judge may direct. The evidence of the witness is taken down in writing by the officer appointed to take the examination, and is after- wards filed in the High Court. Other rules of the same order prescribe the jorocedure to be followed and provide that the interrogation of the witness shall.be conducted in accordance with the practice observed at the trial of a cause. It will be noted that the terms of this rule enable the court to make an order entitling a party not only to examine here a witness who is about to go abroad, but also to examine abroad any witness who either resides or is temporarily staying out of this country. With regard to the conditions on which such depositions may be given in evidence, Eule 18 provides that — Except where by this order otherwise provided or directed by the court or a judge, no deposition shall be given in evidence at the hearing or trial of the cause or matter without the consent of the party against whom the same may be offered, unless the court or (A) See Order of Court, Feb. 1861, r. 4. Chap. XIII. § 1. EVIDENCE TATvEX BEFORE TRI.VL. 18.1 juflge is satisfied that the deponent is dead or boj-ond tlio jurisdiction of the court, or unable from sickness or other infinnity to attend the hearing or trial, in any of which cases the depositions certified under the hand of the person taking the examination shall be admissible in evidence, saving all just exceptions, without proof of the signature of such certificate. The rule does not expressly exclude the evidence in the event of the witness having disappeared or heing kept away by the party against whom tlie deposition is tendered ; and the terms of these two rules appear qvdte wide enougli to enable the court to make an order in such case for the deposition to be read. (iii) Perpetuation of Testinioin/. — In certain cases where a person entitled in some future event to some property or office, desires to provide for the possibility of future contest by putting on record and preserving the evidence of his rights, he is entitled to commence proceedings for this express purpose. Eules 35 to 38 of Order XXXVII contain provisions for such perpetuation of testimony. EuLE 35. Any person who would, under the circumstances alleged by him to exist, become entitled ujjon the haj^pening of any futm-e event to any honour', title, dignity, or ofiice, or to any estate or interest in any property, real or personal, the light or claim to which cannot by him be brought to tl-ial before the happening of such event, may commence an action to perpetuate any testimony which may be material for establishing such right or claim. Such action is brought against the person whose interest it would be to interfere with such alleged claim or right of the plaintiff, although it cannot be set down for trial (/). If however at any future time, when the jilaintiff's interest or right has come into possession, he should be compelled to litigate with such person or his successors in title, the (j) Rule 38. 18G THE MEDIA OF PROOF. Part III. evidence so taken in the action for perpetuation of testimony, will, subject to tlie order of the judge, be admissible (/.■). § 2. — Depositions in Criminal Causes. The practice of taking before a justice the depositions of the witnesses against a person charged with crime, before committing him for trial, was instituted by the statutes 1 & 2 Ph. & M. c. 13 and 2 & 3 Ph. & M. c. 10. Those Acts were repealed by the statute 7 Greo. 4 c. 64, which substituted somewhat further provisions as to the taking of depositions by justices and by coroners. The provisions relating to justices were repealed by the Indictable Offences Act, 1848, 11 & 12 Yict. c. 42, which now regulates the taking of such deposi- tions, and the conditions of their admissibility in evidence, and by a later statute, 30 & 31 Yict. c. 35, additional pro- vision has been made for justices to take and record in certain events testimony of witnesses with regard to indict- able offences. The provisions of the Act of Geo. lY. as to coroners were repealed by the Coroners Act, 1887, 50 & 51 Yict. c. 71, which now regulates the taking of the dej)Ositions of witnesses at coroners' inquisitions. Similar provisions are also contained in the two statutes relating to offences against children hereinafter mentioned. (i) Indictable Offences Act, 1848.— Sect. 17 of 11 & 12 Yict. c. 42 provides that — In aU cases where any person shall appear or be brought before any justice or justices of the peace charged with any indictable offence, whether committed in England or Wales, or upon high seas, or on land beyond the sea, or whether such person appear voluntarily upon summons or have been apprehended, with or without warrant, or be in custody for the same or any other offence, such justice or justices, before he or they shall commit such accused person to prison for trial, or before he or they shall admit him to bail, shall, in presence of such (7i) Semble, the evidence would be admitted in the same events as those mentioned in the last section of this chapter. For examples of such actions, see In re Stoer (1884) 9 P. D. 120 ; and Bute v. James (1886) 33 Ch. D. 157. Chap. XIII. § 2. EYIDEXCE TAKEN BEFORE TIUAL. 1S7 accused iierson, -who shall be at liberty to put questions to anj' \ritness produced against him, take the statement on oath or affirmation of those who shall know the facts and circumstances of tlie case, and shall put the same into writing, and such depositions shall be read over to and signed respectively by the witnesses who shall haye been so examined, and shall be signed also by the justice or justices taking the same ; and the justice or justices before whom any such witness shall appear to be examined as aforesaid shall, before such witness is examined, administer to such witness the usual oath or afiirmation, which such justice or justices shall have full jiower and authority to do, and if upon the trial of the person so accused as first aforesaid it shall be proved, by the oath or affirmation of any credible witness, that any person whose deposition shall have been taken as aforesaid is dead, or so ill as not to be able to travel, and if also it be proved that such dei:)Osition was taken in the presence of the person so accused, and that he or his counsel or attorney had a full opportunity of cross- examining tbe witness, then, if such deposition purport to be signed by the justice bj' or before whom the same purports to have been taken, it shall be lawful to read such deposition as evidence in such prosecution, without further proof thereof, unless it shall be proved that such deposition was not in fact signed by the justice purporting to sign the same. It has been held tliat the statute has not repealed tlie admissibihty of depositions in the event of the witness being prevented by the defendant from attending at the trial (though the J were never admissible where he simply could not be found) (/) ; and it would seem that by the same reasoning they would be admissible in the event of the witness's insanity (>n) . The provision as to illness applies to the case of pregnancy, although a natural condition, if it pro- duces a condition of illness incapacitating from travel {)/) ; but such old age and nervousness as would make it hazardous to travel to court and give evidence will not render the deposition admissible, if there is no illness (o). The unsworn evidence of a child of tender years under the Criminal Law Amendment Act, 1885, 48 & 49 Vict. c. 69, {I) E. V. Scaife (1851) 17 Q. B. 238 ; Ji. v. Austin (1856) Dears. G12. {m) B. V. Scaife, supra, p. 243 ; H. v. Marshall (1840) C. & M. 147. («) li. V. Wellings (1878) 3 Q. B. D. 420. (o) R. V. Farrell (1874) L. R. 2 C. C. E,. 116. IS.S THE MEDIA OF PROOF. Part III. is not admissible as a deposition (p). But similar evidence on prosecutions under the Prevention of Cruelty to, and Pro- tection of, Children Act, 1889, 52 & 53 Vict. c. 44, isbjsect. 8 of that statute to be deemed to be a deposition and admissible as such. And now by sect. 12 of the Prevention of Cruelty to Children (Amendment) Act, 1894, 57 & 58 Vict. c. 27, that provision has been extended to proceedings in respect of many other offences against children, and by sects. 14 and 15 the provisions for taking the depositions of any child who has been the subject of an offence under sect. 1 of the princij)al Act are amplified. (ii) Coroners Act, 1887.— Sect. 4 of 50 & 51 Viet. c. 71 provides that : — (1.) The coroner and jury shall at the first sitting of the inquest, view the body, and the coroner shall examine on oath touching the death all persons who tender their evidence respecting the facts and all persons having knowledge of the facts whom he thinks it expedient to examine. (2.) It shall be the duty of the coroner in a case of murder or man- slaughter to put into writing the statement on oath of those who know the facts and circumstances of the case, or so much of such statement as is material, and any such deposition shall be signed by the witness and also by the coroner. Sect. 5 (3) provides that — The coroner shall deliver the inquisition, deposition, and recog- nizances, with a certificate under his hand that the same have been taken before him, to the proper officer of the court in which the trial is to be, before or at the opening of the court. This statute, like those which preceded it, contains no pro- vision as to the events in which the depositions taken by the coroner are admissible on the trial of the offender. But it has been held that these events are the death or insanity of the witness, illness disabling him from travelling, or" the fact that he is kept away by the defendant (q) . (p) H. V. Pruniey (1887) 16 Cox, 344. {q) 1 Hale, P. C. 305; R. v. Wilshaw (1841) C. & M. 145; R. v. Scaife (1851) 17 Q. B. 238; R. v. Austin (1856) Dears. 612. Chap. XIII. § 2. i:VIDEXCE TAKEN BEFOEE TEIAT.. ISO (iii) P('j'j)('f/i(it/o)i of Tc'^fi/iioii//. — Sect. G of ^JO & -31 Yict. c. 35, after reciting the effect of the provisions of sect. 17 of the Indictable Offences Act, 1848, proceeds thus : — And wlioreas by the 17th sectiou of the Act 11 & 12 Vict. c. 42, it is permitted under certain circnmstances to read in evidence on the trial of an accused person the deposition taken in accordance with the provisions of the said Act of a witness who is dead, or so ill as to bo unable to travel : And whereas it may hajii^en that a j^erson danger- ously ill, and unable to travel, may be able to give material and important information relating to an indictable offence, or to a person accused thereof, and it may not be practicable or permissible to take, in accordance with the provisions of the said Act, the examination on deposition of the person so being iU, so as to make the same avail- able as evidence in the event of his or her death before the trial of the accused person, and it is desirable in the interests of truth and justice that means should be provided for perpetuating such testimony, and for rendering the same available in the event of the death of the person giving the same : therefore, whenever it shall be made to appear to the satisfaction of any justice of the peace that any person dangerously ill, and in the opinion of some registered medical practi- tioner not likely to recover from such illness, is able and willing to give material information relating to any indictable offence, or relating to any person accused of any such offence, and it shall not be practic- able for any j ustice or j ustices of the peace to take an examination or deposition in accordance with the provisions of the said Act of the person so being ill, it shall be lawful for the said justice to take in wi'iting the statement on oath or afBrmation of such person so being ill, and such justice shall thereupon subscribe the same, and shall add thereto by way of caption a statement of his reason for taking the same, and of the day and place when and where the same was taken, and of the names of the persons (if any) present at the taking thereof, and, if the same shall relate to any indictable offence for which any accused person is already committed or bailed to appear for trial, shall transmit the same with the said addition to the proper officer of the court for trial at which such accused person shall have been so com- mitted or bailed, and in all other cases he shall transmit the same to the clerk of the peace of the county, division, citj', or borough, in which he shall have taken the same, who is hereby required to pre- serve the same, and file it of record ; and if afterwards, upon the trial of any offender or offence to which the same may relate, the person who made the same statement shall be proved to be dead, or if it shall bo proved that there is no reasonable probability that such person will ever be able to travel or to give evidence, it shall bo lawful to read 190 TUE MEDIA OF PROOF. Part III. sucli statement in evidence, either for or against the accused, without further proof thereof, if the same purjiorts to be signed by the justice by or before whom it piu'ports to be taken, and provided it be proved to the satisfaction of the court that reasonable notice of the intention to take such statement has been served upon the person (whether prosecutor or accused) against whom it is proposed to be read in evi- dence, and that such person, or his counsel or attorney, had or might have had, if he had chosen to be present, full opportunity of cross- examining the deceased person who made the same. Sect. 7. Whenever a prisoner in actual custody shall have served or shall have received notice of an intention to take such statement as hereinbefore mentioned, the judge or justice of the peace by whom the prisoner was committed, or the visiting justices of the prison in which he is confined, maj', by an order in writing, direct the gaoler having the custody of the prisoner to convoy him to the place mentioned in the said notice for the purpose of being present at the taking of the statement ; and such gaoler shall convey the prisoner accordingly, and the expenses of such conveyance shall be paid out of the funds applicable to the other expenses of the prison from which the prisoner shall have been conveyed. It has been held that the notice prescribed by the section must be express and in writing ; otherwise, even though the prisoner may have been present at the examination, it will be inadmissible (r). The statement provided for by this section differs therefore from the depositions taken under 11 & 12 Vict. c. 42 in the following respects : (a) no pro- ceedings need have been commenced at the time that it was taken ; (b) it is not essential that the parties should be present, provided the prescribed notice has been given ; (c) the conditions on which the statement is admissible are somewhat different. Sects. 14 and 15 of the Prevention of Cruelty to Children (Amendment) Act, 1894, 57 & 58 Vict. c. 27, contain some- what similar provisions with regard to taking the deposition of a child in respect of whom an offence under sect. 1 of the principal Act is alleged to have been committed, and its admissibility in evidence at the trial. (r) E. V. Shurmer (18S6) 17 Q. B. D. 323. 19-1 CHAPTER XIV. EVIDENCE BY AFFIDAVIT A:N1) UNDER DISCRETIONARY ORDERS. § 1. Evidence hi/ Affidavit. § 2. Account Books as Evidence. § 3. Evidence of Farticidar Facts. § 1.— Evidence by AfS.davit. EviDEXCE by affida\'it is chiefly used upon summary appli- cations, but it may also in certain events be used at the trial of a civil cause. The two following rules prescribe generally the conditions of its admissibility at the trial : — 0. XXXVII r. 1. — In the absence of any agreement in writing between the solicitors of all parties, and subject to these rules, the "witnesses at the trial of any action or at any assessment of damages shall be examined viva voce and in open court, but the court or a judge may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing or trial, on such conditions as the court or judge may think reasonable, or that any witness whoso attendance in court ought for some sufficient cause to be dispensed with be examined by interrogatories or otherwise before a commissioner or examiner, provided that where it appears to the court or a judge that the other party bona fide desires the production of a witness for cross- examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit. O. XXXVIII r. 28. — Wlien the evidence is taken by affidavit any party desiring to cross-examine a deponent who has made an affidavit filed on behalf of the opposite party may serve upon the party by whom such affidavit has been filed a notice in writing requiring the production of the deponent for cross-examination at the trial, such notice to be served at any time before the expiration of fourteen days 192 THE MEDIA OF rROOF. Part III. next aiU-v the end of the time allowed fur filiiif,' anTulavits in rei)ly, oi' within siich time as in any case the court or judge may specially api^oint ; and unless such deponent is produced accordingly, his affidavit shall not be used as evidence unless by the special leave of the court or a judge. The following rule relates to tlie admissibility of evidence by affidavit on interlocutory applications: — 0. XXXVIII r. 1. — Upon any motion, petition, or summons, evi- dence may be given by affidavit; but the court or a judge may, on the application of either party, order the attendance for cross-examina- tion of the person making such affidavit. I With regard to the admissibility of hearsay evidence in affidavits, Rule 3 of the same order provides as follows : — Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, except on interlocutory motions, on which statements as to his belief, with the grounds thereof, may be admitted. Hence affidavits differ from other forms of testimony, whether given orally or recorded in depositions, in this, that if they are for use on interlocutory motions, hearsay is admissible generally without any of the restrictions discussed in the preceding chapters of this Part, whereas on all other occasions, save where any order to the contrary is made under any Rule hereinafter mentioned, they must be confined to such facts as a witness can prove of his own knowledge, as explained in Chapter I of this Part. The procedure relating to the making, filing, and use in evidence of affidavits is contained in Order XXXYIII. § 2.— Account Books as Evidence. Where it is necessary to the decision of the issues that an account should be taken which cannot conveniently be taken before the judge or jury, it is the practice of the court to delegate the trial of this part of the issues by either directing that the account shall be taken by one of its ordinary officers Chap. XIV. § 2. EVIDENCE BY AFFIDAVIT, ETC. IM or referring the matter to an official or special referee (n). Order XXXIII contains the following provisions with regard to the giving of directions for the taking of an account and the mode of taking it in pm'suance thereof : — Rule 2. The coui-t or a judge may, at any stage of the proceedings in a cause or matter, direct any necessary inquii-ies or accovmts to be made or taken, notwithstanding that it may appear that there is some special or fui-ther relief sought for or some special issue to be tried, as to which it may be proper that the cause or matter should proceed in the ordinary manner. EuLE 3. The court or a judge may, either by the judgment or order directing an account to be taken or by any subsequent order, give special directions with regard to the mode in which the account is to be taken or vouched, and in particular may dii-ect that in taking the account, the books of account in wluch the accounts in question have been kept shall be taken as prima facie evidence of the truth of the matters therein contained, with liberty to the parties interested to take such objections thereto as they may be advised (/>). There is nothing in these rules to restrict the jurisdiction to make .orders thereunder to cases where the persons who would ordinarily he called to prove the accounts are dead, nor is it in practice confined to such cases alone (c). But the power vested in the court to order that books of account shall he taken as pri/ud facie evidence of the truth of the matters stated in them is not generally resorted to for the sake of merely sa\dng expense, when the ordinary means exist for j)roving the account. But if vouchers have been lost or for any other reason it is impossible to take the accounts in the ordinary manner, the court may make an order under these rules (c/) . («) See O. XV and 0. XXXII rr. 2—9 ; Arbitration Act, 1889, 52 & 53 Vict. c. 49, ss. 14 and 15. {b) The provisions of this rule reproduce in substance sect. 54 of the Chancery Procedure Amendment Act, 1852, 15 & 16 Vict. c. 86, which section was repealed in 1883 by 46 & 47 Vict. c. 49. [c) See Seton on Decrees, 4th ed., vol. 2, p. 774, Form No. 7. {d) Lodge v. Prichard (1853) 3 De G. M. & G. 906; Eivarl v. WUliams (1855) 7 De G. M. & G. 68. The practice under these rules will be found in DanieU's Chancery Practice, and Seton on Decrees. W. O 19i THE MEDIA OE TEOOF. PaitlTI. These provisions as to account-boo'ks call to mind an act of parliament which is not resorted to in practice, though niirepealed, and which shows that in the beginning of the 17th centm-j a tradesman's shop-hooks were admitted, in actions for goods sold or work done, as pi-iiiid facie evidence of the transactions recorded in them. This is the statute 7 Jac. 1 c. 12, which, after reciting that tradesmen made fraudulent entries in their shop-books or left the entries uncancelled after they had been paid, in order to charge their customers unjustly after the particulars had been forgotten, enacted that such shop-books should not be given in evidence by tradesmen in any such action unless it were brought within one year after the accrual of the claim, with a proviso however that the limitation should not apply in actions between the tradesman or merchant and his fellows. § 3.— Evidence of Particular Facts. Bule 7 of Order XXX, relating to the Summons for Directions, is in the following terms : — On the hearing of the summons, the court or a judge may order that evidence of any particular fact, to he specified in the order, shall be given by statement on oath of information and belief, or by pro- duction of documents or entries in books, or by copies of documents or entries or otherwise as the coui't or judge may direct. IOj CHAPTER XV. riUVII.EGE, 1. Penal Consequences. 2. Legal Professional Privilege. 3. Husband and Wife. 4. Stale Documents. 5. Title Deeds. § 6. Privileged Admissions in Civil Cases. § 7. Privileged Admissions in Criminal Cases. The admissibility of the media of proof described in the fore- going chapters of this Part, must be taken subject to certain qualifications. Tliere are some matters as to which the law on public grounds prohibits the giving of any evidence, and "with regard to others it confers either on the party or on the witness a right, which he may claim or may waive as he likes, of not disclosing them. This disability or privilege may be insisted on at any stage of the proceedings whenever the occasion to do so first arises, whether it be upon exami- nation in the witness-box or upon application made in a civil cause for discovery of documents or to administer interroga- tories. The first four of the heads of privilege enumerated in this chapter apply indifferently to parties or witnesses, the fifth to witnesses alone, and the sixth and seventh to parties alone. § 1.— Penal Consequences. A person whether party or witness cannot be compelled to give any evidence which would tend to subject him to any o2 196 THE MEDIA OF PEOOF. Part III. punishment, penalty, forfeiture or ecclesiastical censure {a). No objection can be taken on this ground to any question or apj)lieation being addressed to him since he is at liberty to waive his privilege and must, moreover, if he objects to giving the evidence, make his objection on oath {b). And the mere fact that a witness states his belief that his answer will have this effect is not enough to excuse him from answering ; the judge must be satisfied from the circum- stances of the case and the nature of the evidence which the witness is called on to give that there is reasonable ground to apprehend danger to him from his being compelled to answer ; but if it is once made to appear that the witness is in danger, great latitude should be allowed to him in judging for himself of the effect of any particular question (c). Where lajose of time has become a bar to any criminal or other proceedings being taken [d], or where the offence has been purged or has been pardoned {e) , the privilege no longer exists. In some cases special provision has been made by statute with regard to particular offences that no privilege shall be available in civil proceedings relating thereto, but that the evidence so disclosed shall not be used in any criminal j)rosecution (,/'). It was formerly questioned whether a witness was privi- leged also from answering any question the answer to which would tend to subject him to other civil liabilities, as debt. This was set at rest by the statute 46 Geo. 3 c. 37, which enacted that a witness cannot refuse to answer a question («) U. S. of America v. McHae (1867) 3 Ch. 79, 83, 87 ; Redfern v. Redfern [1891] P. D. 139, 147. {h) Fisher V. Owen (1878) 8 Ch. D. 645, 651 ; Webb v. East (1880) 5 Ex. D. 108. (c) E. V. Boyes (1861) 30 L. J. Q. B. 301 ; In re Reynolds (1882) 20 Ch. D. 294, {d) Roberts v. Allatt (1828) M. & M. 192; Att.-Gen. v. Cunard S.S. Co. (1887) 4 T. L. R. 177. {e) R. V. Royes (1861) 30 L. J. Q. B. 301. (/) Cp. 24 & 25 Vict. c. 96, s. 85, with regard to frauds by agents, bankers, or factors. Chap. XV. § 1. PEIYILEGE. 197 relevant to the matter iu issue, the answering of which has no tendency to accuse himself or to expose him to penalty or forfeiture, by reason only that the answering of such question may establish or tend to establish that he owes a debt, or is otherwise subject to a civil suit, either at the instance of the Crown, or of any other person or persons. The reported decisions illustrate the application of this head of privilege to cases of bigamy {g), bribery (h), publica- tion of libel (/), penalties (Z-), adultery (/), confiscation of a party's property by the law of a foreign state {»)) , and for- feiture of a term of years for breaches of covenant (h). § 2. — Legal Professional Privilege. A witness, whether a party or not, is entitled to what is known as legal professional privilege. This privilege protects from disclosure two classes of communications — (i) all com- munications made by a client to his legal adviser, whether solicitor or counsel, in his professional capacity for the purpose of procuring his legal advice to protect his interests ; (ii) evidence, reports, advice, &c. — in short,, all statements of facts or opinion procured by the legal adviser on behalf of his client for the purpose of litigation, whether commenced or contemplated, in which the client is or will be con- cerned (o) . iff) Harvey v. Lovekin (1884) 10 P. D. 122. ■ (A) R. V. Boyes (1861) 30 L. J. Q. B. 301, (i) Lamb v. Mumter (1882) 10 Q. B. D. 110; Fankhurst v. Wiyhton i- Co. (1886) 2 T. L. R. 745. (A) Ennnings v. Williamson (1883) 10 Q. B. D. 459; Martin v. Treacher (1886) 16 Q. B. D. 507. (0 Redfern v. Redfern [1891] P. D. 139. (m) U. S. of America v. McRae (1867) 3 Ch. 79. (w) Fye V. Butterfield (1864) 34 L. J. Q. B. 17. (o) Greenhough v. Gaskell (1833) 1 My. & K. 98 ; as to this case see 4 B. & Ad. 876 ; 2 M. & W. 100 ; Minet v. Jforgan (1874) 8 Ch. 361 ; Wheeler v. Le Marchant (1881) 17 Ch. D. 675; Southivark, ^-c. Co. v. Quick (1878) 3 Q. B. D. 315. 198 THE MEDIA OF mOOF. Part III. The ground of this rule is not any special importance of the legal profession, but the expedience of securing to every man the full protection of the laws. The understanding and administration of these requires special knowledge and skill ; but a man would be practically precluded from obtaining the aid of skilled advisers, if his communications with them were not thus protected from publicity {])). Neither client nor solicitor need act personally in the above relations in order that the privilege may be claimable ; it exists equally when they act by means of clerks, inter- preters, or other agents (q), and it matters not whether the communications or statements are oral or written, provided that they were made for the prescribed purpose (r) . No privilege can be thus acquired for any communication which is made for the purpose of committing an illegal act, since that can be no part of the legitimate protection of the client's interests, which is the ground of the rule (.s). Nor does it extend to any other relation than that of client and legal adviser : there is no privilege for communications made to a medical man or a priest or any non-legal business agent (/) . Nor does it extend to every sort of communication between client and legal ad\dser ; the communications to be protected must be made confidentially in reliance on his professional capacity (u). But it applies to communications connected with anything within the ordinary scope of a (p) Greenhough v. Gaslcell (1833) 1 My. & K. 98. {q) Anderson v. Bank of British Columbia (1876) 2 Ch. D. 644 ; Wheeler v. Ze Marehatit (1881) 17 Ch. D. 675. (r) Pearce v. Foster (1885) 15 Q. B. D. 114 ; Greenhough v. Gaskell (1833) 1 My. & K. 98. (s) Eussell V. Jackson (1851) 9 Hare, 392 ; Follett v. Jefferyes (1850) 1 Sim. N. S. 3, 17 ; R. v. Cox (1884) 14 Q. B. D. 153. {t) Wheeler v. Le Marchant (1881) 17 Ch. D. 675 ; Slade v. Tucker (1880) 14 Ch. D. 824. {u) McCorquodale v. Bell (1876) 1 C. P. D. 471 ; Anderson v. Bank of British Columbia (1876) 2 Ch. D. 644; Gardner v. Irvin (1878) 4 Ex. D. 49; Wheeler V. Le Marchant (1881) 17 Ch. D. 675 ; O'Shca \. Wood [1891] P. D. 286. Chap. XV. § 2. PRIVILEGE. 199 solicitor's business, and extends therefore to communications connected with the sale of estates or the raising of money (.r) . On the other hand a fact known, a statement made, or a document existing prior to or independent of the relation- ship out of which alone the privilege sj^rings will not become privileged merely by reason of its being submitted to the legal adviser for any purpose which would create privilege had they been first known or first made solely for the pur- pose or in consequence of such relation (y). The statement whether oral or written must come into existence as a com- munication made for the express purpose of obtaining pro- fessional advice (z). So, the outside of a deed w^horeby its date and general character may be identified (though its contents are privileged) (a), the name of the legal adviser's client (b) or his residence (c), or other matters of fact not connected with legal advice (r/), are not privileged, although communicated in the course of professional communications, unless themselves communicated confidentially for the purpose of legal advice. It is doubtful indeed whether mere facts patent to the senses are as such privileged by reason of their having been learnt in the course of privileged communica- tions, if dissociated wholly from all inferences of fact which are the result of such communications {c). These limitations were well summed up thus in an old case (/) : There are certain apparent exceptions, namely, where the com- (x) Carpenael v. Powis (1845) 1 Pliillips, 687, 692; TurqicandY. Knight (1836) 2 M. & W. 98, at p. 100. (y) Lwyer v. Collins (1852) 7 Ex. 639 ; Ltjell v. Kennedy (1883) 9 App. Ca. 81 ; Pearce v. Foster (1885) 15 Q. B. D. 114, (z) Cleave v. Jones (1852) 7 Ex. 421. («) Bursillv. Tanner (1885) 16 Q. B. D. 1. (A) Ibid. (c) Ex parte Campbell, Ee Cathcart (1870) 5 Ch. 703. \d) Bramivell v. Lucas (1824) 2 B. & C. 745. {e) Kennedy v. Lyell (1883) 23 Ch. D. 387. (/) Greenhouc/h v. Ga^kell (1833) 1 My. & K. 98. 200 THE MEDIA OF PROOF. Part III. munication was made before the legal adviser was employed as sucli or after his employment had ceased ; where though consulted by a friend because he was an attorney yet he refused to act as such, and was therefore only applied to as a friend ; or where there could not be said in any correctness of speech to be a communication at all, as where, for instance, a fact, something that was done, became known to him, from his having been brought to a certain place by the circum- stances of his being an attorney, but of which fact any man, if there, would have been equally conusant, or where the communication was not in its nature private, and could in no sense be termed the subject of a confidential disclosure ; or where the thing disclosed had no reference to the jirofessional employment, though disclosed while the relation of attorney and client subsisted ; or where the attorney made himself a subsciibing witness and thereby assumed another character for the occasion, and adoj^ting the duties which it imposes became bound to give evidence of all that a subscribing witness can be requii'ed to prove. Where the parties to the suit occupy towards each other the relation of agent and principal, trustee and cestui que trust, corporation and member of the corporation, and the like, and it appears that communications or documents in the possession of such agent, trustee or corporation which would be privileged as against strangers have been obtained in their aforesaid capacity, the other party will be thereby entitled to have them disclosed and to resist any claim of privilege in respect of the same {g). So the communications of a testator to his legal adviser are not protected as between two persons both claiming under him (//). In every case the privilege is the right not of the legal adviser but of the client, and he alone therefore can waive it {i). But a waiver of a separate part of a privileged communication does not debar him from insisting on it as to the residue (/). And subject to such waiver, when once [g) Re Posthfhii-aite (1887) 35 Ch. D. 722 ; Mayor and Corporation of Bristol . Cox (1884) 26 Ch. D. 678. (A) Russell Y. Jackson (1851) 9 Hare, 392. \i) Pearce v. Foster (1885) 15 Q. B. D. 114. \k) Lyelly. Kennedy (1884) 27 Ch. D. 1. Chap. XY. § 2. PRIVILEGE. 201 communications or statements are privileged they always remain so (/). As to the first of the two classes of communications pro- tected by this head of privilege it was formerly considered that statements procured by a client or his legal adviser for the purpose merely of the latter giving to the former legal advice, were not privileged, and that it was only when made in contemplation of litigation that they could be so (iii). NoAV however it is settled that all such statements are privi- leged {)i). As to the second class of protected communications it is held that if the legal adviser instructs his own client to obtain information for the purpose of the litigation it will be not less privileged than if he had employed a clerk or some other agent (o). The following are examples which illustrate this point : — not privileged : correspondence of defendant, sued for breach of warranty of quality of goods, with vendor from whom he purchased, with a view to ascertain truth of com- plaint {])) ; report by a railway servant in the ordinary course of his duty to his superior officer of an accident in respect of which the plaintiff was suing the company (q) ; privileged : medical opinions and reports procured in a similar case with a view to litigation (r) ; letters written by a solicitor in anticipation of litigation to possible witnesses (.s) ; surveys of a vessel sworn to have been made solely for the purpose of a (?) Pearce v. Foste}- (1885) 15 Q. B. D. 114; millock v. Cony (1878) 3 Q. B. D. 356 ; Baslam Foundry, ^-c. v. Hall (1887) 3 T. L. R. 776. (w) Woolhy V. North London Rail. Co. (1869) L. R. 4 C. P. 602; Wheeler V. Le Marchant (1881) 17 Ch. D. 675; Grecnhough v. Gaskell (1833) 1 My. & K. 98. («) Southwark, ^-e. Water Co. v. Quick (1878) 3 Q. B. D. 315; Fearce v. Foster (1885) 15 Q. B. D. 114. (o) Wheeler v. Le Marchant (1881) 17 Ch. D. 675. {p) English v. Tottie (1875) 1 Q. B. D. 141. [q) Woolley v. Xorth London Rail. Co. (1869) L. R. 4 C. P. 602. (r) Pacey v. London Tramways Co. (1876) 2 Ex. D. 440, note (1). {s) McCorquodale v. Bell (1876) 1 C. P. D. 471. 202 THE MEDIA OF PROOF. Part III. contemplated litigation (/) ; and copies of Board of Trade depositions taken for that purpose (;?). Even anonymous letters written to a solicitor for the purpose of assisting him in a pending litigation have been held privileged (.r). It seems doubtful whether documents privileged in one suit are privileged in a succeeding suit, unless either the issues are substantially the same or they are covered by the first head of privilege (y) . The second class of protected communications appears to be more extensive than the first in this respect, that it appears to embrace documents which have been collected for the pur- pose of the litigation, even though not brought into existence with a view to it (s). § 3.— Husband and Wife(«). (i) Access. — It is a rule of the common law, based on public policy, that neither husband nor wife is compellable or competent to give evidence of their having or not having had sexual connection with each other after the marriage at any given time or at all : that is, although they may "give evidence of the date of their marriage and of the date of the birth of offspring of the wife, whether born before or after marriage, they may not give any evidence tending to show that a child born of the wife during the marriage is not the legitimate child of them both {b). This rule therefore pre- {t) The Theodor Komer (1878) 3 P. D. 162. {u) The Palermo (1883) 9 P. D. 6. [x) Re Thomas Holloivay, Young v. RoUoway (1887) 12 P. D. 167. (y) Haslam Foundry, ^c. v. Hall (1887) 3 T. L. E. 776 ; Rawstone v. Preston Corporation (1885) 30 Ch. D. 116. (z) Lyell V. Kennedy (1884) 27 Ch. D. 1 ; but qucere, and see Cleave v. Jones (1852) 7 Ex. 42 ; Pearce v. Foster (1885) 15 Q. B. D. 114. («) It will be observed that some of the rules dealt with under this head are rules of partial incompetency rather than of privilege ; but they resemble privilege in this, that they only apply to particular heads of evidence of a witness otherwise competent. {b) Goodright v. Moss (1777) 2 Cowp. 591. Chap. XV. § 3. PETVILEGE. 203 eludes them not only from giving direct evidence of access or non-access, but also from giving any evidence of circum- stances from which the same is intended to bo inferred (c). Nor does the fact that one of tliem has died release the other from his or her incompetency to give evidence of this descrip- tion {(/). It has been hold however that evidence of declara- tions and conduct of the wife [c) and her alleged paramour (./') are admissible on an issue as to the legitimacy of a child of the wife. The rule must also be read subject to the com- petency of a witness, whetlier a party or not, to give evidence tending to prove his or her adultery, which may of course tend indirectly to sliow non-access. It has however been held that evidence of this description, tending to show non- access, is not admissible except in proceedings instituted in consequence of adultery, and is therefore not admissible in affiliation proceedings or in an action for the execution of a trust {g). (ii) Adultery. — By 32 & 33 Yict. c. 68 s. 3, which renders the parties to any proceeding instituted in consequence of adultery and the husbands and wives of such parties com- petent to give evidence in such proceeding, "it is provided that no witness in any proceeding, whether a party to the suit or not, shall be liable to be asked or bound to answer any question tending to show that he or she has been guilty of adultery, unless such witness shall have already given evi- dence in the same proceeding in disj^roof of his or her alleged adultery (A). This provision appears to have been held to render the parties or their husbands and wives competent to give such evidence only in proceedings instituted in conse- (c) R. V. Sourton (1836) 5 A. & E. 180. [cC) R. V. Eea (1809) 11 East, 132. {e) Aylesf or cl Peerage (1885) 11 App. Ca. 1. (/) Burnaby v. Baillie (1889) 42 Ch. D. 282. {g) Guardians of Poor of Xottingham v. Tomkinson (1879) 4 C. P. D. 343 ; cp. Burnahj v. Baillie (1889) 42 Ch. D. 282, 292. (A) Hebblcthivaite v. Mcbblethwaiie (18G9) L. R. 2 P. & M. 29. 204 THE MEDIA OF PEOOF. Part IH. quence of adultery (/). Evidence however of the declarations and conduct of the wife (/.) and of her alleged paramour (1) have heen held admissible on an issue as to the legitimacy of a child of the wife, as mentioned in the last section. (iii) CommnnicatioiiH. — By the common law husband and wife were neither compellable nor competent to disclose in evidence any communications upon any matter whatsoever which had passed between them during marriage, and the death of either of them did not remove this disability in the survivor {lu). The Evidence Amendment Act, 1853, which removed the incompetency of the husbands and wives of parties to civil proceedings, provided by sect. 3 that neither husband nor wife should be compellable to disclose any com- munications between them during the marriage. This section appears to have been regarded as abolishing generally this head of incompetency while reserving the right of privi- lege to husband and wife in all cases in respect of such com- munications ; and the practice of the courts accords with this view. § 4. — State Documents. Beports and other communications, whether oral or written, made in the course of public duty between one minister or officer of state and another are, within limits which are not very clearly defined, privileged from disclosure whenever it would be injurious to the public interests {n). It seems that the judge is the authority to decide whether the dis- closure would be injurious or not, but on this point he will generally be guided by the opinion expressed by the head of (i) Burnahy v. BaiUie (1889) 42 Ch. D. 282. {k) Aijlesford Peerage (1885) 11 App. Ca. 1. {I) Burnahj v. BaiUie, mpra. {m) Dokerv. Sasler {1824) R. & M. 198; O'Connor v. Majorilanks (1842) 4 M. & G. 435. (w) Beatson v. Skene (1860) 29 L. J. Ex. 430 ; McElreneyy. Connellan (1864) 17 Ir. C. L. Rep. 55 ; Blake v. Pilford (1832) 1 M. & Rob. 198. Chap. XV. § 4. PRIVILEGE. 205 tlie department in whose control the evidence is(o). It is also in the discretion of the judge by what evidence lie will require to be satisfied of the objection made by such head of dej)artment. In some cases the minister has attended personally in coui't to raise the objection {j)) ; in others an affidavit from his secretary or other duly authorized subor- dinate has sufficed (q). In another case it was made orall}' by a clerk, and the objection was overruled, but not apparently on that ground (r). Where the document itself is inadmis- sible on this ground of privilege it follows that no other evidence of its contents will be admissible (.s). § 5.— Title-Deeds. Title-deeds are also privileged from disclosui'e in the cases and to the extent hereinafter mentioned. The term title-deed is well understood. It comprises documents other than deeds in the ordinary sense of that w^ord, as for instance a will, or an agreement not under seal for the sale of an estate ; and it is the contents of the document which constitute it a title-deed by their relation to some right or title which they sujoport ; hence the mere detention of a document by virtue of a lien in respect of some claim asserted by the detainer against the OAvner of it does not render it a title-deed in respect of the detainor's claim within the meaning of this rule (/). In respect of production of title-deeds there is a great difference between the position of a party to civil proceedings and other persons. With regard to the latter the rule was the same both at (o) Beatson v. Skene (1860) 29 L. J. Ex. 430. (p) Ibid. [q) H.M.S. " Bellerophon'' (1874) 44 L. J. Adm. 5. (?•) Dickson v. Wilton (1859) 1 F. & F. 419, 424, scd qiimre. \s) Cooke V. Maxwell (1817) 2 St. 183 ; Stace v. Griffith (18G9) L. R. 2 P. C. 420, 428. (0 See below, pp. 207, 208. 206 THE MEDIA OF PEOOF. Fart III. common law and in equity, and has not been affected by the Judicatui-e Acts, It is this : that a person is not compellable to produce his title-deeds for inspection («). He may be compelled by a writ of subpccna duces tecum to bring them into court {x), and the party at whose instance he has been summoned may have him called on his subpoena, and without having him sworn, may ask him if he has the documents in his possession, if he has brought them there, if he is willing to produce them, and, if not, on what grounds he objects (//). But if the person so summoned refuses to produce the documents on the ground that they are his title-deeds, then, j)rovided that that allegation does not appear to be manifestly false, he is privileged from producing them and cannot in that case be compelled to answer any question with regard to their contents (s). With regard to parties to civil proceedings the rule at common law prior to 1851 was that they also could not be compelled by subpoena duces tecum or otherwise to produce their title-deeds (a). But by Lord Brougham's Act, 14 & 15 Vict. c. 99 s. 6, and the Common Law Procedure Act, 1854, 17 & 18 Yict. c. 125 s. 50 seq., power was given to either party to obtain discovery in an action in every case where it could have been obtained by a bill in equity {b). The general principle in equity was that a party could obtain discovery of all such documents in his opponent's possession as did not exclusively support his opponent's case but tended to prove or support his own (c). Since 1875 the practice has followed (m) Rarris v. mil (1822) 3 St. 140: Tickerinff y. Xoyes (1823) 1 B. & C. 262 ; Doe v. James (1837) 2 M. & R. 47 ; Doe v. Clifford (1847) 2 C. & K. 448 ; Doe V. Langdon (1848) 12 Q. B. 711. {x) Fickering v. Koyes (1823) 1 B. & C. 262. \y) Griffith v. Ricketts (1849) 7 Ha. 299. \z) Davies v. Waters (1842) 9 M. & W. 608. (a) Ibid. ; and Pickering v. Notjcs (1823) 1 B. & C. 262. {b) See Day's Com. Law Proc. Acts, 3rd ed., 1868, pp. 249 seq. [c) See Hare on Discovery; Wigram on Discovery; Minet v. Morgan (1873) 8 Ch. 361. Chap. XY. § o. PEWILEGE. 207 tliis principle in every Division of the Ilig-li Court {/). Moreover, if a party during the course of negotia- tions for a compromise makes admissions not with a view to such compromise but wholly independently (~) , and still more if he commits acts, which are of themselves a ground of legal liability (such as for instance threats to infringe a patent right) {a), these are not privileged. There has been some difference of judicial opinion as to whether admissions, whether express or implied from the offer of concessions, are privileged by the mere fact that they have been made in the course of negotiations for a settle- ment {b). The true view would seem to bo that they are not (0 Be River Steamer Co. (1871)0 Ch. 822; Walker v. Wihlier [1889) 2S Q. B. D. 335. («) JFalker v. JFihlwr, supra; Ex parte Harris, lie Harris (187-3) 44 L. J. Bkcy. 33. (x) Walker v. Wilsher, supra. {tj) Ibid. ; and Jones v. Foxall (1852) 15 Bcav. 390, 396, 397. [z) Waldridge v. Eennison (1794) 1 Esp. 142 ; Turner v. Railton (179G) ibid. 474. (rt) Kurtz ^ Co. V. Spence (1887) 57 L. J. Ch. 238. [b) For tlic privilege, Jardine r. Sheridan (18 16) 2 C. & K. 24 ; against, W. P 210 THE MEDIA OF PEOOF. Part IH. privileged unless it can be implied from the language or eon- duct of the parties that they were not intended to be disclosed, but that this inference will frequently be drawn almost as a matter of course from the nature and circumstances of the case. In cases where a party wi'onged has a choice of civil or criminal remedy and where accordingly it is held lawful to enter into a compromise of the criminal liability (e), there seems no reason why admissions should not be privileged on the same principle as on piu-ely civil cases as above explained. § 7. — Privileged Admissions in Criminal Cases. In criminal cases it is a rule that no confession (d) of the defendant can be given in evidence against him unless it was voluntary ; and it is held not to be voluntary if it appears to have been induced by anything in the nature of a promise or a threat held out to him by any person in authority (c) . Such threat, promise and authority must all be understood in rela- tion to the prosecution ; that is to say, a person is deemed to be a person in authority within the meaning of this rule only if he stands in certain relations which are considered to imply some power of control or interference in regard to the prose- cution ; the threat must be a threat to prosecute or take some step adverse to the defendant's interests connected therewith ; and the promise must be a promise to forbear from some such com-se. The most conspicuous example is the case of an Xicholson Y. Smith (1822) 3 St. 128 ; TFallace v. Small (1830) M. & M. 446 ; an intermediate position was taken by Kenyon, C. J., in Turner v. Railton (1796) 1 Esp. 474 ; and Gregorij v. Sowarcl (1800) 3 Esp. 113. (c) Eeir v. Leeman (1844) 6 Q. B. 308, 321 ; 9 Q. B. 395 ; and Fisher v. ApoUinaris Water Co. (1875) 10 Ch. 297. [rJ) For definition of confession as here used, see pp. 101, 102. \e) JR. V. JMdnj (1852) 2 Den. C. C. 430, 445. The ground of the rule would seem to have been that a confession not spontaneous was not to be trusted, but the authorities show some divergence of opinion. See E. v. WariclcsJiall (1783) 1 Lea. 263 ; R. v. Thom.as (1836) 7 C. & P. 345 ; R. v. Court, (hid. 4SG ; li. v. Baldru ; R. v. R(ason. (1872) 12 Cox, 228. Chap. XV. § 7. PEIYILEGE. 211 offer of pardon held out by a secretary of state to any accom- plice who will make such confession as "will lead to the detec- tion and punishment of the principal offender. A person who purports to make a confession in reliance on such an offer may fail to obtain the pardon, if it appear either that lie was himself a principal or that he has failed to make a complete i disclosure ; but if prosecuted for his part in the crime, no admission can be given in evidence against him which appears to have been made solely in reliance on the promise of pardon (,/'). The term " person in authority " has been held to comj)rise any ofRcer of justice having the custody of the defendant, as magistrate (g), police constable (/'), warder (/) or searcher (k) ; also the prosecutor (/) ; and any person who is virtually in the position of the prosecutor's agent with regard to the custody or management of property so affected, as, for example, his wife (in). It is doubtful whether a medical man who is simply called in to attend to a prisoner can be deemed a person in authority (u). It is not necessary that the promise or threat should be actually uttered by the person in authority, if it was uttered by some one else in his presence and tacitly acquiesced in by him, so as to appear to have his confirmation and authority (o). The terms of the inducement constantly involve both (/) S. V. Dwfflei/ (1845) 1 C. & K. 637 ; Ji. v. Blachbum (1853) G Cox, 333. {g) li. V. Cooper (1833) 5 C. & P. 535 ; sec li. v. Far/m- (1861) L. & C. 42. (/») It. V. Pountney (1836) 7 C. & P. 302 ; R. v. Laugher (1846) 2 C. & K. 227 ; R. V. Millen (1849) 3 Cox, 507. (i) R. V. Enoch (1833) 5 C. & P. 539. {k) R. V. Windsor (1864) 4 F. & F. 360. {I) R. T. Jones (1809) R. & R. 152. \m) R. V. Taylor (1839) 8 C. & P. 733 ; R. v. Moore (1852) 2 Den. C. C. 622 ; R. T. Slceman (1853) Dears. C. C. 249. (m) R. v. Gibbons (1823) 1 C. & P. 97 ; R. v. Kingston (1830) 4 C. & P. 387. The admissibility of a confession in such case might perhaps be held to turn on the question whether the prisoner believed on reasonable grounds that he "was a person in authority. (o) R. V. Laugher (1846) 2 C. & K. 225 ; R. v. Taylor (1839) 8 C. & P. 733. p2 212 THE MEDIA OF PEOOF. Part III. threat and promise, a threat of prosecution if disclosure is not made, a promise of forgiveness if it is. The following for instance have been held to be such statements when made by persons in authority : " If you don't tell the truth ... I w^ill send for the constable to take you" {p), " If you don't tell me, I will give you in charge of the police till you do tell me " {q). But the threat need not be in express terms, if the intention is still clear, as in the case of the following state- ments : " If you don't tell, you may get yourself into trouble and it will be the worse for you " (r), " If you (the person in authority) forgive me, I (the prisoner) will tell you the truth." Eeply : "Ann, did you do it?" (s). At one time almost any invitation to make a disclosure was held to imply some threat or promise, but a sounder practice has since prevailed and the words used are construed in their natural sense, so that many of the older decisions are no longer safe guides (i^). Such expressions therefore as "I must know more about it" are no longer held to amount to a threat {u). There is however one form of inducement, namely, " You had better tell the truth," and equivalent expressions, which are regarded as having acquired a fixed meaning in this connection, as if a technical term, and are always held to import a threat or promise (,r). But this construction will not prevail if such a statement is accom- panied by other words which indicate that it was not intended in this sense ; as " You had better, as good hoys, tell the truth" (//). Inducements which consist merely of an appeal [p) M. V. Kearn (1841) C. & M. 109. Iq) Ji. V. LucJchiirst (1853) Dears. C. C. 245. {>•) Ji. V. Colei/ (1868) 10 Cox, 536. (.s) Ji. V. Mansfeld (1881) 14 Cox, 639. (0 R. V. Baldnj (1852) 2 Den. C. C. 430, 445 ; R. v. Reason (1872) 12 Cox, 228. {>() See last case. {x) R. V. Jarvis (1867) L. R. 1 C. C. R. at p. 90 ; R. v. Fcnnell (1881) 7 Q. B. D. 147. (y) R. V. Reeve (1872) L. R. 1 C. C. R. 302. Chap. XV. § 7. PRIVILEGE. 213 to a man's moral or religious feelings, however urgent, will not render a confession inadmissible (~). Sueli are tlie fol- lowing : " I hope you will tell, because Mrs. Gurner can ill afford to lose the money" (a), "Don't run your soul into more sin, but tell the truth " (6), " You are in the presence of two police officers, and I should advise you that to any question that may be put to you you will answer truthfully, so that if you have committed a fault you may not add to it by stating what is untrue." ..." Take care, we know more than you think " (c). Nor will inducements create privilege which merely promise some collateral convenience, such as permission to the defendant to see his wife (d), or to have the handcuffs removed {e) . If the confession was not induced by threat or promise it is, strictly spealdng, admissible even though the witness promised (/'), or swore (g), not to reveal it, or even obtained it by indirect means as by making the defendant intoxicated (/^), or intercepting and opening a letter (/) . An inducement may continue to operate on a man's mind for a considerable time after it was uttered (/.•) ; but on the other hand it may be altogether removed by subsequent statements which precede the confession, and which clearly inform the defendant that he must expect no temporal advantage from making one (/). In one case an inducement was held to have operated although it was made with regard (c) li. V. GiUiam (1828) Moo. C. C. 18G. (a) E. V. Llotjcl (1834) 6 C. & P. 393. {b) E. V. Sleeman (1853) Dears. C. C. 249. (c) B. V. Jarvis (1867) L. R. 1 C. C. R. 96. {(i) B. V. Zloijd (1834) 6 C. & P. 393. (e) i?. V. Green, ibid. 655. (/) E. V. Thomas (1836) 7 C & P. 345. (ff) R. V. Shaio (1834) 6 C. & P. 372. (A) R. V. Spihbunj (1835) 7 C. & P. 187. (i) R. V. Dcrmiffton (1826) 2 C. & P. 418. [k) R. V. ITeu-cH (1842) C. & M. 534. {I) R. V. Clcives (1831) 4 C. & P. 221. 214 THE MEDIA OF PKOOF. Part III. to a different offence (m) ; but in every case it is for the judge to decide whether a confession was made in reliance on it or not. The question not infrequently arises in what form evidence may be given of facts which have been discovered in conse- quence of an admission which is privileged under this rule ; as where a defendant charged with theft has under the influence of threats revealed where the stolen property is hidden. It is clear that the finding of the stolen things may be proved'; it is also clear that the confession as such cannot on that ground be proved ; is it lawful to ask the witness a question to this effect, " Did you in consequence of a fifateiiieni icJdch the prisoner made to you find the articles in question?" Some authorities are in favour of the admissibility of the question, others opposed to it (»). On principle the latter would seem to be the right view ; if the confession is wholly in- admissible, it can hardly be right to give the jury in an indirect manner so clear an indication of what the tenor of the confession was. It does not lie on the defendant to prove the threat or promise, but is for the prosecution to satisfy the judge that any confession he tenders in evidence was voluntary (o). A statement made by the defendant is not the less admissible against him because it has been made on oath in the course of other proceedings, as for instance in evidence given by him as witness at a coroner's inquest {})), as debtor or witness examined in the course of bankruptcy proceed- (ot) R. t. Ilcarn (1841) C. & M. 109. («) For the admissibility: R. v. Griffin (1809) R. & E,. 151, diss, two judges; R. v. Gould (1840) 9 C. & P. 364. Against it: R. v. Warickshall (1783) 1 Lea. 263 ; R. v. Harvey 2 East, P. C. 058 ; cp. also R. v. Moseij (1784) 1 Lea. C. C. at p. 265 (a). (o) R. V. Warringliam (1851) 2 Den. C. C. 447, note. {p) R. V. Bateman (1866) 4 P. & F. 1068 ; R. v. Chesham, cited in R. v. Coote (1873) L. R. 4 P. C. 599, 606, where the admissibility of admissions made on oath is discussed. Chap. XV. § 7. PRIVILEGE. 215 ings (q), as a ■witness on the prosecution of some other person (;•), in the coiirso of a civil suit (.s), or in a special statutory comi for the investigation of fires (f) . Where the power to hold the examination is created by statute, tlio rule of the common law, that a witness is not compellable to answer questions which tend to criminate him, is held to apply unless expressly excluded. An example of this is to be found in the examination of a witness in bankruptcy proceedings in reference to the affau-s of the debtor (u). And whenever a witness is entitled to raise this objection] and does in fact raise it, but is nevertheless improperly compelled to answer, his answers so given are not admissible in evidence against him in any otlier proceeding (x). When this protection is expressly or by clear implication excluded, ' so that a witness is bound to answer all questions put to him, its exclusion is generally accompanied by a special provision that either in all or in certain events the evidence so given shall not be receivable in evidence against him. Examples of such provision will be found in the Corrupt and Illegal Practices Prevention Act, 1883 (?/), the Explosive Substances Act, 1883(3), the Merchandize Marks Act; 1887(^0- The debtor who is examined in bankruptcy presents, perhaps, the only exception to this general principle, being compellable {q) 46 & 47 Vict. c. 52, ss. 17, 24, 27; H. v. Shfft/ctt (1856) Dears. C. C. 656; B. V. Scott (1856) Dears. & B. C. C. 47 ; li. v. liobhison (1867) L. R. 1 C. C. R. 80 ; E. v. TTiddop (1872) L. R. 2 C. C. R. 3. (r) B. V, Haworth (1829) 4 C. & P. 254 ; R. v. Chidlcy (1860) 8 Cox, 365. (s) R. y. Garbett (1847) 1 Den. C. 0. 236. \t) R. V. Coote (1873) L. R. 4 P. C. 599. (m) Ex parte Schofield, In re Firth (1877) 6 Ch. D. 230 ; Ex parte Reynolds, Re Reijmlds (1882) 20 Ch. D. 294. {x) R. V. Garbett (1847) 1 Den. C. C. 236. (y) 46 & 47 Vict. 0. 51, s. 59. This provision is incorporated in the Municipal Elections (Corrupt and Illegal Practices) Act, 47 & 48 Vict. c. 70, 8. 30. (2) 46 & 47 Vict. c. 3, s. 6. {a) 50 & 51 Vict. c. 28, s. 19. 216 THE MEDIA OF PEOOF. Part in. to answer all quostions touching his affairs and yet liable to have them used against him in subsequent proceedings (b). The principle that a confession is not admissible unless voluntary has been applied by statute to statements made by a prisoner in the course of his so-called examination before a justice prior to his committal to a coiu^t of sessions or assizes for trial. Sect. 18 of the Indictable Offences Act, 1848, 11 & 12 Vict. c. 42, provides as follows : — After the examinations of all the witnesses on the part of the prose- cution as aforesaid shall have been completed, the justice of the peace or one of the justices by or before whom such examination shall have been so completed as aforesaid shall, without requiring the attendance of the witnesses, read or cause to be read to the accused the depositions taken against him, and shall say to him these words, or words to the like effect : "Having heard the evidence, do you wish to say anything in answer to the charge ? You are not obliged to say anything unless you desire to do so, but whatever you say will be taken down in writing, and may be given in evidence against you upon your trial ;" and whatever the prisoner shall then say in answer thereto shall be taken down in writing and read over to him, and shall be signed by the said justice or justices, and kept with the depositions of the witnesses, and shall be transmitted with them as hereinafter men- tioned, and afterwards upon the trial of the said accused person the same may, if necessary, be given in evidence against him, without further proof thereof, unless it shall be proved that the justice or justices i^urporting to sign the same did not in fact sign the same: provided always that the said justice or justices before such accused l^erson shall make any statement shall state to him, and give him clearly to understand that he has nothing to hope from any promise of favoiu' and nothing to fear from any threat, which may have been holden out to him to induce him to make any admission or confession of his guilt, but that whatever he shall then say may be given in evidence against him upon his trial, notwithstanding such promise or threat : provided nevertheless that, nothing herein enacted or contained shall prevent the prosecutor in any case from giving in evidence any admission or confession or other statement of the person accused or charged, made at any time, which by law would be admissible as evidence against such person. (i) S. V. Robinson (1867) L. E. 1 C. C. E. 80; R. v. Widdop (1872) L. E. 2 C. C. E. 3 ; Ex parte Schofcld, Re Firth (1877) 6 Ch. D. 230, 234. 21' Part IV. ADDUCTION OF EVIDENCE. The princii^le underlying the definition of the media of proof, that a party must give the best, that is, the most credible evidence that the nature of the case will admit, governs also the adduction of all testimony, or in other words, the method in which it must be brought before the com-t. The rules of adduction are designed to ensure that all evidence, whether oral or documentary, shall be presented to the coui't in such manner as to minimise, so far as general rules can ensure that end, the risk of falsehood and inaccu- racy, as well as to see fair play between the parties. These rules have no regard (except to a limited extent in the case of documents) to the purpose for which the evidence is adduced. The examination of a witness must be conducted according to the same rules whether he is called to prove directly a relevant fact, as the details of a trespass or the performance of a contract in respect of which the proceeding is brought, or to report a piece of hearsay, as a declaration against interest or an admission by one of the parties. And the same is generally true of the rules of proof which govern the adduction of documents. 218 ADDUCTION OF EVIDENCE. Part IV. §1- CHAPTER I. EXAMINATION OF AVITNESSES. Exai>iinaiion-in- Chief. § 2. Cross -Examination. (i) Scope : Facts relevant to the (i) Scope. Issue. (a) Faetsrelevant to ihelssue. (ii) Leading Questions. (b) Gross- Examinatio7i to (iii) Examination of Witness tvho Credit. proves Adverse or Hostile. (ii) Leading Questions. (iv) Question in Issue and Evi- § 3. Re- Examination. dence of Experts. § 4. Refreshing Memory of Witness. If a party cannot rely on any witness attending voluntarily to give evidence for him at the trial, the proper mode in civil cases of securing his attendance is for the party to cause to be issued, and serve upon the witness, a writ of subpoena ad tcstificandH))), or, if he desires to secure that the witness shall not only attend but also bring into court with him any particular documents which are in his custody, a writ of siibpcena duces tecum instead. The practice with regard to the issue and service of such writs is contained in Eules 26 to 3i of Order XXXVII. Should the witness be guilty of wilful disobedience to the subj)a^}ia, he is liable to attach- ment for contempt of court (a) ; he is also answerable to the parly at whose instance he was served with the writ, for any damages which the latter can show that he has suffered by the loss of his evidence {b) . {a) Barrow Y. munphrcys (1820) 3 B. & A. 698 ; Scholes v. Hilton (1842) 10 M. & W. 15 ; Goff^. Mills (1844) 2 D. & L. 23 ; Crowther v. Appleby (1873) L. R. 9 C. P. 23. {b) Masterman v. Judson (1832) 8 Bing. 224 ; Davis v. Lovell (1839) 4 M. & W. 678 ; Lamont v. Crook (1840) 6 M. & W. 615. Chap. I. EXAMINATION OF WITNESSES. 219 In criminal cases tlie attendance of the prosecutor and witnesses for the Crown is usually secm-ed by theu- being bound by recognizance by the committing magistrate under the provisions of the Indictable Offences Act, 1848, 11 & 12 Vict. c. 42 s. 20, to appear to prosecute and give evidence at the court of trial. If they do not duly appear their recog- nizances may be estreated and tlio penalties exacted. But any witness for the prosecution who has not been so bound over, and any witness for the defence, may be compelled to attend by means of a writ of suhjxpna ad tcstificcouUim or subpceiia duces tecum, as the case may be ; for disobedience to which they will be liable to attachment (r). The usual order in which the parties adduce their evidence is this. The party on whom the burden of proof lies, having opened his case, calls his first witness and (after lie has duly taken the oath or affirmed) examines him in support of it. This is called the examination-in-chief and is confined to the proof of facts relevant to the issue as defined in Part 11. The opposite party then cross-examines the witness with regard to any facts relevant to the issue, whether abeady deposed to by him in his examiuation-in-chief or not, and also as to any matters which, although not relevant to the issue, are relevant to the witness's credibility as hereinafter exj^lained. At the close of the cross-examination tlie witness is re-examined by the party who called him, for the purpose of giving any explanation that may be requisite as to any answers made by him in cross-examination. He then calls his next witness who is examined in like manner. When all the witnesses of the party beginning have been thus examined, his case is closed. His opponent then opens his ease and calls his witnesses, who are examined in i\\Q same way, first by himself, then by his opponent and then re- examined if necessary by himself. The close of his case is (c) Archb. Cr. PI. 21.st cd., 1893, p. 310, ^H 220 ADDUCTION OF EVIDENCE. Part IV. ordinarily followed by liis summing-up of the evidence, and then by the speech in reply of the party who began. Some- times however the latter at the close of his opponent's evidence claims to adduce further evidence in reply to that which has been given on the other side. His right to do so depends, subject to a large discretion vested in the judge, on the following rules. Where there are several issues, of which some lie on the plaintiff and others on the defendant, the plaintiff has the option of either confining his evidence in the first instance to the proof of the issues which lie on him or of offering evidence on all the issues {(/). If he chooses the former alternative he leaves the defendant to make out, if he can, the issues which lie upon him, reserving to himself the right of calling, if necessary, evidence in reply. If he chooses the latter, he will not be allowed to adduce any evidence in reply, but must complete his case in the first instance (e) . The plaintiff is also generally entitled to give evidence in reply, even though all the issues are upon himself, when the case made against him is one of which he has had no notice on the pleadings, as where in an action of ejectment the defendant seeks to displace the contention of the plaintiff by an entirely new and affirmative case which he has not expressly pleaded (/). And in any case where a defendant does not lay a foundation for his own affirmative case by such a cross-examination of the plaintiff's witnesses as will give him fair notice of the points as to which they are going to be contradicted, the plaintiff will generally be allowed to give evidence in reply {g). {(I) SJiaiv V. BccJc (1853) 8 Ex. 392, following Browne v. Murray (1825) Ey. & Moo. 254, and oveiTuling Bees v. Smith (1816) 2 St. 31 ; and see above, p. 27. {e) Oshorn v. Thompson (1839) 2 Moo. & Eob. 254 ; Jacobs v. Tarleton (1848) 11 Q. B. 421. (/) Boe^. Gosley (1839) 2 M. & Rob. 243. {g) Bigshy v. Dickenson (1876) 4 Ch. D. 24 ; cp. Briggs v. Aynsicorth (1838) 2M. &R. 168. Chap. I. § 1. EXAmNATION OF WITNESSES. 221 If the judge should call and exaniiue a witness whom neither of the parties have called, as he is at liberty to do, tlie parties have no right, without leave, to cross-examine the witness on the evidence so given ; but permission will generally be given to a party to cross-examine the witness as to any specific points in the witness's evidence which may be adverse to his case {/)}. § 1.— Examination-in-Chief. (i) Scope : Facfn irlcnaif to the Ixme. — The scope of ex- amination-in-chief appears from the last two Parts of this Book. The witness must speak only as to facts relevant to the issue, and he must depose to them from his own direct personal knowledge save in the exceptional cases where hearsay evidence is admissible. The only additions to be made to this statement are these, that in certain cases a witness may give evidence-in-chief as to the credibilit}', character and conduct of the witnesses who have already given evidence on the other side, as mentioned in the next Section (/) and in Chapter II, and that the proof of docu- ments is governed by special rules to be mentioned in Chapters IV to VII of this Part. (ii) Leading Questions. — The witness must not be examined in chief by means of leading questions, that is, questions calculated to lead his mind to such answers as the party examining desires. It is presumed that a witness is to some extent biassed in favour of the party who calls him, and that this fact, coupled with the party's knowledge of what his witness is prepared to say, may afford him an opportunity for unfairly shaping the testimony. The rule is however subject to some qualification, inasmuch as in some cases the reason on which it is founded fail^, and in others a literal {h) Coiihon V. Blshoroujh [1591] 2 Q. E. 316. (») Page 228. 222 ADDUCTION OF EVIDENCE. Part IV. adherence to it would bring the witness's testimony to a premature close. In the first place, as to many matters not of critical importance no mischief can be done by leading, and it is therefore desirable for the saving of time that the witness should be led. These comprise matters merely formal and introductorj-, such as, in most cases, the witness's name, address and profession, the circumstances which led to his connection with the transaction, and generally any matters as to which there can be no dispute. Again, even upon points which are keenly contested between the parties, the mind of a witness must frequently be led by the party who calls him, to the extent of directing his attention to the particular matters sought to be inquired into {k) ; without some indication of the point on which his evidence is required a question may easily be unintelligible. Again, where a witness's independent recollection of a matter has been exhausted, the judge will often permit him to be led to the very particulars which are sought, if from the way in which he has given his evidence it appears that it can with fairness be done (/) ; the imperfection of the witness's memory generally affords sufficient test of the true value of the testimony thus elicited. The general effect of the rule may perhaps be summed up by saying that a party is bound not to lead his witness, in the fii'st instance, unless it is clear that both parties regard the point on which he is questioned as uncontested, since otherwise the leading of the witness will either be, or appear to be, unfair. (iii) Examination of Witness who proi^es Adverse or Hostile. — (a) If a witness proves on examination-in-chief to be adverse, that is merely unfavourable, to the cause of the party calling him, the party is nevertheless not entitled to cross-examine him in any respect, nor is he generally en- (/.-) Niclwlh V. Douding (1815) 1 St. 81. (/) Courtcen v. Touse (1837) 1 Camp. 43. Chap. I. § 1. EXAMINATION OF WITNESSES. 223 titled to contradict him by calling other evidence inconsistent with his testimony, except in two events, namely, when the adverse evidence was unexpected or has come upon liim as a surprise {»i), and whenever he has been virtually compelled by a rule of law to call him, as in the case of an attesting witness to a document which is invalid without attestation (//). But he is only entitled to so contradict him indirectly, by means of other evidence of the relevant facts ; he may not call evidence to prove that the witness had made some previous statement inconsistent with his present evidence (o) . (b) Shoidd a witness however show himself in the course of his examination-in-chief to be hostile to the party who has called him, the latter will be permitted by the judge to cross-examine him in a limited sense {p). By a hostile witness is meant not one whose evidence is merely adverse, but one who shows a bias against that i^arty, and a disincli- nation to testify truthfully and candidly on his behalf (ry). The extent to which the witness may be cross-examined is this, that he may be pressed by means of leading questions as to the relevant facts, and may also be interrogated as to any previous statement made by him inconsistent with his present evidence. But except in so far as such cross-exami- nation may incidentally have that effect, the party may not discredit him. He may not therefore cross-examine him to show directly that the witness is unworthy to be believed on his oath, nor to show that he has given his evidence in the particular case with some corrupt or improper motive, unless perhaps where the party can show that he has been inten- {)») Eicerv. Ambrose (1825) 3 B. & C. 746; Bradley v. Eicardo (1831) 8 Bing. 57 ; B. N. P. 297. («) Etier V. Ambrose, supra ; Coles v. Coles (1866) L. R. 1 P. & D. 70. io) Ewer v. Ambrose, supra ; Houldsivorth v. Dartmouth (1838) 2 M. & Rob. 153 ; Melhuish v. Collyer (1850) 15 Q. B. 878, 887. {p) Clarke v. Saffery (1824) R. & M. 120 ; Bastin v. Careiv, ibid. 127. {q) Greenhoufjh v. Eecles (1859) 5 C. B. N. S. 786 ; Coles v. Coles (1800) L. R. 1 P. & D. 70. 224 ADDUCTION OF EVIDENCE. Part IT. tionally misled by the witness. In these respects the witness is still considered the witness of the party who has called him (>•) . The party is of course not concluded by the evidence of his own witness when he has thus shown himself hostile, but may proceed to call other evidence to contradict him as to any relevant facts. And he may do this directly, by giving evidence of any previous inconsistent statement made by the witness, provided that the circumstances of the statement, sufficient to designate the particular occasion, have been first mentioned to the witness and he has been asked whether or not he made it (s). But such previous statement is regarded, strictly speaking, as only displacing the previous evidence of the witness, and not as being inde- pendent evidence of the facts stated in it (f). (iv) T/ie Question in Issue ; and Evidence of E.vjjerts. — The party who calls a witness may not ask him the c[uestion in issue. This would be inviting him to usurj) the functions of the jury ; it is for the witness to state the particular facts within his knowledge and for the jmy to form their general conclusion from them. Thus in an action for goods sold and delivered, where the defendant pleaded in abatement that the debt was due from himself and another person jointly, the plaintiff was not allowed to ask his witness, who w^as called to prove the giving of the order to the defendant, the question " With whom did you deal?"(^^). The only exception to this rule is in the case of experts, who for this (»•) B. N. P. 297; Ewer v. Ambrose (1825) 3 B. & C. 746; Bradlerj v. Eicardo (1831) 8 Bing. 57 ; Melhuish v. Collier (1850) 15 Q. B. 878—879 ; C. L. P. Act, 1854, 17 & 18 Vict. c. 125, s. 22 ; and 28 Vict. c. 18, s. 3. (s) See sections cited in last note. The word "adverse" in these sections means "hostile." See Greenhough v. Eccles (1859) 5 C. B. N". S. 786. At common law it was a vexed question whether the witness could under these circumstances be contradicted or not. See S. C. p. 805. {t) Ewer V. Ambrose (1825) 3 B. & C. 747 ; Wright v. Beckett (1834) 1 M. & R. 414, 419 ; Melhuish v. Collier (1850) 15 Q. B. 878—881 ; Greenhough v. Eccles (1859) 5 C. B. N. S. 786, 805. [u) Bonfeld v. Smith (1844) 12 M. & W. 405. Chap. I. § 1. EXAMINATION OF WITNESSES. 2'JJ purpose are regarded as exercising a fuuction something between that of ordinary witnesses and that of assessors to the jury, and maybe asked their opinion although it involves a general conclusion upon a question in issue {x). AVhere an expert has du'ect personal knowledge of the particular cir- cumstances of the case as to which he is called to testify, as where a medical man is summoned to give evidence as to the state of health of his ovm patient, he is entitled to give his opinion as based on the facts as they have been observed by himself ; but where lie is dependent for his knowledge of the facts uj)on tlie testimony of other wit- nesses, he cannot express his opinion thus absolutely (//) ; the facts must then be presented to him in the form of an hypothesis, and he may be asked by each party in turn what, assuming a certain state of things to exist or such and such witness's evidence to be true, would be his opinion with regard to the matter (z). § 2.— Cross-examination. (i) Scope : (a) Fads relecant to the Issue. — Cross-examina- tion may, like examination-in-chief, be addressed to all facts relevant to the issue. And for the purpose of proving the issue no facts that are not relevant to it may, in strictness, be inquired into by the cross-examining party, nor may any fact that is relevant to the issue be proved by the witness by any other than the ordinary media of proof. Questions as to character and as to conduct on other occasions are not generally therefore relevant to the issue, and if a witness is asked in cross-examination whether he has not heard A, a stranger, make some statement about a certain relevant fact, and answers in the affirmative, his answer is not strictly [x) Beckwith v. Sidelotham (1807) 1 Cami3. IIG. {y) R. V. McXaughten (1843) 1 C. & K. 130, note [n), 135 ; 11. v. Searle (1831) 1 Moo. & Rob. 75. (z) R. V. Wright (1821) R. & R. 456 ; Malton v. Ncsbitt (1824) 1 C. & P. 70, 72 ; Fenwick v. Bell (1844) 1 C. & K. 312. W. Q 226 ADDUCTION OF EVIDENCE. Part IV. speaking ovidtnce upon llie issue, if it does not fall within one of the recognized media of proof (a). And in like manner by the common law a witness could not be cross- examined as to tlie contents of a document relevant to the issue, unless the document was first produced to him and proved in accordance with the general rule as to the adduc- tion of documents to be mentioned in Chapter lY {h). But this latter rule has been modified bj statutes which enact with regard to civil and criminal proceedings that a witness may be cross-examined as to previous statements made by him in writing or reduced into writing relative to the subject- matter of the cause or proceeding without such production and j)roof {c). It is difficult however to enforce strictly this principle as to cross-examination to the issue by reason of the fact that many questions which would transgress it, if directed solely to the proof of the issue, are legitimate as cross-examination to the witness's credit ; and hence a party's right, if the cross- examination of his witnesses is conducted within legitimate limits, is practically confined, subject to his re-examination, to commenting to the jury on the different character and weight of the various parts of theii' testimony. (b) Cross-examination to Credit. — A witness may be cross- examined not only as to the relevant facts but also as to all facts which reasonably tend to affect the credibility of his testimony. This is generally spoken of as cross-examination to credit, inasmuch as a large part at any rate of the facts which are relied on for this purpose are facts which touch the credit and good fame of the witness. But this term is perhaps somewhat misleading as suggesting that any cross- examination is permissible which tends in any way whatever to disj)arage the character of the witness, whereas no such (a) As to admissions of hearsay statements by a party, see pp. 108, 109. {h) The Queen's Case (1820) 2 B. & B. 286. (c) 17 & 18 Vict. c. 125, s. 24 (civ.) ; 28 Vict. c. 18, s. 5 (crim.) ; and see pp. 239, 240. Chap. I. § 2. EXAMINATION OF WITNESSES. 227 cross-examination can bo legitimate unless it lias some rea- sonable bearing on his credibility. For instance in an action for goods sold and delivered, where the defendant imputes to the plaintiff some dishonest trick or overcharge, it would not ordinarily be legitimate for the defendant to cross-examine the plaintiff to show that he is not married to the woman with whom he lives and who passes as his wife, since that fact, taken by itself, has no bearing on his honesty in trade ; nor to cross-examine him to show that twenty years ago he was convicted when a school-boy for stealing apples, since that, if it stands alone, is too remote to be taken into consideration by any fair man in judging of his honesty now. On the other hand recent acts of dishonesty or untruthfulness in business matters, or a series of such acts committed at inter- vals and extending over a considerable j)eriod, would generally be fair subject of cross-examination. It is often a difficult question of degree to determine what facts may fairly be cross-examined to as bearing upon the credibility of the witness, and it does not seem possible to lay down any more precise rules on the subject. In cross-examining his opponent's witnesses to theii' credit a party is not confined either to the relevant facts or to the ordinary media of proof. He may cross-examine as to matters and conduct disconnected with the action, and as to statements made by the witness to others or by others to him or in his hearing ; in short, as to any facts whatsoever, pro- yided always that they have a reasonable bearing on the credibility of the witness in the proceeding in which he has been called to give evidence. The witness may be cross- examined also as to the contents of documents which are not produced and shown to him, though it seems that he is not compellable to answer such questions, and may demand that the documents shall be first produced and shown to him {(/). {d) Ilennmn v. LesUr (1862) 31 L. J. C. P. 3G6. q2 228 ADDUCTION OF EVIDENCE. Part IV. But the right to cross-examine to credit is subject to this rule, that upon facts of this description, with a few exceptions, the answers of the witness are conclusive, in this sense, that they cannot be contradicted by evidence in chief on the other side {e). However untrue they may be, they cannot be treated as if they were an issue in the cause. The only exceptions to this rule are these, that by the common law a party may give evidence in chief, after due cross-examina- tion of his opponent and his witnesses, to show that they are notorious liars, or have given their testimony from corrupt or indirect motives, or that they have made previous inconsistent statements with regard to the relevant facts. To these a fourth exception has been added by statute, enabling a party to prove that his opponent or his witness has been convicted of an indictable offence, if upon cross-examination he has denied the fact. The general rule against evidence to con- tradict, and the exceptions to it, are based on this considera- tion, that whereas a witness cannot justly be expected to come into court prepared with evidence as to every act and incident of his life (which would be necessary if evidence could be given against him thereon), and it would indefinitely prolong the trial to allow evidence to be given on both sides as to such collateral matters, on the other hand a witness ought to come prepared to sup)port his general reputation for truthfulness, to prove the purity and integrity of his motives in coming to give evidence, and to show, if it be the fact, that he has never made previous statements inconsistent with his testi- mony, and never been convicted (/). These exceptions are considered separately in the next chapter. (ii) Leading Quest ions. — In cross-examination the witness may be examined by means of leading questions, for the presumption is that he is biassed against the cross-examining party, and will not be tempted to follow his lead. It has (e) £aker v. £aker (1863) 32 L. J. P. D. & A. 14,'). (/) Att.-Gen. v. Hitchcoch (1847) 1 Ex. 91. Chap. I. § 2. EXAMINATION OF WITNESSES. 220 even been held that tins rule ap})lios where tlic witnes.s is an unwilling witness for the party calling hini(^). But this must be taken with some qualification, for if it should appear in the course of the examination that the witness is biassed against the party who called him and desirous of assisting his opponent, it would at once become unfair for the latter to suggest to the witness the answers which he should give (//). If on the other hand the witness betrays a zeal against the cross-examining party or shows an unwillingness to speak fairly and impartially, he may be questioned with minute- ness as to particular facts or even particular expressions ; there can be no danger in leading too much where the witness is obstinately determined not to follow (/) . § 3. — Re -examination. A party is bound in the re-examination of his own witness still to observe, as in his examination-in-chief, the rules which prohibit leading questions and questions as to the issue itself. He is entitled to ask him all questions necessary to draw forth an explanation of the full meaning of expressions used by him in cross-examination, if they are in themselves doubt- ful, and also of the motives by which he was induced to make use of them ; but he is not entitled to introduce any new matter which does not serve to explain such expressions and motives (Ic) . Thus where on an indictment for murder the prosecution called witnesses whose names were on the back of the indictment solely in order to give the prisoner the ojipor- i tunity of putting questions to them, and the prisoner hy his | f^t/ cross-examination elicited many facts in his own favour, it was held that the prosecution could not re-exammo to any matters not referred to in such cross-examination (/). tSo iff) Parkin v. Moon (183.5) 7 C. & P. 408. ' (A) li. V. mirdi/ (1794) 24 How. St. Tr. 199, at p. 6o9. (i) Phillips on Ev., 10th ed., 1852, p. 472. {k) Queen's Case (1820) 2 B. & B. 296, 297. {1} Jt. V. Beczley (1830) 4 C. & P. 220. 230 ADDUCTION OF EVIDENCE. Part IV. where a witness for the plaintiff had been cross-examined by the defendant as to certain admissions made by the plaintiff on his examination as a witness in a former proceeding, and the j)lfiintiff's counsel sought to ask him in re-examination whether the plaintiff had not also in the course of the same examination made other statements not relating to the same point, but which told in favour of his present contention, it was held that the question could not be put : that proof in cross- examination of a detached statement made by the party at a former time does not authorize re-examiuation as to all that he said at the same time, but only of so much as can be in some way connected with the statement proved (ni) . Whether the witness is a party to the proceeding or not, his re-examina- tion as to previous statements as to which he has been cross- examined is governed by a like rule to that ah-eady mentioned in the chapter on admissions, that a party against whom an admission is given in evidence is entitled to have the whole of it presented to the jury, and not merely a part {//). The explanations of the witness in re-examination may of course relate not only to statements made in cross-examination as to the relevant facts but also as to those affecting the witness's credit, as for instance to show what provocation he had received for making use of a vindictive expression which he has admitted having uttered (o) . If in cross-examination a document has been handed to a witness merely for the purpose of his identifying it or proving the signatm^e, no questions having been asked as to its contents, the document is not thereby made evidence, and there is consequently no right to ask questions as to its contents in re-examination (j)) . (m) FrlnceY. Samo (1838) 7 A. & E. 627. («) See above, pp. 109, 111. (o) li. V. SL George (1840) 9 C. & P. 483, 488. (;)) Cope V. Thames Haven Dock Co. (1848) 2 C. & K. 757 ; Collier v. Nokes (1849) thid, 1012. Chap. I. § 4. EXAMINATION OF '^TiTNESSES. 231 § 4.— Refreshing Memory of Witness. Although a witness is generally prohibited, as stated in Part II (q), from proving facts by evidence of his own previous statements made out of court, lie is allowed to do what in effect is nearly the same thing, where the previous statement is a written one, by another rule which permits him to refresh his memory of facts formerly within his knowledge by means of any memorandum of them made by himself at or about the time of their occurrence (r). It is not essential that the memorandum should have been made contemporaneously with the transaction, nor is any particular limit of time prescribed ; it is only necessary that it should have been made at a time when the witness's recollection of it was still clear and distinct {s) . Nor is it essential that the witness, upon inspection of the memorandum, should have any independent recollection as to the facts refei-red to in it, provided he is able to say that the facts it records are true. Thus where the plaintiff called a witness to prove a payment made by himself to the witness some five years before, but of which the latter had no recollection, he put into the witness's hands a cash-book of his own containing an entry of the payment in question which purported to be initialled by the witness. The latter on inspecting the book said : — The entry of 20/. in the plaintiff's book has my initials written at the time. I have no recollection that I received the money ; I know nothing but by the book ; but seeing my initials, I have no doubt that I received the money (t). It was held that this was good proof of the payment. The ordinary mode of refreshing the witness's memory is to cause {q) Chapter I, § 3, pp. 94—96. ()•) Whitjield V. Aland (1849) 2 C. & K. 1015; Talbot \. Cmaclc (1864) 17 Ir. C. L. R. 213. (s) Wuodv. Cooper (1845) 1 C. & K. 645, 64G. [t) Maugham v. Hubbard (1828) 8 B. & C. 14 ; R. v. St, Martin's (1834) 2 A. &E. 210. 232 ADDUCTION OF EVIDENCE. Part IV. him to inspect the memorandum in the witness-hox. But if it should appear that he is hlind (ii), or too infirm to inspect it himself (x), it may ho read to him. The rule applies no less on cross-examination than when the witness is heing examined in chief (//) ; hut there is this difference to he noted, that whereas in examination-in-chief there is probably no other ground on which the document may he used, the witness might he referred to it in cross-examination in order to test his recollection, even though it sliould not fulfil the conditions of a memorandum by which the witness's memory may he refreshed (s). The inspection of the document by the witness does not make it evidence. Hence the fact that the document would be inadmissible, as for want of a stamp, makes no difference ; it may still be used for the purpose of refreshing memory (a) . But the opposite party is always entitled to inspect the memorandum in order to check the use made of it, and, if necessary, to examine the witness as to the time at which it was made or on any other point which may arise out of the use to which it is being put ; and the judge and jury have a like right of inspection (b). If however the opposite counsel on thus inspecting it should refer to other entries or parts of the document, which have not been used to refresh the witness's memory, he will make them evidence against him- self on tlie general principle by which either party who calls for and inspects a document in possession of the other side is bound to put it in(r). And conversely, it has been held, (u) Catt V. Howard (1820) 3 St. 3. \x) Vaughan v. Martin (1796) 2 Esp. 439. [y) R. V. Ramsden (1827) 2 C. & P. 603 ; R. v. Dmicombe (1838) 8 C. & P. 369. (z) Whitfield \. Aland (1849) 2 C. & K. 1015. («) Maugham v. Hubbard (1828) 8 B. & C. 14 ; Gregory v. Tavernor (1833) 6 C. & P. 280, 281. (J) Sinclair v. Stephenson (1824) 1 C. & P. 582; R. v. Ramsden (1827) 2 C. & P. 603 ; Gregory v. Tavernor (1833) 6 C. & P. 280. (c) Gregory v. Tavernor (last note) ; see below, p. 250. Chap. I. § 1. EXAMINATIOX OF WITXESSES. 233 where the document produced no impression on the witness's memory, that inasmuch as it had wholly failed of its purpose, the opposite side was not entitled to inspect it {(/). The term memorandum denotes tlio use to which the document is put, and does not import that the rule is confined to documents of any particular form. It is applicable, as the cases show, to the ordinary books of account kept by busi- ness men, depositions, a ship's log-book, and in fine to any form of writing which fulfils the terms of the rule. Nor is it necessary that the memorandum should be in the witness's own handwritiDg, if it was made under his personal observa- tion or recognized by him as a correct statement at a time when the facts were fresh in his memory. Thus where a trades- man's clerk entered his master's business transactions as they occurred into a waste-book from his own knowledge, and the tradesman copied the entries day by day into a ledger in the j)resence of the clerk who checked them as they were copied, it was held that the latter, when called as a witness to prove certain of the transactions, was entitled to inspect the entries in the ledger as equivalent to duplicate memoranda made by himself {e). So, where a witness was called to give an account of a voyage, he was held entitled to refresh his memory by entries in the log-book, although not made by himself, on his proving that he had from time to time examined the entries in it while the events recorded were fresh in his recollection, and had always found them ac- curate (/). In like manner where the document is not a subsequent record at all, but forms a written scheme, so to speak, in accordance with which the transaction is executed, it may be used in like manner as a memorandum. Thus where the transaction to be proved consisted of the payment of certain sums of money to a number of workpeople, the {d) li. V. Buncombe (1838) 8 C. & P. 3G9. (e) Burton v. Flummer (1834) 2 A. & E. 341. (/) Burrough v. Martin (1809) 2 Camp. 112. 234 ADDUCTION OF EVIDENCE. Dart IV. witness who made the payments was allowed to refresh his memory by the inspection of a book in which the amounts of the wages which were to be paid had been set out, on his proving that he had had the book before him and checked each payment as he made it {(j). So in an action for goods sold and delivered the plaintiff's clerk was allowed to prove the debt in the following way : he had not himself supplied the goods to the defendant nor entered them in his master's books; but on a certain occasion he went to the defendant and examined the book with him, article by article, some- times the defendant and sometimes the clerk calling over the several articles, while the defendant admitted their receipt and the correctness of the amount charged for each of them in turn. It was held that the clerk was entitled to prove the debt by means of the defendant's admissions, and that as to these he was entitled to refresh his memory by reference to the book {h). If a memorandum evokes no independent recollection of the transaction in a witness's mind, he is not entitled to prompt himself with it so as to be able to give evidence, unless he also brings the document itself into court (/). The only exception to this is where the original is lost, and the witness produces a copy which he can prove to be ac- curate (/>■). But for convenience' sake a witness who has his original notes in court has been allowed by the judge to refresh his memory by means of a printed copy of a report which was in all material respects a transcript from them (/). But where the original might have been produced it will not suffice to have in court either a copy [m) or extracts from it («) . {(/) R. V. Langt07i (1877) 2 Q. B. D. 296. (A) Jacob V. Lindsay (1801) 1 East, 460. (i) Howard v. Canfleld (1836) 5 Dowl. 417; Beech v. Jones (1848) 5 C. B. 696. (/.•) Topham v. McGrecjor (1844) 1 C. & K. 320; Talhot v. Cusack (1864) 17 Ir. C. L. R. 213. (/) Borne v. Mackenzie (1839) 6 CI. & F. 628. ()«) Jones V. Stroud (1825) 2 C. & P. 196. (h) Doc V. Ferkins (1790) 3 T. R. 749. Chap. T. § 4. EXAMINATION OF WITNESSES. 23 J On tlie other hand, wliore the memorandum, wlienever used and whetlier an original or not, has evoked an independent recollection in the witness's mind, the production of tho original in court is not essential to the admissibility of the e^'idence (o). By analogy to the foregoing cases expert witnesses are allowed to refresh their memory by reference to treatises and tables which they are in the habit of consulting. 13ut as such treatises do not thus become themselves evidence, a witness is not entitled to read aloud from them, but nmst embody the result in his own words and give evidence on tho matter upon his own responsibility (p) . (o) Tanner v. Tai/Ior (1790) 3 T. R. 754 ; Beech v. Jones (1848) 5 C. B. 696. {p) Collier v. Simpson (1831) 5 C. & P. 73 ; Sussex Peerage (1844) 11 CI. & F. 85, 114, 117 ; Cocks v. Furday (1846) 2 C. & K. 2G9 ; Itoulcxj v. L. 4- N. W. Rail. Co. (1873) L. R. 8 Ex. 221. 236 ADDUCTION OF EVIDENCE. Part IV. CHAPTER II. EVIDENCE TO mSCREDIT. 1. Opponent'' s Witness not to he be- lieved on his Oath. 2. His Evidence Corrupt. § 3. His Evidence Inconsistent with Previous Statement. § 4. His Conviction for an Indictable Offence. V It was stated iu the last chapter that -when a party cross- examined his opponent's witness as to facts not relevant to the issue but only relevant to the witness's credibility, he is not entitled, as a general rule, if the witness denies the discrediting facts, to call evidence in chief to contradict him. To this general rule however certain exceptions are admitted, namely, where a witness is charged with being a notorious liar, with haviug been actuated by corrupt motives in gi'sdng his evidence or with having given evidence inconsistent with some previous statement he has made about the relevant facts ; to which excejotions another has been added by statute, namely, where the witness is charged with having committed some indictable offence. Evidence in chief with regard to facts of this description is sometimes spoken of as if it were in a sense relevant to the issue (f/). If by this it is merely meant that such evidence, when believed, has the effect of displacing the testimony of the witness who is thereby discredited, it may be observed that the same is often true of answers extorted (ff) Queen's Case (1820) 2 B. & B. 312; Att.-Gcn.y. Hitchcock (1847) 1 Ex. 91. Chap. II. EVIDEXCE TO DISCrvEDIT. 237 in cross-oxaniiiiatiou as to facts wliieh do not fall uniler any of these beads and which are luidouLtedly relevant only to the witness's credibility. On the other hand it is clear that these facts as to which the witness may be contradicted are not in any sense a part of the res •) . So in actions based on agreements of tenancy, if fhe party setting up the agreement admits that its terms were reduced to writing, oral evidence may not be given to show who was the tenant (/), nor what was the amount of the agreed rent («?), nor that rent had accrued due at a particular date {ii). But it has been held that the mere relationship of (/) E. V. Fadstow (1832) 4 B. & Ad. 208, 210. Iff) Fielder v. Fay (1829) 6 Bing. 332. (A) Brewer v. Palmer (1800) 3 Esp. 213. (i) Vincent v. Cole (1828) M. & M. 257 ; Buxton v. Cortiish (1844) 12 M. & W. 426. [k) Reid V. Batte (1829) M. & M. 413. (/) F. V. Rau'den (1828) 8 B. & C. 708. \m) F. V. Merthyr Tydvil (1830) 1 B. & Ad. 29. (w) Augustien v. Challis (1847) 1 Ex. 279. Chap. IV. § 1. rEIMARY EVIDENCE. 249 tenancy may, notwitlistanding the existence of an agreement in writing, be proved by the occupation of land and payment of rent by A to B (o). Where the existence of a written contract is admitted by a witness, the cross-examining party is entitled to ask whether such agreement relates to the subject-matter of tlie suit, for although he thus seeks to obtain oral evidence as to the contents of a written document, it is clear that to this extent oral evidence is indispensable (p). The document to be produced may be in the possession either of the party who intends to adduce it in evidence, or of his opponent, or of a stranger to the j^roceeding. (i) Production hij tlie Partij Jiimself. — In the first case, there can be no difficulty about its production ; the party will himself bring it into com-t. (ii) Production by his Opponent. — If the document is in the possession or exclusive control of his opponent, the ordinary mode by which he obtains its production is to give the latter, a reasonable time before the trial, notice to produce it at the trial, and then at the trial to call for its production accordingly. In civil cases there is a prescribed waitten form for such a notice ; in criminal cases it is also usually written, though an oral notice is valid {q) ; but it is not aj^pli- cable to the prosecutor, since the Cro'SNTi and not he is the party suing. Inasmuch as the purpose of a notice to produce is not to give the opponent time to prepare evidence to explain or rebut the original document, but merely to enable him to have it (o) R. V. Holy Trinity (1827) 7 B. & C. 611 ; Boc v. Uarvcy (1832) 8 Bing-. 239, 242 ; qu. Cotterill v. Hobby (1825) 4 B. & C. 465. This exception seems contrary to principle, since although payment of money from A (the tenant) to B (the landlord) may be proved, directly it is called "rent" the relation- ship called tenure is implied, which involves a reference to the agreement of tenancy. See per Best, C. J., in Strother v. Barr (1828) 6 Bing. 136, at p. 152. (j») Curtis V. Greated (1834) 1 A. & E. 167. [q) Smith V. Toung (1808) 1 Camp. 439 ; cp. Alt.-Goi. v. Le Jfarc/iaiit (1772) 2 T. E. 201, note (a). 250 ADDUCTION OF EVIDENCE. Part TV. in court and exclude the argument that the party who serves it has not taken all reasonable means to procure its produc- tion (r), the notice should be served within a reasonable time before the trial as measured by this object. What is a reasonable time must depend on the circumstances of the case, as the nature and age of the document, its probable custody, and the residence and convenience of the party or other person in whose custody it is (-s). The notice must specify with reasonable particularity the documents required to be produced. A full specification comprises a short description of the document (as deed, will, letter, &c.), together with a statement of its date and the names of the parties. Where these cannot all be given, the party should still identify the documents required as far as possible, by giving such of these particulars as he is in a position to do, coupled, if necessary, with others as to subject-matter, &c. {t). A form of notice to produce will be found in Appendix B. {u). The party who produces a document when called for is entitled to insist that it shall be put in evidence by his opponent, if the latter not only causes it to be so produced but also makes use of it, (as by inspecting its contents), provided of course that it is material to the issue ; and it is for the judge to say whether it has been so used as to make it fair that it shall be given in evidence by the party who has called for it (r). If the opponent, having a document in his possession, re- fuses to produce it when called upon to do so, he is precluded from afterwards giving the document in evidence himself for (r) Dtvi/ei- V. Collins (1852) 7 Ex. 639. (s) Laicrence v. Clark (18-15) 14 M. & W. 250. (<) Morris v. Eauser (1811) 2 M. & R. 392 (" all letters between the parties between the years 1837 and 1841 ") ; Comjheare v. Parries (1869) L. E. 5 Ex. 16 ("all letters relating to your tenancy of a room "). («) Seep. 313. {v) Saijer v. Kitchen (1794) 1 Esp. 209; Wharam v. Routledge (1805) 5 Esp. 235 ; Wilson v. Bowie (1823) 1 C. & P. 8 ; Calvert v. Flower (1836) 7 C. & P. 386, and see above, p. 232. Chap. ly. § 1. PEIMAEY EVIDENCE. 2j1 any purpose (r). Since it is generally to the interest of a party against whom a document is intended to he adduced that his opponent should have no opportunity of misstating its terms, and the refusal to comply with the notice to produce a document iu his possession lias the effect of letting in secondary evidence, such notice is generally effectual to insure the production of the document. It sometimes however happens that the party in possession of the document may have reasons for withholding it whicli out- weigh that disadvantage, as for instance where the document has been dishonestly tampered with. In such cases tho' notice cannot be relied on, and in civil cases the production of the document must then be secured by the service on the party of a writ of subpoena duces tecum, the wilful disobedience to which involves liability to proceedings for contempt, as well as to an action for any damages occasioned by the withholding of the evidence (y) . In criminal cases docu- ' ments which tend to compromise the defendant are generally in the custody of the prosecution. In civil cases a party is enabled to ascertain before the trial what material documents are in the possession of his opponent, by means of the process of discovery and inspec- tion, which is regulated by Order XXXI of the Rules of the Supreme Court. Eule 12 provides that — Any party may witliout filing any afifidavit, api^ly to the court or a judge for an order directing any otter party to any cause or matter to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question tliorein. On the hearing of such ajiplication the court or judge may cither refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the cause or matter, or make such order, either generally or limited to certain classes of docu- ments, as may in their or his discretion be thought fit. Provided that discovery shall not be ordered when and so far as the court or judge {x) Doe V. Rodgnon (1840) 12 A. & E. 135 ; ColVim v. Gashon (I860) 2 F. & F. 47 ; op. R. S. C. Ord. XXXI r. 15 ; and see p. 285. (y) See p. 218. 252 ADDUCTION OF EVIDENCE. Part IV. shall be of opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs. EuLE 15. Every party to a cause or matter shall be entitled, at any time, by notice in writing, to give notice to any other party, in whose pleadings or affidavits reference is made to any document, to produce such document for the inspection of the party giving such notice, or of his solicitor, and to permit him or them to take copies thereof ; and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such cause or matter, unless he shall satisfy the court or a judge that such document relates only to his own title, he being a defendant to the cause or matter, or that he had some other cause or excuse which the coiu't or judge shall deem sufficient for not complying with such notice : in which case the court or judge may allow the same to be put in evidence on such terms as to costs and otherwise as the court or judge shall think fit. The forms relating to discovery and inspection are set out in Appendix B {z). (iii) Production hij a Third Person. — Should the document be in the possession of a stranger who cannot he relied on to produce it voluntarily at the party's request, the latter may by means of a writ of subpoena duces tecum compel his attendance with the document at the trial («) . In criminal cases, whenever the defendant has been committed for trial by a coroner or justices, the prosecutor and the witnesses for the prosecution are bound by their recognizances to appear and give evidence at the trial, and this involves the obligation to produce any documents in their possession given in evi- dence before the justices {h). But if it should be considered desirable that they should be compelled to produce other documents also in their possession, and in any case where witnesses have not been so bound by recognizances, they may be served with writs of subpoena duces tecum (c). {£) Pages 313, 314. («) For the practice as to stthpccnas in civil cases, see Order XXXVII rr. 26—34. [b) The documents ought not to be annexed to the depositions ; Stone's Justices' Manual, 25th ed., 1889, p. 11, note [e). (c) For the practice see Archbold's Cr. Plead. 20th ed., 1886, p. 336. Chap. IV. § 1. PRIMARY EVIDENCE. 253 If any person having a particular document in his posses- sion in coiu't, is sworn as a witness in the case, lie may he ordered hy the judge to produce the document, althougli he has not heen served with a subpoena duces tecum {(/). And it seems that in a criminal case any person in court may ho ordered to give evidence as a witness {c) . § 2. — Proof of Document when Modern. Assuming that the original document which the party seeks to give in evidence has hcen duly produced in court as men- tioned in the last section, it has next to he proved ; that is, evidence must be given to show that it satisfies the conditions necessary to give it the force ascribed it, as that it was written, signed, sealed, delivered and attested, as the case may be, by the persons and at the times that it purports or is alleged to have been. Moreover, if it is a document that requires a stamp, it will not be admissible in evidence unless it is duly stamped ; but this condition is so special that it is reserved for a separate chapter. With regard to the proof of documents however it is to be noted that the proof required of a particular document may vary to some extent according to the purpose for which it is tendered. For instance in order to prove a deed of grant con- taining certain recitals, it will be necessary, if it is tendered in evidence to establish the grant, to prove that it was duly signed, sealed and delivered ; whereas if it were tendered only to prove some fact admitted in the recitals, it will not be abso- lutely necessary to prove any of these conditions, if it can be shown that the recitals were inserted or adopted by the party (d) Snclgrove v. Stephens (1842) C. & M. 508. Qitccre, in the case of a party or stranger not sworn. See Atl.-Gen. v. Le Marchant (1772) 2 T. E. 201 (a) ; Law V. Wells (1792) Pea. 93. (f) R. V. Sadler (1830) 4 C. & P. 218. 254 ADDUCTION OF EM:DENCE. Part IV. against wliom they are tendered. But in the latter case it is not really relied on as a deed at all. This distinc- tion between a document tendered as an operative instrument and the same document used merely as a medium of proof of some fact referred to in it, must be borne in mind throughout this Part (/). The only exception (subject to the above qualification) to the rule that a document must be duly proved is where a party tenders in evidence a document which is produced by his opponent and under which the latter himself claims some interest which implies its valid execution. In such case the party tendering the document is not exonerated from complying with the provisions of the Stamp Acts, but he is dispensed from proving as against his opponent the other conditions necessary to the admissibility of the docu- ment in evidence. Formerly the rule was that the mere pro- duction of a document by the opposite party was in all cases deemed to be an admission by him of the due performance of these conditions ; this was superseded by the rule that the execution of the document must be proved in every case ; and this in its turn has given way to the present rule which is less extreme than either of the others and is based on the principle that a party shall not be allowed at once to appro- bate and reprobate the same document (g). The rule does not apply therefore if the party against whom the document is tendered has ceased to claim any right under it (//). But the decisions are not uniform as to its limits in other respects ; in one case the mere detention before trial of a deed by one (/) See as to tliis, Part II. Chap. IV. iff) Fearce t. Hooper (1810) 3 Taunt. 60 ; On v. Morice (1821) 3 B. & B.. 139 ; followed in Bmdshaw v. Bennett (1831) 1 M. & R. 143 ; and Carr v. Burdiss (1835) 1 C. M. & E. 782. (A) Vaeher v. Codes (1830) 1 B. & Ad. 145 ; Carr v. Burdiss, supra, per Parke, B., at pp. 784, 785; cp. Collins v. Baijnton (1841) 1 Q. B. 117. In Burnett v. Lynch (1826) 5 B. & C. 589, the court decided the point of evidence on a different ground to that acted on by the C. J. at the trial. Chap. lY. § 2. PEB[AEY EYTDENCE. 2oi> of the parties for the purpose of preventing his o])ponfiit from giving it in e^ddence against him was treated as a c-hiini of interest under it (/) ; while in another case the opinion was expressed that the interest claimed under the deed inust be an interest in the subject-matter of the cause (/.). The leading case of Pearce v. Hooper however appears to show that the true rule is as first above stated, although un- doubtedly it ^dll generally be much easier for a party to prove that his opponent is claiming an interest under a document when he is doing so in the cause itself. The rules laid down in I'arts II and III are in the main applicable to the proof of documents, whether they are tendered as res gestee or merely as media of proof of some fact. Thus it was held that a party was not entitled to prove that certain books were receivers' books by merely proving that other similar books, not necessarily connected with them, were of that character (/). So, the posting of letters may be proved by entries made by deceased clerks in the course of their duty {m) ; and the copy of a document, the original of which is withheld by the other side, may be proved in the like manner (;/). An attesting witness may refresh his memory as to the execution of a deed which ho is called to prove by inspecting his signature to the attestation clause (o). And in like manner there are many facts con- nected with the proof of documents as to which judicial notice and jDresumptions are applicable, as will be seen here- after. In a few cases however certain special media of proof may be resorted to in the proof of documents, which are not admissible for other purposes. Thus, if the genuine- ness of a deed or will is impeached on the ground of forgery (i) Doe V. Heming (1826) 6 B. & C. 28. {k) Rcarden v. MbUer (1843) 5 M. & G. 204. (0 Doc V. Thynne (1808) 10 East, 206, 208 ; see below, p. 269. (w) Hagcdorn v. Riid (1813) 3 Camp. 377 ; sec below, j). 203. [n) Ti'M V. Fairclonflh (1812) ibid. 30o ; see below, p. 280. [o) Maugham v. llubbard (1828) 8 B. & C. 14, 16 ; see p. 2C5. 256 ADDUCTION OF EVIDENCE. Part IV. or fraud, and it is alleged that deceased attesting witnesses were accomplices therein, evidence is admissihle of their good character (p). So the j)roof of the execution of a document by the mere proof of the handwriting of a deceased attesting witness involves a special exception to the general rule against hearsay (q). Another important exception is ad- mitted in the case of wills (r) . "Wherever there is a question as to the validity of a will (s), or as to the date of an erasure or interlineation {f), or as to the contents of a will that has been lost or destroyed (u), declarations made by the testator are admissible to prove these facts {x). The present section deals with modern private documents, namely, those less than thirty years old. The rules contained in it may however, where they can, be applied equally in the proof of ancient documents, that is to say, those which are thirty years old or more ; but for the proof of the latter special facilities are provided by other rules which are the subject of the next section. There are three distinct modes of proving modern private documents, namely, proof by ordinary witnesses, by attesting witnesses where the document has been attested, and by notice to admit. The first two are applicable in either civil or criminal proceedings, the third in civil only. It will be convenient to describe them in this order, although a notice (jw) See p. 266. {q) See pp. 2G5, 266. (r) See pp. 259, 286. (s) Doe V. Allen (1799) 8 T. K. 147 ; Mlis v. Hardi/ (1836) 1 Moo. & Rob. 525. (t) In the Goods of Syhes (1873) L. R. 3 P. & D. 26 ; Bench v. Bench (1877) 2 P. D. 60 ; see below, p. 259. (m) Johnson v. Lyford (1868) L. R. 1 P. D. 546 ; SugdenY. Lord St. Leonards (1876) 1 P. D. 154 ; see below, p. 286. {x) The credibility of this class of declarations has been said to depend on tbeir accompanying an act done, namely, the execution of the will : Johnson V. Lyford, at p. 547 ; but a better ground seems to be the testator's peculiar knowledge and the absence of any motive on his part save to speak the truth : Stiyden v. Lord St. Leonards, at pp. 224, 225. Ghap. IV. § 2. TRIMARY EVIDENCE. L>o7 to admit is to this extent made the first of these three modes of proof, that, where it is applicable, a party is liable to recover no costs of proving a document unless ho has first had resort to it. (i) Proof bi/ Ominari/ Wifnesscs. (a) Hattdicritinfj or Si(jiiafiire. — The ordinarj^ mode by which a person authenticates any document as being his own act or communication is by writing at the foot of it his own name, called his signature. But save where it is so pre- scribed by statute, this is not the sole mode of authentication or signature. It has been held that a printed bill-licad con- taining a man's name may be a good memorandum signed by him within the meaning of the Statute of Frauds, if he writes the body of the memorandum beneath it (//). Handwriting or signature is ordinarily proved in one of the following ways (~). The best evidence of all, assuming of course that the wit- ness is not unfriendly, is to call either the person who wrote it or some person who saw him write it, and so pro^■e the fact by direct evidence. Secondly, when such evidence is not available, some witness must be called who can swear to the identity of the handwriting from his previous knowledge of other handwriting of the same person. That knowledge may have been acquired by seeing the person write, in which case it will be stronger or weaker according to the number of times and the periods and other circumstances under which the witness has seen him write ; but it will be sufficient knowledge to admit tlie evidence of the witness (however little weight may be attached to it in such cases), even if he has seen him write but once, and then (y) Saunderson v. Jackson (1800) 2 B. & P. 238; Schneider y. Korris (1814) 2 M. & S. 286 ; Tourret v. Cripps (1879) 48 L. J. Ch. 5C7. {•) Doe V. Suckermore (183G) 5 A. & E. 703, 720, 731. w. s 258 ADDUCTION OP EVIDENCE. Part IV. merely sign his name (a). Or the knowledge may have been acquired by the witness having seen letters or oiher docu- ments which purported to be the handwriting of the person in question and having afterwards communicated personally with that person upon the contents of those letters or docu- ments, or having otherwise acted upon them by written answers producing further correspondence or acquiescence by the person in some matter to which they relate, or by the witness transacting with such person some business to which they relate, or by any other mode of communication between the witness and such person, which would in the ordinary course of the transactions of life induce a reasonable pre- sumption that the letters or documents were the handwriting of such person (/>). And of course evidence of the identity of the writer must be added aliiindc, if the witness be not personally acquainted with him (c) . A third mode of proof has been sanctioned by statute {d). It is enacted with regard both to civil and criminal cases, in the same terms, that — Comparison of a disputed wi'iting -with any writing proved to the satisfaction of tlie judge to be genuine shall be permitted to be made by witnesses ; and such writings, and the evidence of witnesses re- specting the same, may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute (e) . The writing which is to be thus used as a standard may be proved, besides other ways, by the admission of the WTiter himself while under examination (/) ; or it may be written by him while he is in the witness-box undergoing examination {g). [a) Garrelh v. Alexander (1801) 4 Esp. 37 ; TokcU v. Ford (1817) 2 St. 164 ; Lewis V. Sapio (1827) M. & M. 39. {b) B. N. P. 236 ; Carei/ v. Fitf (1797) Pea. Add. Ca. 130 ; Harrington v. Fr>j (1824) R. & M. 90 ; Tharpe v. Gisburne (1825) 2 C. & P. 21. (e) Foe V. SucJcermore (1836) 5 A. & E. 703, 731. {(T) 17 & 18 Vict. c. 125 s. 27 (civ.) ; 28 & 29 Vict. c. 18 s. 8 (crim.) ((') And the convenient practice is to submit the writings to the iDspcction of the jury as soon as the comparison has been made by the witness. Cress- well V. Jackson (1860) 2 F. & F. 24. (/) Ihid. {g) Cobbett v. Kilminster (1865) 4 F. & F. 490. Chap. lY. § 2. PRIMARY EYIDENCE. 2o9 As to tho date of the writing or signature, if tlie doeinnent itself bears a date, it is presumed till the contrary is proved that that is the date at Avhich it was written or signed ; and this presumption is made not only against the person himself who wrote or signed it (//), but also against other persons (/). With regard to erasures and interlineations it is generally presumed, if the document be a deed, that they were made before the execution of the instrument ; if a will, that they were made afterwards [k). In the case of a will, if the time of the alteration becomes a question of evidence, a special exception to the rule against hearsay permits any declarations of the testator bearing on the point to be proved (/) ; and such declarations are equally admissible with regard to the validity of the will (w). The proof of handwriting always involves of course the identification of the writer. But it sometimes happens that the hand"v\Titing or signature of a document cannot be identi- fied in any of these ways as that of the person who is alleged to have WTitten or signed it, but only as that of some person of the same name, so that some further evidence is necessary to establish personal identity. The mere identity of tho names of the person proved to have written or signed the document and of the person sought to be charged with it will frequently be prima facie evidence of their identity, unless the name haj)pens to be a very common one {ii). If (/() Hunt V. Massey (1834) 5 B. & Ad. 902. ((•) Anderson v. JJ'eston (1840) 6 Bing. N. C. 296, 301 srq.; Potez v. GIossop (1848) 2 Ex. 191 ; Malpas v. Clements (1850) 19 L. J. Q. B. 435. (yt) Doe V. Cutomore (1851) 16 Q. B. 745 ; see Theobald on Wills, 2ud cd., 1881, p. 32. [l) In the Goods of Sylccs (1873) L. R. 3 P. & D. 26 ; Denvh v. Bench (1877) 2 P. D. 60 ; and see above, p. 256, below, p. 286. (/H) Doe V. Allen (1799) 8 T. R. 147 ; Ellis v. Eardy (1830) 1 M. & R. 525 ; and see above, p. 256. (w) Jones V. Jones (1841) 9 M. & W. 75 ; Sewell v. Evuns (1843) 4 Q. B. 626; Hamber v. lioberls (1849) 7 C B. 861. • s2 200 ADDUCTION OF EVIDENCE. Part IV. however a doubt is fairly thrown on the correctness of this inference, some further evidence of identity is necessary. The nature of this will depend upon circumstances : thus evidence may be given of the presence of the person to whom the document is attributed at the time and place when it was executed, or of identity not only of name but also of address and occupation (o), or of name and address alone {p), or of some acknowledgment of the document by the person charged with it. (b) Scalhuj. — Sealing is generally effected by affixing a waxen seal or a wafer upon the document, but it is also suffi- cient if the seal, stick or other instrument used be merely impressed on the plain parchment or paper with an intent to seal it {q) . And either the seal may be affixed or impressed at the time by the party who signs the document, or he may acknowledge as his own a seal that has been previously affixed or impressed, as by touching it and declaring that the docu- ment is his act and deed (r), or by signing his name opposite to a seal on an instrument that bears a declaration that it has been sealed with his seal {s), or in any other manner which implies his adoption of the seal as his own. Sealing is ordinarily proved in one of the following ways. The party may call a witness who saw the seal actually affixed or impressed at the time of signature, or, if it was then already affixed or impressed, saw it acknowledged by the person who signed the document. The sealing may also be inferred from the fact that the person alleged to have sealed it is proved to have signed the instrument at a time when it (o) Harrington v. Fry (1824) Ry. & Moo. 90. {p) Whitelucke \. Musgrove (1833) 1 Cr. & M. 511, 522; Greenshulds v. Craufonl (1842) 9 M. & W. 314. {q) It. V. St. Paul, Covent Garden (1845) 7 Q. B. 232; Ee Sandilamh (1871) L. R. 6 C. P. 411 ; S. C. sub noin. He Mayer, 40 L. J. C. P. 201. (r) Williams' Real Property, Hth ed., 1882, p. 154. (.s) Ta'.but V. Ilodson (181G) 7 Taunt. 251. Chap. ly. § 2. TRIMARY EVIDENCE. 2<5l contained a declaration that the seal opposite to the signature is his seal (/). And this inference may be drawn notwith- standing the absence of any apparent impression or seal {it). If the document still bears the seal, its due sealing may also be inferred from the mere proof of the signature standing against it (.r) . The presumption as to the date of the sealing is similar to that as to signing (//) . (c) Delivery. — The term delivery is used in somewhat dif- ferent senses. In regard to letters, notices and most other documents it is generally used in its ordinary meauiug to signify the physical transmission of the document from the sender to the recipient. But in regard to deeds, and perhaps some other documents by which property or rights are granted, it denotes not merely that actual delivery of the document by the grantor to the grantee which is the most emphatic symbol of the grantor's intention that the deed shall forthwith have the effect which it purports to have, but also any other act done by the grantor, either with or without the presence and consent of the grantee, which indicates the same intention on his part. In such cases the delivery is only constructive. Thus if the grantor at the time of exe- cuting the deed saj^s to any other person, " I deliver this as vay act and deed," or says or does anything from which it may be inferred that he has executed the deed with the intention that it shall operate immediately, even though it is not delivered to the grantee or anyone on his behalf, but is retained in the custody of the grantor, the delivery will be deemed complete. Delivery is ordinarily proved in one of the following ways. The best way is to call some witness who can prove either (it) Talbot V. Hudson (1816) 7 Tauut. 251. \u) Re Sandilands (1871) L. R. 6 C. P. 411. (z) Grellier \. Keale (1792) Pea. 147 ; cp. Fassdt v. Brown, loid. 23. (y) Anderson v. Weston (1840) 6 Bing. N. C. 2£6, 301 ; and see above, p. 259. 2(52 ADDUCTION OF EVIDENCE. Part IV. that he delivered it liimself or that he saw it delivered by the person who did. In the case of a letter or other document delivered by hand the messenger may be called to prove its delivery at the time, in the mode, and to the person alleged. Or if he cannot be called, his delivery of it may be proved in some other way, as by some witness who saw him deliver the document in question, or, in the case of the messenger's death, by some admissible entry made by him in his books (s). If the letter was sent by post, the person who posted it should be called to jDrove that fact. But it is not enough for the sender's clerk to say that the letter was sent by post on a particular day, if he has no recollection whether it was put in the post by himself or another clerk {a). Nor for the sender to prove that it was the regular usage of his office that letters for the post were always depo- sited on a particular table from which they were carried by a porter in his employ to the post-office and that in the particular case the letter was so put down on the table, unless he also calls evidence to prove that in this instance the porter took the letters from the table to the post ; for the court will not presume that the course of business in a private office has the regularity of a public department {b). But if the porter is called, the mere fact that he has no recol- lection of the j)articular letter in question will not exclude his evidence, if he can swear that he invariably carried to the post-office all the letters found upon the table on which the particular letter is proved to have been placed {c) . Where a solicitor's clerk stated that in the general course of business at his master's office he made up all letters to the agency clients, of whom the defendant was one, and placed (z) See especially Chapters III and IV of Part III. pp. 125—138. [a) Hmvlces v. Salter (1828) 4 Bing. 715. {h) llethcrington v. Kemj-) (1815) 4 Camp. 193. [c) Ibid. Chap. ly. § 2. rRi^rAPvY 7:viDEXCTi:. 203 them in a box in the room where he sat, and that the postman invariably called for them and took the letters from the box, and that the letter in question was thus made up by himself in the usual course of his duty as a clerk, it was held that there was evidence that the letter had been delivered to the postman and that the delivery to him was equivalent to the delivery to the post-office {d). If the letter was posted by a clerk who has since died, the posting may be proved by some admissible entry made by him in his books, as an entry made in the course of his duty (c). When a letter has once been proved in one of these ways to have been duly posted, it will be presumed, till the contrary is shown, that it was duly delivered in accord- ance with the ordinary course of business in the post-office. Where the date of the posting of a letter cannot be accu- rately proved, the time of its delivery may be pn'i/id /acie inferred from the post-mark of the envelope in which it is proved to have been contained, as a post-mark is gene- rally 2)ri>nd facie evidence not only of the existence of the letter at the date signified by the mark (/), but also of its delivery according to the ordinary course of business of the post-office to the person to whom it was addressed {(/). But in one case it was held that some evidence was requisite that the post-mark was genuine (//) ; and in any case where doubt is thrown upon it, it seems that some evidence should be given by some person who is acquainted with it (/). The date of a deed is presumed pritnd facie as against both parties and third persons to be the date of its delivery (/.). (d) Shilbeck v. Garbett (184y) 7 Q. B. 846. (c) Ilagedorn v. Reid (1813) 3 Camp. 377 ; and see Chapters III and IV of Part III. pp. 125—138 ; also p. 25.5. (/) Fletcher v. Braddyll (1821) 3 St. 64. [g) Archanjelo v. Thompson (1811) 2 Camp. 620 ; cp. Kent v. Lowen (1808) 1 Camp. 177. (A) Ji.v. Watson (1808) 1 Camp. 215; cp. Fletcher v. Braddyll (1821) 3 St. 64. (i) Abbey v. Lill (1829) 5 Bing. 299. ik) Anderson v. Weston (1840) 6 Bin^. N. C. 293, SOO, 301, 264 ADDUCTION OF EVIDENCE. Tart IV. (ii) Proof by or tJirougJi Attesting Witnesses. Attestation means the signature of a document by some person who is not himself one of the parties to it (/), but has beheld its execution by one or more of the parties and signs his own name thereto as a record of that fact, being constituted an official witness, as it were, of such execu- tion {nt). When a document is attested, it is a common practice to subjoin to the instrument an attestation clause stating that the signing, sealing and delivery, as the case may be, has been effected in the presence of the j)ersons whose names are thereunder subscribed as attesting witnesses. In some cases attestation is made by statute a necessary condition to the valid execution of the document, as in the case of wills, bills of sale, and certain other documents. In other cases, as in that of ordinary deeds, it is a common practice to attest the execution in order to facilitate its proof at any future time. Before 1851, when parties to the record were first rendered competent as witnesses («), it was usual for every document of importance to be attested, whether the law required it or not, in order to secure a witness wlio would be competent to prove the document. And at the same time it was a settled rule that no document which was attested, whether voluntarily or compulsorily, could be proved otherwise than by calling the attesting witness or by proof in certain cases of his handwriting, (unless the attestation was voluntary and this special mode of proof was waived), inasmuch as he was considered to have been pre-appointed by the parties for the express purpose of proving the execution of the document. But by the Common Law Procedure Act, 1854, it was provided in regard to civil cases that — (/) Scale V. Claridije (1881) 7 Q. B. D. 516. (;») E. V. Earring worth (ISloj 4 M. & S. 350, 354 ; Bowman v. Bowman (1843) 2 M. & R. 501. («) See p. 85. .Chap. lY. § 2. rRBrAKY EVIDENCE. 20.> It shall not bo necessary to prove by the attesting? witness any instrument to the validity of which attestation is not requisite, and such instrument may be proved by admission or otherwise, as if there had been no attesting witness thereto («), And a like provision was subsequently mado in regard to criminal cases (yj). The practice, which till then had been obligatory, of proving attested documents by means of the attesting witness, was not thereby prohibited, but only rendered optional in all cases where attestation was not necessary to validity ((/) . Hence the law now stands thus: where by any statute attestation is requisite to the validity of a document, its execution must still (unless special provision is made to the contrary) be proved, in accordance with the old common law rule, by or through the attesting witnesses. Where, on the other hand, the attestation is merely voluntary, the party adducing the document in evidence has the oj)tiou of proving it either by means of the attesting witnesses, or by ordinary witnesses as described in the last sub-section of this chapter, or by notice to admit, in cases where that process is applicable. The proof of a document by means of attesting witnesses is governed by the same rules whether the attestation was compulsory or not, and is as follows. Although two or more attesting witnesses may be necessary to the valid execution of a document, it is in law sufiieient to call one alone, provided that he can testify to the observance of all the requisite formalities (>•). The witness should be able to prove that he saw the document duly executed by the party by whom it purports to have been executed ; and for this purpose he may refresh his memory by inspecting his (o) 17 & 18 Vict. c. 125, s. 26. (jo) 28 & 29 Vict. c. 18, s. 7, is in the same terms omitting only the words "by admission or otherwise." [q) In re Mair' s Estate (1873) 42 L. J. Ch. 832. (r) Wright v. Doe (1834) 1 A. & E. 3, 23 ; Forsler v. Forstcr (1864) 33 L. J. P. M &D. 113. 266 ADDUCTION OF E\T[DENCE. Tart IV. signature (.s). Where an attesting witness is proved to be dead {t), or out of the jurisdiction of the court (»), or insane (x), or is missing and cannot after honest and diligent inquiry be found {>/), or is incompetent to testify in the particular pro- ceedings by reason of interest (z), it will be sufficient to prove his handwriting. But this must be taken subject to this qualification, that such evidence of his handwriting can only be given where no other attesting witness can be produced (rt). The handwriting of the witness being thus proved, the attes- tation clause becomes evidence of everything that is stated in it, as that the document was duly signed, sealed, and delivered in the presence of the attesting witnesses by the party who purports to have so signed, sealed and delivered it {b). But if an attesting witness when called, or the attestation clause (in case of his death), does not identify the person who executed the document with the particular person of the same name who is alleged by the party tendering the document to have executed it, some evidence of identity must of course be given (c). If the genuineness of an attested document is impeached on the ground of forgery or fraud, and it is alleged that deceased attesting witnesses were accomplices therein, evi- dence is admissible of their good character (d). (.s) Maugham v. Hubbard (1828) 8 B. & C. 14, 16 ; Whitelock v. Musgrove (1833) 1 C. & M. 511, 519. See p. 255. it) Barnes v. Trompoicsky (1797) 7 T. R. 265, 266; Adam v. Kerr (1798) 1 B. & P. 360 ; Prmce v. Blackburn (1802) 2 East, 260. (m) Barnes v. Trompowsky and Prince v. Blackburn, supra; Glubb v. Edwards (1840) 2 Moo. & Rob. 300 ; In re Mair's Estate (1873) 42 L. J. Ch. 882. {x) Carrie v. Child (1812) 3 Camp. 283. (y) Crosby V. Percy (1808) 1 Taunt. 364; Burt v. JFalker (1821) 4 B. & A. 697. (z) Cunliffe V. Sefton (1801) 2 East, 183. (rt) Phill. Ev. 10th ed., 1852, vol. 1, p. 432. For a special exception to this rule, see Wright v. Boe (1834) 1 A. & E. 3. [b) Milward v. Teinple (1808) 1 Camp. 375; JFhitelocke v. 3fusgrove {18ZS) 1 C. &M. 511, 518, 519. [c) JFhitelocke v. Musgrove, supra. [d) Boe V. Stephenson (1801) 3 Esp. 284 ; Boe v. Walker, 4 ibid. 50 ; Burham V. Beaumont (1808) 1 Camp. 207, 210 ; Provis v. Reed (1829) 5 Bing. N. S. 435. Cp. pp. 255, 256, above. Chap. IV. §2. PRIMARY EVIDENCE. 267 (iii) Proof by Notice to Admit. This mode of proof is not applicable to crimiual proceed- ings. Nor does it extend even in civil proceedings to the proof of documents which by law require attestation, for reasons which have just been stated ; and hence neither the prescribed form nor the rules contain any reference to attes- tation. Eule 2 of Order XXXII provides that — Either party may call upon tho other party to admit any document, saving all just exceptions ; and in case of refusal or neglect to admit, after such notice, the costs of proving any such document shall 1)0 paid by the party so neglecting or refusing, whatever the result of tho cause or matter may be, unless at the trial or hearing the court or a j udge shall certify that the refusal to admit was reasonable ; and no costs of proving any document shall be allowed unless such notice bo given, except where the omission to give the notice is, in the oj)inion of the taxing officer, a saving of expense. The reservation " saving all just exceptions" imports that the admission which is asked is required only in order to dispense with the proof necessary for the adduction of the document in evidence, if otherwise admissible. The party giving the admission will remain entitled to object that it is not relevant, or that it is not an admissible medium of proof of the fact which is sought to be proved by it. This is further made clear by the prescribed form of the notice to admit which is set out in Appendix B {e). The Order does not define in what cases a refusal to admit would be reasonable, but in the case of documents of which the opponent is not likely to have had any previous cognizance, it must obviously be in most cases of little use to endeavour to extract the admission, not to mention the disadvantage which may sometimes accrue from making a voluntary dis- covery. Thus in an action by a lord of a manor to recover a piece of the waste of the manor which has been trespassed upon and occupied by a squatter, there is generally nothing [e) Seep. 3U. 268 ADDUCTION OF EVIDENCE. Part IV. to be gained by the plaintiff submitting his title deeds to the defendant's inspection and asking for an admission of them. Subject to this qualification, the notice to admit is intended, as an examination of the form of it will show (/), to secure admissions with regard both to original documents in the possession of the party serving the notice, and to original documents not in his possession but of which he has copies. (The admissions asked as to the copies themselves will be referred to in the chapter on secondary evidence.) With regard to originals in the party's possession the notice requires an admission that they were written, signed or executed as they purport respectively to have been. Such an admission covers the whole proof of a document for which attestation is not requisite, as the term execution denotes sealing and delivery {y) . With regard to original docu- ments of which the party has only got copies, the notice requires an admission that the originals were served, sent or delivered respectively as stated in the notice. It appears to be assumed with regard to any private document which is likely to be comprised in this part of the notice either that such admission will cover the writing, signing and sealing of it, as the case may be, by reason of the terms in which the document is described, or that the party serving the notice will be able to prove these particular facts and will only require an admission as to the serving, sending or delivering of it. § 3. — Proof of Document when Ancient. The production in court of ancient private documents is governed by the rules stated in the first section of this chapter ; but their proof, when so produced, is facilitated by certain special rules, the subject of this section. And as the date of a document is presumed prima facie to be correct, a (/) See p. 314. \g) Williams' Real Property, Uth ed., 1882, p. 154. Chap. IV. § 3. rPJMAEY EVIDENCE. 269 document which appears from its date to he thirty years old or more, is deemed an ancient document unless the contrary is proved (//). The general rule is this, that an ancient document proves* itself («), or in other words it is presumed that it was written, signed, sealed, delivered, attested, and stamped, as the case may be, by the persons in the mode and at the time and place that it purports to have been, provided always that it is produced from proper custody, and that the appearance of it when inspected is not inconsistent with its authenticity (/). But inasmuch as the proof of a document alwaj's involves the identification of the parties to it (/), the rule must be understood subject to this, that if an ancient document does not itself state or otherwise identify the names or characters of the parties to it, some sort of evidence will be necessary before it will be admissible. If for instance in order to prove the receipt of tolls, books are tendered in evidence alleged to be books of deceased receivers of the tolls, it will be necessary, if the books themselves do not show it, to give some evidence that they were kept by such receivers as alleged [ni). On these conditions being fulfilled an ancient document becomes admissible in evidence, although its whole effect may be afterwards displaced by other evidence adduced to show that it was cancelled after execution, or that it never was in fact duly executed, or even that it was a forger}'. The ground of the rule is the great difficulty, indeed in many cases the impossibility, of proving the execution and attestation of documents in the ordinary way after the (/() Anderson v. Weston (1840) 6 Bing. N. C. 296, 301. (i) Aa to this expression sec I)oe v. Burdett (1835) 4 A. & E. 1, 19; another form in which the rule is stated is to say that execution is presumed or need not be proved. But the statement in the text appears to be the more correct, inasmuch as the presumption extends to other particulars besides execution, strictly so called, as, for instance, attestation and stampiug. {k) Meath V. Winchester (1836) 3 Biug. N. C. 183, 200. (/) See pp. 259, 2G0. \m) Doe V. Thynne (1808) 1 East, 206. See above, p. 255. 270 ADDUCTION OF EVIDENCE. Part IV. lapse of many years (ii). Hence in the ease of a will the period of thirty years is reckoned not from the testator's death, but from the date of execution of the instru- ment (o). And the fact that the evidence thus dispensed with could in fact be adduced, as where for instance the attesting witnesses are still living, does not preclude the operation of the rule (/)). The rule is of general applica- tion ((/), and the cases illustrate it in connection with many different kinds of documents, including settlements (>'), wills (,■<), bonds (t), leases {ti), agreements (x), case stated for counsel's opinion {//), stewards' books containing entries of the receijjt of rents {z), and letters (a). (i) Custody. — This condition of admissibility must be proved by some evidence (b). Proper custody does not necessarily mean the most appropriate custody, the custody of the person entitled in law to hold the document, but either that or any other custody which in the circumstances of the case appear to the court to be consistent with its ^, genuineness (c). The cases present among others the following examples of documents held admissible as coming from proper custody, namely, a deed creating a long term produced by one who («) Wynne v. Ti/rwhitt (1821) 4 B. & A. 376 ; Andrews y. Motleij (1862) 32 L. J. C. P. 128, 131. (o) Doe V. Wolley (1828) 8 B. & C. 22. {p) Doe V. Burdett (1835) 4 A. & E. 1, 19. {q) Wynne v. Tyrwhitt (1821) 4 B. & A. 376. (/•) Doe V. Samples (1838) 8 A. & E. 151. (.s) Doc V. Wolley (1828) 8 B. & C. 22 ; Doe v. Burdett (1835) 4 A, & E. 1 ; Andrews v. Motley (1862) 32 L. J. C. P. 128. {t) Chelsea Waterworks v. Cowper (1795) 1 Esp. 275. {u) Plaxton V. Dare (1829) 10 B. & C. 17. \x) Mytton v. Thornbury (1860) 29 L. J. M. C. 109. (y) Mealh v. Winchester (1836) 3 Bing. N. C. 183. (s) Wynne v. Tyrwhitt (1821) 4 B. & A. 376. [a) Doe V. Beynon (1840), 12 A. & E. 431. {b) Early. Lewis (1801) 4 Esp. 1 ; Evans v. Eees (1839) 10 A. & E. 151. [c) Doe V. Ehillips (1845) 8 Q. B. 158 ; Doe v. Eeeiuig (1848) 11 Q. B. 884. Chap. IV. § 3. PETMARY EVIDEXCE. 271 was solicitor both to the administrator of the termee and to certain of the persons benefieiallj interested under it (d) ; an expired lease iiroduced from custody of the agent of a successor in title of the lessor {c) ; a -svill produced by tenant for life claiming title under it (/) ; a settlement produced by equitable tenant for life claiming under it (r/) ; case with counsel's opinion thereon, stated and given on behalf of Bishop of M. as to right to an advowson, produced from custody of the bishop's descendants who were not successors in title to the advowson (//) ; and an agreement between certain inhabitants of a parish and the owner of an estate within it for the separate maintenance by the latter of the poor upon his estate, produced from the custody of a large landowner in the parish, though not a successor in title or descendant of any of the parties to the agreement (/). (ii) Apparent Eegularitij. — If there is anything on the face of the document inconsistent with its authenticity it will be inadmissible, unless evidence can be adduced to explain the matter and remove the doubt. But there are few good examples in the books of the discussion of this condition of admissibility, and it is obvious that its application must vaiy in every instance. In a case where a deed about thirty-six years old purported to have been sealed and delivered " being first duly stamped," and there were marks as of a stamp having been once impressed and afterwards obliterated, the com-t held that, although no evidence had been given to account for the state of the document, the judge at the trial had been justified in holding it to have been duly stamped and admitting it in evidence (/i). {d) Doe V. Phillips (1845) 8 Q. B. 158. {e) Boey. Keeling (1848) 11 Q. B. 884. (/) Andrews v. Motley (1862) 32 L. J. C. P. 128. (y) Doe V. Samples (1838) 8 A. & E. 151. (A) BisJiop of Mcath v. Mayor of IVinchcstcr (1836) 3 Binjj. N. C. 183. (i) Mytton v. Thornlmry (1860) 29 L. J. M. C. 109. {k) Doc V. Coombs (1842) 3 Q. B. 686. 2T2 ADDUCTION OF EVIDENCE. Part IV. CHAPTER V. STAMPS. The last chapter stated what was necessary to the proof of an original private document when produced in court. But many documents are also required, in the interests of the revenue, to be stamped at the time of execution, and in default thereof are either wholly inadmissible or only admis- sible on the payment of penalties. Thus a receipt given for or upon the payment of money amounting to 2/. or upwards must be stamped with a penny stamp, which is to be cancelled by the person by whom the receipt is given before he delivers it out of his hands. So every agreement or memorandum of agreement under hand only, and not otherwise specifically charged with any duty, whether the same be only evidence of a contract, or obligatory upon the parties from its being a written instrument, must be stamped with a sixpenny: stamp, which is to be cancelled by the person by whom the agreement is first executed, except the following agree- ments which are exempt, namely, any agreement or memo- randum (a) the matter whereof is not of the value of 61., (b) for the hire of any labourer, artificer, manufacturer or menial servant, (c) for or relating to the sale of any goods, wares or merchandise, (d) between the master and mariners of any ship or vessel for wages on any voyage coast-wise from port to port in the United Kingdom. The stamping of documents is now regulated by the Stamp Act, 1891, 54 & 55 Vict. c. 39, which repeals most of the previous enactments [a), and contains in its first schedule a [a) Sect. 1*23. But the Act is not retrospective ; see sects. 1 and 14 (4j ; Clarke v. Roche (1877) 3 Q. B. D. 170. Ghap. V. STAMPS. 27;} list of the documents -wliioh require to be stamped and the amounts of the respective stamps. With regard to some documents the act provides that if they have not been stamped originally in accordance with its provisions, tliey canuot afterwards be stamped on any terms so as to render them admissible in evidence ; such are bills of exchange and promissory notes (i), bills of lading (r), proxies and voting papers {(I), and some others. There are several others which can only be stamped after execution within certain fixed periods of time, in some cases only on payment of a penalty, and in others without such payment. With regard to all other documents sect. 15 (1) contains a general provision as to the terms on which they may be stamped after execution. But the effect of all the provisions of the Act, whether general or special, with regard to documents that may be stamped after execution on the payment of penalties has been qualified by certain standing regulations made by the commissioners by virtue of the power to remit penalties conferred on them by sect. 15 (3). These regulations pro- vide that agreements under hand only, liable to the fixed duty of sixpence, may be stamped without penalty within fourteen days from the date of execution, and a large number of other instruments within thirty days (r). With regard to the production in evidence of documents which require to be stamped, sect. 14 of the Act provides as follows : — (1) Upon the production of an instrument chargeable with any duty as evidence in any court of civil judicature in any part of the United Kingdom, or before anj' arbitrator or referee notice shall be taken by the judge, arbitrator, or referee of any omission or insufficiency of the {b) Sects. 34 — 38. "Bill of exchange" includes "draft, order, cheque, letter of credit," and certain other documents : see s. 32. For definition of "promissory note," see sect. 33. (e) Sect. 40. {d) Sect. 80. {e) See Alpe's Stamp Duties, 2nd ed., 1891, p. 38. W. T 274 ADDUCTION OF EVIDENCE. Dart IV. stamp thereon, and if the instrument is one which may legally be stamped after the execution thereof, it may, on payment to the officer of the court whose duty it is to read the instrument or to the arbi- trator or referee of the amount of the unpaid duty, and the penalty payable on stamping the same, and of a further sum of one pound, be received in evidence, saving all just exceptions on other grounds. (4) Save as aforesaid an instrument executed in any part of the United Kingdom, or relating, wheresoever executed, to any property situate, or to any matter or thing done or to be done in any part of the United Kingdom shall not, except in criminal proceedings, be given in evidence, or be available for any purpose whatever, unless it is duly stamped in accordance with the law in force at the time when it was first executed. The duty imposed by tliis section upon the judge, arbi- trator, or referee before whom the case is being heard, to take notice of any omission or insufficiency of the stamp on any document tendered in evidence, is imperative. The fact that the opponent of the party tendering it raises no objection (as is now the usual practice where the objection is not fatal to the action, but may be cured on the payment of a penalty), or that he has even agreed that the document shall be given in evidence without any such objection, does not ex- onerate the tribunal from the duty of taking notice of it (/). Before this act the courts in construing the enactments in force from time to time as to the exclusion from evidence of unstamped documents had laid down the principle that the prohibition did not apply where the document was tendered for a collateral purpose, that is, for some purpose other than the primary and direct purpose denoted or implied by the title or description of the document contained in the act. This principle was before 1854 applied indifferently in criminal and civil cases, but by the Stamp Act of that year (g) , the numerous distinctions which had arisen in its application to criminal cases were jout an end to by the (/) Xixo)i V. Albion Marine Insurance Co. (1867) L. R. 2 Ex. 338 ; Banker T. Williamson (1889) 5 T. L. R. 382. {g) 17 & 18 Vict. c. 83, s. 27. Chap. Y. STAPHS. 2V.> general provision that every instrument liaLle to stamp duty should he admitted in evidence in any criminal pro- ceedings, altliough it might not liavo tlie stamji required by the law impressed thereon or afiixcd thereto. The same provision though in different terras appeared in tlie subse- quent act of 1870 (//), and now appears, as set fortli above, / in that of 1891. In criminal cases therefore an unstamped document is admissible for every purpose. With regard to civil cases the acts of 1854 and 1870 made no change in the rule by which an unstamped document was only admissible in evidence, if tlie purpose for wliieli it was tendered was collateral. The most obvious examples of col- lateral purpose are cases where the document is only produced for the piu'pose of comparison of handwriting, or merely as a link in a chain of cii'cumstantial evidence to prove that a party to the document was at a particular place on a parti- cular date, or where the party tendering the document alleges that it was never intended to be a valid instrument and seeks to prove it merely as a step in tlie commission of a fraud (/).. Before the act of 1891 the prohibition against the adduction of unstamped documents in other tlian criminal proceedings was in these terms, that no such instrument should " except in criminal proceedings, be pleaded or given in evidence or admitted to be good, useful, or available in law or equity" (A-). But the act of 1891 provides that no such instrument shall " except in criminal proceedings, be given in evidence or be available for any purpose whatso- ever " (/). This change in language seems to indicate an intention to prohibit the admissibility of unstamped docu- ments even for collateral purposes, and appears to be moulded on the language used in sect. 54 (1) of the act of (A) 33 & 34 Vict. c. 97, s. 17. (t) Gregory v. Fraser (1814) 3 Camp. 454 ; Keahk v. I'aijne (1838) 8 A. & E. 555 ; R. V. Gomperiz (1846) 9 Q. B. 824. . {k) See 33 & 34 Vict. c. 97, s. 17, and prior Acts. (V; Sect. 14 (4). •t2 276 ADDUCTION OF EVIDENCE. Part IV. 1870 as to bills and uotes, wliich lias been held to exclude the adduction of those documents even for collateral pur- poses (>/?). It would seem however that if the part}' tender- ing the document is not the party responsible for the want of the stamp, and does not approbate it as a valid instrument, but only presents it to the court as a fraud or forgery, it would still be admissible, though unstamped. Stam^T duty is always chargeable on an instrument in accordance with its real character and effect in law, and it is immaterial by what other title the parties may choose to designate it ; the substance and not the form of the instru- ment will be regarded (^/). But if the instrument is duly stamped with reference to its principal object, this stamp covers everything accessory to this object (o). The following examples illustrate what is meant by accessory matters, not requiring any stamp in addition to that required for the principal object of the instrument : a lease with an option of purchase of the property demised need only be stamped as a lease and not as an agreement also, the opition to purchase being merely ancillary to the main purpose of the docu- ment (p) ; and a lease in which a third party joined for the purpose of guaranteeing the payment of the rent was held to be stampable as a lease only and not as a deed also, the cove- nant of the surety being purely accessory to the lease which was the main purpose of the deed {q). But where a document contains more than one distinct principal matter, a different rule applies. Sect. 4 (a) of the Act provides that " an instrument containing or relating to several distinct matters is to be separately and distinctly (;«) See as to this section Askli/iff v. Booti [1891] 1 Ch. 568. («) Sutton V. Lippert (1883) 8 App. Ca. 309 ; and see case in next note. (o) Limmer Asphalte Faviiig Co., Ltd. v. Commissioners of Inland Mevenue (1872) L. R. 7 Ex. 211. [p) Worthington v. Warrington (1848) 5 C. B. 636. {q) Price V. Thomas (1831) 2 B. & Ad. 218 ; S. C. sub nom. Pratt v. Thomas 4 C. & r. 554. Chap. Y. STAMPS. 277 charged, as if it were a separate instrument, witli dui}- in respect of eacli of the matters." A lease containing an option to pur- chase property other tlian that demised (r), and a lease of several estates to several tenants at different rents (.s), are examples of distinct matters within the meaning of this section. In cases of this kind, whore the matters are distinct, hut the instrmnent is in law one, the general rule is that, unless it is sufficiently stamped to cover both matters, it cannot be given in evidence in respect of either. But the rule is otherwise where, though the document is physicall}' one, it contains really two independent instruments, as, for example, a statement of account between two parties at the foot of which is a receipt for money paid (f). Here the one part of the document can be given in evidence notwithstanding that the other is inadmissible for want of a stamp. If a document tendered in evidence bears the proper stamp, the court ^dll presume, in the absence of evidence to the con- trary, that it was affixed or impressed at the proper time, and it lies on the objector to prove the contrary (ii). If the document bears no stamp, but is alleged to have once been duly stamped, it becomes a question of evidence whether it has been duly stamped or not (./•) . Thus, where a deed about thirty-six years old purported to have been sealed and de- livered " being first dul}" stamped," and there were marks as of a stamp having been once impressed though afterwards obliterated, the court held that, although no evidence was given to account for the state of the document, the judge at the trial had been justified in holding it to have been duly stamped and admitting it in evidence {//). (>■) lovelock V. FranlUn (1846) 8 Q. B. 371. (s) Doe V. Lay (1811) 13 East, 241. For other examples see Alpe's Stamp Acts, ed. 1891, pp. 3, 10, and 18. {t) Malheson v. Eoss (1849) 2 H. L. C. 28G. (m) Bradlaugh v. T)e Jiin (1868) L. R. 3 C. P. 286. {x) Ma) hie Investment Co. v. Havhide (1&72) L. R. 5 H. L. 624. (y) Doe V. Coombs (1842) 3 Q. B. 687. ADDUCTION OF EVIDENCE. Tart IV. CHAPTER YI. SECONDARY EVIDENCE OF PRIVATE DOCUMENTS. 1. Events in which Secondarij Evi- dence is admissible : (i) Loss or I)estritction of Ori- ginal. (ii) Irremovability of Original. (iii) Original out of Jurisdiction. § 1. (iv) Lawful Non - 2}-'od action bg Third Person. (v) Non-compliance with Notice to Produce. § 2. Species of Secondary Evidence. § 3. Presumptions as to the Original. A PARTY who desires to put a document in evidence is bound, as stated in the last chapter but one, whenever it is possible, to produce, or procure the production of, the original in court. Should this be impossible, the law^ permits him in most cases to give other evidence, called secondary evidence, of its con- tents, provided always that the original if produced would itself have been admissible. This is allowed on the principle that when a party has taken all reasonable means, without success, to procure the production of the original, it is right that he should be permitted to resort to other evidence {a). For the purpose of this rule the distinction must be borne in mind between instruments executed in duplicate, where the document retained by each party is executed by them both, and instruments executed in counterparts, where the document retained by each party is executed by the other party only. Where an instrument is executed in duplicate or triplicate, all the parts are originals, and the non-produc- tion of all of them must be accounted for before secondary («) Doe V. Pioss (1S4&) 7 M. & W. 102; Boyle v. Wiseman (1855) 10 Ex. 647, 649. Chaii. yi. yKCOXDAKY KVIDFATE. liTU evidence can be given of the contents (/>). In the case of instruments executed in counterparts, each part is an original with reference to any question of the estate granted or the liability undertaken, as the case may be, by the party who executed that particular part, and is secondary evidence only of any grant or obligation by the party who has not signed it. But by a convenient exception, allowed at any rate in ' the case of deeds, a party may tender in evidence tlie part signed by his opponent in order to prove the contents of the other part of the document. A sued his lessee for possession of the premises, forfeited for breach of covenant, but omitted to give the defendant notice to produce the original lease to prove his right of re-entry ; it was ruled that he was entitled to j)ut in his own counterpart for this purpose, on the ground that the defendant thereby under his seal recited that he was bound by the proviso for re-entry (e). § 1. — Events in which Secondary Evidence is admissible. (i) Loss or Best nid ion of Original . — Secondary evidence is admissible whenever the original is lost or destroyed, and it is immaterial for this purpose by whose agency it has happened [d) . If no one can be called who witnessed its actual destruction, it is necessary to give evidence from which tlie judge may reasonably presume its loss or destruction. There is a great difference in this respect between valuable and valueless documents. It is a fair presumption that a man will keep all documents which may with any degree of pro- bability be of present or future value to him, and that he {h) Alivon v. Furnival (1834) 1 C. M. & R. 277, at p. 292. (c) Roe V. Lavis (1806) 7 East, 363; cp. Burleigh v. Stibbs (1793) .5 T. R. 465, a like decision as to a deed of apprenticeship. These cases were ap- proved of in Paul v. Meek (1828) 2 Y. & J. 116. (rf) Kemmgton v. Inglis (1807) 8 East, 273, 277—280 ; Doe v. Ross (1840) 7 M. & W. 102, 122 ; Rainy v. Bravo (1872) L. R.-4 P. C. 287 ; op. R. v. Castleton (1799) T. R. 236 ; Uunn v. Gudbohl (1825) 3 Bing. 292. 280 ADDUCTION OF EVIDENCE. Part lY. will on the other hand throw away or destroy those which have served their end and are never likely to be required for any purpose whatever. In the former ease it is reason- able to exact proof of very careful search, whereas in the latter very slight evidence tending to show loss or destruction will suffice (r). AVhat is a proper search and inquiry must always depend on the particular circumstances of the ease. Whenever a document might not improperly be kept in the custody of any one of several persons, the search should be extended accordingly. On this preliminary question of search the judge may in his discretion admit evidence of the statements of persons not called, which would be excluded if tendered as evidence of the facts in issue (./'). (ii) IvremorahiUty of the Original. — Secondary evidence is also admissible where the original is not practically re- movable, as in the case of writings or j^lacards upon walls, hoardings or notice-boards, and inscriptions on monuments and tombstones {g). (iii) Original out of tJic Jurisdiction. — Also where the original is in the custody of a person out of the jurisdiction, who is not permitted by the law or usage of the place where he is to allow its removal. A charter-party made and signed by the parties in a notary's book in Java in accordance with the law of that island, and by that law not removable, was held to be provable by secondary evidence (//). A copy of an agreement of reference made in France according to (c) Bnu-ster v. Seivcll (1820) 3 B. & A. 29G. (/) R. V. Eimhvorih (1845) 7 Q. B. 642; R. v. Braintrce (1858) 28 L. J. M. C. 1. {(j) Mortimer v. ilcCaUan (1840) 6 M. & "W. 58, 68 ; Bruce v. Kicoloptdo (1855) 11 Ex. 129, 133; cp. Bartholomeiv v. Stephens (1839) 8 C. & P. 728, and examples there referred to, and contrast witli Jones v. Tarleton (1842) ,9 M. & W. 675. (li) Broun v. Thornton (1837) 6 A. & E. 185. The copy tendered was not authenticated Ly any witness who had examined it with the original, but only by an official seal and signature, which the court could not recognize, and on that ground only was rejected. .Chap. YI. § 1. SECONDAT!Y KYIDKNCE. 2R1 French law, deposited with a French notary, and by tlie legal practice there not removable from that custody, was held provable here by an examined copy (/). The above are examples of documents which by the law of the foreign place were public documents, though they would not have been so here. It has been questioned whether a private document in the lawful private custody of a person out of the jurisdiction may be proved in like manner (/.•). If it may, it is necessary to first prove that a formal demand has been made for the production of the document with a statement of the purpose for wliich the demand is made (/). It would seem that such evidence should be admissible upon the general principle stated at tlie beginning of this chapter {///). (iv) Lawful JVon-prodiiction by a Third Person. — Secondary evidence is admissible whenever the original is in the posses- sion of a stranger to the proceeding who attends in court with the document and there lawfully refuses to produce it on some ground of privilege claimed by him either in his owTi right or as agent acting on the instructions of another. The usual and proper course of the party who seeks to give evidence of the document is to compel the attendance in court of the person who has possession of the document by means of a subpoena duces tecum {>i) ; but if he should volun- tarily attend with the document and should lawfully refuse to produce it, secondary evidence will be equally ad- missible (o). If on the other hand he attends, but without the document, and a subpoena duces tecum has not been served on him or not been duly served, this is a fatal objection to the admission of secondary evidence, as the party has not (i) AUvon V. Furnival (1834) 1 C. M. & R. 277. (A) Boyle v. Wiseman (1855) 10 Ex. 647. ((•) Ibid. ; and Crispin v. Doglioni (1863) 32 L. J. P. M. & A. 100. (in) See p. 278. («) See pp. 252, 253. (o) Loe V. Clifford (1847) 2 C. & K. 448 ; Buyer v. Collins (1852) 7 E.\. 639, 282 ADDUCTION OF EVIDENCE. Tart IV. done all that lay in his power to procure tlie production of the original {]>). If tlie person so refusing is merely agent for another by whoso instructions the production is withheld, the fact that the principal does so refuse may be proved in several ways. He may himself attend the court upon a suhpoeiKi and then and there refuse {q), or may attend volun- tarily and do the same (/■) ; but it will be sufficient for the admission of secondary evidence if the agent himself can prove that he has had express instructions from his prin- cipal not to allow the production of the document (.s). The grounds on which a person is justified in refusing to pro- duce a document are stated under the title of Privilege in Part III, Chapter XV. The principal may of course waive his privilege (t), after which the agent's refusal to produce would no longer be lawful, unless based on some independent and just claim of privilege in himself (»). Neither principal nor agent thus claiming privilege is compellable to give oral or other secondary evidence of the contents of the privileged document, but if such evidence is voluntarily given it is admissible, even though it is given by an agent without the authority of his principal {x). Any other person who by oral or other secondary evidence can prove the contents of the privileged document may be called to do so (//), and to enable him to identify it for this purpose the person with- holding production of it may be compelled to produce it for the purpose of identification, provided always that no part of the contents is disclosed. In the case of deeds and wills {p) Eibberd v. Knight (1848) 2 Ex. 11. (q) M-ivton V. Chaplbi (1850) 10 C. B. 356. (>•) Cp. Doe V. Cliford (1847) 2 C. & K. 448. (.«) Fhelps V. Freiv (1851) 3 E. & B. 430. (0 Merle v. More (1826) Ry. & M. 300. (?<) Doc V. Ross (1840) 7 M. & "W. 102. (.c) Marsion v. Downes (1834) 6 C. & P. 381 ; and (on motion to the court) 1 A. & E. 31 ; cp. Hthberd v. Knight (1848) 2 Ex. II. (y) Mills V. Oddi/ (1834) 6 C & P. 728, 732. i Chap. ^T[. § 1. SEOOXDArvY EVIDENCE. 283 identification can generally be effected by an inspection of the indorsement containing particulars of the instrument (~). AVlien production is unlawfully refused, no secondary e\idence is admissible. The only remedies of the party whom such refusal affects are an application to postpone the trial (a) and proceedings upon the writ of subpcona {/)). (v) Non-compUanco icifh Notice to Produce. — Lastly, secondary evidence is admissible whenever the original, being in the possession or under the control of the opposite party to the proceeding, is withheld after a notice has been duly served upon him or his solicitor in the suit to produce it at the trial. The term opposite parties does not ordinarily include co-defendants, but only parties between whom there is some question to be determined (c). Secondary evidence will not be admissible under this head unless the party serving the notice can prove that at the time of the service of the notice the original was in the possession or power of his opponent {(t). In civil actions the process of discovery and inspection under Order XXXI affords a means of procuring this information (c). But when discovery has not been obtained, and in criminal cases where no such process is avail- able, other evidence must be resorted to. In one case, where the plaintiff sought to give secondary evidence of a certificate of the defendant's bankruptcyj it beiug proved that the defendant had instructed his solicitors to obtain a certificate in cir- cumstances in which he would be entitled to it, and some evidence having been given that a certificate had been (;:) Fhelps v. Frew (1854) 3 E. »S: B. 430; Doe v. Clifunl (1847) 2 C. & K. 448. («) See Order XXXVI r. 34, and Archbold's Criin. Tlcading, 20th ed., 1886, p. 104. (i) Seep. 218. (c) Shaw V. Sviilh (188G) 18 Q. B. D. 193 ; cp. Eden v, Weardalc Iron and Coal Co. (1887) 35 Ch. D. 287. {d) Harvey v. Mitchell (1841) 2 M. & R. 3GG. (e) Pages 251, 252. 284 ADDUCTION OF EVIDENCE. Part IV. granted, the judge presumed that it had come to the defen- dant's possession (/'). But the original need not be shown to be in the actual possession of the party, if it is in the custody of any other person Avho holds it for him and on his behalf without any adverse or independent claim {g). Thus a notice to produce has been held to bind the opposite party to produce the following documents, namely, cheques in the possession of his bankers (//), an order delivered by him to the captain of his vessel for delivery to a third person of goods on board of her (/), and, in an action of trover against a sheriff for illegal levy of the plaintiff's goods, the warrant of execution which had been returned to the hands of the undersheriff (A'). But where the plaintiff called for a build- ing contract between the defendant and another, which had been deposited with a third party to hold on behalf of the two contracting parties (/), and in another case, where the plaintiff sought to give in evidence the terms of a written authority under which defendant had acted but which was retained by his principal {m), it was ruled that notice to produce was insufficient ; the holder of the document should have been served with a suhjyoena duces tecum. The requisites of a notice to produce in reference to time of delivery and form have been already stated above {)i). In order to prove the service of the notice to produce, it is not necessary to serve a further notice to produce the original (/) Henry v. Leigh (1813) 3 Cami). 499. {g) Evans v. Sweet (1824) Ey. & M. 83 ; Furry v. Morrit (1833) 1 M. & E. 279 ; Irui>t V. Lever (1860) 2 F. & F. 297 ; compare the decisions as to pro- duction of documents under process of discovery ; see Peile on Discovery, 1883, p. 133. [h) Fartridgc\. Coates (1824) Ey. & M. 153, 156; Burton v. Paijue (1827) 2 C. & P. 520. (i) Baldney v. Ritehie (1816) 1 St. 338. {k) Taplin v. Atty (1825) 3 Bing. 164. (l) Furry v. Morrit (1833) 1 M. & E. 279. {»)) Evans v. Sweet (1824) Ey. & M. 83. («) See pp. 249, 250. Chap. VI. § 1. SECONDARY EVTOl^XCr:. 2So notice ; the clerk who is called to prove the service, may give in evidence a cop}'. When once production has been refused by a part}' duly called on, he is precluded from afterwards giving the docu- ment in evidence for any purpose (o) . § 2.— Species of Secondary Evidence. The law recognizes no degrees in secondary evidence. If the original is not produced for any of the causes above stated, parol evidence may always be given of its contents. If indeed the party giving such parol evidence appears to have better secondary evidence in his power, which he does not produce, that is a fact to go to the jury, from wliich they might probably presume that the evidence kept back would be adverse to the party withholding it. But the law makes / no distinction between one class of secondary evidence and another (j)). The most satisfactory secondary evidence however wdiich in fact a party can adduce is always an accurate copy. In a civil action if the document is in the possession of his opponent, a copy of it can be obtained by discovery and inspection as already mentioned (17). The party can then by means of a notice to admit call on his opponent to admit that the copy is a true copy of the original document and so save himself the trouble and cost of calling evidence to prove its accuracy {>•). And in any case where the party has in his possession a copy of the document and it is reasonable to call on his opponent to admit that the copy is a true copy, he can call on him to make such admission (sj. Where however (0) Doe V. Hodgson (1840) 12 A. & E. 135 ; Cullins v. Gashon (1860) 2 F. & P. 47 ; cp. R. S. C, Order XXXI r. 15 ; and see pp. 250, 251. {p) Doe V. Rosa (1840) 7 M. & W. 102, 106. (ry) See pp. 251, 252. ()•) See the form of notice to admit, p. 314. (.s) As to when it is reasonable to serve a notice to admit, and the result of an unreasonable refusal to make the admission asked for, see pp. 267, 268. 286 ADDUCTION OF EVIDENCE. Part IV. this procedure is not resorted to, or where no admission is given, and also in all criminal proceedings, in which dis- covery, inspection and notice to admit have no place, the party must give such secondary evidence as may be within his power without the aid of this special procedure. Such secondary evidence may take the form either of a copy proved by a witness to have been made from or com- pared with the original document ; or of oral evidence of its contents based on the witness's recollection ; or any admission binding on his opponent, as, for example, the statement of his counsel in open court on a former trial of the action as to the contents of the document (/) ; or an entry made by a deceased clerk in the course of his duty as to its contents {u) ; in short, any one of the media of proof mentioned in Part III which may be applicable to the case. Moreover, in one case at least, that of wills, a special medium of proof is admitted ; for whenever a question arises as to the contents of a will which has been lost or destroyed, evidence may be given of declarations of the testator, whether made before or after the alleged date of its execution, with regard to the intentions he had formed or the dispositions he had made (./-). § 3.— Presumptions as to the Original. It has been already stated that secondary evidence is only admissible where the original document, if produced, would have been admissible. It does not however follow that every particular which would have been necessary to the admission of the original must therefore in all cases be proved before any secondary evidence can be given. The proof of the original is in some cases facilitated by means of presumptions made in its favour. {t) Doe V. Boss (1840) 7 M. & "W. 102. (m) Prittv. Faircloiigh (1812) 3 Camp. 305; see above, p. 255. {x) Johnson v. Lyford (1868) L. R. 1 P. & D. 546 ; Sugden v. Lord St. Leonards (1876) 1 P. D. 154 ; see above, pp. 256, 259. Chap. VI. §3. SKrOXDAPvY KVTT)KXrT:. ?S7 "Where a party tenders secondarv evidence of a document wliich Lis opponent lias refused to produce, upon liis giving some evidence of the execution of the original, a presumption arises that it was duly attested, if attestation was required (y), and that it was duly stamped (z) ; and it lies on his opponent, if he contends the contrary, to make out his objection. Simi- larly in the case of a document lost or destro3'ed, after some reasonable evidence of the execution and of the loss or destruction of the original, it will be presumed in favour of the party tendering the secondary evidence, imtil the con- trary is shoAvn, that the document was duly attested (a) and stamped {b). There seems to be no reason why like presumptions should not be made in the case of documents lawfully withheld either by a person out of the jurisdiction, or by a person within the jurisdiction making a well-founded claim of privilege. (//) Cooke V. Tansudl (1818) 8 Taunt. 450 ; Pooh v. Warren (1838) 8 A. & E. 582. (z) Crisp V. Anderson (1815), 1 St. 35. \a) R. y. St. Giles (1853) 1 E. & B. C42. (i) Marine Investment Co. v. Ilavisule (1872) L. E. 5 II. L. 624. 2S8 ADDUCTION OF EVIDENCE. rait IV. CHAPTER VII. PUBLIC DOCUMENTS. It has already been stated that the term public document is used in two different senses, and that whereas some docu- ments called public, as a will of personalty, stand on the same footing as private documents so far as their effect in evidence is concerned, while others are a medium of proof of the facts recorded in them, they all have this characteristic, that they are kept in some special custody and are proved by means of a copy and not by the production of the original {a). This chapter is concerned with the mode of proof of public docu- ments without regard to the effect of their contents in evi- dence. At common law when a document was of such a character that its preservation and settled custody was of concern to the public at large or to a considerable section of the public, the production of the original was generally either excused or disapproved of by the court, and the document was admitted to proof by means of a copy. Thus it was laid down that the proper mode of proving entries in the books of the Bank of England, which are of great public concern, was by means of copies {b) ; and the books of ancient cor- porations and of manorial courts were allowed to be proved in the same way (r). The ordinary mode of proof of such documents was by means of an examined copy, that is, a copy taken on behalf of the party, generally by some clerk («) Seep. 178. (i) Mortimer v. McCallan (1840) 6 M. & W. 58. [c) See App. A, pp. 306, 307. Chap. YII. PUBLIC DOCUMENTS. 289 or other private person, wlio produced it in the witness-box and proved that he had examined it with the original and that it was correct [d) . The cases do not throw much light on the question what evidence if any it was necessary in such case to give of the original, but it seems that whereas judicial notice would be taken of the existence, authenticity and custody of those of wide public importance, such as the journals of the Houses of Parliament or the books of the Bank of England, and especially of such as were recorded and kept in pursuance of statutory provisions, such as land- tax assessments, some evidence would be necessary on these points with regard to documents of less notoriety, such as the rolls of a manor court {c) . In cases of the latter description the witness who proved the examined copy or some other person would ordinarily give some e\ddence to verify the original document. In order to put the admissibility of copies of public documents on a clearer and more settled footing Lord Brougham's Act, 14 & 15 Vict. c. 99, by sect. 14 enacted that — . WHenever any book or other document is of such a j^nblic nature as to be admissible in evidence on its mere production from the proper custody, and no statute exists which renders its contents provable by means of a copy, any copy thereof or extract therefrom shall bo admissible in evidence in any court of justice or before any person now or hereafter having by law or by consent of parties authority to hear, receive and examine evidence, pro'sdded it be proved to be an examined copy or extract, or provided it purport to be signed and certified as a true copy or extract by the officer to whose custody the original is intrusted, and which officer is hereby required to furnish such certified copy or extract to any person applying at a reasonable time for the same, upon payment of a reasonable sum for the same, not exceeding fourpence for every folio of ninety words. The section does not define what is intended by the words {d) Lynch v. Clcrke (1695) 3 Salk. 154 ; Rccd v. Lamb (1800) 29 L. J. Ex. 462. {e) See p. 307, and cp. p. 17. W. U 290 ADDUCTION OF EVIDENCE. Part lY. " of such a public nature as to be admissible in evidence on its mere production from the proper custody." It has been held that the parish registers of baptisms, marriages and burials which have been kept in pursuance of canon and statute law answer this description (/), but it seems doubtful whether it would be held to comprise the rolls of manor courts or the books of old corporations, or any others which ordinarily require some verification as aforesaid. Before this general act several statutes had enacted pro- visions with regard to the proof of particular public docu- ments by means of certified and other copies, but in con- sequence of the omission of any provisions dispensing with the proof of the genuineness of such copies, the beneficial effect of the enactments was much diminished. In order to remove this inconvenience the statute 8 & 9 Vict. c. 113, by sect. 1, enacted that — Whenever by any act now in force or hereafter to be in force any certificate, official or public document, or document or proceeding of any corporation or joint stock or other company, or any certified copy of any document, bye-law, entry in any register or other book or of any other proceeding, shall be receivable in evidence of any particular in any court of j ustice, or before any legal tribunal or either house of parliament or any committee of either house, or in any judicial pro- ceeding, the same shall respectively be admitted in evidence, provided they respectively purport to be sealed or impressed with a stamp, or sealed and signed, or signed alone, as required, or impressed with a stamp and signed, as directed by the respective acts made or to be hereafter made, without any proof of the seal or stamp, where a seal or stamp is necessarj^, or of the signature or of the official character of the i^erson appearing to have signed the same, and without any further proof thereof in every case in which the original record could have been received in evidence. The general result of these two statutes therefore seems to be this, that save where some special statutory provision exists as to the mode of proof of a public document, the (/) Re BalVn Estate (18.52) 22 L. J. Ch. 177; Re Porter's Triists (1856) 25 L. J. Ch. 688. Chap. VII. PUBLIC DOCUMENTS. 291 proof of an examined copy, or the more production in court of a cojiy purporting to be certified by a person pur^iorting to have the due custody of the original, will be sufficient prlimi facie proof of a public document, exce[)t in the cases where verification of the original was necessary by the common law before an examined copy could be given in evidence. There are certain other kinds of copies, which are chiefly used for the j)roof of judicial proceedings, knoAvn as office copies {g) and exemplifications (//). They are official copies, of somewhat different form, issued from the offices of a court of justice and authenticated by the seal of the office, of which judicial notice is taken (/). Some of the public documents in most frequent use for purposes of evidence are set forth in Appendix A. It is necessary, in referring to it, to bear in mind the Observations on page 293. (g) See "Judicial Proceedings," pp. 302, 303. (A) See "Succession," p. 309. (i) See p. 16. u2 ( 292 ) APPENDIX A. PUBLIC DOCUMENTS - . - - 294—310 APPENDIX B. FOEMS 311—315 ( 293 ) OBSERVATIONS For use of Appendix A. 1. lu the first column of the Appendix no reference has been made to the statutes 8 & 9 Yict. c. 113, s. 1, and 14 & 15 Vict. c. 99, s. 14. The eases in which these provisions are brought into play are stated in the last chapter. 2. In the third column the words " copy," " office copy," " certified copy," " authorized," " signed," " sealed," " stamped," " printed," " published," &c., &c., &c., must be read as if the words " purporting to be " were in each case inserted before them. No evidence, nor anything but the production of the copy or other document specified, is re- quired except where it is so stated. 3. In the same column wherever the words " examined copy," " verified," " proved," &c., &c., are used, evidence will be necessary accordingly. 294 APPENDIX A. A( "A p o O ft 1-^ PQ P grt ^ tc a 0) 3 P< n3 a> ^ o3 15 O d S a memor gned by wledgme O ."*^ 2'^'d ^^-g^ o PI t» p TS O rj O O =(-H 03 -^ O) 2-J3 -S ^ t*i O rj _ pj^^^iS oj ^ S f- t>i C3 cS 53 ■^'^^Soj^'^ N PhA2 03 S t(ra 0) n3 n S 0) 5 o3 o « r1 O O 01 o u I, o ," % a s fe IK ^ rt m ^ .S 03 JH 03 o ■T3 6 P •^ (3 be 03 03 13 ^ i 03 bo o S 03 S >» § 03 N! O 03 OJ a d C5 o 1 00 d o n o d _o OS o 1 a a <4H o > c3 • ai i-l d 3 o ^ o 03 d Ph ft ^r^ T3 a ft P- i +-1 oj ej 03 cStJ t>.d d • 1-1 OS (A e Co |5 bfi-O ■so ^v ^IS ?2 if, o < d d - " • rrT ^ 03^ Ho M '^ O -^ 03 -4^ CO d^ ^1« OS -ri o J> o . Q ^ c "! C -^ of> t>-y 0 05 o C-l (M CO IM (N CO — 1 lO >l « OS 00 h fH ic a O ^ ♦* ■§ ^'> S -^ i ■s ^ 1 n PUBLIC DOCUMENTS. 296 1^ "^ ■"^•5.1"" rc? _; -^ S^ TS tar f- •- . t>->^3ja -^ rs Sea 3^ - ^ o . ° d £ o „ o t...rd (5 ^ •^^'E.I'S ^ ^ ^^11 ^s^es-i P-. '^ S m _b ., i« - s ^ it m-? S'^2 ce. og od ?>« td'^i*3 f ;3 S 03-^ ^l^^'^-^ o§ »g :-| II 1^5° i| 1^ o o 1^|^|3 1^ 1^2 1:1 2 l| .s^-sll •S-^fesS^d-" 'TS'^ cp-sphO'3 ddt--'^ ^ ^ 6 ^ -Wi-^^ II cr -- ^ ^ c^£'o^^ «6s; S- A S v55 _^,"M^-Mw ^. £>> ^8S ,; 2-73 ^Sq "13 s- ° " o d;S S "Erg ®.S ■'•5 d -e r^ a) 2 a &* S >, aid)-" a'T3-,S-*^ d :s^g "'^'s d '^^ O ^ S3 •43 c;r^ ^^'TJ i ts rt ^ S-2 1= s s 9 •* • rH ion the n ; a d •2 ^'^1 01 i3 aj .00 c-STc b ^ ^ ^ o p ... — , J— ■* ■* CQ 00 296 APPENDIX A. j^ •'J ra oj tc fe " S . £ -Q s-' •" -^ -^ fcc o '?> -a — >, cu •'- o aj o J5 OS fl rC O > 5 S 5-^ S ^H O 2 .^ -. 0) tH 1 t^ br r! > 'be 1 be .a P! 'a! > 'be O) P, cs O (H -ti a .i:1 I— I OS CO j= PI =+-! Pi O) ;-i rP U " Fi CO ^ 11 m ^ d PI ft Pi u 00 U=s ^ H H s OS .9 ^ n3 d ^ ,£ Tl M a ■? d o3 (D a c3 n 03 03^ d P< CO CO CO d t^ J, c^ c<: CO CO rt Hi .B K 1 1 H ^ Ol s^ ^ 02 P •tJ ; ) s P ■n B M t-1 pq P Ph • fC =2 CO ^ • ^ oc^ P^ Q . CO "J lo" i-H CO 00 g -I ^ ^ s 00 000 ^ d " f^ ^ « ^• -8 Boards 7 Vict. 8 Vict. 1 Vict. ' rt ^ IM M Church 70th C 52 Geo J. C Be For L.J ■Sets B § ■» 1:^ ri OJ ,—1 ^--c. 1. ^ ^ ia. 3 :c^ •-rl. n OQ PUBLIC DOCUMENTS. 297 -^ o 3^ a a 3 o ID Crt 53 -2:73 6 01 I 64-1 E-. R 3 s^ fi ^3 „ " a ^ o^ SI'S S ^ ° 3 o fl 00 CS rt = , ^ m' ® a -0^0 cc o H ^ Ji o o ?? „ Ti, o o *« >> §§^^ o ^xi' — ■■^.2 S t" •d o O 'o el 'o g o ■C -f 'C ig ci ^, o . o 1-1 9 u o S g< X rQ 03 _c ->J -M O a m >, ^ cu "V -1 CC ^ ^T^ t^ P.^ n c; S t*>>. !^ "^ P ,0 cS 11 -u -5 ^ ID M 00 —4 u -2.9 is §2 H "- ° a E ^ u =3 .'£ '" '3> „ QJ (D (-1 rrt -P « ifi . P P>% § be ft rt3 -S M ^ "'Soft -e P<3 . d bC' « pt •S C,^ o 00 -^ -4J CJ P Oj "J- 13 C ID O 01 S P O rS ^ es (= ^ g a p-'??'^ IH C OJ hn S'o'^ .9 ID ^ vn o fetW +i o o .S o P ftf CD O) _r 03 . CO C^ C5 O (D o S^ bo - p " s- ^ H o 2 " Is 2rP rP m «*H 03 fci o g oj O ft-p oj O O P o ftO^ « CS ^2 J Ph-S ■^^ a CO *-• 't< =4H O O "a 3 (- '?0 O -, a o 03 o F bers, oftice ange ril Oi cu 9 i-^" document fi office for th ock compani tides of assc a?.^ apital f regis of ai O O r^ p '53 -IJ 'TIS -s g i ci a a S -e . ms of ered at n of joi nduma increa f situa mpany a" fe^.2 g O Q -a The t regi trat memo o o fl a O P^^ a a , o a ■'B o-^ ill ft o ° a § a •j3 a> =« 0.2 . S a^ •^■TS £• ft o '73 =<-i 03 bD. " a ^ O r- aJ _ C So; w OJ H t*^03ap*iaiajo3. ft ft Ph-C «1H Ph fH it3 ^ o o cu aj o ^j O O ^H tH O O ^ s ^ ^ P^ •«<> ^ Hi 1 M CO CI Ci . o ■ . "*■ CO CO ■H - ^ s -^ . < ctT SS'S^-'^I CO . . SO s^^ tn d " " «^ o, 1,^- ^ > ;r IT" -^ CO En . f> p- 5; CO _^ r-l CO 5 d- t> . a £ 40 & 4 42 & 4 case Oakes 2H o >> > ■^ ■* IC rt r-H aa oo o PUBLIC DOCUMENTS. 299 0) O >H ,»H .2 *; -s ^ S, » ■?„ tj 01 0) =0 ^■s.ai s is ^-Si ■^ S^^ 8 , -C ^ o -i^ o S >-.'*-'=« v^^,Q 2 ti o p:^ s § « " ?n S ^ ^ TJ ?P as !^ O ^ -tj aj , - oj ^ t, _Z t>~, ^^ i^ o "S <- <^ I' c -S -S c; H ,^ ^ ^ (H C,H ^ OC bo O o ^ 1^ ■» ^ . I >H tH Cj (U O © -rt « "^ a-S -►^ » o 3=t^; f-^ r. 1 =4H ^ ra - t; s io ^ J Put CS g o s j-s ^ O ~ '-' "-^ . - in o be ^ £,=: 'JS o P> cS ^ ri *-! o ft .s bb ■r. o P.53 U =t-l P< O (-1 o ■£ p 3 hh g <" ■^ 0) at 1^ n ,f ^ &( 53 ^ ir; SB d &, O -y „ o bL^ a f^ a r-1 a rt 5! M Ph •T) o 3 bo a Tr, « ? r-l .2 1* i ' i« U 0) O '73 -S 4) CS '9. a ^"^g «• C,o .■ r^ a .£ 3 -" <« t*,"* j; X a ^ « c8 a o, S 3 bcS ?* .2 -^ « *3 cc! a ^ . o ?? 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SJ 3 „ rrj fq o ec pq /- 302 APPENDIX A. 0, 3 ^^ a » rrJrC ®.2 o „, n, o o n CD - «^ J O) 54H 9 .i:% ®'bo . 5 ^ y o oi 6 g S o bo ^ S P r^ "-• ^rJ= ^P Ot3 btrt-a P o a o^ g 't-l 't-i rr} (O '^ & 9. S O 3 03 (D -t^ +J S S 3 g ^.s f^-g s .9 bo-+H bo a o o oj f- O (U ^ 02 ° bo o o (n o r, pLi o «« ^ ^ ^ S .S^ o I « ^"^ a o be o , S^ a o • ^ O ^ +^ g 03 "S ^■3^u:r 3 8 a^ S ^' 0)0^ . U ^ C3 O Z) ft-' CD " ^ 03 •9 ^ ^-^ n3 O 03 1> .9W^^; ■^ m 0) cS ■ -.h -*^ . r^ fi 5 &■ "02 ) c3 o i 'o o 'Ifi bo . O) rS 0) — O) t^ ai^« o CO o ' be o ,v2 'g.2 03 S a "^ 1 - ^4 >, 03 orders, judg returns thereto roceedings ia o the court. ff3 -J CTl PI ^- .'^^'S f^rd mmonses cutions a all other uing out •e 60 'I and con son chai nee. bb [aints, 8U ments, exe fines, and process iss ^o ;!h •g Ph O Ph W bo " ■0 ^ 3 - ■9 PhO O o <=' ^-^ OO O "= CO CO -e °^ L^ 05 fr" fl . K o t> 03 o O.O n-1 ^-i 2 'i p4 '*' =^ ir. PUBLIC DOCUMENTS. 303 .3*3 £ § Is S . •Ji< CC -i-s 00 S S ^ So ^-2 £ S a - * ■ 5c -73 •r* t." t; S > o >> " -5 .S 3 "S :g "o . 2 (^ i^.a cc fe fl § « " - 2 X 5 n 9 5. a =s OS gg 2 w ^ -a o ^ Cr -i^ a •" ^^ fl 2 o 0) -ti o ^.2 ,i! <= 4S §6 III •S I: >- B «* 2 s a5 a *- S ^ 4; ^ bt *' ■: a ^- £ n ^ o a^ « ^ £.2 « Ph o -^ ^S « 5, 2 kTT -S ''-' •.S X s^ O cS « o X tJ -" i^ "3 9"^ a o .p to it a to ^ tt S-t? o 9- !y ^ 'S ? '■t p. a> o *3 tt ^ t- X S o i -r £ a ^ o S a S -^ 'U (< tH 0) S ft &: S ^ 2 ^ ^ a o S ty Orfl. ^56 2 n i g ° o c i h t :i-e t: i tt^ -^ - n o i '*- 2 fc! a.' rC C o „ „ o o o •= F.2.9 £t3 O C .£> O (4 -»J O ' ^J P<^ ^ l«^r« o 2" Si's .a CI ., P-h -S.a :;3'd is -tj ^ ^ X o p-^-c +3 p s ^ o 'd -i^ !* P,o a P J^ g.as5 >0 ,!j< o "^ ^ ►, > . iO" M M 0) to < . Si C a J fd !» c3 _r ngland 1837. f 1G03. fate (18 7. Engla to ri r Jews 1837. 86, 88. «*--^ a ^ ja-d (i Churc accor Qual< 1 Ma & 7 Vi O;^"-^ rt a *^^ 1— 1 a ^ 1. h- 1 (« c^ .a (£ ^ O . -«' u .. to ^'?3 .3 • . - *J t^.—J CO a f; r:3 OJ •2 bfr^ a CD 304 APPENDIX A. ^^S^ ^ P^ eS 5? Td"^ 5 E; 3 O o -g oq oiTi 'S'^ « « i ^ ° . 2 g § g 'S b ^ a ^s -s ., .1 o^^t, § So O r;5 fl S O <1> O a a g o g cs -2 -^ &*.2 c "^ 2 o 2 '^ o S ^ -t? 'oi -*^ ° O tc =« w Cl ^ -1-3 •r- O c3 .a o °5 r^ .2 d ,1, s-i o -^ bc-g "§ -^ o . - > o o bo "^^1 ^ c S -^ bo 5" s .-2 ,^ OJ 0) 3 5^ li > M m (C <5 a] «« 0) a) =H U -^ -*^ r-* 03 O r" 00 'be 9 '^ rS 0) 2 a) ^ >H sg --a -3 o o "-p^g d ft" 2 O 2 aj -^ .a o^ g, •^ u ° o s^ O oj " g 60 o g ^''■bo 2 "§P^2:3 ■ nd e3.■ ?? 2 t« S •bi, s s > CD i» 5 tH illit 03,2 a g § «i-i.2 * ft ft => bp^ ^ S -8 S a g ^ cjH bo §3 S ft^ t-l ft 2 ft c3 d y '-M 2 ? ^ >* o o .2q^ S bD;;^ 3 '-' d ft 00 ^ "d ^ ^ S CO ® (C CO fe d ft.Stg d ;s bO bo .2 g d '^ o) 2 S-^ d o3 o 5 2 '^ ;5 i^' d ^ O ^ "'. a yr S bp O ?' VJ 00 ,_^ 2 o ^ "S ^ +j -tj '73 d p ft a> 0) ;3 ^ 'fl-tt.S ■^'ft ' 03 fc< „ (D =(H 03 5 o ft S rt o o3 2 53 H ^ • CO ho 03 o "o 03 £ '^ ^ '^ rA d "^ Ol O OQ bpO;^ S r-H .-I h 03 g S.2 3 a^ CO .2 ce 03 Ph o CO tj cc CO 03 05 d . .2 u d n" CO ^3"" -4^ bo d ^^ t^ r a >o (A Tj< Z PUBLIC DOCUMENTS. 305 j3 (U « r *^ -> OK 2-S cS bo . O 4 tX3 §3 'bb"^ S rii © m m us « -^ _bc.o _2 ti "o ^ -S S5 rt a) (D O rrl _h .a -i? J ri o t, top 3 iJ s c ^ *: CM ri o o 2o C'^'^ p4 •S ct" a S 9 •iZj o a a tc f^ !^ P-l o *> ^ -„,- S f^ a cS o2 c^ cd Pi m rj m * O O Sis a ^S^ 2 ?! ^ =* ^ S S cS '^^ ?i a ft. a tj *^'-+-( -" o3 o 'ji O 9 o a a » •-I C-i a,n . a be o o I ° _^ a ^ 3 _^ o «i o *« o ■tS S aj a „ -gtw s a o S^ =" i.2'S-g a OJ ^ ;< ■ JS yj C3 " j-jt^S^aoga^sEg^p ft-43 a +3 ^ a a -^^ O be >^ a r-< "*:i rQ ^ S3 ents c r not ing w Rules s aut <4H o § -S °ra •" 9 -^^^-4 n ■ r^ ■^ 3 .^ a 2 t^ 'be rtr^ g a; J3 . es So ft => ;iH ^ o-g a-^ o o -a d ^ o ^ cits a o o o 3 fl .3 o CO El ft =;. tn rj " sh >a a S.4H.2.2 C O xi I? a ° c w Core a. «5 r. CO ^ CO CO 00 oo >- '3.2 tW a o5 - 03 oo >0 •* =5 00 00 306 APPENDIX A. ^ a -U 'T3 O S "i fH ^»> " S-2 ® ® *^ nd r K S^ 2 S g . w -iJ o '^ § « J t S ? S a Oj > ciS > c3 P 2-2 a o c« a-ri g fl e3 o (D .3 =4H ■B^ °'^ o -go «3 g ^ fl o ^ bD=*H gf B 0.2 >> rt s -2 o =t-i 60° o ft pi o o 03 JP 2'^ o3 ^03ft .9 ^ a a 03 ^ a 03 I ll fM f si ^"a' -^1 .9 ^ a § i i 8 1 y OQ ^ ft.a :a O r§.2 O rt 3 ^ 0. , lO 1— I o 6 6 -t^ . o _o _o f> t^ 1-1 o"^ rt to "'" O VO rH PUBLIC DOCUMENTS. 307 firs tc;s-s a. a ™ j3 to .3 s •c 3 cj PhIs PL, cc: 'C S el's ^ ?n •r:l 2 ? ^ o a> O cs ^ S © ? p 5 bo b fl <" © «4H ^ o m fin tn d fi i3 rr! 0) a 1. :i 0) of ^ P4 H I o O , CJ O Pi S . ■-3 ■" ^ CJ £1 s t bo .a 13 »■- rH O ® --J .2 S^-s 3 f-G g 00 " 5. i.ti'S s ^ o C tecs' 3; O o o ai -tJ O (!) O ell's O "73 -»J +> -t-> UtM ca C5 ^Ti -1-2 <^ o ■^ ^ m tS ■* rt 1^. .^. . %t >■ CD > t^ O O --H rt 1—1 '^ x2 .3 . -O r-l •r^ o ^ ■* . S 2 .'^ ■-H old la > (0 •o k o u o K 308 APPENDIX A. tn ■3 k ?. l-l o t3 1) o o 1 o ?n -M T) r« r1 (U s o o cd O 3 c3 CD be o fl be n o ^ ■= o p o m o t3 o CD si > rQ & ^ ci ^.^ -s ^. !-i n3 n nn 4^ -a o Tn P Irt o =1-1 o h(i ~ i be a u a Ph o p u 11 5 P-4 c3 'be (D eg ^ o rd bi: r£_ S o CQ .s 'fir 'S* ^ rd ^ O O O •? cj o o dp* ai B i^ -^'p'5 ^ K _0 4- ^ P •a "s ■-§ p ? 'O S 2 ^ _d -i^ ,P S ;P h "o .2 f^ S "S rP o S.-.2 ^'Sl -t^ o _P O o ^ =^ o tH OJ ; Jj P-i a O '•*-< o . *i< o3 O CO O «« t -» a) (D " S P o O (B CD _^ o 't ™,S p ^ 7 p:gO ^a ^ 's-.s p^i S 52 bD ^ _ ^ ^ '^ P o ^ •S V 01 a; T-- P-i t< I cj ^ ,-1 ^ P.O ^ . 09 ;> c« p^ lO a <*J ■■■ £ ■o (0 >l S si 5 t C w w ^ o *^ ■H O ;:^ (U ■^ *' CO CO _ CI t* -l-i OCO '^ O 4J CO 00 -^ (A PUBLIC DOCUMENTS. 309 s a ^S' < «< o. O a P m .-! O ao I r-; a a S •2 >, O rj O 2-a •43 o t! -" "^ ® fl ^ P-l-M .2 § .2 5fi •I ■J3 53 jS ^ o S ■a '^ +3 ^^ 5S p^l^-- fl -a fl =J « p'o-^ s.2ii &'£'^ 'S'" t^a'*'"> x-a,S o n '5:< 2 -- .3 n a,-a fl -9 fl 3 t* o , O B rt > « a 2 9 it) o "^ -s ^ Oh 1^ O O cfj ^j _, r- S !h -n t,, P-.->P, t >>:s-'cJ ,n '*?~ .a cj a d ■^ S 1 a 9 t- =* 3 f^t>> Pn^.rt ^ . oj ra 60 a >. c3 a ..-fe- a i a 9n by will r including' r h adininistrati e will annexed Pc« tf-C to g CO -2 Disposit (wlieth of whi with tl a 02 0) ■ii o 03 rt (D CO K . ( 310 ) NOTES TO APPENDIX OF PUBLIC DOCUMENTS. 1 . Baptisms. — It is not clear whether an entry in the register of the date or place of birth or of the fact of illegitimacy is or is not admissible. Against its admissibility are — Wihcn v. Laio (1821) 3 St. 63, R. V. N. Petherton (1826) 5 B. & C. 508, R. v. Clapham (1829)4 0. & P. 29, and Burghart v. Ancjerstein (1834) 6 C. & P. 690 ; for it are— Cope v. Cojie (1833) 1 M. & E. 269, Morris v. Davies therein cited, and Re Turner, Glriiister v. Harding (1885) 29 Ch. D. 985. 2. Registers in Registry of Diocese. — It is not clear whether the official copy of the parish register (whether of baptisms, mar- riages or burials) deposited in the registry is to be deemed an original public document so as to render it or copies of it admis- sible without proof of loss or destruction of the original parish register. Walker v. Beauchamp (1834) 6 0. & P. 552. 3. Births.— It was held in R. v. Wintle (1870) 9 Eq. 373, that the register of births was not evidence of the date, only of the fact, of the birth. This seems erroneous ; see per Erie, J., in Doe V. Andreivs (1850) 15 Q. B. 756 at p. 759, and the scheduled form of entry in the register. The entry is only evidence of the place of birth when this fact is entered by the express order of the registrar-general. See 7 WiU. 4 & 1 Vict. c. 22, s. 8. 4. Certificate of Clerk to Charity. — If the copy is certified by the chief clerk, the absence of the secretary, which is a condition precedent to his so certifying, will be presumed. Baker v. Cave (1857) 1 H. & N. 674. 5. Tithe Apportionment. — In Wilberforce v. Hearfield it was held that a tithe map was not evidence of boundaries. But queer e whether the same considerations do not apply here as in the case of land tax assessments. 6. Enrolments. — It is not clear that the prescribed proof of enrolment covers also the due execution of the deed ; but the balance of authority seems in favour of that view. 7. Judicial Proceedings. — Semhle that where it is sought to jjrove a previous proceeding of the same court, the minute-books of the court, without any formal record, are sufiicient evidence. See R. V. Tooke (1794) 25 St. Tr. 447, R. v. Hutchins (1880) 5 Q. B. D. 353. 8. Will of Realty. — Where no such notice is given, and in all cases where the will relates to realty alone, it must be proved by or through the attesting witnesses, as stated at pp. 264 — 266, 311 ) APPENDIX B. FOEMS. No. 1. Notice to Admit Facts. [Title of Act ion.'] Take notice that the plaintiff [or defendant] in this cause requires the defendant [or plaintiff] to admit, for the purposes of this cause only, the several facts respectively hereunder specified ; and the defendant [or plain- tiff] is hereby required, within six days from the service of this notice, to admit the said several facts, saving all just exceptions to the admissibility of such facts as evidence in this cause. Dated, &c. G.D., solicitor [or agent] for the plaintiff [or defendant]. To E.F., solicitor [or agent] for the defendant [or plaintiff]. The facts, the admission of which is required, are — 1. That John Smith died on the 1st of January, 1870. 2. That he died intestate. 3. That James Smith was liis only lawful son. 4. That Julius Smith died on the 1st of April, 1876. 5. That Julius Smith never was married. No. 2. Admission of Facts, pursuant to Notice. [Title of Action.'] The defendant [or plaintiff] in this cause, for the purposes of this cause only, hereby admits the several facts respectively hereimder specified, subject to the qualifications or limitations, if any, hereunder specified, saving all just exceptions to tlic admissibility of any such facts, or any of them, as evidence in this cause. Provided that this admission is made for the purposes of this action only, and is not an admission to be used against the defendant [or plaintiff] oa 312 APPENDIX B. any other occasion, or by anyone other than the plaintiff [or defendant, or party requiring the admission]. Delivered, &c. E.F. , solicitor [or agent] for the defendant [or plaintifiE]. To G.H., solicitor [or agent] for the plaintiff [or defendant]. Facts admitted. Qualifications or Limitations, if any, subject to which they are adioitted. 1. That John Smith died on the 1st of January, 1870. 2. That he died intestate. 3. That James Smith was his lawful son. 4. That Julius Smith died. 6. That Julius Smith never was married. 1. 2. 3. But not that he was his only law- ful son. 4. But not that he died on the 1st of April, 1876. 5. No. 3. Interrogatories. \_Title of Cause or Matter.] Interrogatories on behalf of the above-named [plaintiff, or defendant CB.] for the examination of the above-named [defendants E.F, and G.H., or plaintiff]. 1. Did not, &c. 2. Has not, &c. &c. &c. &c. [The defendant E.F. is required to ansivcr the interrogatories numbered .] [The defendant G.H. is required to ansicer the interrogatories numbered .] No. 4. Answer to Interrogatories. [Title of Cause or Matter.] The answer of the above-named defendant E.F. to the interrogatories for his examination by the above-named plaintiff. In answer to the said interrogatories, I, the above-named E.F., make oath 9,nd say as follows : — Sworn, &c. FORMS. 313 No. 5, Notice to Produce Socuments at the Trial. [Title.^ Take notice that you are hereby required to produce and show to the Court on the trial of this all books, papers, letters, copies of letters, and other writings and documents in your custody, possession, or power, containing any entry, memorandum, or minute relating to the matters in question in this , and particularly ^/lere describe the particular docu- ments']. Dated the day of , 18 . To the above-named \ I (Signed) , of , i agent for , solicitor h solicitor or agent . ) for the above-named No. G. Affidavit as to Documents. [Title of Cause or Matter.] I, the above-named defendant CD., make oath and say as follows : — 1 . I have in my possession or power the documents relating to the matters in question in this suit set forth in the first and second parts of the first schedule hereto. 2. I object to produce the said documents set forth in the second part of the said first schedule hereto. '6. That yicre state upon what grounds the objection is made, and verify the facts as far as may he]. 4. I have had, but have not now, in my possession or power the docu- ments relating to the matters in question in this suit set forth in the second schedule hereto. 5. The last-mentioned documents were last in my possession or power on \state ivhoi]. 6. That \Jiere state what has become of the last-mentioned documents and in whose possession they now are]. 7. According to the best of my knowledge, information, and belief, I have not now, and never had in my possession, custody, or power, or in the pos- session, custody, or power of my solicitors or agents, solicitor or agent, or in the possession, custody or power of any other persons or person on my behalf, any deed, account, book of account, voucher, receipt, letter, memorandum, paper, or writing, or any copy of or extract from any such document, or any other document whatsoever, relating to the matters in question in this smt, or any of them, or wherein any entry has been made relative to such matters, or any of them, other than and except the documents set forth in the said first and second schedules hereto. No. 7. Notice to produce Documents for Inspection under Order XXXI. [Title of Cause or Matter.] Take notice that the [plaintiff or defendant] requires you to produce for his inspection the following documents referred to in your [statement of claim, or defence, or affidavit, dated the day of a.d. ]. [Describe documents required.] X.Y., Solicitor to the To Z., Solicitor for 314 APPENDIX B. No. 8. Notice to inspect Documents under Order XXXI. [Title of Cause or Matter.'] Tako notice that you can inspect the documents mentioned in your notice of the day of a.d. [except the deed numbered in that notice'] at [insert place of inspection] on Thursday next the instant between the hours of 12 and 4 o'clock. Or, that the [plaintiff or difcndanl'] ohjects to giving you inspection of the documents mentioned in your notice of the day of a.d. , on the ground that [state the ground] : — No. 9. Notice to admit Documents. [Title.] Take notice that the plaintiff [or defendant] in this cause proposes to adduce in evidence the several documents hereunder specified, and that the same may be inspected by the defendant [or plaintiff], his solicitor or agent, at , on , between the hours of ; and the defendant [or plaintiff] is hereby required, within forty-eight hours from the last-men- tioned hour, to admit that such of the said documents as are specified to bo originals were respectively written, signed, or executed, as they purport respectively to have been ; that such as are specified as copies are true coi^ies ; and such documents as are stated to have been served, sent, or delivered, were so served, sent, or delivered respectively ; saving all just exceptions to the admissibility of all such documents as evidence in this cause. Dated, &c. (Signed) G.H., solicitor [or agent] for plaintiff [or defendant]. To E.F., solicitor [or agent] for defendant [or plaintiff]. \llere describe the documents, the manner of doing ivhich may be as follows : — ] Oeiginals. I Description of Documents. Deed of covenant between A.B. and CD. first part, and E.F. second part Indenture of lease from A.B. to CD Indenture of release between A.B. and CD. first part, &c Letter — defendant to plaintiff Policy of insurance on goods by ship " Isabella," on voyage from Oporto to London Memorandum of agreement between CD., captain of said ship, and E.F Bill of exchange for £100 at three months, drawn by A.B. on and accepted by CD., indorsed by E.F. and G.H Dates. January 1, 1888. Febmary 1, 1888. February 2, 1878. March 1, 1878. December 3, 1877. January 1, 1848, May 1, 1849. FORMS. Copies. 315 Description of Documents. Register of baptism of A.B. in the parish of X. Letter — plaintiff to defendant Notice to produce papers .... Record of a judgment of the Court of Queen's Bench in an action, F.S. v. F.X. Letters patent of King Charles II. in the Rolls Chapel. Dates. January 1, 1848. February 1, 1888 March 1, 1888 .. Trinity Term, 10th Vict. January 1, 1680. Oripinil or Duplicate son'cd, sent, or delivered, when, how, and by whom. Sent by General Post, February 2, 1888. Served March 2, 1888, on defendant's attorney byE.F. of INDEX. Absence for seven years, presumption from, 33, 34. Access, direct evidence of husband and wife as to, excluded, 202, 203. Accessory, not incompetent, 86. Accomplice, confession of, does not bind others, 112, 116 — 118. not incompetent, 86. requires corroboration, 242. Account books as j^rj'ma /aci'e evidence, 192 — 194. Acknowledgment, admissions, distinguished from, 101 ; and S03 p. viii. declarations against interest, as, 135, 136. maiTied woman, of, 294. Acquiescence, an admission, when, 104, IOj. Act of Parliament. See Statute. Acts, declarations accompanying, 61, 149 — 152. Adduction, evidence, of, 11, 12, 217--291. documents, of, 245 — 291. oral evidence, of, 217 — 235. Administration, letters of, 309. Admission, accomplice, by, not binding on others, 112, 116 — 118. acquiescence in statement of another, by, 104, 105. agents, by, 113, 116. « acknowledgment compared with, 101. beneficiary, by, 120, 121. bills of exchange, by parties to, 119, 121, 122. capacity, of, implied, 103, 104. cestui que trust, by, 120, 121. circumstantial, 43, 108. claim is unfounded, that, 107, 108. conduct, by, 43, 102—108. confession, when called, 102. 318 INDEX. Admission — contht ued. consijirators, by, 113, 116 — 118. counsel, by, 118, 119. criminal trials, not to be made in, 119. debiting a i:)erson, by, 104. document, made orally as to contents of, 108, 109. document, by referring to, 103, 112. express, 102. form of, 102—108. guardian, by, 120. hearsay, of matters of, 108, 109. husband, when party, by, 120. implied, 1021—08. interrogatories, in answer to, 101, 123, 124. joint contractor, by, 116. joint offender, by, 112, 116—118. letter, by not answering, 105 — 107. next friend, by, 120. nominal party, by, 119, 120. notice to admit facts, in answer to, 101, 124. office, of, implied, 103, 104. partners, by, 116. person referred to, by, 112. pleadings, in, 101. predecessor in title, by, 121, 123. prisoner, by, not binding on joint offender, 112, 117. privileged, 208—216. referee, by, 112. representative party, by, 119, 120. solicitor, by, 118, 119. survey, admissible as, 175. trustee in bankruptcy, by, 120. trustee party, by, 119, 120. whole, must be taken together, 109 — 112. witness-box, made in, 101. Adultery, cori'oboration of, 242. evidence of character in proceedings for, 58. evidence of husband or wife as to, 203, 204. Adverse witness, 222, 223. Affidavit, evidence on, 191 — 194. proof of, 302. Affiliation proceedings, corroboration in, 243. Affirmation of Witness, 92 — 94. Agent, ji admission by, 113 — 116. | or trustee party, admission by, 119 — 120. t Agreement, collateral, 74, 75. custom incorporated in, 73, 74. - excludes oral evidence, when, 68, 69. a Btamp, when requires, 272, 273. ■ INDEX. 819 A-UCIENT documents, 24G, 256, 2GS— 271. rights, proof of, 173. Apothecaries, 304. Appoij;tments to public offices, judicially noticed, 18, 19. And see Offices. Arrangement, deed of, 294. Attestation, presumption as to, 287. Attesting AVitnesses, 255, 264 — 266. cliaracter of, 255, 250. liandwi'itiug of, 256, 265, 266. refreshing memory of, 255, 265. Awards, 36, 177. And sco Tndosure Awards. Bankers' Books, 294. Bankruptcy, proof of proceedings in, 294, 295. tnistee in, admission by, 119, 120. Baptism:, certificate of, 295. Beginning, Obligation of, 21 — 24. exception, excuse, exemption, &c., proof of, 22 — 24. pleadings, depends on, 21, 25. Beginning, Eight of, 24 — 27. amendment, altered by, 25. damages, depending on, 24. iuTolves undertaking to give evidence, 26. land, in actions to recover, 26. pleadings, depends on, 25. Beneficiary, admission by, 120, 121. Bigamy, 33, 34. BiEL OF Exchange. See Negotiahh Instriunents. Bill of Sale, proof of, 295. Birth, certificate of, 296. Bishop's Eegistee, 300. Borough Councils, proof of proceedings of, 306. Breach of promise of m^uiriage, competency of parties to action of, 85, 86. corroboration of promise, 243. evidence of cliaracter in action for, 58. Burden of Proof, 13, 16—38. meaning of term, 21. And see Befjinning, obligation of. 320 INDEX. Burial, certificate of, 296. Bye-laws. See Companies and Corporations. CALLma FOR AND usma Document, effect of, 250. Capacity, admission of, 103, 104. Certificates, baptism, 295. birth, 296. burial, 296. death, 299. marriage, 303. Certified Copies, 289 — 291. Cestui que Trust, admission by, 120, 121. Cestui que vie, presumption as to, 33. Character, evidence of, attesting witnesses, of, 255, 256. ii'relevant generally, 4, 49, 55, 56. relevant in certain cases, adultery, 58. defamation, 58. marriage, breach of promise of, 58. prisoner, for, 56, 57. prosecutrix for rape, &c., against, 57, 58. seduction, 58. Charitable Trusts, 297. Chemists, 304. Childhood, as ground of incompetency, 80. Children, unsworn evidence of, 93, 94, 187, 188, 190. Circumstantial Evidence, 4, 42—45, 108. Coal Mine Eules, 297. Collateral Agreement, 74, 75. Communications, between husband and wife, privileged, 204. Companies, 180, 297—299. books, 180, 297, 298. bye-laws, 298. mortgage debentures, 299. proceedings, 297, 298. registration, 297, 298. Comparison of Handwriting, 48, 258, 259. Competency of Witness, 5, 80—89. And see Incompetency. Conclusive Presumption, viii, 28, 29. INDEX. 821 Conduct Eqitivalent to Statements, admission, 43, 102—108. declaration of paramour or mfo as to illegitimacy, lo2, 203, 204. declaration against interest, 138. declaration as to marriage, 154 — 15(3. hearsay generally, 90 — 99. res (liter alios adce, 97, 98. Conduct on other Occasions, admissible to prove intent, 52 — 55. inadmissible to prove commission of act in issue, 4, 49 — 52. save in certain cases, 54, 55. Confession, defined, 102. joint- offender, by, 116 — 118. privileged, 210—216. And see Admission and Prisoner. Conspiracy, evidence of, 113. Conspirator, admission by, 116 — 118. Continuance, presumption as to, 32. Contradiction of Witness, 227, 228, 236—240. Conveyancer, proof of qualification of, 308. Conviction, as act of owner sHp, 42. of witness for indictable offence, 240. proof of, 302. Copy, certified, 289—291. examined, 288, 289. office, 291. proof of, 255, 285, 286. Copyright, 299. Corporations, proof of bye-laws, and proceedings of, 180, 300. And see Companies. Corroborative Evidence, 241—244. Corruption of Witness, evidence of, 237—238. Counsel, admissions of, 118, 119. Counterparts, 279. County Councils, proof of proceedings of, 306. County Court, proof of proceedings of, 302. Criminal Law Amendment Act, coiToboration when required under, 243. unsworn evidence of children under, 93, 94. Criminal Tri^vls, admissions not made in, 119. 822 INDEX. Cross-examination, 98, 99, 225—229. documents, as to, 226, 227, 230, 239, 240. hearsay, as to, 98, 99, 225—227. Cbuelty, children, to. See Prevention of Cruelty, &c. in suit for separation, requires corroboration, 242. Custody, ancient documents, of, 270, 271. Custom, evidence to incorporate, 73, 74. general, judicially noticed, 17. Damages, effect of denying, 24. issue of, eyidence of character when admissible on, 58. Date of Document, 259, 261, 263, 268, 269. Deafness, as ground of incompetency, 81. Death, certificate of, 299. presiimption as to, 32 — 34. Debentures. See Companies, Deceased Persons, claims against estates of, 242. Declarations, 6, 7, 125 — 166. accompanying acts, 149 — 152. acknowledgments amounting to, 135, 136. duty, in course of, 125 — 129. dying, 139—141. health, as to state of, 147, 148. illegitimacy, as to, by wife or paramour, 152, 203, 204. interest, against, 130 — 138. marriage, as to, 153 — 156. pedigree, as to, 158 — 166. public and general rights, as to, 167 — 173. violence, in cases of, 142 — 146. will, by testator as to, 256, 286. Decrees, as a form of reputation, 176, 177. Deeds, See Title Deeds. Deeds of Arrangement, 294. Defamation, evidence of character in actions for, 58. Defendant competent to testify, when, 86 — 89. Defendant's Husband or Wife, competent to testify, when, 86—89. Delivery of Documents, proof of, 261 — 263. Dentists, 304. INDEX. 323 Depositions, 176, 177, 181—190. ancient, 176, 177. cHldi-en, of, 187, 188, 190. civil cases, in, 181 — 186. examiner, taken before, 184, 185. former proceedings, ovidenco in, 181 — 184. perpetuation of testimony, 185. - criminal cases, in, 186 — 190. coroner, taken before, 188. justices, taken before, 186. perpetuation of testimony, 189, 190. Designs, 305. Destruction of Document, 279, 280. drlapidations of buildings of benefice, 300. Direct Evidence, as opposed to cu'cumstantial, 42 — 45. as opposed to hearsay, 5, 43, 79, 80, 94 — 99. Direct Oral Evidence, 5, 79, 80, 94 — 99. Discovery of Documents, 251, 252, 283. Discredit, evidence to, 236 — 240. Disentailing Deed. See Enrolled Deeds. District Boards, 306. Documents, adduction of, 245. admission of, under notice to admit, 267, 268. admission of, impKed from reference, 103, 112. ancient, 246, 256, 268—271. attesting witness, proved by, 255, 264 — 266. calling for, and using, effect of, 250. contents of, oral admission of, 108, 109. cross-examination as to contents of, 226, 227, 230, 239, 240. cross-examination, effect of merely proving in, 230. date of, 259, 261, 263, 268, 269. deliveiy of, 261—263. • dupHcate, 278, 279. erasures in, 259. forgery of, evidence to disprove, 266. fraud in execution of, evidence to disprove, 266. handwriting of, 257-^260. identification of parties to, 259, 266, 269. identification of subject matter of, 70 — 73. interest claimed under, by opponent, 254. interlineations in, 259. intei-pretation of, by evidence, 70 — 74. loss of, 279, 280. notice to produce, 249—252, 283—285. possession of, 285, 286. primary evidence of, 245 — 271. y2 324 INDEX. Documents — continued. private, 245—271, 278—287. prodviction of, 221, 226—228, 245—253. proof of, 245, 246, 253—271. proof of, wlien dispensed with, 254. pubHc, 7, 8, 178—180, 288—291, 293—310. pubUc, adduction of, 245, 288—291. public, as media of proof, 178 — 180. recognizance, obligation to produce, under, 252. reference to, effect of, 103, 112. sealing of, 260, 261. signature of, 257—260. triplicate, 278, 279. Deuggists, 304. Drunkenness, as ground of incompetency, 81. Dumbness, as ground of incompetency, 81. Duplicates, 278, 279. Duration op Life, presumption as to, 32—34. Duty, declarations in course of, 125 — 129. Dying Declarations, 139, 141. Ecclesiastical Matters, proof of, 300. Ejectment, Action of, burden of proof, 26. ownership, acts of, 40 — 42. And see Ownership, Acts of. Enrolled Deeds, 301. Erasures in Documents, 259. Estoppels, distinguished from admissions, 101 ; and see p. viii. Evidence, adduction of, 217. affidavit, on, 191—194. defined, 1. discredit, to, 236—240. discretionary orders as to, 191 — 194. j)rimary, of documents, 245 — 271. relative term, a, 12, 13. reply, in, 27, 220. secondary, of documents, 278 — 287. taken before trial, 181—190. Examination of Witness, 218 — 235. adverse, when, 222, 223. chief, in, 221—225. cross-examination, 225 — 229. hostile, when, 223, 224. judge, by, 221. order of, 219. re-examination, 229, 230. refreshing memory, 231 — 235, 255, 265. voire dire, upon the, 82, 83, 91, 92. i INDEX. 325 Examined Copies, 288, 289. Examiner, evidence taken before, 184, 185. Exception, biu-den of proying matter of, 22 — 24, Execution op Documents, admission of, 267, 268. meaning of, 268. proof of, 253—271. Exemplifications, 291. Exemption, biu-den of pro\ang matter of, 22 — 24. Expert Evidence, 99, 100, 224, 225, 235. Facts in Issue, 2, 3, 21, 24—27, 39, 220. Eabming Leases by Incumbents, 300. EoREiGN Law, 17, 100. EoREiGN States, 20. Former Proceedings, e-v-idonce taken in, 181 — 184. Fraud, evidence of conduct on other occasions admissible to prove, 53. Frauds, Statute of, memorandiun under, 69, 70, 257. Fringe of Case, 13. Gazette, 179. General Eights. See Pullic Bights. Go^t:rnment, Matters of, judicially noticed, 18. And see State, Acts of. Guarantee of Credibility, 6 — 8. And sec the various media of proof. GuABDiAN, admission by, 120. Guaedians, Boards of, proof of proceedings of, 306. Guilty Knowledge or Intent, evidence of conduct on other occasions admissible to prove, 53. Handwriting, attesting witnesses, of, 256, 265, 266. comparison of, 48, 258, 259. expert evidence as to, 100. proof of, 257—260, 204—268. Health, declarations as to state of, 147, 148. 326 INDEX. HeaesAY, 5—8, 94—99, 101—194, 225, 256, 280. admission relating to matters of, 108, 109. conduct equivalent to, 96 — 99. And see Conduct. cross-examination as to, 98, 99, 225 — 227. exceptions to rule against, 101 — ^194. special exceptions in connection Tvith. adduction of documents, 255, 256, 280. High Coukt, practice of, judicially noticed, 18. proof of proceedings in, 302. Hostile Witness, 223, 224. Husband, absence for seven years, 33, 34. access, may not give evidence of, 202, 203. admission, by, wben a partj', 120. adultery, "wben may be examined as to, 203, 204. communications between, and wife, privileged, 204. intercourse, presumption of, 38. of defendant, wben competent to testify, 86 — 89. Identification, of parties to documents, 259, 266, 269. of subject-matter of document, 70 — 73. Illegitimacy, declarations of paramour or wife as to, 152, 203, 204. And see Pedigree, Illness, as ground of incompetency, 81. Inclosuee Awards, 301. Incompetency, from interest, 83 — 89. changes in law as to, 83 — 86. civil cases, in, 86. co-defendant, of, 83—87. co-defendant's husband, of, 83 — 87. co-defendant's wife, of, 83 — 87. criminal cases, in, 86 — 89. defendant, of, 83—89. mental, 80—83. childhood, 80. deafness, 81. dumbness, 81. di'unkenness, 81. illness, 81. insanity, 80. voire dire, examination on, 82, 83. Indecent Assault, evidence of immoral character of prosecutrix for, 57, 58. Indictable Offence, by a witness, when provable, 240. Indictment, proof of proceedings on, 302. INDEX. 327 Infants, presumptions as to, 31, 32. Inferioe Couets, jiu-isdiction and rules of, 18. proof of proceedings in, 302, 303. Innocence, presumption of, 31. Ins-US'ITY, as ground of incompetency, 81. Inspection, of opponent's documents before trial, 251, 252, 283. of opponent's documents during trial, effect of, 250. of property in coiu't, 7G. of proper tj^ out of coui't, before trial, 77, 78. of property out of coui-t, during trial, 77. Intention, conduct on other occasions admissible to prove, 52 — 55. evidence of, generally cii'cimistantial, 44. Interest, claimed by opponent under document, 254. declarations against, 130 — 138. incompetency on the ground of, 5, 83 — 89. Interlineations in Documents, 259. Interpretation of Documents by Evidence, 70, 74. Interrogatories and Answers, 101, 123, 124. Intestacy, proof of succession to personalty on, 309. Issue, 2, 3, 21, 24—27, 39, 220. Joint Contractors, admissions by, 116. Joint Offenders, admissions by, 116 — 118. competent to testify, when, 86, 87. Judge, examination of witness by, 221. functions of, 1, 2. Judgment, act of ownership, as, 42, 177. adduced in evidence, how, 302, 303. reputation, as a form of, 66, 176, 177. res (jesta, as, 42, 66, 177. res inter alios acta, as, 98. Judicial Notice, 13, 16—20. common law, 17. customs, general, 17. divisions of country, 19. facts, of common and certain knowledge, 19, 20. foreign law, not, 19. foreign states, 20. government, matters of, 18. inferior courts, statutoiy jurisdiction and rules of, 18. public offices, appointments to, 19. 328 INDEX. JuDiciAi. Notice— continued. private statutes, not before 1850, unless declared public, 18. public statutes, 17, 18. superior courts, practice of, 18. wars, 20. Judicial Pkoceedings, proof of, 302, 303. Land, Action to Eecovee, biu'den of pi'oof, 26. ownersbip, acts of, 40 — 42. And see Ownership, Ads of. Land Tax Assessments, 303. Latent Ambiguity, 72, 73. Leading Questions, examination in cHef, in, 221 — 222. cross-examination, in, 228. re-examination, in, 229. Lease, as act of ownership, 41. containing reputation, 172. farming, by incumbent, 300. long, by ecclesiastical corporation, 300. Legal Origin, presumption of, 35, 36. Legal Professional Privilege, 197 — 202. Legitimacy, presumption of, 37, 38. And see Illegitimacy. Letter, not answering, effect of, 105 — 107. posting of, 225, 262, 263. post-mark of, 263. Licence, as act of ownership, 41. Life, diu-ation of, 32, 34. Limitations, Statutes of. See AchnoioJedgment. Local Authorities, proof of proceedings of, 307. Log-Book, as declaration in coiu'se of duty, 128, 129. as memorandum to refresh memory, 233. Long Leases by ecclesiastical corporations, 300. Loss of Document, 279, 280. Lost Grant, 35, 36. Manor Court, presentments in, as acts of ownership, 41, 42, 175, 177. presentments in, as reputation, 173 — 175, proof of proceedings in, 307. Map, inclosure award, 301. reputation, as, 173. tithe apjiortionment, 301. And see Survey. INDEX. 329 Marriage, certificate of, 303. declarations as to, 153 — 156. reputation as to, 156, 157. And see Pedigree and Breach of Promise of Marriage. Married Wom^vjs^, acknowledgment of, 294. presumption as to coercion of, 32. And see Wife. Media of Proof, defined, 5—11, 79. discussed, 79 — 216. Medical Practitioners, 304. Medical Eegisters, 304. Memoranduat, to refresh memory, 231 — 235, 255. under statute of frauds, 69, 70, 257. Mortgage Debentures. See Companies. Narrative, 9 — 11, 59 — 75. Negotiable Insteu:mexts, admissions in actions on, 119, 121, 122. indorsements on, 135, 136. presumptions as to, 36, 37. stamping of, 273. New Trial, 14, 15. Newspapers, registration of, 304. Next Friend, admission by, 120. Nominal P^\lity, admission by, 119, 120. Notice to admit documents, 256, 267, 268. admissions under, effect of, 267. copies, 285, 286. criminal cases, not available in, 267. form of, 267, 314. originals, 268. to admit facts, 101, 124, 311. to inspect documents, 251, 252, 283, 314. to produce documents at the trial, civil cases, in, is wi-itten, 249. criminal cases, in, may be oral, 249. foi-m of, 250. notice to produce a, not necessary, 284, 285. non-compliance with, effect of, 250, 283 — 285. object of, 249, 250, 283—285. prosecutor, not applicable to, 249. to produce documents for inspection, 252, 313. 330 INDEX. Oath of witness, 8, 89—94. witness not credible on, 237. Office, appointment to public, judicially noticed, 18, 19. copies, 291. imiDlied admission of, 103, 104. public, presumption as to, 34, 35. Officer. See Office. Omnia Esse Eite Acta, presumption, 35. Onus of Proof. See Beginning, Obligation of. Opinion of Experts, 99, 100, 224, 225, 235. Opposite Party, 283. Oral Evidence, direct. See Direct Oral Evidence. documents, in adduction of, 253 — 266, 285, 286. interpretation of, 66 — 75. Ownership, Acts of, 40 — 42, 175. convictions for non-repair, 42. judgments, 42, 177. leases, 41. licences, 41. perambulations, 41. presentments, 41, 42, 175. repairs, 41. timber cutting, 41. verdicts, 42. Paramour, declarations of, 152, 203. Parcel or no Parcel, 70 — 73. Parish Councils and Meetings, proof of proceedings of, 307. Parliament, Acts of. See Statute, Journals of, 304. Parol Evidence. See Oral Evidence. Partners, admissions by, 116. Patents of Invention, 305. Pedigree, declarations as to, 158 — 166. definition of, 158. And see Marriage. Penal Consequences, privilege by reason of, 195 — 197. Perambulation, act of ownership, as, 41. statements accompanying, 172. INDEX. 331 Perjury, reqiiiros coiToboration, 242, 2-13. PEHrETUATION OF TeSTIMOXY, civil cases, in, 185, 18G. criminal cases, in, 189, 190. Pleadexgs, admissions in, 101. issues determined by, 2, 3. obligation and right to begin depend on, 21, 25. Aid see Issues. Points in Issue, 2. And see Facts in Issue. Possession, of documents, 285, 286. of property, 40 — 42. And see Ownership, Acts of. Posting Letters, 255, 262, 263. Post-mark, 263. Practice, of inferior courts, 18. of superior courts, 18. Predecessors in Title, acts of, 9. admissions by, 121, 123. Prescription, 35, 36. Presentments, as acts of ownership, 41, 42, 175, 177. as reputation, 173 — 175. Presumptions, 13, 28—38. conclusive, viii, 28. defined, 28. effect of, on burden of proof, 30, 31. kinds of, thi-ee, 28. particular presumptions : ancient documents, 269 — 271. attestation, 287. biUs of exchange, 36, 37. cestui que vie, 33. continuance, 33. date of document, 259, 261, 263, 268, 269. death, 32—34. duration of life, 32—34. erasures in documents, 259. infants, 31, 32. innocence, 31. interHneations in documents, 259. legal origin, 35,36. legitimacy, 37, 38. letters posted, 263. lost grant, 35, 36. married women, 32. 332 INDEX. Pbesumptions — continued. particular presumptions — continued, omnia esse rite acta, 'So. post-mark, 263. public documents, 289—291. public offices, 34. recent possession, 29. seawortbiness, 30, 31. sealing, 261. secSondary evidence, in aid of, 286, 287. stamping, 277, 287. Prevention of Cruelty to CniLDREN, Acts for. See Children. Previous Statement of Witness, 94—96, 98, 99, 227, 228, 236, 238, 239. Primary Evidence of documents, 245 — 271. Prisoner, confession of, 116—118, 210—216. evidence of good character of, 56, 57. not bound by statement of joint-offender, 112, 116 — 118. statement of, 112, 216. Private, documents, 245—271, 278—287. statutes. See Statute, Privilege, 10, 60, 195—216, 283—285. admissions, 208—216. confessions, 210 — 216. husband and wife, 202—204. legal professional matters, 197 — 202. penal consequences, 195 — 197. state documents, 204, 205. title deeds, 205—208. Probate, 309. Production, of chattels, 76, 246. of documents, 246 — -253. examination in chief, in, 221. cross-examination, in, 226 — 228. opponent, by, 249 — 252. third person, by, 252, 253. Promissory Note. See Negotiable Instruments. Prosecutor, competent to testify, 86. notice to produce, not applicable to, 249. Prosecutrix, for rape, &c., evidence of immoral character of, 57, 58. Public Acts. See Statute, Public and General Eights, reputation as to, 7, 167 — 177. Public Bodies, proof of proceedings of, 306, 307. INDEX. 333 Public Doci'ments, adduction of, 288—291. appendix of, 294 — 310. as media of proof, 7, 8, 178 — 180. Public Offices, appointments to, judicially noticed, 18, 19. presvimptions as to, 34, 35. Public Eecords, 307. Quakers, 92 — 94. And see Affirmation. Question in issue, 224, 225. And see Issue. Eape, evidence of immoral cliaracter of prosecutrix for, 57, 58. Eeceipt, cliaracter of, 67. stamp on, 272. Eecefvers' Books, 255, 2G9. Eeceivixg Goods, evidence on indictment for, conviction for previous dishonest offence, 55. possession of other stolen goods, 54, do. recent possession, presumption from, 29. Eecent Possession, presumption from, 29. Eecognizance, 219, 252. Eecord, proof of proceedings in courts of, 202, 303. proof of proceedings in coiu'ts not of, 303. Ee-examination, 111, 229—231. Eeferee, admission of, 112. Eefreshing Memory, 231—235, 255, 265. Eegister of Bishop, 300. Eegister of Companies. See Comjximes. Eegisters of Births, Deaths, and Marriages. See Certificates. Eegistees of Patents, Designs, and Trade-Marks, 305, 306. Eelevant Facts, 2 — 4, 39—75. character, when relevant, 4, 49—58. And see Character. circumstantial evidence, when relevant, 4, 42 — 45. conduct, when relevant, 4, 49 — bb. And sec Conduct. definition of, 2—4, 39, 40. explanation, for purpose of, 4, 48. identification, for purpose of, 4, 47, 48. possession in cases of, 40 — 42. And see Possession. relation of, to facts in issue, 39, 40. similar facts, when relevant, 4, 45 — 47. 334 INDEX. Relinquishment of Preferment, 3po. Eepaies, as acts of ownersliip, 41. Eeply, evidence in, 27, 220. Eepresentative Party, admission by, 119, 120. Eeputation, 7, 153 — 177. awards, not, 177. decrees, 176, 177. depositions, ancient, 176, 177. judgments, 66, 176, 177. maps, 173. marriage, as to, 156, 157. presentments of customary coui'ts, 173 — 175. public rights, as to, 7, 167 — 177. verdicts, 176, 177. Ees GESTiE, 9 — 11, 59 — 75. documents as, 65 — 75. oral statements and conduct as, 59 — 64. Ees inter alios act^e, 97 — 99. School Boards, proof of proceedings of, 307. Sealing of Documents, 260, 261. Seaworthiness, 30, 31. Secondary Evidence, 278 — 287. events on wbicb admissible, 279 — 285. presumptions as to original, 286, 287. species of, 285, 286. Seduction, evidence of character in actions for, 58. Ships, register of British, 308. Shopmen's Books, as immd facie eyidoncQ, 194. Signature, proof of, 257 — 260. Similar Facts, when relevant, 4, 45 — 47. Solicitor, admissions by, 118, 119. proof of qualification of, 308. Stamps, 272—277. accessory matters, not required for, 276. agreements, on, 272, 273. bills of exchange, 273. collateral pui-pose, 274 — 276. judge, duty of, 274. obliteration of, 271, 277. principal object requires, 276. presximptions as to, 276. INDEX. 335 SlAiirs — conti7iue(L promissory note, 273. real character of document, 276. receipts, upon, 272. sale of goods, 272. several distinct matters, 276, 277. waiver of, inadmissible, 274. State, proof of acts of, 308. State Documents, privileged, 204, 205. Statute, Private, as medium of proof, 179. proof of, 18, 304. Statute, Public, as medium of proof, 179. proof of, 18. SUBPCENA, od testificandum, 218, 219. disobedience to, 218, 219. duces tecum, 218, 219, 251—253, 281, 282. Succession to Property on Death, proof of, personalty, 309. realty, 309, 310. Survey, 173 — 175. And see MaiJ. Tenancy, proof of, 248, 249. Timber-cutting, as act of ownership, 41. Tithe Apportionment, 301. Title Deeds, definition of, 205. effect in evidence, 65. privileged, when, 205 — 208. Trade Marks, 306. Treason, corroboration of, 243. Triplicates, 278, 279. Trustee, in bankruptcy, admission by, 119, 120. party, admission by, 119, 120. Verdicts, acts of ownership, as, 42, 177. reputation, as, 176, 177. Yestries, proof of proceedings, 307. Veterinary Surgeons, 304. 336 INDEX. View, before trial, 77, 78. during trial, 77. And see Inspection. Violence, declarations in case of, 142 — 146, Voire dire, examination on the, 82, 83, 91, 92. Wife, absence for seven years, 33, 34. access, may not prove, 202, 203. adultery, when may be examined as'to, 203, 204. coercion by husband, presumption as to, 32. communications between, and husband, privileged, 204. declarations as to illegitimacy of offspring, 152, 203, 204. of defendant, when competent to testify, 86 — 89. intercourse, presumption of, 38. And see Married Woinan. Will, ancient, 270. declarations of testator as to, 256, 286. of personalty, proof of, 308. of realty, proof of, 308. Witness, affiiTaation of, 92 — 94. attendance of, under recognizance, 219. attendance of, under subpoena, 218, 219. competent, must be, 5, 79 — 89. And see Incompetency. contradiction of, 227, 228, 236—240. conviction of, for indictable offence, 228, 236, 240. corrupt, 228, 237, 238. direct, when his evidence must be, 94 — 100. examination of, adverse, when, 222, 223. jt-,^ before trial, 181—190. Qk chief, in, 221—225. commission, on, 184, 185. cross-examination, in, 225, 229. hostde, when, 223, 224. judge, by, 221. order of, 219. re-examination, in, 229, 230. refreshing memory during, 231 — 235, 255. not credible on his oath, 237. oath of, 5, 92—94. party not bound by his, 103, 113. previous statement of, 94—96, 98, 99, 227, 228, 236, 238, 239. LONDON : C. F, EOWORTn, PEINTEB, GBEAX NEW &XEEET,, TETTER LiNE, E.G. 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