11 UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LffiRARY A TREATISE LAW OF EVIDENCE AS ADMINISTERED IN ENGLAND AND IRELAND; ILLUSTRATIONS FROM AMERICAN AND OTHER FOREIGN LAWS. From the Eighth English Edition. BY His Honour JUDGE PITT TAYLOR. VOL. T. PART FIRST. Longum iter est per pracepta. Breve et efficax per exempla — Senboa. PHILADELPHIA: THE BLACKSTONE PUBLISHING COMPANY 1887. Entered according to the Act of Congress, in the year 1887, by The Black- stone Publishing Company, m the office of the Librarian of Congress, at Washington, D. C. r mq (2740) c^ PREFACE TO THE EIGHTH EDITION. In the Preface to the Seventh Edition of my Treatise on. Evidence I find tlie followin,^ remarks : — " The labour I have bestowed on the work has been necessarily great, because the Judicature Acts of 1873 and 1875 have altered the law on so many subjects, and unsettled it to such an extent, that it has become extremely difficult, either to dovetail the old procedure or the old principles with the new, or to determine, in a cloud of cases, by what rules the practitioners and the suitors must henceforth be guided, " We all know what is the best recipe for spoiling broth; and, pos- sessing that culinary knowlege, we, perhaps, ought not to marvel, if a colossal scheme of law reform, — subjected in the first instance to the criticisms of a multitude of commissioners, (all able and learned men, and some few just a trifle opiniative,) and then en- trusted, in succession, to two distinguished Lord Chancellors to ob- tain for it the piecemeal sanction of the Legislature, — should have failed to achieve that success which its too sanguine originators an - ticipated from its adoption. "Regarded in a practical light, either far too much or far too lit- tle has been effected by the measiire. Commencing in wrangles and progressing in compromises, it has naturally ended in a muddle. The fusion of Law and Equity, — which was to overthrow such a phalanx of abuses, and to frustrate so many knavish tricks, — has resulted, not only iu co??fusion, but, to use the vigorous language of our blind bard, in 'confusion worse confounded' It is a humi- liating confession— but it is unquestionably true." (2741) 756027 iv PREFACE TO THE EIGHTH EDITION. If to the difficulties with which I had then to contend,— and the language just cited is in no way overcharged, — be added those which have since been strewn in my path by the pecu- liar embranglement of recent Legislation, lean only marvel at my own intrepidity in venturing to prepare for the press an Eighth Edition. In this Edition, — besides ''booking up" in their proper places all the decisions of the Courts which, in my judg- ment, are calculated to throw any substantial light on the New Procedure, — I have done my utmost endeavour to weld into one consistent whole the incongruous provisions relating to Evidence, which are to be found scattered with- out method or system over the varied enactments of the New Bankruptcy Act, the Army Act, the New Code re- specting Bills of Exchange, the Factory and Workshop Act. the Contagious Diseases Animals Act, the Municipal Corporation Acts, the Corrupt Practices Acts, the Bills of Sale Acts, the Employers' Liability Act, the Summary Jurisdiction Acts, the Bankers' Books Evidence Act, the Married Women's Property Act, the New Patent Law, and last, though not least, the New Rules of the Supreme Court. That I have succeeded in making all crooked places straight, and all rough places plain, I cannot venture, in my most sanguine mood, to affirm; but thus much I can honestly assert, that T have spared neither labour, (2742) PREFACE TO THE EIGHTH EDITION. V nor time, nor energy, in attempting to make my work both worthy of its former character, and of real practical nse to the Profession. In now finally laying down my pen, so far at least as tliis Treatise is concerned, I must be permitted, — as on a former occasion. — to adopt the sentiment of a Scotch Divine, and earnestly to repeat after him, — " Unthought of by man in rewards or in praises, May I be remembered by what I have done." J. PITT TAYLOR. 58, EccLESTON Square, 1st Dec, 1884. (2743) EXTRACTS TROM THE PREFACE TO THE FIRST EDITION. The following Work is founded on " Dr. Greenleafs American Treatise on the Law of Evidence." Indeed, when in July, 1843, my attention was first especially drawn to the subject of Evidence, with a view to publication, I undertook to discharge the duties of an editor only, and it was not until I had been engaged for many months in that undertaking that I finally determined to abandon it, and to submit to the public a treatise of my own. In taking this step, I had no idle hope of being able to produce a book, which, regarded as an exposition of general principles, should surpass, or even equal, that written by the learned American Professor; but I thought that, by citing more fully the leading decisions of our own Courts, and by introducing such portions of our Statute Law as related to the subject of Evidence, I might possibly compile a work of more practical utility to the English and Irish lawyer. To have introduced this new matter, in the shape of notes to Dr. Greenleafs Treatise, would have been highly inconvenient; to have interwoven it with his text, and still to have called the woi'k by his name, would have been alike unjust to him and to myself; and, conse- quently, it appeared to me, that the only alternative left was to publish a work in my own name, for the eiTors of which I should be alone responsible. (2744) EXTRACTS FROM THE PREFACE TO THE FIRST EDITION. Vli I have still, however, availed myself very largely of Dr. Green- leaf's labours, having adopted, with but few alterations, his ex- cellent general arrangement, having followed to a considerable extent the course even of his sections, and having borrowed many pages of his terse and luminous writing. My object has been to afford to the profession really useful and accurate information; and whether that information were conveyed in my own or in another's language, has been to me, as it will doubtless be to my readers, a matter of indifference. From the American decisions cited by Dr. Greenleaf, I have made a selection, having referred to such, as, in my judgment, either afforded favourable illustrations of doubtful points of law, or laid down rules superior, to those adopted in our own Courts. With the view of rendering my work useful to the practitioner in Ireland, I have noticed most of the leading decisions of the Four Courts on the Law of Evidence, and have referred to many Irish Statutes on the same subject. In stating what the law is, I have not' been unmindful of what, in my humble opinion, it ought to be ;. and I have therefore ventured from time to time, to poiilt out briefly such alterations in the law as I conceive would effect material amendments. The JLaw- Reformer, by referring to the Index, Title, *' Suggestions for Amending the Law of Evidence," will find what I have done on this head. The book contains no chapter on the Law of Stamps. This omisson might perhaps be justified by simply referring to the able works of Messrs. Phillipps and Starkie, in the former of which the (2745) viii EXTRACTS FROM THE PREFACE TO THE FIRST EDITION. subject is not treated, while in the latter, it occupies a very subor- dinate place in the third volume. But the reasons which chiefly influenced me in deciding to reject the Law of Stamps, were, 1st, that it has been already discussed at large in several distinct treatises ; 2nd, that any exposition of it, to be of practical value, must have added much to the bulk of the work, and consequently to its price ; 3rd, that it would have delayed the publication for many months ; 4th, that this branch of the law will probably ere long undergo very extensive changes; and last, — though I confess not least, — that it is one of the most repulsive subjects which could be selrcted by an author for discussion. In a work of this magnitude, treating as it does of a fluctuating branch of the law, I am well aware that many mistakes must have occurred ; for these, my only apology is, that I have spared no labour to avoid them. The language of St. Augustine is an author's best consolation: — " Illi in vos sseviant, qui nesciunt cum quo labore verum inveniatur, et quam difficile caveantur errores." J. PITT TAYLOR. 2, Habcourt Buildings, Temple, lOih February, 1848. (2746) CONTENTS. PAGB Summary ix — xii List of Abbreviations, &c xiii — xxiv Table of Cases cited xxv — ci Table of Statutes cited cii — cxvii Tables of Riiles and Forms of Supreme Court cited . cxviii — cxix Table of Rules and Forms of County Courts cited . . cxx Addenda and Errata cxxi — cxxv SUMMARY. PART 1. NATURE AND PRINCIPLES OF EVIDENCK CHAPTER I. Preliminary Observations 1, 2 CHAPTER II. Matters judicially noticed without Proof .... 3 — 28 CHAPTER III. How questions of fact tried — Functions of Judge in Jury trials 29—70 ('2747) X SUMMARY. CHAPTER IV. PAOB The Grounds of Belief 71—89 CHAPTER Y. Pivsiuriptive Evidence 90 — 282 PART II. RULES GOVERNING THE PRODUCTION OF TESTIMONY. CHAPTER I. Correspondence of Evidence with Allegations ; Substance of Issue ; Variance ; and Amend- ment 283 — 288 CHAPTER II. Confining Evidence to Points in Issue 289 — 840 CHAPTER III. Burthen of Proof 841—864 CHAPTER IV. Best Evidence 365—89.5 CHAPTER V. Secondary Evidence 896 — 496 CHAPTER VI. Evidence addressed to the Senses 497 — 505 CHAPTER VII. Hearsay 606 — 586 (2748) SUMMARY. Xi CHAPTER yill. Matters of Public and General Interest 537 — 559 CHAPTER IX. Matters of Pedigree 500 — 579 CHAPTER X. Ancient Possession 580 — 587 CHAPTER XI. Declarations against Interest 588 — 611 CHAPTER XII. Declarations in the course of Office or Business . . 612 — 624 CHAPTER XIII. Dying Declarations 625 — 682 CHAPTER XIV. Admissions 633—788 CHAPTER XV. Confessions 739 — 780 CHAPTER XVI. Evidence excluded on grounds of Public Policy 781 — 818 CHAPTER XVII. Matters not Provable by single Witness .... 819 — 833 CHAPTER XVIII. Matters requiring to be evidenced by Writings 835 — 959 (2749) xii SUMMARY. CHAPTER XIX. PAGB Admissibility of Parol Evidence to affect Writ- ten Instruments 960—1046 PART III. INSTRUMENTS OF EVIDENCK CHAPTER I. Witnesses, and the means of procuring their Attendance 1047—1136 CHAPTER II. Competency of Witnesses • • • ^^^'^ — ^^^ CHAPTER III. Evidence by Affidavit, and Examination of Witnesses 1186—1264 CHAPTER IV. Public Documents 1265—1518 CHAPTER V. Private Writings 1519—1596 Appendix 1597—1600 Txx^Kx 1601—1810 (2750) A LIST OP t!L\^t iltbrctJiatioitsi usetr in tijis Creatine. THE TOGETHER WITH A STATEMENT OP EDITIONS OF THE PRINCIPAL ELEMENTARY WORKS CITED. Note. — The letteis A. B. C. D. appended to the American Reports, denote the rela- tive estimation in lohich those Reports are held by the profession in gen- eral, out of the particular State where the decisio7is ^oere pronounced: A. marking the highest degree of excellence. A very eminent American, jurist has kindly furnished the Author with this guide. ABBREVIATIONS. NAME OF WORK, ETC. A. & E Adolphus & Ellis's Reports, King's Bench. 12 vols. Aberc. on Intell. \ Abercrombie on the Intellectual Powers. 6th ed. Ediii- Pow / burgh, 1836. Adam's Ant. . . . Adam's Roman Antiquities. Addis Addison's Reports, Pennsylvania, 1791 — 1799. lvol.(C. ) Add Addams' Ecclesiastical Reports. 3 vols. Aik Aiken's Reports, Vermont. 1826—1827. 2 vols. (B.) A. K. Marsh. . . A. K. Marshall's Rep., Kentucky. 1817—1821. 3 vols. (D.) Ale. & Nap. . . . Alcock & Napier's Reports, King's Bench, Ireland. 1 vol. Alcia. de Praes. . . Alciatus de PriTSumptione. Alciati Opera, Basilese. 1H."2. 4 tom. fol. Alison, Cr. L. . . Alison's Principles of the Criminal Law of Scotland. A, r ' \ Alison's Practice of the Criminal Law of Scotland. Am. Ed American edition. Am. Jur American Jurist. Boston. Amb Ambler's Reports, Chancery. 2 vols. And Anderson's Reports, Common Pleas. 1 vol. Andr Andrew's Reports, King's Bench. 1 vol. Anstr Anstruther's Reports, Exchequer. 3 vols. Anthon, ... . Anthon's Nisi Pr. Rep., New York. 1808— 1818. 1 vol.(D.) Applet Appleton's Reports, Maine, from 1841. 1 vol. (C.) Arch. Cr. PI. . . . Archbold's Criminal Pleading. 16th ed., 1867. Arm. M. & O. . . .Armstrong, Macartney & Ogle's Rep., Nisi Pr. Irel. 1vol. Arm. & T Armstrong & Trevor's Rep. of R. r. O'Connell, Dub., 1S41. Atk Atkyus's Reports, Chancery. 3 vols. Att. Gen Attorney-General. Ayliife Par. . . . Aylifte's Paregon, 2nd edition, 1734. B. & A Barnewall & Alderson's Reports, King's Bench. 5 vols. B. & Ad Barnewall & .\dolphus' Reports, King's Bench. 5 vols. B. & B Broderip& Bingham's Reports, ConiTnon Pleas. 3 vols. B. & C Barnewall & Cresswell's Reports, King's Bench. 10 voLs. (2751) XIV ABBREVIATIONS, ETC AIIBUEVIATIONS. B. & Lush. A dm. . B. & P B. & S Bac. Ab Bail Bail. Ct. Cas. . . Ball & B Barnes, Battv Bay Bavl. Bills. . . . Beav Bell, C. C Bell, m^r Benth. Ev Best. Ev. . . . Bibb, iiing Bing. N. S. . . . Binn Bp.of Tasm. Lect. 1 on Chr. Cat. . f Bl. Com II. Bl W. Bl Bland, Ch Blackf. Bliirh, Bli^'h. N. S. ... B. N. P Bolt, Br. C. C Br. P. C Bridg Bro. Abr. . . . Broom, Max. . . . Browne, Brownl Buck Bulst Bunb. . . . Burge, Com. on Col. & For. Burn, Ec. L. Burn, Just. Burnet, Cr. L Burr. . . . Burr. S. C. . Bvles, Bill.s, Bynk. Obs. Jur. Rom. . . C. & J. . . C. & Kir. . C. &M. . . C. M. & R. . C. & iVIarsh. C. & P. . Cab. &E1. Caines. . . on \ L. r NAMK OF WORKS, ETC. Browning and Lushington's Admiralty Reports. 1 vol. Bosanquet & Puller's Reports, Common Pleas. 3 vols. Best «St Smith's Queen's Bench Reports. 10 vol.s. Bacon's Abridgment. Bailey's Reports, South Carolina, 1828—1832. 2 vols. (B.) Lowndes & Maxwell's Bail Court Cases, 1852. 1 vol. Ball & Bcatty's Reports, Chancei-y, Ireland. 2 vols. Barnes's Xotes of Practice Cases in Common Pleas. Batty's Reports, King's Bench, Ireland. 1 vol. Bay's Reports, South Carolina, 1783—1804. 2 vols. (B.C.) Bayley, J., on Bills of Exchange. 6th ed. London,1849. Beavan's Reports. Rolls Court. 36 vols. Bell's Crown Cases Reserved, 1859. 1 vol. Bell's Digest of the Laws of Scotland. Bentham's Rationale of Jud. Evid. 5 voLs. Lond., 1827. Best's Principles of Law of Evid. London. 3rd ed. 1860. Bibb's Reports, Kentucky, 1808—1817. 4 vols. (D.) Bingham's Reports, Common Pleas. 10 vols. Bingham's Reports, New Series, Common Plea.s. 6 vols. Binney's Reports, Pennsylvania, 1799 — 1814. 6 vols. (A.) Bishop of Tasmania's T>ectures on the Christian Chatecism. Blackstone's Commentaries. Henry Blackstone's Reports, Common Pleas. 2 vols. Sir AVilliam Blackstone's Reports (K. B. & C. P.). 2 voLs. Blaiul's Chancery Rep., Maryland, 1811—1830. 2 vols. (C.) Blackford's Reports, Indiana, 1817—1838. 4 vols. (CD.) Bligh's Reports, House of Lords. 4 vols. Bligh's Reports, New Series, House of Lords. 11 vols. Buller's Law of Nisi Prius. Bott's Poor Laws. Brown's Chancery Cases. 4 vols. Brown's Parliamentary Cases. 8 vols. Sir O. Bridgman's Judgments in Common Pleas. 1 vol. Brooke's Abridgment. Broom's Lejjal Maxims. .3rd ed. London, 1858. Browne's Reports, Pennsylvania, 1806—1814. 2 vols. (C.) Brownlow's Reports, Common Pleas. 1 vol. Buck's Reports in cases of Bankruptcy. 1 vol. Bulstrode's Reports, King's Bench. 1 vol. Bunbury's Reports, Excheqiier. 1 vol. Burge's Commentaries on Colonial and Foreign Laws. 4 vols. London, 1838. Bum's Ecclesiastical I>aw. 9th ed. London, 1842. Burn's Justice of the Peace, by Chitty. 29th ed. 1845. Burnet on Criminal Law of Scotland. Burrow's Reports, King's Bench. 5 vols. Burrow's Settlement Cases, King's Bench. 1 vol. Byles, J., on Bills of Exchange. 8th ed. London, 1862. Bynkershoek, lAhr\ Observationum Juris Romani. Crompton & Jervis's Reports, Exchequer. 2 vols. Carrington & Kirwan's Nisi Prius Reports. 3 vols. Crompton it Meeson's Reports, Exchequer. 2 vols. Crompton, Meeson, and Roscoe's Rep. , Exchequer. 2 vols. Carrington & Marshman's Nisi Prius Reports. 1 vol. Carrington it Pavne's Nisi Prius Reports. 9 vols. Cabab^ & Kllis' Nisi Prius Reports, 1883, 1884. Caines's Reports, New York, 1803—1805. 3 vols. (A.) (2752) ABBREVIATIONS, ETC. XV •.} Civ. ABBREVIATIONS. Cald Calv. Lex .... Camp Cane. Leg. barb. 1^ ant J Carpz. Pract Rer. Cr Carr. Cr. L . . Carth Ca.s. temp. Hard. Ca.s. temp. Lee, Channing, . . . Chit. Bills . . . Chit. Cr. L . . . Chit. Forms, . . Chit. Gen. Pract. Chit, on PI. Chit. K. Cic. Fam. Ep. City Hall Rec. CI. & Fin. . Co Co. Lit. Cock. & R. Cod. Lib. . Code de Proc. Coll .... Com . . . Com. B. . . Com. B., N. S Com. Di. . Com. J. . . Com. Rep. Comb. Conklin's Pr. Conn. . . Cons. Ord. Ch Cons. R. Const. R. Const. & Can. Const. U. S. .\mend Cooke & Ale. Cooke, . . . Coop. . . Cor. . . . Corner, Cr. Pr Covvell's Ind. Co wen, . . Cowp. . . Co.x, Ch. R. Cox, . . . Coxe, . . . Cr. & Ph Cranch, . . Crawf. & D., Abr. C Crawf. & D., C. C Cro. Car. . . . 1860 App, NAME OF WORK, ETC. Caldecott's Reports of Settlement Cases. 1 vol. Calvini Lexicon Juridicum Juris Ca>.sarii. Gen., 1615, fol. Campbell's Nisi Prius Reports. 4 vols. Canciani, Leges barbarorum antiquae. Venetiis, 1781 — ITS."). 5 vols. fol. Carpzovii, Practicse Rernm Criminalinm. Francof. ad Ma;nura, 1758. 3 vols. fol. Carrington's Supplement of Treatises on Criminal Law. Carthew's Reports, King's Bench. 1 vol. Cases in the time of Lord Hardwicke. 1 vol. Ecclesiastical Reports in the time of Sir G. Lee. 2 vols. Channing's AVorks. 5 vols, ord edition. Glasgow, 1S4(). Chitty on Bills of Exchange. 9th edition. London, 1840. Chitty'sTreatise on Criminal Law. 2nd ed. London, 1826. Chitty's Forms of Practical Proceedings in Common Law Courts. 6th ed. London, 1847. Chitty's General Practice. Chitty Senior, on Pleading, 7th ed. London, 1844. Chitty's Reports, King's Bench. 2 vols. Ciceronis Familiares Epistolse. New York Recorder, containing Reports of Cases in City Courts from 1816 to 1821. 6 vols. Clark & Finnelly's Reports, House of Lords. 12 vols. Lord Coke's Reports. Loudon, 1826. 6 vols. Coke on Littleton. Cockburn & Rowe's Election Cases. 1 vol. Codex Thcodosianus, Jacobi Gothofredi. Code Napoleon de Procedure Civile. Collyer's Chancery Reports. 2 vols. Commonwealth. Manning,Granger, it Scott's Common Bench Rep. 18 vols. New Series of Common Bench Rep. by John Scott. 20vols. Comyn's Digest. Journals of the House of Commons. Comyn's Reports. All the Common Law Courts. 2 vols. Comi)erbach's Reports King's Bench. 1 vol. Conklin's Practice of Cts.of United States,New York,1842. Connecticut Reports, by T. Day, 1814-1848. 15 vols.(B), Consolidated General Orders of the Ct. of Chancery, 1860. Haggard's Consistory Repoi-ts. 2 vols. Constitutional Rep..'S. Carolina, 1812—1810. 2vols.rB.C.) Constitutions and Canons Ecclesiastical. Amended Constitution of the United States. Cooke & Alcock's Rep., King's Bench, Ireland. 1 vol. Cooke's Reports, Tennessee, 1811— 1S14. 1 vol. (D.) Charles Purton Cooper's Cases in Chancery. 1 vol. St. Paul's Epistle to the Corinthians. Corner'sCrown Practice in Queen's Bench. London, 1844. Cowell's Indian Appeals. Co wen's Reports, New York, 1823—1828. i) vols. (A.) Cowper's Reports, King's Bench. 2 vols. Cox's Reports. Chancery. 2 vols. Cox's Criminal Law Cases. 13 vols. Coxe's Reports, New Jersey, 1790—1795. 1 vol. (C.) Craig & Phillips' Reports, Chancerv. 1 vol. Cranch's Rep.. Sup. Ct. of U. S., ISOO- 1815. 9 vols. (A.) Crawford & I)i.x's Abridged Cases in Ireland. 1 vol. Crawford & Dix, Irish Circuit Reports. 3 vols. Croke's Reports in the Reign of King Charles I. (2753) XVI ABBREVIATIONS. ETC. ABBBEVIATIONS. C!ro. El. ... ('ro. Jao. . . . Cruise, Dign. Cujac. Op. Posth. Curt ... Cush Cy. Ct. I{ Cy. Ct. R D. & M D. & K. ... D. & R. Mag. Ca. D & R., N. P. C Dalison. Dall ; O. & F 1875 . Halt . . Dan. Ch. Pr. Dane, Abr. Danty. . . Davidson, Cone. Dav Dea. & C Dea. & Sw. Ec. : Deane, Ec. R. Deane, Verm. J Dear. & Bell, Dec. Greg. De Gex, F. & J. De Gex & J. De Gex, J. & S. De Gex, M. & G De Gex & Sm. Den. . . . Dev. . . . Dev. & B. Dick . . . Dick. Quar. Sess, Dick.son, Ev. Dig. Lib. . Doct. & Stu. Dods. Adm. Dom. Proc. Doug. . . Dow, . . . Dowl. . . . Dowl. N. S. D:)wl. & L. Dr. & St. . Drew. . . Drew. & Hv.:. Drury, Ch. II. Drn. & W: •. Dyer, . . E. & B. . . E. B. & E. E. & E. . . Eag. & Y. Pr NAME OF WORK, ETC. Croke's Reports in the Reign of Queen Elizabeth. Croke's Reports in the Reign of King .Iame.s, Cruise on Dignities or Titles of Honour. Cujaccii Opera Posthuma. Curteis' Ecclesiastical Reports, .'i vols. Cushing's Rej). Su)ireme Court of Massachusetts. 9 vol.s. County Court Rules, Orders and Forms, lf^()8. Consoi. County Court Orders, Rules, and F'orms, 187.5. . Davison it ^Icrivale's Reports, Queen's Bench. 1 vol. Dowling & Ryland's Reports, King's Bench. 9 vols. Dowling & Ryland's INIagistrates' Cases. 4 vols. Dowling iSc Ryland's Nisi Prius Cases. 1 vol. Benloe & Dalison's Reports, Com. PI. 1 vol. Dallas's Rejjorts. Supreme Courts of United States, and Pennsylvania, 17!)0— 1806. 4 voLs. (A.) Dal ton's Country .Ju.stice, Ed., 1697. Daniell's Chancery Practice. 4th ed., by Messrs. Field, Dunn, & Biddle. London. 1865—1867. Dane's Abridgment, United States. Traite de la Preuve. Paris, 1697, 4to. Davidson's Concise Precedents of Conveyancing. Day's Reports, Connecticut, 1802—1810. 5 vols, (B.) Deacon & Chitty's Reports, Bankruptcy. 4 vols. Deane & Swabey's Ecclesiastical Rep, London. 1 vol. Deane's Ecclesiastical Reports. London, 1856. 1 vol. Deane's Reports. Supreme Court of Vermont. 3 vols. Dearsley & Bell's Crown Cases Reserved. 1 vol. Decretals of Pope Gregory IX. De Gex, Fisher & .Tones, Chancery Appeals. 4 vols. De Gex & Jones, Chancery Appeals, 1857. 4 vols. De Gex, Jones, & Smith, Chancery Appeals. 4 vols. DeGex, Macnaghten, & Gordon, Chancery Appeals, 8 vols. DeGex & Smale's Rep., V.-C. Knight BrUce's Ct. 5 vols. Denison's Crown Cases Reserved. 2 vols. Devereux's Rep., North Carolina, 1826—1834. 4 vols.(B.) Devereux & Battle's Rep., North Carolina, 1834—1840. 4 vols. (B). Dickens's Rejjorts, Chancery. 2 vols, Dickinson's Quarter Sessions. 6th ed. London, 1846. Dickson on Evidence in Scotland. 2 vols. Edinburgh, 1855. Digests of Civil Law. Doctor and Student. Dodson's Rejiorts, Court of Admiralty. 2 vols. House of Lords. Douglas's Rej)orts, King's Bench, 4 vols. Dow's Reports, Hou.se of Lords, 6 vols. Dowling's Practice Cases, Old Ser. Com. Law Cts. 9 vols. Dowling's Practice Cases, New- Series. The same, 2 vols. Dowling & Lowndes's Practice Cases. The .same, 7 vols. Doctor and Student. Drewry's Rep. of Decisions by Kindersley, V.-C, 4 vols. Drewry & Smale's Rep. in same court, 2 vols. Drury 's Irish Chancery Rep., temp. Sugden, Ch. 1 vol. Drury & Warren's Reports, Chancery, Ireland, 4 vols. Dyer's Reports, King's Bench. 3 vols. lOnis & Blackburn's Queen's F.ench Reports, 8 vols. Ellis, Blackburn, & Ellis's Queer."., Bench Rep., 1 vol. Ellis tt Ellis's Queen's Bench Reports. 3 vols. Eagle & Younge's Reports of Tithe Cases. 4 vols. (2754) ABBREVIATIONS, KTO. XVll ABBREVIATIONS. NAMK OP WOIIK, ETC. East, East's Reports, Kiiiij's Bench. 16 vols. Ea.st, P. C East's Pleas of the Crown. Ec. & Mar. Cas. Notes of Cases in Ecclesl. & Maritime Cts. Lond. 7 vols. Edinb. Rev. . . . Edihbuijz; RevieAV. Eq. Cas. Ab. . . . Equity Cases Abridged. 2 vols. Ersk. Inst Erskine's Institutes of the law of Scotland. Esp Espiuasse's Nisi Prius Reports. 6 vols. Everli. Cone. . . . Everhardi Coju-ilia. Antwerp, 1643, fol. Ex. R Exch. Rep., by Welsby, Hurlestone, & Gordon. 11 vols. Fairf. Fairfield's Reports, Maine, 18:^3—1835. 3 vols. (B.) Farin. Op Farinacii Opera. Francof. ad Maenum, 1684. 4 vols. fol. Ff. Pandccta Juris Civilis. Fitzg Fitzgibbon's Reports. All the Courts. 1 vol. Forrest, Forrest's Reports, Exchequer. 1 vol. Fost. C. L Sir M. Foster's Crown Law, 3rd ed., 1792. Fost. & Fin. . . . Foster Hoffman's Course of Legal Study, 2nd ed., 1836. Lord Holt's Reports. 1 vol. Holt's Nisi Prius Reports. 1 vol. Hopwood & Coltman's Registration Cases. 2 vols. . Howell's State Trials. 34 vols. Howard's Rep., United States, Sup. Ct., from 1843. (A.) Hubback on Evidence of Succession, London, 1844. Hume's Commentaries on Criminal Law of Scotland. Humphrey's Reports, Tennes.see, 1839-1841. 2 vols.(D.) Hutton's Reports, Common Pleas. 1 vol. Coke's Institutes. The Iri.sh Reports, Common Law Series, Dublin, 1867 — 1878. 11 voLs. The Iri.sh Reports, Equity Series, Dublin, 1867—1878. 11 vols. Irish. Irish Circuit Reports. 1 vol. Iri.sh Equity Reports. 13 vols. Irish Chancery Reports, New Series, 1850. 17 vols. Irish Law Reports. 13 vols. Iri.sh Common Law Reports, New Series, 1850. 17 vols. Iredell's Reports, North Carolina, 1840—1841. lvol.(C.) J. J. Marshall's Rep., Kentucky, 1829—1832. 7vols.(D.) Sir John Kelynge's Reports, King's Bench. 1 vol. Jacob's Reports, Chancery. 1 vol. Jacob & Walker's Reports, Chancery. 2 vols. Jacobsen's Sea Laws. Jebb's Crown Cases Reserved, Ireland. 1 vol. Jebb & Bourke's Rep., Queen's Bench, Ii-eland. 1 vol. Jebb & Symes' Rep., Queen's Bench, Ireland. 2 vols. Johnson's Reports, New York, 1806—1823. 20 vol.s.(A.) Johnson's Chan. Rep., New York, 1814—1823. 7 vols.(A.) Johnson & Hemming's Rep. in Ct. of Wood, V.-C. 2 vols. Jones' Exchequer Reports, Ireland. 2 vols. Sir Thomas Jones' Reports. 1 vol. Sir William Jones' Reports. 1 vol. Jones & Latouche's Rep., Chancery, Ireland. 3 vols. Joy on Confession in Criminal Cases, Dublin, 1842. Jurist Reports. All the Courts. 31 vols. Jurist Reports, New Series. All the Courts. 12 vols. Kay's Reports of Decisions of Wood, V.-C, 1853. 1 vol. Kay & Johnson's Rep. of Decisions of Wood, V.-C. 4 vols. Keble's Reports, King's Bench. 3 vols. (2756) ABBREVIATIONS, ETC. XIX Abbreviations. Keen, . . . Kel Kent, Com. Kirbv, . . Knapp, P. C. E. Knapp & O. L. & Cave, . L. J., H. L. L. J., P. C, L. J., Ch. . L. J., Aclm. L. J., Pr. & Mat. L. J., Bk. . L. J.; Q. B. L. J., C. P. L. J., Ex. . L. J., M. C. . L. J., Ec. C. . L. J. (O. S.) . L. M. & P. . . L. R., Ch. D. L. li., Q. B. D L. R.. C. P. D. L. R., Ex. D. L. R., App. Cas. L. R., P. D. L. R.. Ir. . LL., U. S. . Law Mag. . Law May., N. S. Law R. . . Law Rec. 1st Ser, or 2nd Ser. . Law Rep., H. L Law Rep. , H. L. Sc Law Rep., P. C Law Rep., Ch. Ap Law Rep., Eq. Law Rep., Q. B. Law Rep., C. P. Law Rep., Ex. . Law Rep., C. C. Law Rep., P. & D. Law Rep., Adm. 1 & EC3. ... J Lea Leg. Obs Leigh, R Leon Lev Lew. C. C Lit. R LIovd&G. . . . Lofft Long. & T. ... Lords' J Ld. Br. Sp. ... Ld. Ray Lonis NAME OF WORK, ETC. Keen's Reports, Chancery. 2 vols. Sir John Kelynge's Reports. 1 vol. Kent's Commentaries, Boston, 1840. Kirby's Reports, Connecticut, 178")— 1788. 1 vol. (D.) Knapp's Privy Council Reports. 3 vols. Knapp & Ombler's Ek-ction Cases. 1 vol. Leigh & Cave's Crown Cases reserved. 1 vol. Law Journal (New Series), House of Lords. Law Journal (New Series), Privy Council. Law Journal (New Series Law Journal (New Series! Law Journal (New Series) Law Journal (New Series Law Journal (New Series) Law .Journal (New Series Law .Journal (New Series! Law Journal (New Series), Magistrates' Cases Law .Journal (New Series), Ecclesiastical Cases. Law .Journal (Old Series). 9 vols. Lowndes, Maxwell, and Pollock's Practice Cases. 2 vols, Law Reports, Chancery Division, from 1st Jan., 1876. Law Reports, Queen's Bench Division, from 1st Jan., 1876 Ijaw Reports, Common Pleas Division, from 1st Jan., 1876 Law Reports, Exchec^uer Division, from 1st Jan., 1876. Law Reijorts, Appeal Ca.ses, from 1st Jan., 1876. Law Reports, Probate Division, from 1st Jan., 1876. Law Reports, Ireland, from Jan 1, 1878. Laws of the United States. Law Magazine. Law Magazine, New Series. Law Review. Chancery. Admiralty. Probate and Matrimonial Cts. Bankruptcy. Queen's Bench. Common Pleas. Exchequer. > Law Recorder, 1st and 2nd Series. Irish. 10 vols. Law Reports, House of Lords. Law Reports, Scotch Appeals in Hou.se of Lords. Law Reports, Privy Council. Law Reports, Chancery Appeals (Ch. & L.-JJ. ) Law Reports, E(£uity Cases (M. R. & V.-Ch.) Law Reports, Queen's Bench. Law Reports, Common Pleas. Law Reports, Exchequer. Law Reports, Crown Cases Reser\'ed. Law Reports, Probate, Divorce, and Matrimonial. Law Reports, Admiralty and Ecclesiastical. Leach's Crown Cases. 4th ed., London, 1815. 2 vols. Legal Observer. Leigh's Reports, Virginia, 1829—1839. 9 vols. (B.) Leonard's Reports. King's Bench. 1 vol. Leviuz's Rejjorts, King's Bench. 3 vols. LeAvin's Crown Cases on Northern Circuit. 2 vols. Littleton's Reports. 1 vol, Lloyd &Goold's Ir. Chan. Rep., temp. Sugden, Ch. Loti't's Reports, King's Bench. 1 vol. LongfieldandTownsend'sRep. Exchequer, Ireland. Journal of the House of Lords. Lord Brougham Speeches. 4 vols. 1838. Lord Raymond's Rep., King's Bench & Com. Pleas. 3 vols Reports "of Louisiana, 1830—1840. 16 vols. (B.) (2757) IvoL IvoL XX ABBJIEVIATIONS, ETC, ABBREVIATIONS. NAME OF WORK, ETC. Liiilcrs Lnder's Election Civse.s. 3 voLs. Lusli. Adiu. K. . . Admiralty Koports, by Vernon Lushington, Esq. 1vol. Liitw ■ . Lutwyclie's Reports, Common Plea.s. 2 vols. ;M Sir F. Moore's Reports. 1 vol. ;M. cV- Gord. . . . Macna<;hten & Gordon's Rep')rt;-, Ghancery. 3 vols. M. iS: Gr Manninjj; A: Gran Reports of Criminal Law Commissioners. Salk. Reports in the time of Lord Chancellor Finch. 1 vol. Reports in tlie time of Lord Hardwicke. 1 vol. Respublica. Revised Code. Revised Statutes of different States in America. Ridgway, Lapp&Schoale's Rep., King's Bench, Irel. 1 vol. Ridgway's Parliamentarv Cases, Irisli Parliament. Riley's Law Cases, South'Carolina, 1836—1837. 1 vol. (B.) Dr. Roberts' Admiralty Reports. 3 vols. Roberts on Frai;ds. Robinson on Gavelkind, 3rd ed., 1821. Robertson's Ecclesiastical Rejiorts. 2 vols. Rogers on Elections. 6tli ed. London, 1841. Rolle's Abridgment. Rolle's Reports. King's Bench. 2 vols. Roscoe on Evidence at Nisi Prius. 10th ed. London, 1861. Rose's Reports, Bankruptcy. 2 vols. Russell's Re])orts, Chancery, o vols. Russell on Ciiines and Alisdemeanors. 3rd ed. Lond., 1843, Ivussell on Factors and Brokers. I.,ondon, 1844. Russell & Mylne's Re))orts, Chancery. 2 vols. Ryan and Moody's Nisi I'rius Reports. 1 vol. Same Case. Same Point. Salkeld's Reports, Common Law Courts. 3 vols. (2760) ABBREVIATIONS, ETC. XXlli ABBEKVTATIONS. NAME OF WORK, ETC. Say Saver's Reports, Kin<;'s Bench. 1 vol. Sch. & Lef. . . . Schoales & Lefroy's Keparts, Chancery, Ireland. 2 vols. Scott, Scott's Reports, Common Pleas. 8 vols. Scott, N. R. . . . Scott's New Reports, Common Pleas. 8 vols. Selw. N. P. . . . Selwyn's Law of Nisi Prius. ir)th ed. 18.59 — 61, London. Serg. & R Sergeant&Rawle'sRep.,Pennsylv.,1818— 29. 17vols.(A.) Sess. Ca New Sessions Casses, by Carrow, Hammerton, & Allen. 4 vols. Shepl Shepley's Reports, Maine, 1836— 1841. 6 vols. (C.) Shep. Touch. . . . Sheppard's Touchstone, by Preston. Shower, Shower's Reports, King's Bench. 2 vols. Sid Siderfin's Reports, King's Bench. 2 vols. Sim Simons' Reports, Vice-Chancellor's Court. 17 vols. Sim. N. S Simons' Reports, New Series, Vice-Chanc. Court. 2 vols. Sim. & St Simons & Stuart's Reports, Vice-Chanc. Court. 2 vols. Skinn Skinner's Reports, King's Bench. 1 vol. Sm. & Git. .... Smale & Giftard's Reports. V.-C. Stuart's Court. 3 vols. Smith, Ch. Pr. . . Smith's Chancery Practice. 7th ed. London, 1862. Smith, L. C. . . . Smith's Leading Cases. 5th ed. London, 1862. South Southard's Rcpn-ts, New Jersey, 1816— 182U. 2 vols. (C.) St. Ev Starkie on Evidence. 3rd ed. 1842, Loudon. Stair Inst Stair's Institutes of the Law of Scotland. Stark. R Starkie's Nisi Prius Reports. 3 vol<. Steph. pi Stephen's on Pleading. 5th ed. London. 1843. Story, Agen. . . . Story on Agency. London, 1839. Story, Bail. . . . Story on Bailments. Story, Bills, . . . Story on Bills of Exchange. London, 1843. Story, Confl. . . . Story's Conflict of Laws. 2nd ed. London, 1841. Story, Eq. Jur. . . Story's Comment, on Equity Jurispr. 4th ed., 1846. Story, Eq. PI. . . Story on Eiiuity Pleading, 3rd ed. London & Boston, 1844. Story, Part. . . . Story on Partnership. London and Boston, 1841. Story, R Story's Reports, United States, 1st Circuit, 1839—1845. 3 vols. (A.). Judge Story's Decision. Str Strange's Reports in all Courts. 2 vols. Stryk. de Sem. \ Strvkius de Semiplena Probatione. Strykii Opera Prob. .... J " Francof. ad Majuum. 1743—1753. 15 vols. fol. Sty Styles's Reports, King's Bench. 1 vol. Sug. Pow Sugden (Lord St. Leonards) on Powers. 8th ed. 18.'}1. Sug. V. & P. . . . Sugden (Lord St. Leonards) on Vendors & Purch. 10th ed., 1839. Sumn Sumner's Reports, 1st Circuit Court of United States. Judge Story's Decisions. 1830—1839. 3 voLs. (A.) Swab. Adm. R. . . Swabey's Rep. in Court of Admiralty. 1858. 1 vol. Swab. & Trist. . . Swabey & Tristram's Rep. in Ct. of Probate and in C't. for Divorce & IMatrim. Causes. 1858. 4 vols. Swanst Swanston's Reports. Chancery. 3 vols. Swift, Dig Swift's American Digest. Swift, Ev Swift's American Law of Evidence. Hartford. T. Jones Sir Thomas Jones' Reports. 1 vol. T. R Durnford & East's Term Reports, King's Bench. 8 vols. T.Ray Sir Thomas Raymond's Rep. The Common Law Cts.l voi. Tait, Ev Tait on Evidence. Edinburgh, 1834. Taunt Taunton's Reports, Common Pleas. 8 vols. Tidd. . ' Tidd's Practice. !)th ed. London. Toller on Ex. . . . Toller on the Law of Executors and Administrators. Tomlin, L. Diet . . Tomlin's Law Dictionary. Turn. & R Turner & Russell's Reports, Chancery. 1 vol. Tyr Tyrwhitt's Reports, Exchecjuer. 5 vols. Tyr. & Gr Tyrwhitt & Granger's Reports, Exchequer. 1 vol. (2761) XXIV ABBREVIATIONS, ETC. ABBUEVIATIONS. NAMK OF WORK, ETC. U. S United States. V.-C Vice-CIumcellor. Y.John Vaughun Jolin.son's Ivoports, in V.-C. "Wood's Conrt.l vol. Van Ja'cuw, Comm. Van Leeu\ven"s Conuncntarics. Vaugh Vauglian's Keports, Common I'lea.s. 1 vol. Ventr Ventri.s's Keports, Kinji's Bcncli and Common Pleas.l vol. Verm Vermont's liepoits. Vermont, 182(j — 1^37. 9 vols. (B.) Vern Vernon's Keports, Chancery. 2 vols. Ves Vesey, Junior's Keports, Chancery. 22 vols. Ves. & B Ve.sc,y & Beanies' Keports, Chancery. 3 •vols. Ves. Sen Vesey, Senior's Keports, Chancery. 3 vols. Vin Abr Viner's Abridgment. Virg. Cas Virginia Cases, Virginia, 1789— 1826. 2 vols. (D.) W. Bl Sir William Blaekstone's Keports, (K. B. & C. P. )2 vols. W. Jon Sir William Jones' Keports, King's Bench. 1 vol. W.N AVecklj' Notes, edited by Council of Law Reporting. W. U Weekly Reporter. 26 vols. W. W. & H. . . . Wilmore, Wollaston & Vodges' Reports, Queen's Bench. Wash Washington's Reports, Virginia, 1790 — 1796. 2 vols. (C.) Wash. C. C. R. . . Washington's Circuit Court Reports, United States, 3rd Circuit Court. 18U:5—18-i7. 4 vols. (B.) AVatk. Copyh. . . Watkins on Copvholds. Watts,. .". . . . Watts' Reports, "Pennsylvania, 1832— 1840. 10 vols. (A.) W^atts&S Watts & Sergeant's Rep. Pennsylv., 1841-1842. 3 vols(A.) Webst. Pat. R. . . W^ebster's Reports on Patent Cases. 1 vol. Wend Wendall's Reports, New York, 1828— 1841. (A.) WHiart Wharton's Reports, Pennsylvania, 183.")— 1840. 6 vols. (A.) Whatelv's Log. . . Whatelev's Logic. 3rd ed. London, 1829. Whately's Rhet. . Wliatele'v's Rhetoric. 3rd ed. Oxford, 1830. Wheat.' W'heaton's Rep., Sup. Ct. of Un. States, 1816— 1827.(A.) Wheel. C. C. . . . W^heeler's Criminal Cases, New York. 3 vols. (D. ) Wigr. Disc. . . . V.-C. W^igram on Law of Discovery, 2nd ed. Lond., 1840. Wigr. Wills, . . . V.-C. Wigram on Interpret, of Wills, 4th ed. Lend., 1858. Wightw Wightwick's Reports, Exchequer. 1 vol. Will, on Ex. . . . Williams on Executors & Administrators. 5th ed., 1856. Willes Willes' Reports, mostly Common Pleas. 1 vol. WilLs, Cir. Ev. . . Wills on Circumstantial Evidence, London, 4th ed., 1862. Wils Wilson's Rep., King's Bench and Common Pleas. 3 vols. W'ils. Ex Wilson's Reports, Exchequer in Equity. 1 vol. W^ing. ^Lix .... Wingate's Alaxims. Wms. Saund. . . . Saunders' Rep., edited by Williams, J., 6th ed., 1845. 3 vols. ^^ Enl' ^"^^^' ^^" } Wood's Institutes of the Laws of England. Fol. 1772. Wood'b. & M. . . . Woodbury & ]\Iinot's Reports, United States, 1st Circuit, 1845—1847. 2 vols. (A.) Woodfall's Junius, 3 vols. London, 1^12. Woodf. L. & T. . . Woodfall's Landlord and Tenant. 8th ed. London, 1863. Wright, R. . . . . Wright's Reports, Ohio, 1831—1834. 1 vol. (D.) Y. i*c C. Ch. R. . . Younge & Collyer's Rep.. Vice-Chanc. Court. 2 vols. Y. & C. Ex. R. . . Younge & Collyer's Reports, Exchequer. 4 vols Y. & J Younge & Jervis's Repi-rts, Exchequer. 3 vols. Yeates, Yeates' Reports, Pennsylvania, 1791 — 1808. 4 vols. (B.) Yelv Yelverton's Reports. King's Bench. 1 vol. Yerg Verger's Reports, Ten nes.see, 1832— 1837. 10 vols. (D.) You Younge's Reports, Exchequer in Equity. 1 vol. (2762) TABLE OF CASES CITED. PAGE Aaron v. Aaron 911 Abbey v. Lill 1210 Abb:)t v. Herman 701 Abbot V. Plumbe 15G6 Abbott. V. Abbott & Godoy 1356,1367 Abb:)tt V. Bates 990 Abbott V. Hendricks 969, 981 Abbott V. Massie 1030 Abbott?;. Middleton 9()2 Abbotan v. Dunswell 62."') Abeel v. Radclitf 877 Abel V. Potts 135.5 Abi<;;nve v. Clifton 1174 AbleyV. Dale 1480 Abouloff )•. Oppenheimer 1474 Abraham v. Newton - 464 Abraham v. Morton 464 Abrath r. North East. Ry. Co. 141 .Abrey ;;. Crux 980 Accidental & Mar. Ins. Co., Re 1091 Acebal i'. Levy 896, 899 Acerro v. Petroni 1197 Acheson v. Henry 473 Ackary, Re 1109 Ackland v. Pearce 414 Ackworth, ex parte 1471 A'Court V. Cross 925 Acraman v. Herniman 956 Acraman v. Morrice 897 Adam r. Kerr 1571, 1574 Adams v. Angell 195 Adams v. Balch 1424 Adams v. Barnes 115, 1442 Adams r. Barry 795 Adams c. Dansey 884 Adams ?;. Frye 1557 Adams v. Gibney 1001 Adams v. Jones 1034 Adams v. Lloyd 483, 1247, 1537 Adams v. Sanders 736 Adams v. Wordley 964, 980 A damson, Re 186 Adamthwaite t\ Synge 1318 Addington v. Clode 1283 Addington v. Magan 251 Adelaide, The 1420 Admiral Austen, Re 912 Admiral Boxer, The 227 Afialo V. Fourdrinier 411 Agnew V. Jobson 300 AgraBk. v. Barry 958 PAGE Agricultural Cattle Ins. Co. v. Fitzger- ald 386, 1553 Ahearn v. Bellman 699 Ahearne. v. M'Guire 1128, 1133 Ainsworth, Re 903 Airey v. Hill 216 Airtii Peer. 573 Aitken, ex parte 786 Alban v. Pritchett 675 Albert v. Tlie Grosvenor Invest. Co. 973 Alchin ('. Hopkins 889 Alcock V. Cook 550, 1346 Alcock v. The Roy. Exch. Ins. Co. 1201, 1203, 1230 Alcock V. Whatmore 20 Alcorn v. Larkin 1323 Alder v. Savill 1496 Alderson v Clay 214, 378, 704 Alderson v. Langdale 1549, 1557 Alderson v. Maddison 720 Aldous V. Cornwell 1551 Aldridge v. Gt. W. Ry. Co 947 Aldridge ri. Haines 1425 Aldridge v. Johnson 897 Alexander v. Burchfield 44, 46 Alexander v. Crosbie 971 Alexander v. Dixon 1054 Alexander ?'. Strong 404 Ale.xander v. Vanderzee 61 Alexandria, Mechanics' Bk. of, /'. Bk. of Columbia 533 Alfonso V. U. S. 360 Alfurd V. Clay (!22 Alhusen ?'. Labouchere 472, 476 Alivon i: Furnival 366 402, 405, 1325 Allan's Patent, Re 160 Allen, Re 902 Allen v. Bennet 876, H80 Allen r. Cameron 294 Allen V. Denstone 534 Allen r. Duncan 519 Allen )'. Dundas 1352, 1431, 1465, 1497 Allen V. D. of Hamilton 1076 Allen V. Maddock 910, 911, 1017 Allen V. M'Keen 700 Allen r. Pink 966 Allen i'. Snvward 116 Allen r. Yoxall 1058 Alliance Bank of Simla v. Carey 98 Allnut, Re 911 (2763) XXVI TABLE OF CASES CITED. 910 All port r. Meek Alinosiiino, Ke AliKT r. George Alvord V. ISaker Anialia, The Ambrose Jvook wood's Case American Fur Co. v. U. S. Aiuey V. Long Anilierst, Ld. v. Ld. Somers Amiss, Re Amos V. Hughes Amos c. Smith Anderson r. Anderson Anderson r. Brit. Bk. of Columbia PAGE 1585 1017 736 196 234 313 Anderson i . Gill 216, 347 Anderson ? . Hamilton 815 Anderson i . Hay man 883 Anderson i . Long 333 Anderson i . Pitcher 1012 Anderson i . Sanderson 675 Anderson ? . Scot 897 Anderson i . Thornton 263, 724 Anderson i . Weston 186, 610 Anderson i . Whalley 1202 Anderston ?•. Magawley 1346 Andrew t\ Motley 366 583, 1573 Andrews v. Askey 334, 335 340, 1232, 1235 Andrews t\ Elliot 725 Andrews v. Hailes 147 Andrews r. Martin 1130, 1134, 1135 Andrews r. Palmer 432 Andrews v. Solomon 791 Andrews v. Turner 919, 920 Andrews r. Vanduzer 338 Angell !". Duke 889, 977 Angell r. Worsley 186 Arbon ?'. Fussell Arcliangelo v. Thomson Archer, Re Archer r. Baynes Archer r. Leonard Arden v. Sullivan Arding i\ Flower Argoll, Ly. v. Cheney Arklow, The, Re Arlett /•. Ellis 341, 342 i Armistead r. Wilde 92;) h Armory r. Delaniirie 911 • Armour v. Walker Armstrong v. Hewitt Armstrong r. Norton Armstrong v. Stockham Arnit's trusts. Re Arnold v. Bp. of Bath & W 1051 1427 909 f93 Anglesey (M. of) v. Ld. Hatherton 307, 308, 549 Anglo-French Cooperat. Soc, Re 49 Angus r. Dalton 146 August. Smith 1235 Ann, The 234 Annapolis, The 226 Anneslev v. Ld. Anglesea 86, 137, 510, 784, 801, 806, 1164, 1262, 1263 Annett v. O-sbome 43 Auun. 11, 138, 144, 210, 315, 727, 783, 789, 799, 812, 826, 1065, 1132, 1134, 1135, 1161, 1200, 1257, 1258, 1262, 1427, 1447, 1497, 1588, 1589 Anon. r. Anon. 817 An.ste\ r. North & South Woolwich Subway Co. Ansty r. Dowsing Antram r. Chace Apoth. Co. r. Bently Appleton V. Ld. Braybrook Aranquren v. Scholfield PAGE 168 197 908 873, 876 921, 927 855 1127, 1130 1556 225 147 206, 207 138, 149, 498 463, 464, 465 583, 1359 1441 1332 128 1358 155 54, 300 155 479 366 1343 354 69 404 Arnold r. Blaker Arnold v. Haniel Arnold v. Holbrook • Arnold r. May, of Poole 838, 839, 843, 845 Arnott V. Redfern 1486, 1487 Arnsby v. Woodward 699 Aronegasy v. Lambonade 190 Arundell v. Ld. Falmouth 550. Arundell v. White 1336 Ash, Re 910 A.shby?). Bates 342 Ashby r. James 930 Ashcroftt;. IMorrin 874, 880 Ashcroft V. Redford 61 Asher r. Whitelock 150 Ashforth v. Redford 61 Ashhurst v. IMill 970 Ashlin V. Lee 937 Ashmore, Re 904 Ashmore r. Hardy 691 Ashpitel V. Bryan 731 Ashpital V. Sercombe 63. 704 Ashrufood Dowlah Ahmed v. Hyder Hos.sein Khan 129 Ashton V. Ld. Langdale 891 Ashton's case 1049 Ashwell i>. Lomi 172 Ashworth v. Mnun 890 Ashworth v. Outram 866 Aslin V. Parkin 1441 A.spden v. Seddon • 144 Astbury ?j. Belbin 1133 Aste V. Stumore 476 Aston, ex jjarte 1247 Astor r. Union Ins. Co. 988 Atalauta, The 130 Atchinson r. Baker 196 Atchley v. Sprigg 129, 571, 817 Athenry -Peer. 575 Atherfold v. Beard 1287 (2764) TABLE OF CASES CITED. XXV 11 PAGE Atherley V. Harvey 1243, 1524 Athlone Peer. 1356 Atkins r. Cur wood 211 Atkins V. Hatton 582, 1359 Atkins V. Humphrey 294 Atkins V. Meredith 411 Atkins V. Palmer 466 Atkins V. Tredgold 661 Atkins I'. Ld. Willoughby de Broke 5H2 Atkinson v. Baker 196 Atkinson v. Fosbroke 484 Atkinson v. Littlewood 1043 Atlantic Mut. Ins. Co. v. Huth 227 Atter V. Atkinson 179 Att.-Gen. v. Ashe 418 Att.-Gen. v. Bond 1237 Att.-Gen. v. Boston 1025 Att.-Gen. v. Bovet 469 Att.-Gen. v. Bowman 332 Att.-Gen. v. Bradlaugh 1177 Att.-Gen. r. Brazenose Coll. 1024 Att.-Gen. v. Briant 809. 810 Att.-Gen. v. May, of Bristol 1024 Att.-Gen. v. Bulpit 1194 Att.-Gen. v. Bunce 98 Att.-Gen. v. Calvert 175 Att.-Gen. r. Cast Plate Glass Co. 991 Att.-Gen. r. Chambers 142 Att.-Gen. v. Clapham 1025 Att.-Gen. v. Clerc 263 Att.-Gen. t'. Dakin 4 Att.-Gen. r. Davison 424 Att.-Gen. v. Donaldson 4 Att.-Gen. r. Drummond 987, 1016, 1018, 1022 Att.-Gen. v. Emerson 1524, 1537 Att.-Gen. r. Ewelme Hospital 153 Att.-Gen. v. Fadden 1086 Att.-Gen. v. Gaskill 477, 481, 848 Att.-Gen. v. Grote 1016 Att.-Gen. v. Hawkes 285 Att.-Gen v. Hitchcock 1230, 1231, 1233, 1234, 1235 Att.-Gen. v. Kohler 564 Att.-Gen. v. Lambe 1.524 Att.-Gen. v. Le Marchant 406 Att.-Gen. v. Corp. of London 1.524 Att.-Gen. v. Metrop.Dist. Ry. Co. 1186 Att.-Gen. v. Murdoch ' 1025 Att.-Gen. v. Naylor 720 Att.-Gen. v. Parker 1025 Att.-Gen. v. Parnther 216 Att.-Gen. v. Earl of Powis 1016 Att.-Gen. v. Radloff 332, 1153, 11.54, 1253 Att.-Gen. v. Ray 490 Att.-Gen. v. Riddle 136 Att.-Gen. v. St. Cross. Hosp. 1025 Att~Gen. v. Sidney Sussex Coll. 1024 Att.-Gen. v. Sitwell Att.-Gen. v. Skinners' Att.-Gen. v. Stephens Co. 1132, 123, 127. 599, 600 Att.-Gen. v. Sullivan Att.-Gen. v. Theakstone 25 Att.-Gen. v. Thompson Att.-Gen. v. Tomline Att.-Gen. v. Whitwood Local Bd Att.-Gen. r. Wilson Att.-Gen. of Prince of Wales v. man xVttree v. Ha we Attridge, Re Attwood V. Small Attwood ('. Taylor Attwood V. Welton Aubert v. AValsh Auckland, Earl ot Auckland, Maid of, Re Audley, Ld., case of Augusta, Bk. of, v. Earle 22 Augustien v. Challis Austee v. Nelms Austen, Amiral, Re Austin, ex parte Au.stin V. Bunyard Austin r. Chambers Austin V. Evans xlustin V. Guard, of Bethnal Green s'41 Austin V. Mead X'M Austin V. OLsen 101 Austin V. Rumsey 430, 1574 Australasia, Bk. of, v. Breillat 204 Australasia,, Bk. of, ti. Harding 1490 Australasia, Bk. of, v. Nias 1489 Australian Roy. Mail St. Nav. Co. r. Marzetti ' 841, 844 Aveline v. Whisson Avery v. Pixley Aveson v. Ld. Kinnaird 516, 51 PAGE 972 1133 59S, 70H 1194 , 1418 1524 117 . 1.539 1051 Cross- 3()4 891 906 653 1339 1231 197 226 14.53 1165 230 374 1020 912 1105 729 543 10.V2 Awdley i\ Awdley Aykroyd, Re Aylesford, Ld., v. Morris Ayliffe v. Tracey Aynsley r. Glover Ayrey v. Davenport Ayrton r. Abbott 1425 Avton V. Bolt B.', falsely called B. w. B Babb V. Clemson Babbage r. Babbage Babington v. Mahony Backhouse v. Bonomi Backhouse v. Jones 305, Bacon v. Bacon Bacon v. Chesney 681, 1 Baddeley v. Gilmore 765) H.55 917 62H, 782 647 1456 174 886 97 1335 1467 926 213 688 1151 1132 145 510 796 736 463 xxvin TABL?: OF CASES CITED. PAGE PAOB Baddeloy v. INIortlock 336 Bamfield v. Tupper 931 Baj^ot V. Baj^at 320 , 4()S Bamtbrd, ex parte 522 Ballot i\ Easton 2:{7 Banbnry Peer. 129, 564, 571. 573, 574 Bajijot, Ld., ;'. Williams 1453, 1455 Banbury's Tru.sts, Re 183 Bajiuoley v. Hawley 1003 Bancrolt ;;. Bancroft & Rumney 1438 liaiiulev V. Hawley 100.5 Banday v. Cartwright 1001 Bahia, " Tlie 1058 15aiilield r. Pickard 1540 Bahia & Francisco Ry. Co. , Fte, V. Trit- Bank Prosecutions 3(J7 ten 723 l.ank of New South Wales V. Owston Baigeiit r. Bailment 1511 84 i Baiclon i: Walton 645 , 9.52 Banks v. Cros.sland 887 Bailey, ex parte 107 167, 1467 Bauly, Re 906 B.iiley, Re 910 I5aniiatyne v. Bannatyne 14:9 Bailey v. Apple5^ard 274 Banner v. Jackson 805 Bailev v. Bellamy 9">2 Barbat v. Allen 1147, 1158, 1163, 1184 Bailey v. Bid well 346, 1568 Barber, Re 403 Bailey v. Bodenham 45 Barber v. Holmes 1358, 1510 Bailey v. Edwards 98> Barber v. Houston Errata Bailey i\ Harris 1432 Barber v. Lamb 1486 Bailey v. Hyde 337 Barber v. Wood 10.37, 1052, 1053, 1054 Bailey v. Macaulay 722 , 814 Barclay v. Bailey 46 Bailey v. Sweeting 877 Barclay v. Maskelyne 915 Baillie v. Jackson 17 Barclay v. Parrott 943 Baillie r. Kell 294 BardoU v. Pickwick 507 Baillie v. Ld. Inchiquin 925 15arden v. Keverberg 306 Baillie's case 809 Bargaddie Coal Co. v. Warl^ .. 783, 973 Bain v. Case 1354 Baring v. Clagett 1478, 1482 Bain c. Fothergill 1000, 1001 Baring v. Clark 533 Bain v. Mason 1510 i5arker v. Buttress 95 Bain r. Whitehaven & Furness Tunc. Barker v. Davis 836 Rail. Co. 68, 1515, 1592 Barker v. Dixie, 1162 1162 Bainbridge v. Wade 1019 Barker v. Ray 589 Bainbrigge v. Baddeley 1447 Barker v. Richardson 654 Bainbrigge v. Browne 173 Barker v. Stead 1578 Baines r'. Swainson 147 Barker's Estate, Re 714 Baird v. Cochran 1252 Barkworth v. Young 878, 886 Baker v. Baker 1227, 1230 Barnard, Re 1334 Baker r. Bradley 172 Barned's Bking. Co.,. Re 1393 Baker. Re. Collins v. Rhodes 98 Barnes, ex parte 1283 Baker r. Cave 1394 Barnes v. Lucas 1.571 Baker r. Dening 909 Barnes t'. Mawson 542, 543, 549 Baker v. Dewey 118 Barnes v. Pendrey 952- Baker v. Keene 214 Barnes v. Toye Errata Baker v. Lane 485 Barnes v. Trompowsky 1571 Baker v. Lond. & S. W. Ry . Co. 793, Barnes v. Vincent 1352, 1463 1528 Barnett v. Brandao 5 Baker r. Monk 173 Barnctt v. Cox 94, 302 Baker c. Ray 138 Barnett v. Glo.ssop 29.) Baker v. Sampson 211 Barnett ?-. Lucas 1450 Baker v. Stephens 725 Barnett r. Tugwell 221 Bakewell's Patent, Re 160 Barnstable v. Lathey 1285 Balcetti v. Scran i 307 Barough v. White 653, 685 Baldey r. Parker 395, 896 , 897 Barr r. Gratz 582, 586, 1424 Baldnev v. Ritchie 407 Barraclough v. Greenhough 1499 Ballard r. W^av 1417 Barraclough v. Johnson 548 Balls Si Mot. Bd. Works, Re 944 Barrel!, Re 107 Balnie r. Hutton 1202 Barrel! v. Trussell 854 Baltazzi v. Ryder 130 Barrett v. Buxton 96* Bamtield v. Massey 339 Barratti). Hyndman 881 (2766) TABLE OF CASES CITED. XXIX Barrett v. I^ong Barrett v. Kolfe Barrett v. Wilson Barron v. Daniel Barronet's case Barro\s' v. Humphreys Barrs, v. Fewkos Barrs v. Jackson 1433, 1434, 1463 Barry r. Barclay 464 Barry v. Bebbington 368, 591 Barry v. Butlin 179 PAGE I PACK 322 Bayley v. Ashton i/31 858 Bayley v. Bradley ' 119, 125 1496 iWyley v. Buckland 1439 1313 Bavley M. of Conyngham 855 103 ' Bayley v. Griffiths 482 1079 ' Bayley i\ Overseers of Nantwich 199 1046 ! Bayley r. AVilkins 201 Bayley v. Wvlie 1342, 1345 Bayliiie v. Butterworth 200, 201 Barrymore, Ld., v. Taylor 650 BarstOAv's case 747 Barthelemy v. The People, &c. 520 Bartholomew v. Stephens 405, 417 Bartlett r. Delprat 513, 688 Bartlett v. Dowues 157 Bartlett v. Gillard 648, 1044 Bartlett v. Lewis 4«5 Bartlett v. Pentland 201 Bartlett r. Pickersgill 870 Bartlett v. Smith 35, 36 Bartlett v. Wells 723 Barton v. Dawes 981, 1040 Barton v. Dupuy 1338 Ba;ton v. Palmes 427, 428 Barton v. Robins 178 Barwell v. Adkins 322 Barwickr. English Joint Stock Bk. 778 Barwis v. Keppel 1210 Basel ey v. Forder 211, 214 Bass r. Cli-\e 729 Bastard r. Smith 642, 1238, 1312 Bastard r. Trutch 165 Basten v. Carew 1425, 1427 Bastiu r. Carew 1192 Batchelor r. Honeywood 1582 Bate V. Hill 3:;;) Bate r. Kinsey 138, 417, 7l>s Bateman v. Bailey 520, 5 23, 524, 68^s Bateman v. Phillips 874, 982 Bateman r. Pinder 924 Bateman r. Ld. Roden 96i; Bates V. Don Pablo Sora 22fi Bates V. Townley 692, 693 1496, 1497 Bateson r. Hartsink 791 Bath, Ld., v. Bathersea 645 Bathurst v. Errington 962 Batley v. Kynock 1057 Batten, Re 907 Batthews v. Galindo 721, 1161 Butthyany r. Bouch 850 Batturs r. Sellers 707 Baugh V. Cradocke 797 Baumann v. James 876 Baxendale v. Bennett 730 Baxter v. Brown 868, 890, 891 Baxter v. Nnrse 195, 19() Bayard v. Malcolm 964 Baylis v. Lawrence 58, 65, 66, 106 Baynton's case 497 Bazeley v. Forder 211, 214 Beadle, Re 906 Beadon v. King 796 Beal V. Bird 1522 Beal V. S. Dev. Ry. Co. 938 Beale i'. Sanders 855 Beall V. Back 681 Bealy v. Greenslade 931 Beamish v. Beamish 1384 Beamon v. Ellice 1194 Bean v. Quimby 794 Beardman v. Wilson 858 Beardmore v. Wilson 858 Beardslee v. Richardson 521 Beasley v. Magrath 665 Beasney's Trusts, Re 220 Beatson v. Skene 815 Beattie v. Ld. Ebnry 1009 Beauchamp v. Cash 1583 Beauchamp v. Parry 685 Beaufort, D. of, v. Ashburnham 1056 Beaufort, D. of, v. Crawshay 36, 467, 468 Beaufnt, D. of, r. Neald 720 Beaufort, D. of, v. Smith 154, 541 , 542, 549, 551, 1346, 1417 Beaufort, D. of, v. May. of Swansea 154, 1025, 1026 897 Co. Beaumont v. Brengeri Beaumont v. Fell Beaumont v. Field Beaumont v. Mountain Beaumont v. Perkins Beaurain v. Sir W. Scott Beuvan r. M'Donnell Bechervaise v. Gt. West. Ry. Beck and Jackson, Re 15eckett v. Dutton Beckett v. Howe Beckett v. Corp. of Leeds Beckford v. Beckford Beckham v. Drake BcH'kham v. Osborne Beckton v. Barton Beckwith v. Benner Beckwitli v. Sydebotham Bect]uet v. MacCarthy Bedford, K. of, r. Ex'eter, Bp. of 1444 Bedford, D. of, v. Lopes 394, 586 1030 1022 1303 1.584 691 321 485 1344 248 905 143 868 866 653 1043 806 1212, 1213 1478, 1489 (2767) XXX TABLE OF CASES CITED, PAGE Bodfordshire case (jtifj Ik-cch c. Jones 1201, 1204 HfiH'luT r. ilivjor 870 Heccliing v. Gower 1183 F-eeinan v. Duck 730, 7:^1 Beer v. AValker 1004 Beer v. Ward 1589 Bees V. Williams 862 Bcestoii r. Collyer 195 Belbin r. Skeats 360, 157:^ Belcher v. M'Intosh 341, 342 Beldon r. Campbell 227 Belfast Dock Act, Re 311 Bell c. Ansley 665 Bell r. Bruen 978 Bell V. Chaytor 1569 Bell V. Fothergill 182 Bell V. Frankis 696, 698 Bell V. Howard 974 1,'ell ('. Kennedy 227, 228 Bell V. Love 140 Bell r. Morrison 531 Bell V. Parke 337, 338 Bell V. Simpson 107 Bell V. Stewart 1263 Bell V. Warden 64 Bell V. Wilson 64 Bell's case 752 Bellerophon. H. M, S. 815 Bellinger v. The People 1244 Bellinger's case 703 Belt V. Lawes 1210 Bempde i'. Johnstone 228 Benbow v. Lowe 483 Bend v. Georgia Ins. Co. 992 Bender v. Zimmerman 480 Benesh r. Booth 943 Bengal, The 1450 Benham i: Newell 1043, 1045 Becham's Trusts, Re 219 Benmore, The 343 Bennet v. Bennet 868 Bennet v. Hartford 1173 Bennet v. Watson 1049 Bennett v. Blain 891 Bennett v. Brumfitt 910 Bennett r. Crocker 377 Bennett v. Gamgee 117 Bennett & Glave, Re 1040, 1104 Bennett v. Griffiths 504 Bennett r. Houldsworth 1043 Bennett v. Hyde 3:57 Bennett o. Marshall 1028 Bennett v. Taylor 1571 Bennett v. The State of Tennesse 24 Bennion v. Davison 712, 713 Bennison v. Walker 237 Benson v. Benson 916 Benson v. Chapman 274 PA OK Benson r. Marshal 6H5 Benson v. Olive 217, 429 Benson v. I'ost 1287 Bentall v. Burn 898 Bentall v. Sidney 1312 Bentham v. Wilson IB^ Benley v. Cooke 1165 Bentley, Dr., caseof 1480 Bentley v. Mackay 721, 971 Benton v. Sutton 51 Benyon r. Cresswell 850 Beuyon v. Fitch 174 Benyon v. Nettleford 116, 968 Berdan r. Greenwood 464, 717 Bere v. Ward 112 Beresford v. Easthope 463 Bergheim v. Gt. East. Ry. Co. 205 Berkeley, Peer. 405, 507, 538, 555, 556, 558, 559, 564, 566, 567, 571, 572, 589, 1175, 1262 Berkeley v. Hardy 845 Berkeley v. Standard Disct. Co. 474, Bernion v. Woodbridge 644, 645 Bernardi r. Motteux 1482 Bernasconi v. Atkinson 1033, 1035 Bernasconi v. Farebrother 668 Berne, City of, v. Bk. of England 3 Berney v. Bp. of Norwich 830, 1153 Berney r. Read 1344 Berry"j\ Lindley 855, 856 rBerridge v. Ward 142 Berry, ex parte 1064 Berry v. Alderman 346 Berry v. Banner 543, 1437 Berry v. Pratt 1058 Berryman v. Wise 188, 192, 695 Berthon v. Loughman 1212 Bertie v. Beaumont 112, 584 Berwick v. Horsfall 64 Berwick-upon-Tweed, May. & Corp. of, V. IVIurray 1225 Berwick, May. of, v. Oswald 972 Berwick's case 743 Besantv. Cross 980 Besley v. ex parte 722 Bessela v. Stern 828, 1149 Bessey v. Windham 646, 1465 Betham v. Benson " 533 Bethell v. Blencowe 378, 381 Betteley v. McLeod 1058, 1059 Betteley v. Reid 727 Betts V. Bagley 1425 Betts V. De Vitre 136 Betts V. Menzies 62, 793 Betty V. Nail 565 Bevan r. Bevan 1470 Bevan ?'. Gething 932 Bevan v. Hill 404 Bevan v. McMahon 1263 (2768) TABLE OF CASES CITED. XXXI Kevan r. Waters Bevan v. Williams Eeveridge v. Minter Beverley v. Beverley Beverly , May. of, v. Craven PAGE 8U5 191, 694 782 217 i:ur, Beverley i\ Lincoln Gas Light & Coke Co. 840, 844 Beverley's case G'^2 Bewicke v. Graham 1535, 1537 Bewley v. Atkinson 97, 591 Bewley v. Power 924, 926 Beynon v. Cook 174 Beynon v. Garrat 732 Bhearv. Harradine 1496 Bibb V. Thomas 916, 917 Biccard v. Shepherd 997. 998 Bickett V. Morris 141 J 700 Bickford v. D'Arcy 4s5 Bidder v. Bridges 468, 1189, Errnla Biddle v. Bond 727 Biel, Bai'on de, v. Hammersley 885 Biffin V. Bignell 212 Bigg V. Strong 700 Bigg V. Whisking 895 Bigge V. Parkinson 1004, 1005 Biggs V. Lawrence 968 Biggs r. Sadlier 388 Bignell v. Clarke 263 Bigsby V. Dickinson 1595, 1596 Bilbie v. Lumley 103 Bill V. Bament 878, 897 Billage v. Southee 173 Billing t;. Welsh 110 Billingshurst v. Vickers 1 78 Bills V. Smith 107 Bingham v. Stanley 346, 712 Birch, Re 160 Birch V. Birch 181 Birch V. Depeyster 1015 Birch V. Edwards 943 Birch ?". Ld. Liverpool 887 Birch V. Ridgway 1585 Birch .r. Somervi'lle 1174, 1181, 1184 Bird ?'. Adcock 167 Bird V. Bonlter 948 Bird V. Gammon 883, 926 Bird V. Higginson 362, 835, 836 Bird V. IVIalzy 484 Bird ('. Randall 1444 Birkenhead, Lane. & Cheshire June. Rail. Co. V. Brownrigg 1515 Birkenhead, Lane. & Cheshire June. Rail. Co. V. Pilcher 128 Birkmyr v. Darnell 881 Birks V. Birks , 914 Birmg., May. of, v. Allen 145 Birmg., Brist. & Thames June. Ry. Co. V. White 1284, 1289, 1522 Birt. Re 908 PAGE Birt r. Barlow 191, 386, 515, 1510 Birt V. Rothwell 25 Bishop r. Chambre 1547 Bishop V. Helps 199 Bisliop i\ Howard 194 Bishop V. Countess of Jersey 204 Bittleston v. Cooper 640 Bittlestone v. Cooke 107 Black V. Lord Braybrook 69 Black V. Holmes 815 Black V. Jobling 182 Blackburn v. Hargreave 1053 Blackburn v. Mackey 214 Blackburn Guard, r. Brooks 1187 Blackett v. Lowes 544 Blackett r. Roy. Ex. xiss. Co. 99C , 991 Blackball v. Gibson 121 Bhickham's case 1463 Blackie r. Pidding 404 Blacquiere v. Hawkins 8 BlagraveiJ. Blagrave 427 , 428 Blague v. Gold 1038 Blair, Re 910 Blair v. Ormond 929 Blake, Re 1033 Blake v. Albion Life Ass. Co. 321 Blake v. Beaumon 265 Blake v. Blake 903 , 904 Blake v. Concannon 128 Blake v. Jennings 1501 Blake v. Johnson • 216 Blake t\ Knight 904 , 905 Blake v. Pilford 816 Blakemore v. Glamorganshire Can . Co. 1429, 1437. 1443 Bland v. Bland 1438 Bland r. Swaftbrd 1079 Blandy v. De Burgh 214 Blankley v. Winstanley 1025 Blayuey's Trusts, Re 1033 Bleakley v. Smith 874 , 879 Blenkin.sop v. Blenkinsop 798 Blewett V. Tregonning 1261 Blewitt, In re 909 Blewitt V. Roberts 183 Blighr. Brent 890 Bligh i\ Brewer 951 Bligh V. Wellesley 401 Blight t\ Fisher 1136 Blight V. Goodliffe 482 Bloomer v. Spittle 971 Bloomfield v. Wharton 141 , 112 Blossom V. Cannon 1.52 Blount V. Burrow 645 ,647 Blount V. Harris 957 Blower v. G. AV. Ry. Co. 998 Blower v. Hollis 1339, 1340 Bloxamr. Elsie 321 382 Bloxam v. Faire Errata (2769) xxxu TABLE OF OASES CITED. PAGE Bluck r. (Jompertz IS.IO Block V. I\;ickman 21, 355 BliiiKlell V. Ciitterall 143 Blundell v. Gladstone 9G0, 101 G, 1029, Blunt V. Lack Blvth V. Archbold Blyth v. Dennett Board man v. Jackson Board man v. Keed & 8 187 699 704 Ford's Lessees 1038 Boast V. Firth Boddington v. Schlencker Boddv c. Boddy Boddy V. Wall Bodger v. Arch Bodmin United Mines Co., Re Body, Re Boelen v. Melladew Boehtlinck v. Schneider Bogert V. Cauman Bohun V. Delessert Jjjileau V. Rutliu 1008 45 322 2:59 929 9 403 465 1215 964 163 574, 670, 710, 7.36, 1494 480 0:; 721, 885, 970 392, 989 936 289, 306 Local Board ol' Bolckow V. Fisher Bolckow V. Seymour Bold V. Hutchinson Bold V. Rayner Balding v. Lane Boldron v. Widdows Bolingbrooke Ld., v. Swindon 778 Bolingbroke, Ld., v. Townsend 249 Bolland, ex parte 1105, llOi) Bolton V. Bolton 1341 Bolton V. Bp. of Carlisle 861, 1554 Bolton c. Gladstone 1481 Bolton V. Corp. of Liverpool 786, 793, 796, 801, 1285, 1524 Bolton V. London School Board 153 Bolton v. Sherman C79 Bolton, Ld., V. Tomlin 120 i Bond V. Douglas 324 Bond r. Rosling 852 Bonelli, Re 1217 Bonlield v. Smith 358, 1207 Bonner, Re, Tucker v. Good 185 Bootlc r. Blundell Borthwick Peer. Bosancjuot, Re Bosaiiquet v. Anderson Bosher, In re Boswcll V. Smith Bosworth V. Cotchett Botham v. Swingler Botha's case B;)thnia, The Bolting r. Martin Bottomley r. Forbes Boucher v. Lawson Boucher v. Murray Bouchier v. Taylor Bouillon IK Lupton Boulter ?'. Peplow B )urdin v. Greenwood Bourne v. Coulter Bourne v. Fosbrooke Bourne v. Gatliffe Bours V. Tuckerman Bousfield V. Mould Bovill V. Pimm Bowden v. Allen Bowden ik Henderson Bowden v. Home Bowen v. Owen Bonnewell r. Jenkins Bonomi i'. Backhouse Bonzi V. Stewart Booker v. Allen Boorman v. Johnston Boosey v. Davidson Booth V. Briscoe Booth V. Clive Booth V. Grove Booth V. Kennard Booth ?'. Millns Booth V. Turle 877 145 713 1045 962 380 236 300 265 62 359, 362 PAGE 1573 573 904 730 Errata 197 605, GOO, 610 1185 1273 224 85S 1012 1483 251 1431, 1433 997 381, 382, 388 923 Errata 837 62, 1012 1133 1184 Gl 1246 218 1455 59 Bowerbank v. Monterro 977 Bowers I'. Nixon 245, 250 Bowes V. Foster 116, 646, 73(5 Bowes V. Pontifex 899 Bowes V. Shand 61 Bowey i: Bell 56 Bowker v. Burdekin 1561 Bowlby V. Ball 892 Bowles V. Jackson 911 Bowles r. Johnson 1053, 1058 Bowles V. Langworthy 156(5 Bowman, Re 127(5 Bowman v. Bowman 1197, 1567, 1573. Bowman *'. Hodgson 366 Bowman v. Horsey 989 Bowman v. Manzelman 417 Bowman v. Nichol 1549 Bowman v. Norton 792, 798 Bowman ?'. Rostron 114, 735 Bowman v. Taylor 113, 119 Bowring v. Shepherd 201 Bowsher v. Calley 530 Boyce, In re, Crofton v. Crofton 4(54 Boyce v. Douglas 1444 Boyce v. Green 875, 891 Boyce v. Rushboro 463 Boyd V. Bolton 700, 705, 706 Boyd V. M'Lean 869 Boyd V. Moyle 247 Boyd V. Petrie 1540 Boyd V. The State 759 (2770) TABLF, OF CASES CITKD. XXX 111 Boytlell r. Drummond BoydcU's case Bnyes v. Bedale Boyle V. MulhoUand Boyle V. Wiseman Boynton r. Kellogg Boys V. Ansell Boys V. Williams Boyser. Colclongh Bracegirdle v. Heald Bracegirdle v. Hinks Bradford v. Romuey Bradford r. Young Bradlaugh v. Gossett Bradlaugh v. R. Bradley o. Arthur Bradley v. Beckett Bradley v. Bradley Bradley v. Holds worth Bradley v. James PAGE 877, 887 67;j 185 1040 36, 405, 1-254 336, 1259 247 1016 1477 887 293 871 1433 Errata 109 1210 114 1447 890 598, 606 Bradley v. Pilots of Newcastle 1025 Bradshaw v. Bennett 1569 Bradshaw v. Murphy 1253, 1288 Bradshaw v. Vaughton 1387 Bradstreet v. Nept. Ins. Co. 1475, 1480, 1482 Brady v. Cubitt 870 Brady v. Curran 680 Brady v. Oastler 966 BradV v. Tod 533 Brady v. Todd 634 Brain v. Preece 614 Braithwaite ?;. Gardiner 729 Bramble, ex parte 420 Bra m well v. Lucas 804 Brandao v. Barnett 6 Brand ford v. Freeman 362 Brandford r. Brandford 799 Branton r. Griffits 1467 Bramwell ik Penneck 1467 Brashier v. Jackson 251, 252, 253 Brasier's case 1171 Brassington v. Brassington 419 Braun v. Mollett 462, 465 Bray v. Hardwen 44 Braye Peer. 549 Brazier i\ Jones 1343 Breadalbane case 135, 190 Breadalbane, M. of, v. M. of Chandos 1454 Breadalbane Peer. 229 Breckon v. Smith 692 Breech Loadg. Arm. Co., Re 1091 Breeze v. Hawker 1365 Brembridge v. Osborne 196 Bremer r. Freeman 1216 Breman's case 9, 108 Brenchley v. Still 905 Brennan r. Dillane 1340 PAGK Brennan v. Howard 250, 253 Brennan v. Moran 1042 Brest V. Lever 150 Breton v. Cope 197, 1365, 1511, 1566 Breton's Estate, In re 837 Brett V. Beales542, 549, 586, 1303, 1417 Brettel v. Williams 20') Bretton i\ Prettim? 672 Brew V. Haren 1445, 1496 Brewer v. Knapp 196 Brewer v. Palmer 374 Brewis, Re 910 Brewster, Re 918 Brewster v. Sewell 365, 397, 401, 421 Brice r. Bannister 849 Brickell v. Hulse 670, 687 Bridge v. Eggle.ston 68H Bridge r. Gray 1454 Bridge v. Sumner 1470 Bridges v. N. Lond. Ry. . 53 Bridges v. Potts 48 Bridget Felthara, Re • 10.33 Bridgewater, Ld., ca.se of 1518 Bridgman i\ Jenning 68:} Bridgwater Trust v. Bootle-cum-Lin- acre 141, 142 Bridson ?'. Smith 714 Brien r. Swainson 877 Briggs, ex parte 1282 Briggs r. Aynsworth 362 Briggs V. Briggs 1476 Briggs V. Wilson 605, 610, 925 Brigham v. Rogers 981 Bright V. Hutton 722 Bright V. Legerton 613 Bright V. Walker 151, 155 Brigstocke v. Smith 922, 926 Brine v. Bazalgette 333 Bringloe v. Goodson 1566, 1571 Brinsmead v. Harrison 144:> Brisco V. Lomax 309, 542, 544, 551, 552, 14.37 Briscoe v. Stephens 1465 Bristol, city of, v. Wait 'MM Bristol, May. of, v. Cox 1524, 1535 Bristow V. Brown 982 Bristow V. Cormican 142, 394, 585 Bristow r. De Secqueville 1217 Bristow ;'. Miller 532, 930 Bristow V. Sequeville <)7, 1217 Bristow V. Wright 261, 266 Britain ?•. Ro.ssiter 887 British Empire Ass. Co. v. Browne 880 British Farmers Pure Lins. Cake Co., Re 1394 British Linen Co. v. Drummond 69 British Prov. Life & Fire Ass. Co. , Re 1 69 Brittain v. Kinnaird 1425, 1436, 1467 Britten, ex parte 1126 C LAW OF EVID. — V. I. (2771) XXXIV TAUI.K OF CASKS ciTElt. liroiul r. Iliim Broad r. Pitt Krocas r. lAoyd Hrock c. Kent 785, 787, 7Si) lu.is, lost) ()(>H 1 1 s.-) liruc'kbuiik /•. Aiulcrsdn Brodie r. Bn)(li<' 'y\9 Brodie v. Hi)\vard 227. (iiJU Brojuan's case 77(5 Brtmia^e r. I'rosser 140 Bromley v. Smith 174 Bromley r. Wallaces 3An Bromwieh's eas(^ 440 Brook lit Delcomyn, Re 148 J Brook r. Hook G.'} Brook ?• Jenney 167 Brooke, Re 919 Brooke r. Brooke 18 Brooke v. Haymes 119 Brojke r. Kent 919 Brooker v. Scott 60 Brooks V. Blanshard 235 Brooks r. Mitt-hell 685 Broomtiekl r. Smith 293 Brough /■. Parkins 21 Brounker, Ld., r. Atkyns 151 h! Brown, Re Isl, 494, 906. 915, 921 Brown, ex p. 704 Brown & Croyd. Can. Co., Re 1496 Brown r. Aekroyd 211 Brown r. Armstrong 388 Brown v. Batchelor 1019 Brown v. Brown 181, 182, 462, 470, 494, 915, 921 Brown v. Brown & Paget 1150 Brown v. Byrne 995 Brown v. Dawson 1043 Brown v. Edgington 1005 Brown i'. Foster 801, 805 Brown v. Getchell 1134 Brown i. Goodwin 339 Brown v. Kempton 107 Brown ?. Langley 977 Brown v. Leeson 817 Brown v. M'Dermott 1130 Brown i\ Payson 805, 807 Brown v. Pearson 714 Brown v. Perkins 800 Brown?!. Philpot 345 Brown «;. Pinkham 1551 Brown v. Robins 145 Brown ?'. Symons 194 Brown v. Thames & Mersey Mar. Ins. Co. 1536 Brown v. Thornton 69 Brown v. Wood 152 Brown v. Woodman 393, 494 Brown v. Wootton 1444 Brown's case 1165 Browne v. Cumming 1274 PAfJE? Browne r. (Jisborne 10K5 lirowne r. Murray 360 Brownell r. Bonney 698 Browning r. liudd 178, 179 Browning r. Paris 924 Browning v. Sabin 1082 Brownsword v. Edwards 1242, 1244, 1445, 1464 Bruce r. Bruce 228 Bruce v. Nicolopulo 163, 405 Bruce v. Wait 8 Bruin v. Knott 8 Brune v. Thompson 2 5, (;00, 1025 Brunsden v. Humphrey 1449 Brunswick, D. of, v. Harmer 1207 Brutt r. Picard l.-)51 Bryan v. Child 956 Bryan r. Wagstaft' 412 Bryan v. White 909 Bryan v. AVinwood 147, 309 Bryan Reynolds, Re 920 Bryant v. Foot 22, 153 Bryant r. Herbert 55 Bryant v. Lefever 97, 156 Bryce, Re 90.) Brydges i\ Branfill 467 Brydges v. Fisher 46.3 Brydges v. Walford 732 Buccleueh,D.of,i-. Met. Bd. of Works 80H Buchanan v. Rucker 1478, 1480 Bucher v. Jarratt 379. 380, 415 Buck V. Rob.son 849 Buckuell V. Bleakhorn 901 Bucket V. Church 63, 92-2 Buckhouse ;•. Crossby 974 Buckingham. D. of, d. Com. of Inl. Rev 364 Bucklaiid r. .Johnson 248, 1444, 1 44H. 1 450 Buckler. Knoop 200, 1010 Buckler v. Millerd 9(i7 Buckley v. Beardsley 872 Buckley v. Cooke 1219 Buckley r. U. S. 1359 Buckmaster V. Cox 1132 Buckmaster v. Meiklejohn 710 Buckmaster v. Russell 925 Buckminster v. Perry 1209 Buckton ('. Higgs 71(i Budding i\ Murdock 241 Bulkier V. Littlebury 1042 I5ull r.' Loveland 791, 1252 Bull V. O'Sullivan 729 Bull {'. Parker 59 Bullen V. Michel 583, 596 BuUey v. Bulley 119 Bullock V. Corrie 793, 796 Bullock r. Corry 793, 796 Bulmer v. Norris 890 Bunbury v. Bunbury 791, 792 Bunbury ii Matthews 188 (2772) TABLE OF CASES CITED. XXXV PAOE Bunn V. Bunn 1247 Bunii r. Markham h:{7 Bunting's case 14;{U Burbidge r. Robinson 1537 Buichell r. Clark 394 Burchfield r. Moore 1549 Burder r. O'Xeill 830, 1153 Burgess r. Burgess 074 Burgess r. Clements 20G Burgess v. Lane . (563 Burgess r. Langley 814 Burgess i\ Wickham 997 Burgh ('. Legge 246 Burghart r. Angerstein 678, 15(17 Burghart r. Hall (10 Burgoyne r. Showier 905 Burke r. Moore 905 Burleigh v. Stibbs • 393 Burling r. Paterson 169 Burlinson v. Hall 849 Burls r. Burls 403 Burmah Trading Corp. Lim. v. Mirza Mahomed Ally, &c. 778 Burmester r. Norris 204 Burn V. Boulton 928, 932 Burnby i\ Bollett 1004 Burnham v. Bennett 169 Burnham r. Webster 1477 ,1480, 1482, 1490 Burnside v. Dayrell 722 P>ussey V. Barnett Bustros ('. White Butclier v. Steuart Butcher's case PAGC 293 4, 791, 152:5, 1530 882 1319 Burr's case 812 , 815, 1244 Burr V. Harper 1580, 1581 Burr V. Hubbard Errata Burrell v. Nicholson 362, 1286, 1524 Burrougli r. Martin 1199, 1202 Burrows v. Baker 926 Burstall o. Beyfus Errala Burt, Re 908 Burt, ex p. 1130, 1132 Burt i\ Burt 191 Burt V. Palmer 668 Burt V. Walker 430, 1572, 1574 Burtenshaw r. Gilbert 919 Burton & Saddlers' Co. , Re 1283 Burton r. Ld. Darnley 806 Burton v. (hiffiths 52 Burton v. Issitt 531 Burton v. Newbery 911 Burton r. Payne 407 Burton r. Plummer 1201, 1202 Burton r. Keevell 851 Bury r. Blogg 20, 251 Bury r. Oppenheim 173 Busii V. Fox 62 Bush V. Green 300 Bush r. Martin 923 Bushel V. Wheeler 896, 899 Bushell's case 35 Bussard r. Levering 197 Butchers' Co. r. Jones Butler r. Allnutt Butler V. Carver Butler r. Ford Butler r. Moore Butler r. ^Mountgarret (27 1185 200 1185 18'< 789 186, 197, 556, 565, 573 Butler V. Wright 613 15utteniere v. Hayes 888 Butts r. Swartwood 1177 Buxton V. Cornish 375 Buxton r. North East Ry. Co. 999 Buxton /•. Rust 877 By am r. Booth 1345 Byue, ex p. 1127 Byrd, Re 905 Byrd v. Nunn 296 Byrne v. Boadle 207 Byrne v. Frere 427, 428 Byrne r. Harvey 411 Byrom v. Thomp.son 1548, 1551 Bywater i\ Richardson 996 Cahali.ero r. Slater 872 Caddick v. Skidmore 877, 889 Cadge, Re 180 Cadogan, Re, Cadogan r. Palagi 185 Caldbeck v. Boon 807 Calder r. Dobell 982 Calder r. Halket 1425 Caldwell r. Hunter 25 Caldwell v. I'agham Harb. Rec. Comm. 243 Caldwell r. Parker 1550 Caledonian Ry. Co. r. Sprot 145 Call r. Dunning 1566 Callaghan v. Pepper S45 Callan, Re " 403 Callans r. Sherry 1132 Calley r. Richards 794, 796, 80.! Callow r. Howie 664 Calmady r. Rowe 142, 154 Calvert v. Bovill 1479, 1482 Calvert r. Flower 123S, 1,545 Calvert v. Scinde Ry. Co. 105>< Calye's case 20(5 Calypso, The ' 1452 Cambrian Mining Co., Re 1092 Cameron's Coalbrook Ry. Co., Re 419, 420 Cameron v. Lightfoot 735, 1134, 113"), l];;6 Camfiekl v. Bird 323 Cammell r. Sewell 1428, 1430, 1481 Camoys, Ld., 7-. Blundoll 1032, 1033 Canioys Peer. 574,576,578 73) XXXVl TA15LK OF (;ASKS dTKI). 1-Jll. Campbell, ex p. Campbell, i'. Att.-Gen. Campbell c. Campbell Campbell v. Christie Campbell v. Dalhousie, K. ol Campbell r. Hodj^soii Campbell i: ^IoCona<;lu Campbell r. Riekaids Campbell r. Tweml((,\ Campbell r. Webster Campion's case Camula, West of, Oil i\ Canal Bk. r. Bk. ol' AUxmy Cann v. Clippeiton Cannam v. Farmer Cannan r. Hartley Cannell r. Curtis Canning's, Eliz., ease Capital Fire Ins. As.soc Capron c. Capron Carbonell r. Bessell Cardinall v. Cardinall Card well v. ^lartin Carew r. White Carev r. Atkins Carey r. Pitt 1581, Cargill v. Bower Cariss v. Tattersall Carlisle, May. of Carlisle v. Eady Carlisle r. W^haley Carlos V. Brook Carmalt v. Post Carmarthen, Mav. of. P.VGK son IIK) 1(M:5 1548 489 980 1-212 IKil f]!)8 7()1 lie 4(;0. ll!);> 7:^1 300 359 8(J3 189 1142 42iJ 177 463 Errata 1549, 1558 1526 Re 675 1582 241 1547 Carter v. Ld. Coleraine Carter v. Downish (Airter r. .lames Carter r. .Jones Carter v. Mnreot Carter c Prykc Carter /•. Tousaint Carter /-. White Carter & Crost's ease Cartwright v. (jreen , Carver. Re Carver v. .Jackson Carry v. Gerrish Case r. Reeve Casement r. Fulton Cashill /■. Wright Cashin c. Craddock Casmore. Re Cassidy v. Firman , Steuart Churchley O'Brien Tilamire 393. 735 1185 959 12.57 1207 Lewis 246.843 Carnarvon. Ld., v. Yillebois 543.552 Carne v. Nicholl 600, 601 Carne i\ Steer 703 Carpenter v. Buller 114, 119, 120 Carpenter r. Provid.Wash. Ins. Co. 971 Carpenter r. Wall 335. 1241, 1258 Carpenters' Co. v. Hay ward PAQE 647 5 711, 713, 1464 357 141 .306 896, 897 1.561 1484 1164, 1242 906 113, 682 197 1440 436, 900, 902 207 Cassidy i Casson v. Ca&son V. Cast r. Poyser Castellii'. Groom Castle r. Downton Castle V. Fox Castle r. Sworder I Castlebar Guard, v. Ld ' Castleden r.Castleden I Cast ri que v. Imre : Cates r. Hardacre Cates r. Winter Catherwood v. Caslon Catherina Maria. The Catlin r. Skoulding Catling v. King Caton v. Caton Caton V. Lenox Catt V. Howard Cattell V. Ireson Catton r. Simpson 1530 907 925 4 950 126.3 107!) 465 957 1019 8!)7 Lucan 1511 160 1430, 1478 1244 406, 408 191 1 359 929 875 234, 674,878, 885, 886 492 649, 663, 120;; 11.53 Carpmael r. Powis Carr v. Burdiss Carr v. Griffith Carr v. Jackson Carr r. Lond. & N. W Carr v. Montefiore Carr v. Mostyn Carrier Dove, The Carrigy v. Brock Carrington v. Cornock Can-ington v. Jones Carrington v. Roots Carroll r. Co we 11 Carruthers v. Graham Carskadden v. Poorman Car.stairs v. Stewart Carter v. Boehm Carter c. Carter 783, 785, 792 I Cattrall, Re 1569, 1570 Caunce r. Spanton 177 : Caunt v. Thompson 983 Cavan v. Stewart Ry. Co. 732 Cave v. Hastings 962 Cave v. Mackenzie 542, 683, 1506 ' Cave v. Mills 226 : Cave r. Mountain 948 I Cawley r. Furnell 428 Cawthorne c. Cordrey 605 Cazenove v. Vaughan 893 : Central Xews Co. v. East Tel 873 Chabbock's case 429, 468 Chad v. Tiksed 572 , Chadwick v. Chadwick 1243, 1254 216 ; Chadwick v. City of Dub. St. Pack. Co. 8 1211. 1212 Chadwick r. Turner 950 121 Chalmers v. Shackell 134 (2774) 1.549 I'-O 195 246 1480 876, 877 947 724 1427 925 887 424 461 748 1025 .50 Co TA15LK OF CASES CITED. XXXVil PAGE Chamberlain r. King o(M» Clianibors v. Bernasconi 601, (517, ()18 CHiamhers i'. Kelly 101.') Chambers v. Mason CJ80 Chambers v. Wood 178 Chalmley v. Ld. Dunsany 1454 Chamney, Re 809 Champian v. Atkinson 305 ChamjHon v. Plnmmer 874 Chain i>ion v. Terrv 408 Chainimeys v. Peck 200, 614 Chandlier r. Grieves 4, "28 Chandler r. Home 1193, 1194 Chandler r. Howell 891 Chandos Peer. 573, 574, .576, 578, 57!) Chandos M., v. Corns, of Inl. Rev. 364 Chant V. Brown 783, 792, 79S Chanter r. Hopkins 1 005 Chapel r. Hicks 294 Chaplin r. Levy 416. 642 Chaplin r. Rogers 898 Chapman v. Beard 697 Chapman v. Callis 850 Chapman i\ Chapman 560 Chai)man v. Cowlan 541 Chapman v. Davis 1055, 1080 Cliapman v. Emden 362 Chapman r. Keane 45 Chapman v. Monm. Ry. &Can. Co. 1429 Chapman ii Rawson 359 Chajiman v. Searle 727 Chapman v. Speller 1003 C^hapman v. Sutton 247 C'hapman r. Walton 1212 Chappell V. Purday 1340 Chappie r. Cooper 61 Charkieh, The 28 Charles v. Blackwell 92 Charlotta, The 103 Charlter v. Barret 322 Charlton v. Coombes 784, 798, 801 Charlton v. Hindmarsh 909 Charlton v. Watson 324 Charnley r. Grnnl)y 404 Charnock v. Deviiinjs 1193 Charter v. Charter " 1026, 1033 Chart. Mer. Bk. of India v. Dickson 52 Chase?'; Lincoln 1209 Chasemore v. Richards 156 Chasemore r. Turner 927 Chatelain i\ Pontigny 1463 Chater r. Beckett " 884 Chatfield v. Fryer 547 Chatland v. Thornley 25 Chaurand v. Angerstein 988 Cheese v. Lovejoy 916, 918. 1593 Cheesebrougb, Re 107 Cheesraan v. Exall 728 r.AGK Cheltenham & Gt. West. I'niun Kail. Co. r. Daniel 72:5 Cheney r. Courtis IC,.), ll!)() Chennell, In re, Jones r. Channell 1595 Cherry v. Cherry 356 Cherry v. Colonial Bk. of Australasia 1009 Cherry r. Heming 170, 855, 870. 886 Cheslyn v. Dalby 924 Chester r. Wortley 479, 4-'0, 485,1243 Chesterfield Colliery Co. v. Black 479, 480 Chesterton r. Farlar l(j7 Chetvvynd i\ Lindon 1242 Chichester r. M. of Donegal 419, 790 Chichester, Ld. Jn., v. Coventrv 1043 Child V. Grace 70.% 706 Child i\ Htenning 236 Childerston v. Barrett 1127 China St. Ship Co. i\ Coih. Ap. Co. 1519 Chin nock i'. Ly. Ely 877 Chipp V. Harris 954, 955 Chirac r. Reinicker 806 Chisman r. Count 702 Chitty V. Dendy 27 j Chodwick v. Palmer 902 1 Cholmondeley, Ld., v. Ld. Clinton 79H I Christian. Re 909 j Christian v. Coombe 736 I Christie v. Richardson 1387 I Christie v. Unwin 167, 1467 j Christmas ?'. Whinyates 180 j Chubb ('. Solomons 814 ; Church v. Hubbart 67 j Church V. Imp. Gas Light and Coke Co. j 838, 839, 840, 841, 843 I Churchward v. Palmer 8 t Churton v. Frewen 792, 1056 Chute V. Busteed 8.55 Ciocci V. Ciocci 1451 City of Berne r. Bk. of England 3 City of Bristol r. Wait 398 City of Cambridge. Re 227 City of London r. Gierke 542 City of London r. Perkins 427 City of London Gas Light and Coke Co. r. Nicholls 840 City of Mecca 1430 Clagett V. Phillips 795 Clan Gordon, The 22() Clanmorris, Ld., v. Mullen 1572 Clapham r. Cologan 1.551 Clapham v. Langton 997 Clarbroughr. Toothill 1109 Clarges v. Sherwin i 123 Claridge?;. Hoare 1243, 1244 Claridge r. Mackenzie 126 Clarl:, Re 910 (2775) XXXVUl Clark c. Adic Clark i: Alexander Clark V. Hi inflow Clark r. Clark Clark r. (iifford Clark r. Hooner Clark r. Iloii^liam Clark V. I.each Clark r. Molyneux Clark r Mullick Clark r Vorce Clark (• Waite Clark I' Wilmot Clark 7- Wright TAIU,!-; OF CASES CITEO. PACK 727 214, 5;w, »:?() 1207 785 9()}) 92:5 289 215 139 68 1204 688 592 59 Clark's Ex. v. Van Reimsdvk 664, 824 Clarke, Re 167, 909^ 1427, 1467 Clarke, ex parte 1127, 11:50, 1132 Clarke r. Bradlaugh 108, 1176 Clarke v. Callow 297 Clarke v. Clarke 723, 909 Clarke r. Courtney 582 Clarke v. Cuckfield Union 839, 840, 844 Clarke v. Dickson 967 Clarke r. E. India Co. 450 Clarke v. Fuller 877 Clarke c. Koehe 370 Clarke v. Koystoue 1010 Clarke v. Saffrev 1197 Clarke r. Bcripps 916, 917 Clarkson v. Clarkson 913 Clarkson v. Woodhouse 394, 586 Clary v. Clary 1.208 Clav's case . 189 Clay V. Crowe 403, 404 Clay v. Stephenson 465, 466 Clay V. Thackrah 641 Clay V. Yates 895 Clayton v. Blakey 855 Clayton v. Gregson 988 Clayton v. Ld. Nugent 965, 1016, 1030, 1031 Cleare v. Clears 178 Cleave v. Jones :57, 794, 931 Clegg V. Levy 1215 Clemenshaw v. Corp. of Dublin 845 Clement's case Clement, ex parte Clement! v. Golding Clendon v. Dinneford Clergy Society, Re Clifton r. U. S. CI in an v. Cooke CI i lie's case Clive ('. Clu'ew I'AGE 139, 365, ()9() 885, 895, 972 177 664 Clerk r. Molineux CI eve r. Powel Cleveland, Duch. rick Clifford V. Burton Clifford V. Hunter Clifford V. Parker Clifft.rd r. Tarrell Dow. 1091 1195 21. 27 I 195 ! 984 1 1133 797, 1449 ; t)f, V. Mey- 64 j 536, 676 I 59, 1221 I 1546, 1548 969) (27 Clogstown r. Walcott 182 Cloncurry, Ld., case of 673 Close, ex parte 1040, 1104 Closmadeuc r. Carrell 168 Clothier v. Cliapman 544 Clowes V. Higginson 972 Clowes n. Milliard 236, 250 Clunnes v. Pezzey 138 Clutterlmck v. Jones 463 Clyde Nav. Co. r. Barclay 227 Coal Consuming Gas Co., Re 1596 Coates i\ Bainbridge 534 Coates r. Birch" 805 Coates r. Chaplin 873, 899 Cobbett, ex parte 1085, 1130, 1131 Cobbett V. Grey 64:5 Cobbett?;. Hudson 1183,1194 Cobbett V. Kilminster 1585, 15^6 Cobbold V. Caston 895 Cobdeu V. Kendrick 802, 806 Cochran v. Retberg 988 Cock V. Gent :502 Cockavne, Re 916, 919 Cocking V. Ward 889 Cockrill r. Sparkes 658 Cocks r. Nasli 790 Cocks V. Purday 1216 Codd v. Donnelly 464 Coe r. Clay 1001 Coggs V. Bernard . 205, 2l)6 Cohen v. David.son 999 Cohen v. Hinkley 223 Cohen v. Templar 791 Cohn V. Davidson 999 Coit V. Tracy 531 Col hern's case 1162 Colbourn v. Dawson 1019 Colclough i: Smyth 103:5 Cole r. Hawkins 11:56 Cole V. Headly 670 Cole r. Planning 828 Cole V. Sherard 11 Coleman's case 739 Coleman i\ Gibson 899 Coleman v. Southwick 513 Coles V. Bk. of England 724 Coles i\ Bri.stowe 201 Coles V. Coles & Brown 1218 CoUard v. Sampson 901 Colledge v. Horn 679, 927 Collen V. Wright 1009 Collett V. Collett 1209,1212 Collett V. Hubbard 727 Collett V. Ld. Keith 692, 1475 CoUette V. Goode 296 :6) TABLE OF CASES CITED. XXXIX PAGE (jollier, ex p. 107, 1407 Collier v. Nokes 20, 1242 Collier v. Simpson 1214 Colling r. Treweek :193, 413. 414, 415 Collins V. Barrow 1002 Collins V. Bayntun loGO Collins V. Bishop 190, 515 Collins r. Blantern 116, 967, 968 Collins V. Carnegie 19;>, 695 Collins V. Gashon 1546 Collins V. Godefroy 1059 Collins V. Jackson 203 Collins V. Martin 168 Collins «. Maule 388,1366 Collins V. Prosser 1550 Collins r. Rhodes, re Baker 98 Collins r. Welch 56, 57 Collinson i\ ISIargesson 925 Collis V. Emett 1561 CoUis V. Stack 928 Collyer v. Willock 931 Colman v. Anderson 152 Colt (•. Netervill 892 Coltman v. tJregory 1035 Coltman v. Marsh 926 Columbia, Bk. ol', r. Patterson 838 Colvin V. Proc. Gen. 222 Com. V. Bullard 967 Com. V. Carey 1581, 1590 Com. V. Daua 794 Com. V. Drake 754, 789 Com. V. Eberle 525 Com. V. Feely 1136 Com. V. Green 1184 Com. V. Hill 1170 Com. V. Knapp 738, 755, 777 Com. V. Kneeland 21 Com. t\ Norcross 386 Com. V. Richards 491 Com. V. Shepherd 817 Com. r. Smith 812 Com. V. Tilden 812 Com. r. Vass 631 Com. ('. Woelper 1514 Combe r. Corp. of London 795, 1524, 1537 Combe r. Pitt 734 Comm. of Leith Har. & D. v. Inspec. of Poor 1470 Commercial Bk. of Hcotl. r. Rhind 7:56 Commings r. Heard 1496 Commins r. Scott 875 Compagnie Financiere v. Peruvian Guano Co. 1538 Compton V. Chandle.ss 1403, 1502 Concordia, The 8 Conflans Quarry Co. v. Parker 404 Con Ion V. Moore 1442 Connelly v. Connelly 1476 (2' PAGE Connor v. i 080 Cimnor r. Cronin 168 Conradi r. Conradi 491, 1431 Conron v. Conron 183 Conserv. of Riv. Thames v. Hall 226 Constable v. Constable 177 Contant r. Chapman 732 Contract Corp., Re 1091 Conway ?;. Beazley 1476 Conybeare v. Parries 409 Cooch V. Goodman 854, 855 Coode V. Coode 1356 Cook, Re 1086 Cook V. Hearn 417 Cook V. Lambert 907 Cook V. Leonard 300 Cook V. Moylan 295 Cook V. Nethercote 1194 Cook V. Stearns 890 Cook V. Tomlinson 1187 Cooke V. Banks 547, 1512 Cooke t). Butler 1511 Cooke V. Green 142 Cooke V. Lamotte 172 Cooke V. Lloyd 561 Cooke V. Loxley 123 Cooke V. Maxwell 814, 816, 1335 Cooke V. Sholl 1430, 1473 Cooke '('. Stratford 247 Cooke ('. Tanswell 1568 Cooke r. Wilby Errata Cooke V. Wildes 38, 139 Cookes V. Cookes 622 Cookes V. Mascall 721 Coole V. Braham 667, 682, 686 Coombs V. Bristol & Exeter Ry. Co. 899 Coombs V. Coether Coombs, Re Coope V. Cresswell Cooper V. Blandy Cooper V. Bockett Cooper V. Gibbons Cooper r. Grant Cooper ('. Harding Cooper r. Lloyd Cooper V. Macdonald Cooper r. Mansden Cooper i\ Meyer Cooper V. RoJoinson Cooper r. Shepherd Cooper V. Slade Cooper V. Smith Cooper V. Taylor 712 Cooper V. Wands. Board of Works 1 480 Cooper II. Wool tit 184 Cooper, in re. Cooper r. Cooper 170 Coorg, Rajah of, r. East India Co. 815 Coote V. Boyd 1045, 1046 Coote (-'. Leighworth 725 180, 90;- 1358 907 607 127 919 138 951 1104 818 1043, 1341 616 730 979 1444 133, 135, 778 876 xl TAHLF, OF CASKS CITKD. I'Aci: Cope, Ke iJlO, l.)U a)pe r. Cope 12!», 1:50, 817, .^IH, loOS Cope V. Mooney 1499, 1500 Cope V. Rowlands 1!)2 Cope V. Thames Haven Dock & Kail. Co. 842, 124-2 Copeland v. Watts 791 Copen V. Adamson 1480 Ct)pland r. Tuulniin 651! Copley r. liuitoii 348 Copp r. Upham 1252 Copper Miners' Co. r. Fox 710, 841 Corbett r. Corbett 432 Corbishley's Trusts, Ke 219 Corder, Ke 90(i Cordery r. Colville 247, 698 Cordery t: Colvin 246, 698 Cord went v. Hunt 972 Cork, Bp. oi; r. Porter 481, 1243 Cork & Baiulon Ky. Co. v. Cazenove 128 Cork & Bandon Ky. Co. v. Goode 98 Cornelius Kyan, Ke 904 Cornell v. Green 492 Cornlbot v. Fowke 262 Corntbrth i: Sniithard 927 Cornish v. Abington 719 Ci)rnish i\ Clark 171 Cornish v. Hockin 238 Cornwall v. Kichardson 290, 332, 337, 338 Corsellis, Re Corsen v. Dubois Cort r. Ambergate, &c., Ry. Co. Cortis r. Kent Waterworks Co. Cory V. Bretton Cory r. Davis Cosmopolitan, Re Cosnahan ?-. Grice Cossens, ex p. Cossens v. Cossens Cossey v. Lond. t^ liright. Ky. Co Costa Rica Kep- of, r. Costa Rica, Rep. of, r Coster V- Hetheringto Coster c. Innes Cotching 11. Basset Cotes r. Davis Cotesworth v. Spokes Cottam r'. Partridge Cotterill v. Hobl)y Cottington, ex parte Cottle, ex parte Cotton, Re Cottrell V. Huglies Cottrill V. Myrick Couch r. Meeker Couling v. Coxe C.uiion r. .Moon; (,'ounhaye, Ke Courteen r. Touse Cousins r. Paddon Coutts r. Ac worth Couturier v. Hastie Cow r. Kinnersley Cowan V. Abrahams PA OK •••142 1329 1198 291 172 882 463 379, 415 Cowan V. Braidwood 1474, 1475, 1478, 1487 Cowell V. Chambers 1417 Cowie V. Halsall 1549 Cowie V. Kemfry 389, 390 Cowling V. Ely 655 Cowjier r. Ld. Cowper- 137 Cox V. Allingham 392, 1352 Cox r. Cannon 951 Cox V. Hickman 203 Cox r. Knight 126 Cox ?•. Middleton 877 Cox )'. Midi. Ry. Co. 840 Cox V. Newman 1342 Cox r. Reid 54, 300 Cox r. Walter 342 Cox (-..Willoughby 215 Coxliead v. MuUis 932 Coxhead v. Richards 54, 58, 140 Cox's Trusts, Re 177 Craig i: Fenn 342 Crane c London Dock Co. 8 1531 Crane v. Marshall 600 791 Crane v. Powell 876 973 Crank v. Frith ].5()7 193 Craven, ex parte 107 688 Craven, Re, ex p. Tempest 107 371 Craven v. Halliley 521 225 Ci'awcour v. Salter 7, 807 837 Crawford v. Crawford 922, 926 1254 Crawford & Lindsay Peer. 170, .")72 118 1318, 1588 92, Cray v. Halls 644 1527 Creagh v. Blood 8(>2 Erlanjier 419, Crease v. Barrett 538, 540, 542, 547, 474, 15:!6 548, 551, 560, 589, 601, 602, (W.i Stronsbersi 1530 Credit Co.. Lim., in re, The 1521 1387 Credland v. Potter 959 223 Creen r. Wright 57 700 Crevy ?;. Carr 324, 1222 676 Crepps v. Durden 14(;7 698 I Crerar v. Sodo 363 929 j Cresvvell v. Jack.son 1585 376 j Crew v. Saunders 1282, 1287 1483 Cripps v. Davis 923, 924 722 j Cripps r. Hartnoll 884 906 Cripps r. Hills 60 157, 158 Cripps v. Wells 359 1210 ! Crisdee v. Bolton 62 978 I Crisp r. Anderson 138, 168 1083, 1084 I Crispin v. Di.glioni 405, 561 (2778) TABLI-; OF CASES CITED. xli C'lol. r. Croft Croft V. Graham Croft r. Luuiley Croftou c. Poole Crofts r. Marshall Croker v. M. of Hertford Croker v. Walsh Cromack v. Heathcote Croinpton r. Butler Cronk r. Frith Crook r. Dowling Crook V. Hill Crookeudeu r. Fuller Crookewit r. Fletcher Crooiiies r. iSIurrisou Croshie (•. Thompson Crosby r. Hetherington Crosby v. I'ercy Crosby r. Wadsworth Cross r. Kaye Crosse v. Bedingfield Crossley, ex p. Crossley v. Dixon Crossley ?'. Elworthy Crossley v. Lightowler Crossley c. Maycock Ch-ott}' V. Hodges PAGE yo() 174 698 695 990 912, 919 149 78:; 829 1567 1312 185 228, 229 1554 473 653 7, 8, 1445 430. 514, 1572 893 694 656 1105 727 171 141 877 1549 Crouch V. Cred. Fon. of England 849 Crouch V. Hooper Croudson r. Leonard Croughton r- Blake Crowder c. Hopkins Crowe r. Clay Crowley v. Page Crowley v. Vitty Crowninshield's case Crowuiushield r. Crowninshield 570, .571 1482 1359, 1437, 1506 586, 688 404 1235 859 Crowther v. Appleby Crowther v. Solomons Croxton v. May Cruise c. Clancy Cubitt r. Porter Cuff ('. Penn Cumberland v. Copeland Cuming v. French Cummin r. Smith Cumming r. Roebuck Cummings r. Heard Cundell v. Pratt Cunliffe r. Sefton 430, 1572, 1574, 157 Cunningluim, Re 913 Cunningham v. Cunningham 190 Curlewis v. Corfield 696, 698 Curling v. Perring 795 Curren v. Crawford 617 Currie r). Anderson 896,899 (urrie r. Brown 1564 Currie v. Child 1571 216 347 1052 168 129 400, 158;] 144 975 949 690 695 389 1496 1250, 1251 Curry r. Walter Curtin v. Evans Curtis r. Plunt Curtis r. Mackenzie Curtis i: M'Sweeney Curtis r. Pugh Curtis r. Rickards Curzon r. Lomax Cusack r. Robinson Cutbush ?'. Gilbert Cuthbert /•. Cumming Cutler i\ Newlin Cutler V. Pope Cutto V. Gilbert Cutts V. Pickering Cutts V. U. S. Cutts ;'. Ward D. falsely called F. r. F. Dabbs v. Humphries Da Costa r. Edmunds Da Costa v. .Jones Da Costa r. Pym Da Costa r. Villa Real Dagleish v. Dodd Daines r. Hartley Daines v. Heath Daintry r. Brocklehurst Daioz, The Dal by v. Hirst Dale V. Hamilton Dale V. Humfrey Dalgleish r. Hodgson Dalison v. Stark Dallow, Re Dalrvmple i: Dalrymple Dalrymple v. Hall' Dalrymple v. Leslie Dalston v. Coatsworth Dal ton V. Angus Daly V. Att. Gen. Daly r. AVilson Dalzell r. ]\Iair Damerell v. Protheroe Dan V. Brown Dance v. Robson Dancer v. Ciabb Dandridge v. Corden Dane v. Kirkwall Danlbrd r. McAnulty D'Angibau, in re Daniel v. Bond Daniel v. Luker Daniel v. North Daniel v. Pitt Daniel ?;. Thompson Daniel ?\ Wilkin Dan i ell ?\ Daniell Daniels v. Conrad Daniels v. Harris 542, 548, .S96, PAOE s(»y 1043 73S 1043 1569 897 149 A'.) 897 ' 3(i8 995 681 893 181, 915 802 1556 939 - 213 928 990 817 1580 1430 650 1207 1562 148 227 1011 895 995 1481, 1482 379 910 9, 1214, 1215 185 480, 481 137 146 177 589, 603 724 543, 550 661, 916 27, 1351 913 1243 1429 292 12m 1528 1484 603 668 1086 541, .551 1039 1236 997 (2779) Xlll TABLE OF C.\.Si:S CITKI). Daniels v. Potter Diinsey ?'. Kichardson Danyel v. Darby v. Ouseley Darcys, Re Darlev v. Martin PAGE I 5;>U, (J.n 200 I 1484 322, :]81, (J49 8181 9G1 Davis r. Davis ?'. Davis V. Davis V PAGE Vass l;i44 Waddinfrtou 1025 Williams 392, 1352, 1353, 13G6 Darlington i^ Bank Co., ex p. 204 j Darrell r. Evans 389, 948 Dartmouth, Ly., v. Roberts 683, 1312 Darvill r. Roper 04 Dashwood v. Jcrmyn 886 Davenport r. The Queen 098 Davey r. Shannon 888 David V. Preece 251 Davidson v. Cooper 169, 1548, 1549, 1550, 1554, 1555, 1558 Davidson v. Kimpton 129 Davidson v. Wood 212 Davies, Re 904 Davies v. Brown 1288 Davies r. Campbell 600 Davies r. Davies 173, 1238, 1311 Davies v. Dodd 404 Davies r. Edwards 928 Davies r. Fitton 971, 972 Davies r. Humphreys 595 Davies V. Lowndes 186, 555,556,560, 561, 563, 574, 576, 577, 1424, 15X8 Davies v. D. of Marlborough 174 Davies v. Marshall Davies ;•. Morgan Davies r. Nicholas Davies v. Otty Davies v. Pierce Davies v. Ridge Davies, ex p.. re Sadler Davies v. Staiubauk Davies r. Waters Davies v. White Davies v. Williams Davis V. Black Davis r. Capper Davis V. Curling Davis r. Dale Davis r. Davis Davis V. Dodd Davis V. Hedges Davis V. Jones Davis V. Lloyd Davis r. Lovell Dinis V. Lowndes Davis r. jNIason Davis V. Rainsford Davis V. Reid Davis V. Scrace Davis r. Scrase Davis V. Spurling Davis V. Treharne Di'.vis r. Trevanion 700 542, 557, 564. 599 195 1250 600, 602, 683 661 727 981 790, 802, 803 1381 1532 109 50, 51 300 1221 680 403 1452 967 590, 615, 135 Wood Davis's Trusts, Re Davison r. (Jont Davison ?'. Stanley Davlin v. Hill Davy (". Garrett Da\ves ii Peck Daws V. Shed Dawkins v. Antrobus Dawkins v. Paulet Dawkins v. Rokeby Ld Dawson v. Chamney Dawson /'. Dawson I^wsoii V. Gregory Dawson v. Jay Dawson v. Macdonald Dawson r. Remnant Day v. Bather Day V. King Day i\ Spread Day V. Trig Day V. Williams Dealce v. Hancock Deacon's case Deady v. Harrison Dcane r. Packwood Dear r. Knight Debenham v. Mellon De Bode, Baron, case of De Caen, The General De Cosse Brissac r. Rathboue Deeble v. Lineham Defreeze r. Trumper Defries v. Davis De Gaminde v. Pignu 862. 509 11 8(53 ■ 860 978 237 89!) 681 1480 57 57, 815, 1126 206 1043 133(i 1483 298 736 20(j 367, 1468 14:50, 1473 1037 155 547, 557 313 688 1183 1218 211 601, 1215 227 1489 1.55, 156 1003 324 724 De Grave v. May. of Monmouth 839,844 Delamere, Ld., v. The Queen ,109 Delamotte v. Lane 306 Delaney v. Fox 124 Delarue v. Church 153 De la Rue v. Dickenson 58 De la Saussave, Re 916 Delegal v. Highley 322 Delesline v. Greenland 671 Delhasse ex p., re Megevand 203 De Li.sle, Peer. ^ 1504 1054, 1083, 1084 | Delmege v. Mullins 126 464 I Delogny r. Rentoul 689 1209 I De Medina v. Norman 1001 1038 De Medina v. Owen 650 1248 Dempsev v. Lawson 914 348 Den v. Clark 1429 348 i Den v. Fulford 1313 648 Dench v. Dench 1 -i : , 968 144 I Dendy v. Nicholl 698 954 I Dendy v. Simp.son 309 (2780) TABLE OF (' PACE Di'iiisoii ('. Diteher lOiJ DciHi V. Spray 541 Demi ('. White f575 IJeim r. Wilford 1020 Dennett v. Crocker 877 Dent ('. Bennett 172 [)e Pontes i: Kendall 918 De Praslin, Due, case of 762 Derbj', case of Ld. 217 Derljy Bk. r. Lumsden 484 Derinzy v. Turner 90(i Derisley r. Custance 866 De Koo V. Foster 728 (\\SKS CITKI). Dinisdale v. Dimsdale Diniuore, Ee Dinn r. Blake DinomoyiDebi cKovT^ucliini^ De Koos Peer. 392, 572, 573, 574, 579, 1508 De Kosaz Francois, In re goods of 1030 De Kutzen, Baron, i'. Farr 598 Desborough t-. Kawlins 784, 801, 803, 804 Desbrow v. Wetherley 1549 Desbrowe i\Wetlierby 1549 Despau v. Swindler 26 De Thoren v. Att.-Gen. 190 Devala Prov. Gold Min. Co., Re 533 De Vaux r. Steinkeller 934 Devereux v. Much Dew Church 386 De Visme, In re 868 Devon Peer. 573 Devon Witches 741 Devonshire, Duke of, v. Neill 61, 388, 541, 549, 551, 553, 558, 576, 1025, 1804 Devoy /•. Devoy 869 Dewdney r. Palmer 1188 De Whe'lpdale i: Milburn 683, 785 Dews V. Kyle 1323 Dexter v. Hayes 188, 189 Devbel's case 23 Diana, The 227, 228 Dicas r. Lawson 1080 Dickenson v. Teasdale 007 Dickins, Re 910 Dickinson v. Coward 693. 095 Dickinson ti Fletcher 186 Dickinson i;. Hattield 921 Dickinson v. Shee 1226 Dickinson r. Stidolph 181, 910, 915 Dickinson r. Swatman 918 Dickinson v. Valpy 204, 72i Dicks v. Brooks 1595 Dickson r. Evans 854 Dickson v. E. of Wilton 815 Digbv V. Atkinson 215 Diggle V. Higgs 817 Diggle V. Lond. & Blackwall Ry. Co., 841, 845 Dilkes. Re 908 Dilley v. Matthews 1084 Dimond v. Vallaiice 463 xliii PAGE 178 904 1496 •;utSiiigh (;."')7 Disney c. Longbourne 478 Di Sola, Dncli., r. Phillipps 1216 D'Israeiic. Joivett 185S, 1509 Ditclnnan /•. Woiral 982 Ditchburn r. G'jldsmith HI 7 Ditcher r. Denison 1(10 Ditcher v. Kenrick 420, 791 Divoll r. Leadbetter ()!)5 Dix ('. Otis 9HI) Dix r. Reed 1S8 Dixon V. Birch 207 Dixon r. Cock 1480 Dixon I'. Hamond 727 Dixon V. Lee 1079 Dixon r. Wucklestone Eryata Dixon c. Sinciear 1471 Dixon r. Vale 1254 I Dixon V White 145 I Do]>ell r. Hutchinson 874, H76 1 Dobell r. Stephens 9()H ' Dobree v. Eastwood 45, 19H I Dol)son V. Bell 25 Dobson V. Collis 887 Dobson V. Richardson 481 I Dodd V. Acklom 294, 862, 863, 864 ' Dodd r. Norris 884, :!89, 1282, 1250 Doddington's case llH Dodge V. Meech 178 Dodsley r.Varley 8;i7 Dodson />. Mackey 926 Doe r. Allen 699, 700, 701, 96^, 1027 1028 Doe V. Andrews 217, 218, 806, 807,1053, 1357 Doe i\ Arkwriiiht 520, 608, 1858.- 1510 Doe v. Ashley Doe r. Askew Doe r. Austin Doe ('. Barnard Doe V. Barnes Doe r. Barton Doe ('. Batten Doe V. Bay tup Doe r. Beckett Doe V. Bell Doe i\ Benjamin Doe v. Benson Doe V. Beviss Doe V. Beynon Doe r. Bingham Doe V. Birch Doe r. Birch more Doe r. Bird 1040 1858 601), ()S8 150 188, 189, 356, 357. 1357, 1365, 1507 122, 128, 125, 127, 5(;l 54, 699 124 936 855 1592 991 597, 616. 1025, 1598 112, 1021 1558 698 124 ()77 (2781) xliv TAKI-E OF CASKS ( ITKI). PAGE I'A(5K Dwn Hold 813 Do(> r Gore 1344 Doe V. Bower 362, 1040, 1011 Doc r. G OS ley 3(il Doe V. BraAvn 1S8 Doe ;• (Jreen 602 Doe (• Bray 357, 1357 Doe V Grey 417 D.)e r Brayne 356, 357, 362 D.)e ('. Grifiin 217, 5().! Doe V Bridi^es 859 Doe r Groves 724 Doe V Brown 126 Doe (' Gunning 392, 393, 135:? Doe I' Bind oft 111, 169 Doe r Gwillim 1022 Doe r Burt. 1019, lO-.'O Doe ;; Hall 1507 Doe ?• Burton 5i)3 D.ie (' Hanipson 143 Doe V. Calvert 699, 701, 1497 Doe (' Hardy mn Doe I'. Caperton 25, 1571 Doe r Hares 117 Doe r Carpenter 1036 Doe V Harris 784, 853, 917 Doe V Cartwrij^ht 378, 1358, 1510 Doe V Harvey 374, 377, 50:5 Doe (' Catomore 180, 181, 1547 Doe V Hawkins 533, 598 Doe I' Challis 1441 Doe d . Hearle v. Hicks 914 Doe r Chambers 1572 Doe r, Hemming 1569 Doe d . Child r. Roe 679 Doe V M. of Hertford 793, 8f)l Doe (■ M. ol'Clev eland 151, 1569 Doe V Hick 332, 33:5 Doe r Clifford 388, 418, 419 Doe r. Hilder 5, 157 Doe r Cockell 1546 Doe V Hirst 1554 Doe r Col com he 598 Doe V. Hiscocks 965, 1015, 10:26, 1027. Doe r. Cole 405, 683 1028, 1029, 1030, 10:52, 103;!. Doe r Cooke 150, 156 1034 10:59, 1041, 1012 Doe /'. Corbett 357 Doe ('. Hodgson 154(> Doc V. Coulthred 148, 600, 0f»l D.)e r Holton 9:i4 Dae r. Courtenay «(!') Doe /• Home 117 Doe (•. Cox 1194 Doe r. Howell 955 Doe r. Crajio 194 Doe r. Howells 116 Doe *'. Cranston n 1037 Doe v. Hubbard 1023, 1029, 1036 Doe V. Date 421, 794, 1252, 1253, Doe /■. Huddart 114, 1441 1265, 1275 Doe /•. Huthwaite 1033 D,>e r. Davies 36, 37 , 147, 151, 217, Doe ,". James 420, 783 556 561, 905, 1589 Doe V. Jauncey 792 Doe ?'. Deakin 217, 218 Doe r Ld. Jersey 1019 Doe V. Derby 425, 426 Doe r. Jesson 218 Doe r. Derby, E. of 1440, 1412 Doe (;. Johnson 148, :543 Doe (1 Devine v. Wilson 153, 158:i Doe V. Johnston 864 Doe V. Durnfbrd 1564 Doe V. Jones 147, 158, 600, 601, 602, Doe r. Dyeball 15U 683, (i99, 867 Doe r. Edm-.nds 63, 936 Doe V. Keeling 36, 401, .585 D.'ie r. Edwards 10, 25:) Doe V. Kemp 37, 143, ;509, :;ii Doe r. Ld. E<5remont 1252, 125; Doe V. Kilner 388, r.MHi Doe r. Errington 121, 253, 1437 Doe V. Kingston 955 Doe r. Evans 432, 911 Doe /'. Knight 1560 Doe V. Eyre 96 Doe c. Lakin 1505 Doe r. Fleming 190, 515 Doe i\ Laming 206 Doe V. Ford 116, 968 Doe i\ Langdon 125, 158, 420,421,791 Doe 1'. Forster 701 Doe V. Langfield 385, 600, 601 , 614 Doe r. Forwood 860 Doe r. Langford 1529 Doe V. Foster 425 Doe V. Lea 991 Doe r. Fowler '582 Doe Vt Leach 250 Doe 7'. Francis 127 Doed Leicester 701 Doe V. Frankis 703, 707 Doe V. Lewis 169 Doe r. Galloway 1036, 10:57 Doe r. Litherland 684 Doe V. Gardiner 151 Doe ),'. Lh)yd 28, 114 , 157, 1403, 1404, Doe u Gat acre 1355 1572 Doe V. Gladwin 699, 726, 972 Doe V. Lock 836 Doe t'. Glenn 118 Doe V. Long 252 (2782) TAT![,1': OF CASKS CITED. xlv PAGE PA(}K Doc r Lyne 1589 Doe ('. Rowe 726 Door. Manifold 180 Doe V. Rowlands 341, 342, 3()2 Doe r Martin 408, 1015, 1019,1022 Doe r. Sample 111, 581, 584 Doe V Mason 11 Doe 1'. Scndamore 7 Doe r Masse V 96, 147 Doe V. Seaton 114, 122, 126, 683, 797, Doe !• Mee 1307 1358, 1441, 1510 Doe V. Mew :?93, 1353 Doe V. Sisson 307, 541 Doe /• Miehael 217, 588, 599, 600 Doe ('. Skinner 549, 614, 616 Doe r Millett 156 Doe V. Sleeman 542 Doe r Mills 124, 126 Doe V. Smaridge 194 Doe r Mihvard 892 Doe V. Smart 356 Doe r Mobbs 598 Doe i\ Smith 640, 641, 1502 Doe /■ Moffatt 851, 856 Doe V. Lady Smytht ) 123, 124 Doe r Morgan 1027 Doe V. Snowden 48 Doe r Morris 377, 417 Doe i\ Somerton 414 D.:e r Mostyn 1344 Doe v. Spence 48 Doe r Moulsdale 158 Doe V. Spitty 413, 417 Doe f MuUiner 147 Doe V. Stacey 598 Doe V Murless 1502 Doe ('. Stanion 860, 1000 Doe (• Murrell 147 Doe v. Staple 1.59 Doe V Needs 1027 Doe V. Steel 735 Doe r Nepean 219, 221 Doe r. Stephenson 1262 Doe r Olley 1507 Doe r. Stillwell 186 Doe V Owen 418 Doe t: Stone 735 Doe r Palmer 180, 968 Doe r. Stratton 856 Doe r Passingham 586 Doe r Suckennore 1580, 1581, 1583, Doe /• Paul 1575 1584, 1587, 1589, 1590 Doe /• Perce 583 Doe r Sutton 726 Doe (' Pearsey 142 Doe V Sybourn 156, 157, 736, -1494 Doe (' Peck 698, 699 Doe r Tan i ere 194, 844 Doe r Pegge 123 Doe r Tarver 557, 1588 Doe r Pembroke 573 Doe (1 Tatham v. Wright 511, 512 Doe (• Penlbld 148, 1560 Doe V Thomas 159, 543, 791, 861 Doe r. Perkes 917 Doe (• Thomson 1055 Doe r Perkins 1200, 1201 Doe r Thvnne 600 Doe (• Perratt 962 Doe r Tidl)ury 147 Doe )' Pettett 600, 682 Doed Tindal r. Roe 641 Doe V Phillips 581 Doe V Tucker .•557 Doe (• Plowman 5 Doe (■ Turford 200, 591, 613, 61.5, 616, Doe V Poole 860 618, 619 Doe (! Powell 124, 425, 430, 431, 1574 Doe V Tyler 1442 Doe 1' Price 158 Doe V Vowles 593 Doe r Pulman 394, 586 Doe r Wain Wright 601, 667, 15(;9 Doe V Pye 700 Doe ?' Walker 332 Doe (? Randall 563, 564 Doe V Ward 914 Doe r Rees 147, 699 Doe V Watkins 48, 796 Doe Rhodes 48 Doe V Watson 126 Doe J' . Richards 678 Doe V We]>lier 687, 688, 1442 Doe r . Rickarby 600 Doe V Web.ster 983 Doe ) . Ridgway 626 Doe (' Wells 858 Doe / . Ries 416 Doe (' Wellsman 1441 Doe ( . Roberts 115, 535, 655, 1346, Doe r Wliitefoot 402 1365, 1366, 1465 Doe (• Whitehead 344, 354 Doe ? . Robson 594 Doe V Whitroe 125 Doe t . Roe 641 Doe V Wiggins 123 Doe ? . Rollings 677 Doe ( . Wilford 1029 Doe » . Ross :VM I, 418, 419, 494, 495 Doe V Williams 146, 147 Doe I . Rosser 1496 Doe V . Wilson 54 Doe 1 . Rouse 1034 Doe / . Wittcomb 396, 549, 616, 620 (2783) xlvi TAIJLK ()!■' CASES (ITKD, Doc r. Wolloy Doe 1'. AVonihwt'U Doe r. Wood Doe V. "Woodhridgo Doe V. AVrijflit Doe V. Youiifr Doglioni v. Crispin Doker v. Iliuslcr Dolby V. lies Dolder v. Bk. of England Dolder v. Ld. Huntingfield Dolling r. Evans Dolphin ?•. Ayhvard Dolphin r. Robint- PAGE 111, 217 7(11 862, V>(i-2 (i9!) 114, 511, 512, 1472 189 1433, 147(i 782 1447, 2-29, 12:; 3 24 877 1453 1470 Don V. Lippniann ()9, 1475, 1478, 1489 Donagh r. Bergin 1323 Donald ?•- Suckling 1010 Donalds()n v. Thompson 1475, 1481 Doncastcr, ISIay. of. v. Day 423, 491 Donegall r. Tcniplemore 311, 1025 Donellan r. Donellan 829 Donellan v. Kead 861, 886 Donelson v. Taylor 1183 Don Francisco, The 1524, Donnison v. Elsley Dooley v. Mahon Doorman ?'. Jenkins Doran's case Dorin r. Dorin Dorr r. Mnnsell Dorrett r. Meux 392, 1352, Dorsey r. Dorsey Dost Aly Khan, In goods of Douce, Re Doucet V. Geoghegan Douglas, Re 1129, Douglas r. Corbett Douglas V. Douglas Douglas V. Ewing Douglas V. Fellows 1027 Douglas V. Forrest Douglas r. Holme Douglas r. Saunderson Douglas V. Tousev 330, 337, 1259 Doder r. Child 1495 Dover t: Maestaer 363 Dowdell V. Australian Roy. MailCo. 1058 1540 544 1033 53 1181 185 967 1366 1476 1217 909 520 1132 42 228 PAGK Drake r. Drake 1032, 103:5. li..... Drake c. Marryat 151/ Drake r. Sykes 665 Dranquet v. Prudhommc ;541 Drant v. Brown :i7S Drayton v. Dale 148, 729 Dresser v. Stansfield 1344 Drew )'. Nunn 212 Drew V. Prior 1582 Drink water v. Porter 542, 545, 548 Droitwich case 666 Brown v. Smith 727 Druitt's ca-se li)91 Drunimond, Re 911 Drummond v. Att.-Gen.987, 1016, 1024 Druramond v. Parish 911, 912 Drury's case 102 Drury ii Macnamara 1001 Drvden r. Allix 8 Du'ane, Re 178 Du Bane r. Livette 789, 791 Dublin, Abp. of, v. Ld. Trimleston 1465, 1505 Dublin, Corp, of, r. Judge 946 Dul)lin, W.& W.Ry.Co.v.Slattery ;^9,40 Dowden v. Fowle Dowling r. Dowling Dowling r. Finigan Down /'. P^llis Downes r. Garbntt Downes r. Richardson Downing v. Butcher Downing i\ Capel Downs V. Cooper Dowton V. Cross Doyly's case Drabble c. Donner Du Bost ('. Beresford Duckett V. Gover Duckett V. Williams Dudgeon t'. Pembroke Dufaur v. Croi't Duiferin Peer. Dufferin's, Ld., case DuiHn V. Smith Duffv, Re Dugdale v. Robertson Duggins, Re Duke r. Ashby Dukes V. Gostling 54 i Dumper v. Dnmpet 1033, 1035 : Dunboyne, Ld., v. Brander Duncan r. Beard Duncan r. Brady Duncan r. Hodges Duncan r. Hill Duncan ?;. Louch Duncan v. Lowndes Duncan v. Scott 665 Duncan w. Tindal 304, 305 Duncombe r. Danicll 363 Duncuft v. Albrecht 828 Dundas v. Dutens 954 Dundee's case 1558 Dun ford r. Tratiles 333 Dunlop v. Higgins 300 Dunn v. Murrav 125, 669 Dunn v. Slee 668 Dunn v. Snowden 673 Dunn v. English 412 Dunne r. Ferguson (2781) 181, 147.-S 149 572 513, 516 236 465 998 178 1356 1418 802 968 145 910 123 264 869 183 582 1410 1563 201 274 205 Bill, 1351 850 679 892 885 673 712, 713 197 1455 681 219 423, 1256 892, 893 TABLE OF CASES CITED. xlvii Diinraven. LcL. r. Llewellyn 539, 541, ■ 543. 548 Dunsford r. Curlewis 36 Dunston v. Paterson 725 Dupays v. Shepherd 5 Dnpuy V. Truman 1204 Durance, Re 913 Durham, Lady, Re 910 Durham, Bp. oi\ v. Beaumont 626, 1262 Durham & Sunderl. Rv. Co. v. Walker 836 Diirlinji; v. Loveland Durrant v. P^riend Durrell v. Bederley Durrell v. Evans Dutton, Re Dutton V. Solomonson Dutton ?'. Woodman Dwyer v. Collins Dwyer r. Rich Troup Dyce Sombre r. Dye r. Bennett Dye i\ Dye Dyer v. Best Dyer v. Dyer Dyer v. Green Dyke r. Aldridge Dyke r. Williams Dymock v. Watkins Dyne v. Nutley Dysart Peer. Dyson ti Wood Eade {'. Jacob Eadon v. Jeffcock Eads V. Williams Eagleton v. Cutteridge 301. 1551, 1561 Eagleton v. Kingston 1580, 1583 Earner v. Merle 337 Earl's Trusts, Re Earl r. Lewis 178 221 1212 389, 878, 948 1,S2 899 663, 703 416, 417, 805 141 216. 347 463, 4()4 Errata 98 868 1562 665 562, 564 1224 1037 190, 507 13:56 477, 481 145 1344 Eccles. Commiss. r. Merral Eccles. Commiss. r. Rowe Eccleston v. Speke Eckersley r. Piatt Eck.stein v. Reynolds Edan v. Dndtield Eden v. Blake Edge r. Hillary Edge r. Strafford Edgeworth v. Johnston p]die V. East India Co. Edie V. Kingsford Edme, ex \). Edmonds v. Challis Edmonds i'. Foley, Ld. Edmonds v. Foster Edmonds v. Goater Edmonds v. Harris Edmonds v. Walter Edmondson v. Stevenson Edmunds v. Downes Edmunds v. Greenwood Edmunds v. Low Edmunds v. Newman Edwards, Re Edwards v. Bates Edwards v. Buchanan Edwards v. Crock Edwards v. Edwards Edwards v. Etherington Edwards v. Hall Edwards v. Havell Edwards v. Hodges Edwards v'. Janes Edwards v. Jevons lid wards r. Jones Edwards v. Matthews 11, 1333 I Edwards r. Midi. Ry. Co 585, 1505 Edwards r. "R. Earle r. Picken 381, 383, 739, l25l | Edwards v. "Wakefield Earp V. Henderson 292 j Edye r. Salisbury Earp V. Lloyd 1524 ) Egan v. Cowan East V. Chapman 324, 1254 i Egan v. Larkin East Lond. Waterw. Co v. Bailey 841, ' Egerton v. Mathews 842 ! Egg V. Barnett PACK 124, 1d4, 843 95 635, 665 182, 913 59 59, 898, 932 966 359 889 1043 6 375 1131 1546 L534 138, m(> 927 293 1198 140 878, 924, 926 484 1044 678 910 977 1514 518 870 1002 890 227 248 931 1019 355 362 842 108 4H4 1022 1585 36, 432, 1572 871, 88i) 196 1319. East Cos. Rail. Co. v. Broom 842 ' Egremont Burial Board r. Egremont East Union Ry. Co. v. East. Cos. Ry, Co. 1496 East. Union Ry. Co. v. Symonds 614, 617 Eastland v. Burchell 212 Ea.stman v. Tuttle 727 Eastmure v. Laws 1452 Easton v. Carter 1465 Eastwood V. Kenyon 884 Eastwood V. Saville 931 Eaton V. Basker 848 Eccles V. Harrison 655 Iron Ore Co. 419 Ehrenspergen v. Ander.son 412 Eicholz V. Bannister 1003 Eicke V. Nokes 805, 923 212 i Elden v. Keddell 392, 1353 Eldridge's case 744 Eldridge v. Knott 150, 153, 155 Elect. Teleg. Co., Re, ex parte Bnnn 1091 Eley V. Positive Govt. &c. Co. 8-18, 887 Elias V. Griffith 1256 Eliot t). Allen 300 (2785) xlviii TABLE OF CASES CITKl). PACK Klkin V. Jiinson ;)44, 345, 'M(i, 354 Klkington v. Holland 953 Ellenboiougii's, LcL, case 673 Ellershaw v. lioljinson 337 Ellice, lie 182 Ellice V. Roupell 490 Elliott r. Dean Errata Elliott r. Elliott 58 Elliott r. Kemp 148 Elliott r. North East Rail. Co. 145 Elliott r. South Devon Rail. Co. 65 Elliott r. Thomas 895 Ellis V. Co-wne 620 Ellis r. Desilva 57 Ellis r. Ellis 386 Ellis i: Houstoun 185 Ellis r. Saltan 808 Ellis r. Thompson 196 Ellis r. Watson 663, 734 Ellmakerr. Buckley 1225 Elmer r. Creasy 486 Elmore r. Kingscote 874 Elmore c. Stone 897 Elms V. Elms 917 Elsam v. Faucett 334, 335 Elston V. "Wood 665 Elton r. Larkins 676, 1236 Ehves r. Elwes 971 Elwood r. Bullock 1415 Elworthv r. Sandford 401 Emanuel r. Kobarts 729 Embleton r. Brown * 142 Emerson r. Blondon 675 Emery ;■. Barnett 126 Emery v. Chichero 225 Emery v. Grocock 157 Emery v. Twombly 1572 Emma, The 1531 Emmerson v. Heelis 893, 948 Emmerton v. Matthews 1004 Emmet r. Dewhirst 975 Emmott V. Marchant, Halkett,Claimt., 1315, 1406 Emsley, Re 562, 564 Engerr. Fitcli 1001 Eugell V. Fitch 1001 England r. Downs 1017 England v. Slade 157 English V. Tottie 1530 English Jt. Stock Bk., Re 1091 Englishman, The 225 Ennis's case 662 Enokin r. Wylie 1484 Enos V. Tuttie 523 Ensign v. Webster 736 Enticknap v. Rice 1263 Entwistle v. Davis 891 Entwistlev. Dent 1342 Enj-on, Re 902 Eri«kine v. Murray Ernest v. Nicholls Erskine r. Adeane Erwin v. Saunders Escott r. Mastin Espey /•. Lake Esse.x, Countess of, case Esse.K Witches PAOB 5 842 1002 9S0 1319 173 497 741 Euston, Ld., r. Ld. Hy. Seymour 912 Euston r. Smith 489 Evans v. Angell 1041 Evans v. Beattie 681 Evans v. Birch 348 Evans v. Dallow 917, 918 Evans r. Davies 932 Evans r. Evans & Robinson 1451 Evans v. Fryer 240, 246 Evans v. Getting 1518 Evans v. Jones 1540 Evans r. Morgan 386, 515 Evans v. Nichol 727 Evans v. Phillips 1275 Evans v. Fowls 1051 Evans v. Rees 542, 550. 551, 553, 585, 1049, 1120, 1437, 1496, 1564 Evans v. Roberts 893 Evans i\ Roe 975 Evans r. Simon 928 Evans r. Sweet 408 Evans v. Taylor 540, 541, 551, 134.3, 1346 Evans r. Watson 1058 Evans r. Williamson 1 H4 Evelyn v. Haynes 1450 Everard v. Poppleton 953 Everett v. Everett 1046 Everett v. Lowdham 1193 Everett v. Robertson 922 Everett v. Youells 1470 Everingham r. Roundell 496 Ewart V. Jones 1135 Ewart V. Williams 622 Ewer V. Ambrose 1238, 1311 Ewing r. Osbaldiston 1254 Exall V. Partridge 417 Exeter, INIav. of, v. Warren 154, oiUi, 598, 600 Evre V. Smith 1464 F." falsely called D. r. D. 213 Fabrigas r. Mostyn 670 Facey v. Hurdom 51 Fairlie r. Christie 1548 Fairlie r. Denton 703 Fairlie v. Hastings 533, 534 Fairman v. Oakford 196 Fairtitle v. Gilbert 117 Faith V. M'Intyre 359, 364 Falconer v. Hanson 429, 652 Falkner & Bond, the case of 744. 745 (2786) TABLE OF CASES CITED. xlix PAGE Fallon V. Robins *J71 Falmouth, E. of, v. Moss 788 Fahujutl), E. of, r. Koberts 430, 1546, 1532, 1572, 1574 Falmouth, E. of, v. Thomas 894 Fanny Curvill, The 225 Farina v. Home 898 Fartjuluir v. Southey 1551, 1557 Fanjulmrson r. Seton 1454 Farsjuhaison i: Tweedale, In re 181 Fanah v. Keat 1081 Farrar r. Beswick 2U4 Farrar v. Hutchinson 654, 736, 9f)5 Farrar v. Stackpole 1019 Farrar v. St. Catherine's College 1032, 1U35 Farringdon r. Clerk 727 Farrington v. Donohue 888 Farrow v. Maj'es 956 Farrow v. Wilson 1008 Far well ?'. Hilliard 1444 Fasset r. Brown 169 Faulder r. Silk 1429 Faulds V. Jackson 902, 904 Faulkner v. Brine 1218 Faussett r. Faussett 535, 674 Faviell v. East. Count. Rail. Co. 728 Fawcett t!. Case 49, 195 Fawcett v. Jones 178 Fawcus V. Sarslield 998 Fawkes v. Lamb 979, 1012 Fazakerley v. Wiltshire 23 Fearn r. Lewis 925 Fearnside r. Flint 936 P^aubert r. Turst 1217 Felkin r. Herbert, Ld. 1537 Fellowes r. Clay 96 Fellowes r. Williamson 521 Feltham's Trusts, Re 1033 Fenn v. Griffith 374 Fennell v. Tait 1087 Fenner v. Lond. tt S. E. Ry. 1527 Fenton v. Emblers 888 Fenwick, Re 914 Fenwick v. Bell 1212, 1213 Fenwick v. Laycock 734 Fenwick v. Reed 793 Fenwick v. Thornton 664 Ferguson r. :Mahon 9, 1474, 1478, 1480, 1489 Fernandey i\ Glvnn 1555 Fernandez, e.\ parte 1195, 1193, 1246, 1247 Fernley v. Worthington 400, 1427 Ferrand r. _Milligan 1592 Ferrer v. Oven 1343 Ferrers v. Arden 14 J7 Ferrers, Jjd., r. Shirley 1581 Ferris v. Goodburn 976, 1044 PAGE Fesenmayer v. Adcock 149 Feversham, Ld., v. Emerson 115 Few V. Guppy 790, 1534 Fiddey, Re 119 Field V. Flemming 640 Field V. Gt. North. Ry. Co. 57 Field V. Hemming 640 Field ('. Holland 664 Field V. Lelean 980, 996 Field V. Woods 298, 729 Figg ?J. Wedderburne 568 Filipowski ;;. Merryweather 207 Filmert'. Gott 967, 970 Financial Ins. Co., Re 1091 Finch V. Bp. of Ely 1287 Finch ('. Finch 181, 403, 828, 1242 Finlay v. Bristol & Ex. Rail Co. 843 Finlay ?•. Finlay 69 Finnerty v. Tipper 324 Finnej' v. Beesley 462 Finney v. Finney 1434 Finney v. Forward 484 Finney v. Grice 185 Finn's case 430 Firkin v. Edwards 411 Firth, ex p., re Cowburn 173 Firth, in re, ex p. Schofield 1249 Fischer v. Hahn 462, 465 Fischer v. Izataray 465 Fischer v. Popham 904 Fischer (;. Sztai'ay 465 Fisher r. Clement 106 Fisher r. Dudding 1335 Fisher v. Heming 794 Fisher v. Joyce 342 Fisher r. Keane 148:) Fisher v. Kitchingman 1335, 1338 Fisher v. Lane 1336 Fisher r. Magnay 725 Fisher ^^ Ogle 1481, 1482 Fisher v. Owen 477, 478, 1243 Fisher f. Ronalds 1247, 125 5 Fisher v. Samuda 496 Fisher v. Thames June. Rail. Co. 301 Fishmongers' Co. v. Dimsdale 1571 Fishmongers' Co. v. Robertson 124, 710, 735, 1571 Fitch 11 Jones 345, 346 Fitch r. Smallbrook 1335 Fitz V. Rabbits 402 Fitzgerald v. Dressier 881 Fitzgerald v. Elsee 1567 Fitzgerald v. Fitzgerald 424, 1410 Fitzgerald v. O' Flaherty 653 Fitzgerald v. AVilliams 266 Fitzgibbon v. Greer 484 Fitz- James v. Moys 1173 Fitzmaurice r. Bayley 877, 947 Fitzmaurice, Re 936 D LAW OF EVID. — V. I. (2787) TABLE OF CASES CITED. PAGE Fitzpatrick r. Dunphy 149 Fitzrov. Sir C, lie 81:} Fitzwulter Peer. 575, 576, 578, 158-<, 158y, 1590 Flad Oyen, The 1475 Flagg r. Mann 1184 Flannerv's ease lU(j5 FlannerV v. Waterford&C. Ry. Co. 2!)7 Fleet r. 'xMurton 309, 995 Fleet V. Perrins i;ill Fleming v. Fleining 1027 Flercher v. Braddyll 197, 1210 Fletcher r. Calthrop KilJ Fletcher v. Froggatt 643 Fletcher v. Gillespie 977 Fletcher v. Gt. West. Rail. Co. 145 Flint! V. Calew 981 Flitters v. Allfrey 1447 Flory V. Denny 8:57 Flower v. Darby 48 Flower v. Herbert 709, 723 Floyd V. Barker 1425 Flureau v. Thornhill 1000 Fogarty r. Smith 20 Foggassa's case 10 Foley V. Tabor 357 Folkes V. Chadd 319, 1208, 1210 Follett r. Jefferyes 784, 800 Fonsick r. Agar 429 Foot V. Stanton 905 Foot V. Tracy ' 337 Foote t\ Hayne 792 Foquet v. INIoor 859 Forbes' case 1091 Forbes v. Forbes 228 Ford V. Ager 96 Ford V. Batley 1035 Ford V. Cotes worth 196 Ford V. Elliott 526 Ford V. Ford 962 Ford V. Tennant 80:5 Ford V. Yates 980 Fordham t\ Wallis 661 Foreman r. Free Fishers of Whitestable 154 Forman v. Wright 263 Forrest t\ Forrest 869 Forshaw r. Chahert 1548 Forshaw r. Lewis 473, 1526, 1530 Forster r. Clements 730 Forster v. Forster 366, 1573 Forster v. Hale 868 Forster v. IMackreth 204 Foster ?•. Rowland 880 Forsyth V. Bristowe 938 Forsythe v. Norcross 617 Fort V. Clark 574 Eortescue v. Fortescue 1535 Forth V. Stanton 881 (27 Foster v. Allanson Foster v. J'.ank of England Foster v. Blakeloek Foster v. Charles Foster r. Compton Foster r. Hall PAGE 977 1287 7:57 106 1:335 794 Foster r. Jolly 9f)9, 980 Foster i'. IMentor Life Ass. Co. 6:5, 719 732, 996 Foster ?•. INI'Mahon 592, 687 Foster v. Pointer 245, 41:5, 417 Foster V. Siiaw 491, 1423 Foster v. Steele 224 Foulkes V. Sellway 336, 514 Fountain v. Boodle 140, 1533 Fountain r. Young 794 Fowell V. Forrest 972 Fowkes V. Pascoe 870, 1043 Fowler v. Coster 1558 Fowler v. Fowler 420, 971, 1043 Fowler v. Savage 1424 Fowlis r. Davidson 347 Fox V. Clifton 531, 722 Fox V. Fox 869 Fox V. JoTies 1288 Fox V. Waters 381,660 Fox's case 1514 Foxcr;)ft v. Nevens 681 France v. Lucy 409 Franchot ;;. Leach 967 Francis v. Cockrell 999 Francis v. Dichfield 984, 1042 Francis v. Hawkesley 922 Francisco v. Gilmore .450 Francklin's case 35 Frank r. Frank 1429 Frankum v. Ld. Falmouth 251 Eraser, Re 913 Eraser v. Burrows 1529 Eraser v. Hill 42 Eraser v. Pendlebury 121 Fray v. Blackburn 1425 Eraj'es r. Worms 148") Frederick v. Att.-Gen. 556 Free v. Hawkins 731, 980 Free Fisliers of Whitstable v. Foreman 154 Free Fishers of Whitstable ik Gann 153 Freeman r. Arkell 397, 813 Freeman v. Baker 1354 Freeman v. Cooke 114, 115, 719, 725, 73:5 Freeman ?•. Cox 702 Freeman /;. Freeman 914 Freeman v. Gainsford 891 Freeman v. Phillipps 540, 551, 557, 558 Freeman v. Pope 171 Freeman v. Read 540, 541, 1346 88) TABLE OF CASES CITED. li PAGE Freeman v. Steggal 640, 1546, 1570 Freemau v. Tatham 647 Freeman v. Walker 734 Freemmilt v. Dedire 1215 Freestone v. P>utcher 211 French r. French 14;)2 Freston, in re 1129 Fricker's case 1091 Friend v. Lond. Chat. & D. Ry. 152S Frith, Re 909 Frith ('. Barker 991 Frontine r. Frost 348 Frost r. Holloway 1250 Frost V. Oliver 227 Froude v. Hobbs 36 Fry i\ Chapman 376 Frv r. Hill 51 Fry V. Wood 429, 432 Fryer r. Wiseman 1186 Fuentes ?'. Montis 147 Fuller r. Crittenden 736, 965 Fuller V. Fenwick 1496 Fuller V. Fotch 1359, 1365, 1430 Fuller 'r. Hampton 689 Fuller V. Pattrick 1569 Fuller V. Prentice " 1058 Fuller V. Redman 923 Fulmerston v. Steward 860 Fult;m V. Andrew 178, 179 Fulwood's, Lady, case 1273 Furber v. King 479 Furley v. Wood 991 Furlong v. Howard 420 Furly V. Newnham 1086 Furneanx v. Hutchins 307 Furnell v. Stackpoole 11, 1325 Furness v. Meek 58, 63, 1560 Fursdon ?;. Clogg 591 Futcher v. Futcher 297 Fyler r. Givens 872 Fyson v. Chambers 148, 149 Fyson v. Kemp 1318 Gabay v. I.loyd 201 Gabbett v. Clancy ' 1346 Gad i;. Houghton 982 (Jainsford v. Grammar 678, 803 Galbraith v. Neville 1489 Gale V. I.indo 721 Gale V. Williamson 939, 970, 977 Galsworthy v. Norman 1527 Gananogue, The 214 Ganer v. Lanesborongh 1217 Gann r. Free Fishers of Wliitstable 153 Gann v. Gregory 180 Gann v. Johnson 153 Garbutt v. Simpson 1232 Garcias v. Ricardo 1474 Garden v. Cresswell 1054, 1079, 1080 Gardener v. Ennor 172 (2 Gardner, Re Gardner v. Croasdale Gardner v. Dangerfield Gardner v. Grout Gardner v. Irvin Gardner v. Irwin Gardner v. McJIahon Gardner r. Moult Gardner Peer. Gardner v. Walsh Gardom, ex parte Garey v. Nicholson Garey v. Pike Garland, Re Garland r. Beverley Garland r. Cope Garland r. .Jacomb Garland v. Scoones Gailoch r. Geortner Garner v. Garner Garnet r. Ball Garuett v. Ferrand Garnett v. Woodcock Garnier, Re Garnons v. Barnard Garrard v. Lewis Garrard v. Tuck Garrells t\ Alexander Garrett v. Handley Garth v. Howard Gartside v. Outram PAGE 494 274 1537 897 1535 1535 922, 926 670 516, 571 154!) 205 644 293 1033 1033 600, 601 730 1335 196 1033 671 1425 46 1483 547 1561 158 1580, 1583 982 533, 536 784' Gartside v. Silkstone, &c. Co. 169 Garvin v. Carroll 1238, 1239, 1311, 1312 Gas Light & Coke Co. ■;;. Turner 116 Gaskill r. Skeene 703 Gass V. Stinson 1257 Gathercole v. Miall 397 Gatty V. Fry 7:29 Gaunt V. Johnson 1053 Gaunt r. Wainman 121, 1437 Gausden, Re 907 Gay V. Hill 954 Gay V. I^abouchere 476 Gaze i\ Gaze 904 Geach v. Ingall 341, 342, 362 Geaves v. Price 914 Gee V. Ward 551, 558 Gerry v. Hopkins 1287 Geill v. Jeremy 44 Geils V. Geils 1476 Gen. Steam Nav. Co. v. Brit. & Col. St. Nav. Co. 226 Gen. Steam Nav. Co. u. Guillou 1475, 1478, 1485 Gen. Steam Nav. Co. r. Hcdley 8 Gen. Steam Nav. Co. v. Lond. & Ed. Ship Co. 56' Gen. Steam Nav. Co. v. Mann 8" Gen. Steam Nav. Co. v. Morrison 8 789) Hi TADLE OF CASES CITED. PAGE page: GoninjT v. The Stato :{54 Glad well v. Turner 45 Geort^e's Estate, Ke 1040' Glannibanta, The 1595 Geor<^e v. Pritchard 1001) Glass r. Beacli 423 Geor<;c v. Surrey ir,80 Glassc;)tt ?•. Copper Miners' Co. 1537 George r. Th')iiii)snn 411 Glave V. W^entwortli 647 Geralopulo 7-. Wieler 392 Gleadow v. Atkin 589, 5!! 7, 609, Oil Gorish v. Oliartier 321 Glencairn Peer. 229 German Mining Co., Re 204 Glengall. E. of, v. Barnard 1043 Germania, The 501 Glerawley's. Ld., Civse 674 Gervis v. Grand West. Canal Cd. ir,02 Glory, Re, The 1098 Gery v. Redman 142, 0)0 Glossop V. Heston & Isleworth Local Geyer r. Acjuihir 1130 Board 1186 Geyer v. Irwin 1131 Gh)ssop i\ Jacob 21 Gibblehouse v. >Strong 000, 08 1 Glossop r. Pole 1429 Gibbon v. Budd 695 Glover v. Hall 1524, 15:57 Gibbon v. Featherstonhaugh 196 Glubb V. Edwards 1571 Gibbon v. Young 988 Glyn V. Caullield 793, 1534 Gibb m's Case 1514 Glyn ?;. Houston 1288 Gil)bons v. Powell 411 Glynn v. Bk. of England 589, 605 Gibbons v. Wilcox 663 Goate V. Goate 922 Gibbs ('. Cruilisliank 1443 Goblet V. Beechey 986, 1017 Gib])s 1'. Fremont 59 Godard v. Gray 1479 Gibb.^ ('. Guild 93 Goddard's case 122 Gibbs r. Phillipson 1128 Goddard r. Parr 1228, 1230 Gibbs V. Pike 109, 140, 1593 Gidefroy v. Dal ton 53 Gibbs V. Ralph 1470 Godefroy v. Jay 1335 Gibson v. Kaghott 94f! Godfrey v. Macaulay 1421 Gibson V. Doeg 160 Godfrey v. Turnbull 1421 Gibson v. Doey 160 Godson V. Smith 1414 Gibson v. East India Co. 838 842, 813 Godts V. Rose 996 Gibson v. Holland 876, 878 Godwin v. Culley 023, 927 Gibson r. Hunter 320 Godwin v. Francis 878 , 879, 1001 Gibson v. M'Carty 1445 Gjff7». Gt. North. Ry. Co. 842 Gibson r. Small 996 997. 9:)8 Goff r. Mills 1079, 1080, 1031 Giffard v. Williams 1378 Gofifin V. Donelly 1126 Gilbert ?'. Endean 1189 Gold Co., Re, The 1092 Gilbert v. Smith 714 Gold ('. Canham 1489 Gilbert v. Sykes 883 Golden v. Gillam 171 Gilchrist v. Bale 516, 518 G )ldicutt r. Towmsend 885 Gildea v. Brien 1126 Goldie V. Shuttleworth 611 Giles V. Dyson 737 Golding V. Wharton Salt Works 242, Giles V. Siney 1336 1595 Giles V. Warren 913, 916 Goldshede v. Swan 1019 Gillanders ?'. Ld. Rossmore 890 G )ldstein v. Foss 66 Gillard v. Bates 807 Goldthorpe v. Hardman 109 Gillespie v. Cumming 1335 Gomm V. Parratt 1524 Gillespie r. IMoon 970, 971 Gomp(u-tz t\ Bartlett 294, 1004 Gillespie v. Russell 1470 Goodall V. Little 792, 79 3, 795, 801 Gillett V. Abbott 121 Goode V. Job 937, 1218 Gillett V. Gane 1033 Goodered v. Armour 416 Gilliat V Gil Hat 1041 G;)odier v. Lake 402 Gillies /'. Smither 1566 Good in v. Smith 1430 Gillis V. Gillis 228 Goodinge v. Goodinge 1022 Gillman v. Connor 50 Goodman r. Chase 882 Gilpin V. Fowler 140 Goodman v. Goodman 190, 515 Giraud ?'. Richmond 887, 975 G.iodmau v. Griffiths 874, 876 Gisborne ?'. Hart 1344 Goodman v. Harvey 1526 Glvens v. Bradley 333 Goodman v. Holroyd 482, 485 Glad well v. Steggall 265 Goodman's Trusts 184 (2790) TABLE OF CASES CITED. liii PAGE I Goorlright v. Cordwent (idi) Guodriglit r. Davis 091) Goodright v. Harwood 915 Goodiiglit V. Hicks 332 Goodright v. Hodges " 870 Goodright v. Moss 55G, 5G9, 562, 566, 574, 817, 818 Goodright r. Saul 571 Goodiight V. Straplian 15(53 Gocdtitle r. Baldwin 153 Goodtitle r. Biaham 356, 1209, 1590 Goodtitle r. Dew 542 Goodtitle i: Jones 159 Goodtitle r. Lammiman 23 i Goodtitle v. Milburn 186 Goodtitle r. Southern 1037 Goodwin v. Hubbard 869 Goodwin v. Lordon 1132 Goodwin r. Robarts 7, 724 Goodwin v. West 1059 Goodwvn V. Clieveley 51 Goold V. White 229 Goom V. Atlalo 389 Gordon's case 1085 Gordon's, Ld. George, trial 521 Gordon v. Gordon 962 Gordon v. Ld. Reay 911 Ciordon v. Secretan 1569 Gore, Re 906 Gore r. Bethel 226 Gore V. Bowser 803 Gore V. Gahagan 178 Gore r. Harris 803 Gore v. Hawsey 703 Gore r. Wright 863 Gorham v. Canton 52J Gorrissen v. Perrin 989 Gorton v. Dyson 1353 Gosbell r. Archer 947 Gostbrd, Ld., r. Robb 383, 815 Goslin V. Corry Gosling r. Birnie Goss V. Ia\. Nugent Go.ss t\ Quinton Goss V. Watlington Go.sset V. Howard 107,108,166, l(i7, 1094 Gott r. Gandy 294, 10U2 Goudy r. Duncombe 49 (tould r. CViombs Gould V. Gould Gould V. Lakes Gould V. Shirley Gould V. White Gouldie v. Gunston Gouldstone v. Woodward Gouldsworth v. Knights Gourley v. PlimsoU Governor v. Bell Governor v. Jeffreys PAGE Go wan v. Fo.stcr 931 Gowan, ex parte 1596 Grady's case 169 Graham, Eliz., Re 1463 Graham, Re 914 Graham v. Birkenhead Rail. Co. 720 Graliam v. Cox 197 Graham v. Dyster 1237, 1545 Graham v. Glover 1087 Graham v. Hope 1421 Graham r. Oldis 408 Graham v. Whichelo 862 Grand June. Can. Co. v. Dimes 1479 Grant r. Bagge 24 Grant r. Fletcher 389 Grant r. Gould 1431 Grant v. Grant 674, 828, 1016 Grant v. Jackson 662, 663, 691, 735 Grant r. M'Lachliu 1482 Grant r. ]\Iaddox 988 Grant i: Moser 24 Grant v. Thompson 1209 Gravenor r. Woodhouse 126 Graves v. Key 736 Graves v. Legg 200 Graves v. M' Car thy 1130 Graves v. Weld 893 Gray v. Boswell 971 Gray r. Cookson 1427 Gray v. Dinnen 54 Gray v. Haig 137 Gray v. Harper 1015 Gray y. Palmers C63 Grav V. Pearson 962 Gray v. Pentland 815, 816 Gray v. Warner 172 Grayson v. Atkinson 909 Grayson v. Wilkinson 1573 Great Eeastern, The 227 Great North. Rail. Co. r. Sheppard 206 1592 Great West. Coll. Co. v. Tucker 486 727 Great West. Rail. Co, v. Bennett 145 963, 973, 974, 975 Great West. Rail. Co. v. Blower 998 645 Great West. Rail. Co. v. Willis 5:34 591, 681 Greaves v. Ashlin 9;-^0 Greaves v. Fleming • 716 Greaves v. Greenwood 218 Greaves r. Hunter ■ 1582 1549 i Greaves v. Legg 200 203 ! Greaves v. ToUeld 958 1024 I Greely v. Smith 1437, 1470 Green i\ Brown 223 Green v. Cresswell 884 Green v. Gatewick 432 Green v. Green 1451 Green v. Howard 1023 Green v. Humphreys 927 Green v. Jackson • 192 Green v. Kopke 205 926 229 723 Errata 125 473 1517 1517 (2791) liv TABLE OF CASES CITED. PAGE j Green v. London Gen. Omn. Co. 8 li ! Green r. New Kiver Co. 142:2 ; Green v. Sevin 2!).') j Green v. Tribe 911 Green v. Waller 10 Green v. Weaver 72.'{ Greenfield v. Reay 484 Greenish v. White TSS Greenlaw v. King 790 Greenough v. Eccles 1218 Greenough v. Gaskell 783, 785, 787, 801 Greenough*;. M'Clelland 981 Greenshield v. Pritchard 1131 Greenshields v. Crawford 1576, 1577 Greenway, ex parte 404 Greenwich Bd. of Works v. Maudslay, 154 Gregg V. Wells 719, 724 Gregg's case 743 Gregory v. Doidge 126 Gregory r. Duff 247 Gregory v. Howard 690 Gregory r. Mai'ychurch 119G Gregory v. Parker 676 Gregory w. Queen's Proctor 180 Gregory v. Tavernor 1205 Gregory v. Thomas 333 Gregory v. West Mid. Ry. Co. 93ri Gregory's Settlm., Re 1033 Gregson v. Ruck 390 Grellier v. Neale 169 Gremaire v. Le Clerk Bo is Valon 192 Grenfell v. Girdlestone 923 Gresham Hotel Co. v. Manning 510,511 Gresley v. Mously 118, 172 Greves, Re 910 Greville v. Chapman 1212 Greville v. Stulz 406, 1342 Greville v. Tylee 178, 180, 181, 919 Grew V. Hill 713 Grey v. Young 516 Grice v. Richardson 890 Grigg's case 1159, 1161, 1167 Griffin v. Brown 1423 Griffith V. Davis 797, 803 Griffith V. Ricketts 420, 1221 Griffith, in re 177 Griffiths, ex parte 10-6 Griffiths V. Griffiths 909, Errata Griffiths V. Jenkin 890 Griffiths V. Lond. & St. Kath. Docks Co. Errata Griffiths V. Rigby 62 Griffiths V. Williams 678 Griffits V. Ivory 1587 i&riffits V. Payne 307 Grill V. Gen. Ins. Screw Collier Co. 400 Grimani v. Draper 216, 347 ^rimman v. Legge 862, 863 (2' PAGE Grimwood v. Bartels 1483 Grim wood r. Cozens 182 Grim\vood v. JMoss 699 Grindell v. Godmond 211 Grinnell r. Wells 334 Gripper r. Bristow 952 Grissell v. Bristowe 201 Groenvelt v. Burrell 1275 Grose v. West 143 Grosvenor v. Shcrratt 173 Grounsell v. Lamb 293 Grove v. W^are 415 Groves v. Groves 869 Guardhouse v. Blackburn 178, 179 Gudgen v. Besset 967, 1560 Guest V. Elwes 248, 253 Guest V. Warren 1449 Guidon v. Robson 722 Guier v. O' Daniel 228 Guild's case 745, 749, 751, 752, 753, 759 Gull V. Lindsay 251, 882 Gully V. Bp. of Exeter 397, 688 Gumm i\ Tyrie 961 Gun V. McCarthy Errata Gunn V. Roberts 227 Gunter v. M'Kear 463 Gunter c. Jd'Tear 463 Gurford v. Bayley 246, 251 Gurney r. Langlands 1590 Gnrr r. Rutton 514 Gutsole V. Mathers 290 Guy V. Sharpe 1015 Guy V. West 144 Guy Mannering, The 220 Gwillim V. Gwillim 906 G Wynne v. Davy 973 Gyles V. Hill 1318 H., talsely called. C, v. C. 160 Habergham r. Vincent 910 Haekwood v. Lyall 227 Haddrick v. Heslop 42 Hadley v. Carter 520 Hadley v. Green 1454 Hadley v. McDougall 1534 Hagedorn v. Reid 614 Haogitt r. Ineif 1333 Haiii V. Newton 1204 Haigh V. Belcher 1227 Haigh V. Kaye 895 Haigh V. North Bierley Union 840 Hailes v. Marks 42, 245 Haine v. Davey 301 Haines r. East India Co. 725 Haines v. Guthrie Errata Haines v. Roberts 144 Haire v. Wilson 106 Hale V. Russ 1551 Haldane v. Eckford 52) Halkett v. Emmott 1315, 1406 ■92) TABLE OF CASES CITED. Iv PAGE Hall, Re 911 Hall's Estate, Re 13G5 Hall V. Bainbridge 169 Hall r. Ball 394, 400, 401, 494 Hall V. Betty 1000 Hall V. Brand 1077 Hall V. Burgess 862 Hall V. Butler 127 Hall V. Byron 147 Hall V. Cazenove 979 Hall «.*City of London Brewery Co.lOOl Hall i'. Conder 1003, 1004, 1005, 1006 Hall V. Eve 292, 295 Hall V. Featherstone 346 Hall V. Fisher 1041 Hall V. Hall 177 Hall V. Hill 675, 1042, 1043, 1044, 1045, 1046 Hall V. Janson 991 Hall V. Levy 1450 Hall V. Lund 146 Hall V. Maule 167 Hall V. Mayor of Swansea 842 Hall V. Odber 1490 Hall V. Rouse 463 Hall V. Vaughan 295 Hall V. Warren 216 Hall, ex p., re Whitting 889 Hallack r. U. of Cambridge 167 Hallen r. Runder 839 Haller ii. Worman 679 Hallet v. Hears 1059 Hallett r. Cousens 1198 Halley, The 226 Halliday v. Holgate • 1010 Halliday v. Martinett 013 Hallifax v. Lyle 115, 730 Hallmark's case 704 Haly V. Lane 729 Hamber v. Roberts 1578 Hambrook v. Smith , 1243, 1537 Hamelin i\ Bruck 1551 Hamerton i\ Hamerton 674 Hamerton v. Stead 859, 860, 862 Hamilton r. Chaine 172 Hamilton tJ.'Nott 793 Hamilton ik Terry 925 Hamlyn *'. Betteley 33, 172 Hammersley v. Baron de Biel 720, 879, 885, 886 Hammick r.Bronson 515 Hammond, Re 907 Hammond v. Bradstreet 550 Hammond i\ Rogers 226 Hammond v. Smith 923 Hammond v. Stewart 1053 Hammond's case 1584, 1590 Hampden v. Walsh 817 Hampshire v. Pierce 1032 PAGE Hampton v. Spencer 647 Hanbury v. Ella 246 Hancock v. Guerin 1532 Hancock v. Somes 1387 Hancock v. Welsh 1441, 1449 Hand v. Hall 852 Hand ley v. Jones 512 Handley v. Ward 1224 Hanmer ik Chance 151, 938 Hanna, The 226 Hannaford v. Hunn 1428, 1431 Hannaford v. Whiteway 199 Hannay v. Stewart 533 Hansard v. Robinson 403 Hansom v. Armitage 896 Hanson v. Parker 665 Hanson v. Shackelton 21 Hanson v. Stetson 980 Harbord v. Monk 472, 473 Harden v. Gordon 736 Harding r. Greening 136 Harding v. Jones 690 Harding i\ King 1387 Harding v. Williams 1380 Hardman v. Willcock 727 Hard wick t\ Hard wick 1037 Hardwick, The 635 Hardy v. Alexander 337 Hardy's case 527, 809 Hardy, Re 181 , 968 Hare v. Copland 92 Hare t\ Henty 45 Hare v. Hyde 1132 Hargest t\ Fothergill 411 Hargrave v. Hargrave 129, 535, 571, 677 Hargreavev. Everard 173 Hargrea\es v. Parsons 884 Harker, Re 920 Harland v. IVIorley 174 Harlock v. Ashberry 96 Harman r. Anderson 727 Harman v. Gurner 1027 Harman v. Reeve 895 Harmer v. Bean 385 Harmer v. Bell 1430, 1450 Harmer v. Cornelius 1008 Harmer v. Davis 693 , 723 Harmony, The 228 Harnett ii Vise 5() Harnor v. Groves 980 Harratt v. Wise 54, 1421 Harrington v. Fry 1577, 1581 Harris, Re 916, 917, 918, 919 Harris in re, Cheese v. Lovejoy 916, 918 Harris v. Berrall 916 Harris v. Costar 206 Harris v. Gamble 291, 292 Harris i;. Goodwyn 109, 972 93) Ivi TABLE OF CASES CITED. PAGE Harris r. Harris 742, Ifjii? Harris r. Hill 419, 420, 791 Harris v. Mantle 289 Harris v. O'Lojililon 23 Harris?;, repperell 971 Harris r. Petherick 57 Harris v. Kickett 707 Harris v. Ry fling 144 Harris v. Saunders 1474, 148(j Harris r. Tenpany 1552 Harris r. Thompson 140 Harris v. Tippett 1228, 12.32 Harris r. Wilson 063 Harrison's case 354 Harrison r. Barton 175, 1019 Harrison v. Blades 431, 432, 1567 Harrison v. Corp. of Southampton 190, 3SG, 1430, 1464 Harrison v. Creswick 110 Harrison v. Elvin 909 Harrison r. Fane 60 Harrison r. Gurdon 1232 Harrison v. Heathorn 722 Harrison v. Hyde 1037 Harrison v. Jackson 976 Han-ison v. Luke 293 Harrison v. Rowan 1225 Harrison v. Rowley 183 Harrison v. Southcote 1244 Harrison v. Taylor 58 Harrison v. Turner 644 Harrison r. Vallance 655, 684 Harrison v. Williams 1285 Harrison v. Wright 719, 726 Harrison, ex parte 1495 Harrod v. Harrod 190. 1170 Harry v. Broad 21 Hart V. Alexander 1421 Hart r. Bush 899 Hart V. Deamer 1429 Hart V. Frontino, etc., Gold Min. Co. Hart V. Hart 168, 397, 401 Hart V. Horn 666 Hart V. Nash 929 Hart^j. Newman 697 Hart V. Prendergast 922, 923, 925, 926 Hart V. Sat tley 899 Hartr. Williams 613 Hart V. Windsor- 294, 1001, 1002 Harter v. Harter 179 Hartford v. Palmer 1169 Hartford v. Power 828 Hartley v. Cook 151 1 Hartley v. Hindmarsh 1462 Hartley v. Wharton 878, 924 Hartley r. Wilkinson 977 Harton, The 225 Hartopp V. Hartopp 173 (27! PAGE Hartshorne v. Watson 1183 Harty r. Davis 93ii Harvey v. Clayton 78:5 Harvey v. Croydon Union, &c. 679 Harvey v. Divers 1058 Harvey r. Farnie 1476 Harvey v. Grabham 976 Harvey r. Harvey Errata Harvey v. Mitchell 36, 363, 406 Harvey v. Morgan _ 410 Harvey v. Man. Perm. Invest. Build. Soc. Errata Harvey v. Towers 3Ki Harvey's case 777 Harwood v. Goodright 40 Harwood v. Keys 665, 6feS Harwood r. Sims 547, 557 Hasleham v. Young 205 Haslock r. Furgusson 934 Hasluck r. Pedley 177 Hassall v. Cole 2 14 Hassard v. Smith 216, 347, 1429 Hastie v. Hastie 159rj Hastilow V. Stubie 178 Hastings Peer. 573, 575, .578 Haswell, The 234 Hatch V. Dennis 684 Hatch V. Hatch 1557 Hatch r. Searles 1561 Hathaway r. Barrow 1429, 1437, 1445 Hathaway r. Haskell 661 Hathorn v. King 1209 Hatton V. Royle Havelock v. Rockwood Hawarden r. 'Dunlop ' 1352 Hawes v. Armstrong 872 Hawes r. Draeger 130 Hawes v. Forster . 389, 391 Hawes v. Watson 727 Hawk V. Freund 639 Hawkes v. Baker. 1181 Hawkes v. Kennebec 26 Hawkes v. Salter 44 Hawkesley v Bradshaw 716, 717 Hawkesworth r. Showier 1160 Hawkins i-. Carr 481 Hawkins v. (Jathercole 796 Hawkins v. Howard 791 Hawkins i\ Luscorabe 665 Hawkins r. Warre 375, 378 Hayden v. Madison 701 Haydon v. Williams 922, 926 Hayes, Re 911 Hayes v. Dexter 188, 189 Hayes v. Seaver- 681 Haylock v. Sparke 646, 1502 Hayne v. Maltby 117, 118 Haynes v. Birks 44 Haynes v. Haynes 129 94) 205 1475 TABLE OF CASES CITED. Vll PAGE Hayncs )'. Hayton 640 Haynes r. Hill 911 Hayseldeu v. Staff 293 , 294 Havslep r. Gvmer 707 Hayter r. Tucker 891 Hay ward v. Hay ward 1091 Hayward r. Stephens 1332 Hazeldine v. Grove 43, 4-^ , 54, 94 , 300 Head v. Daldry 167 Headlam r. Hedley 143 Heald v. Kenworthy 205 Healey v. Thatcher 688 Healey v. Young 464 Healy r. Heaiy 1033 Healy v. Thorne 154 Heane v. Ivogers 707, 709, 723 Heap r. Harris 23* ", 290 Heard r. Pilley 947 Hearn, Re' 9U6 Hearn v. Tomliu 295 Hearne v. Stowell 66 Heath's case 510 Heath c. Brewer 300 Heath v. Crealock 806 Heathcothe's divorce 20, 1510 Heathcote, in goods of 911 Hcawood V. Bone 939 Hebblethwaite v. Hebblethvvaite 1151 Hedges v. Tagg 334 Hedley v. Bainbridge 204 Heenan v. Clements 685 Heflield v. Meadows 1019 Heiron's case 1091 Hell in gs, He 906 Helmsley v. Loader 265 Helps V. Clayton 61 Helsham r. Blackwood 1445 Helyear /•. Hawke 534 Hemming r. Blanton 96 Hemming v. ISIaddick 1235 Hemming ;•. Parry 234 , 245 Hemmings v. Gasson 322 Hemphill v. M'Kenna 1437 Hempston r. Humphreys 1080 Henderson v. Australian Eoyal Mail Steam Navig. Co. 841, 844 Hender.son v. Barnewell 389 Henderson v. Broomhead 1126 Henderson v. Henderson 1454, 1474, 1478, 1486, 1487 1489 Henderson v. Ripley Henderson r. Squire Henfree v. Bromley Henfrey v. Henfrey Henkin v. Gerss Henley v. Soper Henman v. Dickinson Henman r. Lester Henry v. Goldney Errata 10U3 1556 914 817 1486 1164, 1546 383, 1251 1444 PAGE Henry v. Lee 1202 Henry v. Leigh 406, 1354 Henry v. Risk 991 Henry v. Marq. of Westmeath 374 Henry Coxon, The 614, 1512 Henshaw v. Pleasance 14:X) Hen wood v. Oliver 59 Hejiworth r. Hepworth 8G9 Herbert v. Ashburner 1281 Herbert v Herbert 911 Herbert v. Rae 168 Herbert v. Sayer 866 Herbert v. Tuckal 566, 572 Hereford, Bp. of, v. T— n 100 Hermann v. Seneschal 300 Herries Peer. 229 Herring r. Clobery 783, 785, 793* Herschl'ekl v. Clarke 485 Hervey t). Hervey 515, 578 Heseltine t\ Siggers 892 Heslop r. Chapman 42 Heston v. St. Bride 1473 Hetherington c. Kemp 202 Hctherington i'. Longrigg 714 Heugh r. Garrett 1524 Hewitt V. Piggott 651, 703 Hewlett V. Cock 582, 586 Hewlins v. Shippam 835 Hewson v. Brown 1312 Hext V. Gill 145 Hey V. Moorhouse 377 Heyes v. Hindle 813 Heyman v. Flewker 147 Heyman r. Neale 389 Heymann r. R. 1U9 Heysham v. Forster 1345 Heywood v. Pickering 46 Heyworth v. Knight 390 Hibberd v. Knight 420, 791 Hibbert v. Barton 952, 953 Hibblewhite v. M'Morine 890, 892, 15.58, 1562 Hibbs V. Ro.ss 227, 1512 Hickley, In re 198 Hickey v. Burt 654 Hickey v. Campion 828, 1149 Hickey v. Hayter 737 Hickman r. Haynes 975 Hickman v. Machin 125, 294 Hickman v. Upsall 219 Hicks, Re 913 Hicks V. D. of Beaufort 698 Hicks V. Faulkner 41 Hicks r. Sallitt 962, 1023 Hickton v. Autrobus 199 Hide, Re 865 Hide ('. Thornborough 145 Higgins V. Hopkins 722 Higgins V. Scott 102 (2795) Iviii TABLE OF CASES CITED. PAGE Higijins r. Senior 982, !J8:J Higgins' Trusts, Re 711 Higginson v. Clowes 97:3 Higginson v. Hall 15136 Higginson v. Simpson 817 Higgs V. Dixon 1564 Higgs V. Mavnard 207 Highani v. Ridgway 588, 589, 592, 593, 594, 597 Highfield v. Peake 1238, 1311, 1340 Highland Turnp. Co. v. McKeau 1514 Hilliard v. Phaley 664 Hill Ke 907, 911 Hill v. Campbell 484, 1524 Hill v. Coombe 1224 Hill V. Dolt 1051 •Hillr. Hart-Davis 1189 Hill V. Hennigan 164 Hill r. Manchester Waterw. Co. 116, 118, 119 Hill v. Packard 1318 Hill V. Philp 1522, 1529 Hill V. Potts 183 Hill V. Ratley 183 Hill V. Salt 248, 252 Hill v. Thompson 61 Hillary v. Waller 157 Hills I) Evans 61,62 Hills r. Laming 119 Hills V. London Gas Co. 62 Hills V. Wates 481 Hillyard v. Grantham 1445 Hilton V. Fairclough 44 Hilton V. Geraud 890 Hindekoper v. Cotton 812 Hindlcy v. Haslam 1448 Hindmarsh, Re 923 Hindmarsh v. Charlton 902, 909 Hindos. China & Japan, Bk. of, v. Smith 1554 Hindson v. Kersey 1573 Hindustan, Bk. oi", Re 1091 Hinton v. Heather 42 Hirschfield v. Smith 44 Hirst D. Hannah 951 Hitch V. Wells 905 Hitchin v. Campbell 1448, 1450, 1453, 1471 Hitchin v. Groom 1037 Hitchings v. Thompson 127 Hitchins v. Eardley 36, 5(jl Hitchins v. Hitchins ' 466 Hoad V. Grace 1019 Hoar V. Mill 266 Hoare v. Coryton 186, 668 Hoare v. Graham 980 Hoare v. Johnstone 663 Hobbs V. Henning 1482 Hobbs V. Knight 917, 918, 919 {21 PAGE Hobhouse v. Hamilton 1410 Hol)son r. Parker 1283 Hobson V. Thellu.sson 837 Hoby V. Roebuck 889 Hockin r. Cooke 22, 991 Hodenpyl v. Vingerhoed 531 Hodgens v. Graham 926 Hodges V. Ancrum 1224 Hodges V. Bennett 827 Hodges V. Cobb 466 Hodges V. Holder 358 Hodgkinson v. Fletcher 150 Hodgkinson v. Kelly 201 Hodgson V. Clarke 1033 Hodgson V. Davies 992 Hodgson V. De Beauchesne 228, 229, 520 Hodgson I'. Hutchenson 721, 886 Hodgson V. Johnson 889 Hodgson V. Le Bret 897 Hodgson i\ INIerest 665 Hodgson V. Scarlett 140 Hodgson's case 325 Hodnett v. Forman 1571 Hodsoll V. Taylor 482 Hodson V. Mid. Gt. W. Ry. Co. 1593 Hoe V. Nathrop 1353, 1364 Hoe V. Nelthorpe 1353 Hoffman v. Smith 788 Hogarth v. Latham 1561 Hogg V. Garrett 535 Hogg V. Skeen 346 Hoghton V Hoghton 173, 678, 688 Holbard v. Stephens 375 Holbeck v. Holbeck 907 Holbrook v. Tirrell 861 Holcombe v. Hewson 306 Holcroft v. Barber 196 Holcroft, Lady, t;. Smith 1572 Holcroft's case 1460 Holden, Re 1105 Holden v, Ballantyne 253 Holden v. Holden 1051 Holden v. King 1387 Holder v. Coates 144 Holder v. Soulby 206 Holdfast V. Dowsing 1573 Holding V. Elliott 696, 982 Holding V. Pigott lOlO Holdsworth v. Davenport 891 Hoi ford V. Bailey 141 Holgate, Re 905 Holgate V. Slight 951 Holiday v. Pitt 1127 Holl V. Griffin 727 Holland v. Reeves 651, 1206 HoUiday i\ Atkinson 168 Hollingham v. Head 306, 319 Hollins V. Verney,' 97 Hollis V. Goldfinch 311 96) TABLE OF CASES CITED. lix PAGE Hollman v. Pullin Errata Holloway v. Rakes 602 Holman v. Burrow 21, 24 Holme V. Brunskill 699 Plolmes V. Baddeley 795 Holmes v. Beliingham 143 Holmes v. Clifton 732 Holmes v. Hoskins 896, 897 Holmes r. INIackrell • 879, 924 Holmes v. IMilward 169 Ht)lmes V. INIitchell 873, 881 Holmes v. Remsen 1445 Holmes v. Staines 698 Holt V. Jesse 6R0 Holt V. Miers 411, 1335 Holt V. Squire 677 Homan v. Thompson 359 Home V. Bentinck 811, 815 Homer r. Homer 1040 Homer i-. Wall is 1584 Homersliam v. Wolverhampton Water- works Co. 841, 845 Honiballt'. Bloomer 1392 Hood V. Ld. Barrington 875. 1352 569, 573 668 792 929 125 413 419, 420 218 300 lOOi) 532, 930 45 255 1043 1130 54, 301 484 1201 Home V. Smith 1058, 1079 Horner v. Horner 1040 Hornsby v. Robson 199 Horrocksf. Metrop. Ry. Co. 1429 Horsefall v. Hodges 877 Horsey v. Graham 889 Horsfall v. Hey 895 Horsford, Re 918, 920 Horton r. M'Murtry 264 Horton v. Westminster Improvement Comrs. 116, 117, 119 Horwood V. Griffith 1016, 1023 Hot.son V. Browne 968 Hough V. IManzanos 982 Houghton, ex i)arte 8(is Houghton V. Koinig 393 Houlden v. Smith 1425 Hood V. Lady Beauchamp Hood V. Reeve Hooper v. Gumm Hooper v. Stephens Hopcraft v. Keys Hope V. Beadon Hope r\ Liddell Hopewell v. De Pinna Hopkins v. Crowe Hopkins v, Grazebropk Hopkins v. Logan Hopkins v. Ware Hopper IK Warburton Hopwood i\ Hopwood Horn V. Swinford Horn V. Thornborough Home V. Hough Home V. Mackenzie Houlditch V. M. of Donegal 1474, 1477, 1480, 14K7, 14S9, 1490 Houliston V. Smyth 187, 518, 1336 Household Fire, &c., Ins. Co. v. Grant 197 Houseman v. Roberts 408 How V. Hall 379, 415, 417 Howard v. Canfield 1204 Howard v. Ducane 5 Howard i'. Hudson 719, 731 Howard v. Maitland 1001 Howard v Mitchell 115 Howard v. Newton 315 Howard v. Peete 263 Howard v. Shaw 295 Howard v. She ward 306, 534 Howard v. Smith 38-1 Howard v. Williams 411 Howard v. Wright 971 Howcutt V. Bonser 937 Howe V. Hall 895 Howe V. Palmer 896 Howe V. Scarrott ' 125 Howell, Re • 906 Howell V. Lock 1183 Howes V. Barber 1058 Howlett V. Tarte 1450 Hoyle V. Ld. Cornwallis 21 Hul)bard v. Alexander 1042 Hubbard v. Johnstone 40 Hubbard v. Lees 572, 900 Hubbart v. Phillips 1440 Huber v. Steiner 69 Hubert v. Moreau 879 Hubert v. Treherne 879 ■ Hubly V. Vanhorne 1590 Huckman v. Firnie 342, 362 Huckvale, Re 906 Hudson V. Gnestier 1482 Hudson V. Parker 902, 903, 904 Hudson V. Revett 1560, 1562 Hudson r. Tabor 542 Huet V. Mesurier 1356 Huffell V. Armitstead 48 Huggins V. Ward 352, 1305 Hughes V. Biddulph 795 Hughes r. Blake 1472 Hughes r. Buckland 43, 54, 301 Hughes t;. Budd 408, 411 Hughes V. Metrop. Ry. Co. 72(5 Hughes V. Morris 850 Hughes V. Paramore 922, 929 Hughes V. Rodgers 1587 Hughes' case 367 Hughes' Patent, re 160 Huguenin r. Baseley 172 Huh V. Blake 1445, 1470 Hull, Mayor of, v. Horner 152, 153 Humble v. Hunt 1358 (2797) Ix TABLE OF CASES CITED. PAGK Humble r. Hunter US.J }lunil)le r. Mitchell 890, 892 Hume c. liurton 1429 Hume i: Scott 12:)9 Huml'rey i: Dale 99.") Hummings r. Williams 48G Humphrey v. St. Leger 411 Huinpluoys v. Budd 24 Humphreys r. Green 894 Humi)hrey,s r. Jones 923 Humphries r. Brogden 144, 145 Humphrys, ex parte 1274 Hungate v. Gascoyne 572, 573, 574 Hungerford r. Beecher 119 Hunuings /■. Williamson 1363, 1532 Hunt r. Adams 871, 9G5, 980, 982 1551 Hunt r. Anderson 1540 Hunt V. Good lake 66 Hunt V. Hecht 899. 903 Hunt V. Hewitt 1526, 'l527 Hunt V. Hort , 984 Hunt V. Hunt 908 Hunt V. Livermore 978 Huuty. ]\lassey 186 Hunt V. Peake 145 Hunt V. Rousmanier 97(» Huntji. Tulk 1039 Hunt V. Wimbledon Local Board 848 Hunt r. Wise 642 Hunter, The 130, 137 Hunter w. Atkins 173 Hunter v. Caldwell 54 Hunter v. Emmanuel 248 Hunter v. Leathley 419 Hunter v. Neck 25 Hunter v. Parker 845, 850 Hunter v. Stewart 1447, 1453 Hunter (% Walters 724 Huntingdon Peer. 573, 578 Huntingi'ord r. Massey 321 Huntly V. Donovan 1355 Huntley Peer. 573 Hurd r. Moring 805 Hurpurshad v. Sheo Dyal 1173 Hurst V. Beach 1042, 104.; Hurst's case 1127 Hussey I'. Crickett 817 Hussey v. Horne-Payne 876 Hussey v. Payne 876 Hutcheon v. Manningtou 11 Hutchinsr. Denziloe 829 Hutchins v. Scott 1037, 1552, 1557 Hutchinson v. Bernard 493 Hutchinson v. Glover 1530, 1534 Hutchinson v. Tatham 995 Hutchison v. Bowker 62 Huthwaite v. Phaire 1465 Hutt, ex parte 1283, 1289 (27 Hutt V. Morrell Huttim, Ive Hutton r. Bright Hutton r. Kossiter Hutton V. Uplill Hutton V. Ward PAGE 711 220 722 721, 737 722 416 Hunton v. Warren 215, 995, 996, 1010, 1012 Hux, re 1572 Huxham v. Smith 1445 Hyckman v. Shotbolt 725 Hyde v. Johnson 94() Hyde v. Palmer 524 Hyde v. Watts 699 Hyman v. Nye 999 Hynde's case 1472 InnoTT r. Bell 920 llliugworth r. Leigh 684 Ilott V. Genge 904 Imlay v. Kogers 812 Immolata Concezione 240 Imperial Bank v. Lond. & St. Cath. Deick Co. 6, 995 Imperial Gas Co. v. Clarke 1284 Imper. Land Co. of Marseilles 464 Imrie v. Castrique 1430 Inca, The 226 Inch don v. Berry 1422 Indian Zoedone Co., in re 1322 Ingalls V. Bills 999 Ingilby v. Shafto 1524 Inglesant v. Inglesant 904 Inglis r. Battery 964 Inglis r. Gr. North Eail. Co. 1515 Inglis r. Spence 693, 695 Ingraham v. Bockins 617 Ingram v. Lea 379 Ingram v. Little ■ 475 Ingram v. Wyatt 178 Inman v. Foster 337 Inman v- Jenkins 485 Inman i\ Stamp 889 Innell r. Newman 654 Innis V. Campbell 218 lona, The 226 Ipswich case GU(i Ipswich Dock Commiss. v. St. Peter, Ipswich 142 Ireland ■(•. Powell 542, 54(> Irish Society v. Bp. of Derry 1429, 1592 Irons V. Smallpiece 8;>7 Irving V. Greenwood 336 Irving V. Veitch 931 Irwin r. Callwell 1499 Isaac V. Farrer 290 Isaac V. Gompertz 567 Isaacs V. Hardy . Errata Isabella, The 981 Isquierdo v. Forbes 1489 98) TABLE OF CASES CITED. Ixi Israel r. Argent 187 Israel c. Clark 734 Ivat V. I'inch G85 Ivey V. Young 251 Ivy, Lady, and Neal's case 1518 .Tacic r. Kicrnau 1:313, 1317, 1351 Jackson, Re 892 Jac'lvson V. Adams 322 Jackson r. Allaway 203 Jackson r. Allen 154B Jackson r. Bailey 492 Jackson v. Bard 600 , 6S3 Jackson v. Blanshan 111 , 580 Jackson v. Browner 560 Jackson v. Biirnhain 806 Jackson v. Carrington 246 Jackson v. Christman 1204 Jackson v. Cooley 572 Jackson v. French 791 , 792 Jackson r. Frier 402 Jackson r. Gridley 1171 Jackson i: Hesketh 358 Jacks )n v. Hill 732, En-afa Jackson i: Irvin 215 Jackson v. Jackson 1184, 1498 Jackson v. Kniffen 627 , 632 Jackson r Lamb 586 Jackson r. Lowe 876 Jackson .-. Luquere 586 Jackson i: M'Call 155 Jackson v. IVIalin 1556 Jackson r. Marsh 1038 Jacks:)n r. JNIatsdorf 116 Jacks )n i: Miller 1517 Jackson v. Oglander 876 Jackson r. Pesked 109 Jackson r. Reagar 1053, 1081 Jackson v. ThoTiiason 1218 Jackson v. Waldron 1579 Jackson v. Williamson 813 Jackson r. Winchester 426 Jackson v. Wood 1424 Jaclcson v. Woolley 658 Jackson v. Wright 116 Jacob V. Hart 1551 Jacob V. H ungate 345, 105.4, 1080 .lacob V. Dee 409 Jacob V. Lindsay 38.">, 652, 1202, 1203 Jacobs, Re 1081 Jacobs V. Humphrey 666 Jacobs V. Jacobs 1132 Jacobs V. Layborn 1184, 1185 Jacobs ('. Seward 250 Jacobs i\ Tarleton 361 J aggers ti Binnings 660 Jakeman v. Cook 1492 James, The 1453 James v. Biou 696 , 697 James v. Cohea 921 PAOE James r. Hatfiekl . (>55 James r. Palter ^ 95 James v. Williams 872 Jameson r. Drinkald 1213 Jameson r. Leitch 1335, 1445 Jameson v. Stein 885 Jameson v. Swinton 46 Janaway, Re 905 J'Anson ii. Stnart 329 Jardine v. Sheridan 678, 688 Jarmain v. Hooper 213 ] Jarrett r. Leonard 667 i Jayne v. Price 148 Jeakes v. White 889 I Jeans c. Cooke 869 I Jeans v. Whcedon 385, 494 Jeffcott r. North Brit. Oil Co. 875 I Jeilerson Ins. Co. v. Cotheal 1212 Jetrery v. Walton 966 .Jefterys v. Boosey 94!) Jeffries v. Great Western Rail. Co. 149 Jeffries v. Williams 145 Jenkins ?'. Betham 1008 Jenkins r. Blizard 1421 Jenkins v. Bushby 783, 792, 793, 1524 Jenkins v. Davis Jenkins i\ Gaisford Jenkins v. Harvey Jenkins v. Heycock Jenkins v. Morris Jenkins v. Phillips Jenkins v. Reynolds Jenner v. Ffinch Jenner v. Joliffe Jenner v. Morris Jennings, Re Jennings v. Johnson Jennings v. Whittaker Jessel r. Bath Jesns Coll. i\ Gibbs Jetley v. Hill Jewell V. Christie Jewell V. Jewell Jewett V. Torry Jewis r. Lawrence Jewison r. Dvson Jewitt, Re Jewitt V. Eckhardt Jewsbury v. Newbold Jeyes v. Booth Jinks V. Edwards Joel V. Dicker John V. Bacon .John & Mavy, The Johns r. James Johnson r. Appleby Johnson v. Baker Johnson v. Ball Johnson v. Barnes 110, 714 910 1025 998 204 244, 253 871 915 384 212 1515 940 707 962 418 Errata 110 560 7:^7 183 309 1130 849 211 951 1001 951, 952 999 1450 447 964 1559 911 152 (2799) Ixii TABLE OF CASES CITED. PAGE Johnson r. Blane '2\(i Johnson, Ex jiartc, Re Cliapman 1190 Johnson r. Credit Lyonnais Co. 147 Johnson v. Davt'ine 80."), 1581 Johnson v. Dodgson 878, 879, SDO Jolinson r. Durant 808, 1496 Johnson v. Hocker 1517 Johnson v. Hoklsworth 654 Jolinson r. Kershaw 42:2 Johnson r. Lawson 560, 56;> Johnson r. Lyford 181. 494, 968 Johnson r. Manning 212 Johnson v. Dk. of Marlborough 1547 Johnson v. Mason 156G .Johnson v. Kaylton 1006 Johnson v. Reid 167 Johns in v. St. Peter, Hereford 215 Johnson i: Stear 1009 Johnson r. Ward 670, 1359 .Johnson r. Warwick 118 Johnston v. Caulkins 3:)6 Johnston v. Clinton 126.3 .Johnston v. Summer 211, 212 Johnston v. Usborne ' 990, 1013 Johnstone i\ Hudlestone 21, 862 Johnstone v. Sutton 141 Joint r. INIortj'n 872 Jollcy r. Taylor 379, 416 Jolly t'. Rees 211 Jolly V. Young 988 Joly V. Swift 14.38, 1470 .Joiies, Re 128, 904, 907, 908 Jones & Beaver's case 1457 Jones c. Boland 58 Jones V. Brewer 431, 1567 Jones V- Carrington 684 .Jones V. Cowley 234 Jones V. Culling Errata • Jones r. Cwmorthen Slate Co. 64 Jones f. Edwards 410 Flint 892, 893 Jones r. Newman .Jones V. Ogle .Jones V. Peppercorne .Jones r. Perry .Jones r. Puiih Jones t\ Jones V. Jones V. Jones V. Fort 36 Foxall 688 Frost 119 Jones V. Gales' Exors. 19 Jones V. Galway Town Commiss. 170 Jones V. Gooday 300 Jones V. Goodrich 800, 1352 Jones V. Harris 957 Jones r. Howell 375 Jones V. Hutchinson 247, 253 Jones V. Jones 432, 1559, 1575, 1578 Jones V. Just Jones V. Littledale Jones V. Marshall Jones V. Mills Jones V. Monte Video Gas Co. Jones V. IMorgan Jones V. JMorrell 100.- 982 1132 48 1538 266 706 PAGE 1028 177 6 514 785 Jones V. Randall 1335, 133!), 1417 Jones r. Ryder 532, 930 Jones r. Stevens 333, 337 Jones V. Stroud 1201 Jones V. Tarleton 405 Jones r. Tuberville 663 Jones i\ Turnour 729 Jones r. Victoria Graving Dock Co. 876, 878 .Jones i\ Waller 217, 583 .Jones r. AVhite 1429, 1445 Jones V. Williams 309, 310 Jopi) r. Wood 228 Jonlaine r. Lashbrooke 1142 ■Jordan ?'. Lewis 794, 1276 .Jordcn r. Money 720, 721, 824 Jory r. Orchard 414 Josling V. ICingsford 1004 Jourdain r. Palmer 484 .Journu V. Bourdieu 988 Joy V. Hadley 1539 .Judd V. Green 174 Judge V. Berkeley 324 .Judge V. Selmes 300 .Juggoraohun Ghosei-.^Ianickhnnd 1011 Justice r. Elstob 381, 409, 1366 .Justice r. Gosling 1445 .Justice V. Mersey Steel Co. 1595 Kahl r. Jausen 534 Kain v. Old 968 Kaines r. Knightly 980 Karla, The "' 1058 Kavanagh r. Cuthbert 1008 Kay r. Brookman 430, 1.574 Kay V. Crook 885 ICay v. Duchesse de Vienne 515 Keable v. Payne 1429, 1446 Keal V. Smith 536 Kealy v. Tenant 897 Keane r. Smallbone 1551 Kearney r. King 22, 24 Ivearney r. l^ond. & Brigh. Ry. Co. 207 Ivearsley v. Phillips 1534 Keeling !•. Ball 1572 Keen v. Batshore 1497 I^een v- Keen 182 Iveen i'. Friest 703 Keene v. Biscoe 698 Kehoe, Re 910 ICeigwin v Keigwin 904 Keinan v. Boylan 1312 Keisselbrack r. I^ivingstone 972 Keith ?'. Burrows 850 Kell V. Charmer 986, 1018, 1031 (2800) TABLE OF CASES CITED. Ixiii PAGE Kell V. Nainby 722 Keller r. IJlodd 264 Kellick, Ke 903 Kellington, Vicar of, r. Trin. Coll. 1346 Kellv V. Barnewall 1132 Kelly V. Jackson 784, 801 Kelly V. Keatinge 905 Kelly V. Lawrence 725 Kellv V. Jlid. G. W. Ry. Co. 842 Kellv V. Powlett 1023 Kelly V. Small 675 Kelly V. Smith 1263 Kelly V. Webster 889 Kelsall V. JVIarshall 450, 1490 Kelse}' i\ Bush 644 Kel.son v. Kelson 969 Kenible v. Farren 665 Kemp r. Derrett 48 Kemp )'. King 420 Kempland v. INIacanley 688 Kempson v. Boyle 391 Kempston v. Butler 146 Kempton v. Cross 10, 392, 1352, 1353 Kendall r. Hamilton 1444 Kendall v. Lond. & S. W. Ry. Cc . 998 Kenn's case 1430 Kenna ii. Nugent 1449 Kennedy v. Cassillis 1489 Kennedy v. Hilliard 1126 Kennedy v. Lyell 795, 1525 Kennerly v. Nash 1558 Kennett v. IMilbank 924 Kensington, Ld., r. Bouverie .175 Kensington r. Inglis 397 KenttJ. Jackson 720 Kent r. Riley 171 Kenworthy r. Schofield 87 1,948 Keogh r. Keogh 1037 Keogh V. Leonard 1188 Kepp V. AViggett li: !, 120 Kerin v. Davoren 6j3 Kernot r. Pittis 1158 Kerr r. Shed den 1354 Kershaw v. Cox 1551 Kershaw r. Ogden 89( ), 897 Kestrel, The 1213 Kettlewell v. Barstow 1526 Kevan v. Crawford 1334 Kevil i'. Lynch 900 Key V. Cotesworth 61 Key r. Shaw 51^ , 701 KejTies v. Dk. of Wellington 1352 Keyse v. Powell 150 Kibble, Ex parte 932 Kidderminster, Mayor of, v. Hardwicke 710 Kid gill i\ Moor 109 Kidner v. Keith 1560 PAGE Kidney ?'. Cockburn 566, 573 Kidston r. Emp. Mar. Ins. Co. 989 Kieran r. Sandars 728 Kilbee v. Sneyd 704 Kilgour V. Alexander 234 Kilgour V. Finlj'son 531 Kilby r. Rochussen 247, 698 Killick, Re 903 Kilvert's Trusts, Re 103:5 Kimball v. Morrell 402 Kimmel v. Kimmel 1257, 1259 Kimpton, Re 908 Kimpton v. Lond. & N. West. Rail. Co. 1129, 1132 Kindersley r. Chase 1481 Kine r. Balfe 885 Kine r. Beaumont 414 Kine r. Evershed 300 King, ex parte 1130 King, In re 723 King V. Andenson 173 King V. Bellord 128 King V. Chamberlain 300 King V. Clerk • 8 King V. Cole 381 King r. Corke 241 King V. Foxwell 228 King V. Francis 339 King V. George 1046 King V. Ha^\ks worth 55 King r. Hoare 1444 King V. Kins 1243, 1244 King V. Norman King r. Paddock King r. Walker King r. AVaring King V. Zimmerman King of Two Sicilies v. 712, 1423 218 274 333 404 Wilcox 1248, 1254 King's Coll. Hospital r. Wheildon 1016 Kingsford r. Gt. W. Ry. Co. 486, 1536 Kingsraill v. Millard 147 Kingston r. Gale 805 Kingston v. Knibbs 990 Kingston r. Lesley 1356 Kingston's, Duchess of, ca.se 787, 1200, 1201, 1435, 1437, 1439, 1487 Kinnersley r. Orpe 1403, 1404, 1440 Kinsman r. Rouse 96 Kinstrca v. Preston 1000 Kip r. Brigham 1423 Kippen r. Darley 1043 Kirby i\ Hickson 23 Kirby v. Simpson 54, 300, 302 Kirchner ?'. Venus 201 Kirk. Ex parte 1040 Kirk V. Eddowes 976, 1043, 1044, 1046 Kirkham v. Marter 884 Kirkland v. Nisbet 62 (2801) Ixiv TABLE OF CASES CITED. PAOE I Kirknian i: Oxley 3:i7 ] Lamb r. Walker Kirk)>a1rick v. Gowan 10U4 j Lamb's case Kiikstall Brewery Co. v. Furness Ky. i Lambert, Ke Co. Kirkwood's case Kirtland v. Ponnsctt Kirwan r. Cockburn Kirwan r. (iorman Kirwan's Trusts, lie Kite aiul Lane's ease KIii)j;eman, Mechelen r. Wallace 884, 8^;9 Mecredy r. Taylor 211 Meddowcroft t;. Huguenin 1464 Medlycott v. Assheton 182 Mee c. Keid 11 so Meekins v. Smith 1126, 1127 Megevand, Re, ex parte Delhasse 203 Megson v. Hindle 185 Mel en v. Andrews 700, 706, 780 Melhuish v. Collier 320 Mellish V. Rawdon 52 Mellorr. Sidebottom 714 Mellow V. Mav 859 Melville'sLd.!; case 10, 20, 138, 634, 779. 1252 Melvin v. Wliiting 426 Mercant. Credit Associat., Re 1091 Mercer v. Cheese 214 Meicer v. Sparks 140 Mercer c. Whall 357, 358, 362 Mercer r. Wise 723 Mercer v. Woodgate 155 Merchants Co., Re 1091 Mercier r. Cotton 472, 473 Meredith r. Footner 536, 675, 676 Meredith v. Meigh 899 Merle v. More 798 [ Merrick v. Wakley 1354 | Merrill v. Morton 962 Merritt, Re 915 Merry v. Nickalls 201 Messin ?). Ld. Massareene 1489 Messina, v. Petrococchino 1478, 1479 Meteor. The 227 MetropoL Bk., In re The 1091 Metropol. Ry. Co. v. Defries 714 MetropoL Ry. Co. v. Jackson 39. 40, 52 Metters v. Brown 118, 14s, 664 PAGE Mews V. Carr 948 Mexican & S. American Co. Re, ex parte A.ston 1247 Meyer r. Dres.ser 110 Meyer v. Montriou 663 Meyer v. Ralli 1479 Meyer v. Sel'ton 422 Meyerhoff v. Froehlich 926 Meyn ell's case 752 Meyrick v. James 423, 1195 Meyrick v. Woods 411 Michael v. Scockwith 1556 Michael v. TredAvin 998 Michell v. Rabbetts 582 Michell V. Williams 42. 43 Midld. Ry. Co. v. Hunchwood Brick & Tile Co. 64 Midld. Ry. Co. v. . Withington Local Board 300 Middlesex Sheriffs, case of 4 Middleditch r. Ellis 977 }.Iiddlehurstt). Johnson 178 -Middleton, Re 919 Middleton r. Earned 134, 1262 Middleton r. Croft 103 Middleton v. Mass 582 Middleton v. Melton 368, 592, 597 681 Middleton v. Pollock 721 Middleton's case 118 :\Iigotti r. Colville 21 Mihin, The 1453 Mildrone's case 1180 Miles V. Bough 386, 1515 Miles V. Dawson 1252 Miles*. M'Cullough 1136 Miles V. O'Hara 491, 492 Millar V. Heinrick 1215 Millard v. Bailey 1023 Miller v. Coyert 1455 Miller v. Cook 174 Miller v. Huddlestone 182 Miller v. Iryine 872 Miller r. James 1484 Miller r. Dawson 534 Miller r. Salomons 1180 Miller v. Tetherington 989, 991 Miller v. Travers 965, 984, 1037, 1039 Miller's case 674, 1207, 1208 JMilligan, Re 911 Millingtou r. Loring 291 Millman v. Tucker 1250, 1255 Millner's Estate, Re 129 Mills?'. Barber 341, 345 Mills V. Dennis 665 Mills V. Fowkes 930 Mills v. Mayor of Colchester 154, 1417 Mills r. Mills 467 (2S0-^) TABLE OF CASES CITED. Ixxi PAGE PAGE Mills V. Oddy 359 , 418, 792 Moons V. De Bern ales 1432 Mills V. Scott 249, 255 337 V, ITX^JUI Milne v. Leisler 521 Moof V. Roberts 484, 485 Milroy t'. Lord 837 Moore v. Booth 1130 Milsonv. Day 1055 Moore v. Campbell 389, 975 Milward v. Forbes 692 Moore v. Culverhouse 959 Milward v. Hibbert 990 Moore v. Garwood 63 Milward v. Temple 677 Moore v. Kennard 489 Mima Queen r. Hepburn 508, 509 Moore v. King 902 Minet r. Morgan 419, 790 Moore v. Met. Ry. Co. 778, 842 Minna, The 227 Moore v. Moore 181, 229, 837 Minor v. Tillotson 365 Moore u Mourgue 53, 54 Minshall v. Lloyd 399 Moore v. Oastler 337 Mints r. Bethill 422 Moore v. Smith 705 Minty, Re 907 Moore v. Whitehouse 403 Mires ■i\ Solebay 40 Moorhouse v. Newton 644 Mitchell V. Crassweller 252 More V. Salter 1554 Mitchell V. Darley Main Coll. Co. Moreau v. Carleton's Trial ] 173 Errata Morewood v. Wilkes 171 Mitchell V. Homfray 172 Morewood v. Wood 538, 544, 545. Mitchell V. Jenkins 42, 54, 141 547, 1588 Mitchell V. Lapage 392 Morgan v. Boys 512 Mitchell V. Thomas 178, 179 Morgan v. Brydges 1225 Miteheson v. Oliver 227 Morgan v. Chetwynd 211 Mobile, The 227 Morgan v. Couchman 707 Mody V. Gregson 1004 Morgan v. Davies 48 Moftatt 'V. Bateman 207 Morgan r. Griffith 966 Mohesh Lai v. Mohunt Bawan Das 195 Morgan v. Hatchell 949 Moilliet I'. Powell 248 Morgan v. Hedger 348 Moises V. Thornton 1572 Morgan v. Lond. Gen. Omnibus Co. Mollett V. Brayne 858, 862 1007 Mollett V. Wackerbath 1548, 1550 Morgan v. Morgan 514, 1574 Molloy V. Kilby 474 Morgan v. Nicholl 426 Mollwo, March & Co. v. Ct. of Wards Morgan v. Pike 880 203 Morgan v. Ravey 206, 207 Molton V. Camroux 724 Morgan v. Rolands 929 Molton V. Harris 388 Morgan v. Rowlands 1456 Moncrieff v. Reade 251 Morgan v. Sim 8 Mondel v. Steele 463, 1452 ]\Iorgan v. Sykes 873 Money v. Jorden 720, 721 Morgan r. Thorne 655, 1439 Monkton v. Att.-Gen. 555, 556, 557, Morgan v. Whitmore 186 560, 563, 564, 565, 566 570, 572 Morgan's case 1179 574, 577 Morgans v. Bridges 725 Monroe, Bank of, v. Field 533 IMoriarty r. Grey 397 Monroe ■?'. Twistleton 782 Moi'iarty v. Lond. Chat & D. Rv. Co. Monsel v. Lindsay 1533 696 Montacute v. Maxwell 885, 886 Morley v. Attenborough 1003 Montague, Ld., v. Dudman 1288 Morley v. Morley 174, 935 Montague v. Montague 1043 Morley's, Ld., case 430, 432, 446 Montague i\ Perkins 52, 1581 Mornington v. Mornington 784 Montefiore v. Guedalla 1043 Morrell v. Dickey 1483 Montefiori v. Montefiori 721 Morrell v. Fisher 1040 Montgomery v. Middleton 62 Morrell v. Frith 63, 922, 925 Montreal, Bk. of, v. Munster Bk. 62 Morrell v. Martin 1427 Montrose, Peer. 229, 1026 Morrell v. Morrell 18(1 Moodie v. Bannister 937 Mo>-rell ('. Wootten 1534 Moody V. Rowell 1198, 1225, 15so, Morrice v. Swaby 1533, 1537 1584, 1590 Morris r. Bethell 319 Moody )". Surridge 988 Morris v. Burdett 701 • (28 09) Ixxii TABLE OF CASES CITED. Morris r. Davies Morris r. (ilyiin Morris v. Hannen Morris r. Harmer Morris r. Hauser Morris r. Miller Morris v. Parr IVIorrison c. Arnold PAGE 129, 571 891 409 1518 .409 191, 386. 732 473 490 Morrison v. (len. St. Navig. Co. 8 Morrison v. Kelly 1275 Morrison v. Lennard 1170 IMorrison r. Martin 1039 Morrison v. Univ. Marine Ins. Co. 200 •Morritt v. Douglass 901 Morrogli v. I'ower 923 Morsel). Royal 661, 663 Mortimers. M'Callan 405, 533, 1358 1364, 1365 INIortimer v. Mortimer 674, 742 Mortimer v. Shortall 970, 971 ISIortimore v. Wright 213 Morton r. Chandler 967 Morton v. Copeland 355, 947 Morton v. Tibbett 896, 900 Morton v. Woods 12:5 Moseley ?\ Da vies 541, 547, 557 Moseley v. Hanford 980 Moseley v. M' Mullen 293 Moseley Green Coal & Coke Co. Lim., Re 1514 Moss V. Ang.-Egyp. Nav. Co. 1447 Moss V. Russell 206 Mossam v. Ivy 501, 1518 Mossop V. Eadon 404 Mostyn v. Fabrigas 9, 67, 69, 1217 ISIostyn V. Mostyn 1029 Mostyn r. West Mostyn Coal & Iron Co. 796 Motteram r. East. Cos. Ry. Co. 1366, 1411, 1412 ISIouflet V. Cole 22 Jlould V. Williams 1425, 1436, 1427 Moule V. Brown 45 Mounsey v. Burnhara 1566 Mounson v. Bourn 25 Mount V. Bogert 689 Mount ■;;. Larhins 52, 1057 Mountague r. Harrison 1131 MountCord v. Harper 197 IMountnoy v. Collier 126, 600, 602 Mountstephen v. Brooke 654, 923 Mountstephen v. Lakeman 882, 883 Moylan v. Nolan 211 ]Moyle V. Jenkins 200 Mozeley v. C'owie 241 Muilman v. D'Equino 51 Mulholland v. Killen 1437 Mullaly V. Walsh 217, 218 IMullen, Re 902, 904 PAGE Mullett r Hunt 1079, 1083, 1084 Mullinor r. Florence 6, 1010 Mullins r. Collins 136 Mumford r. Gething 1015 Muncey v. Dennis 1010 Munday v. As])rey 877 Mundy v. Asprey 877 Munn V. Bakei' 1422 Munn ('. G()dl)()ld 393 Munro, ex parte 940 Munro r. Do Chemant 721 Munro v. Munro , 227 Munro v. Vandani 224 Munroe r. Pilkington 1472, 1489 Murchie r. Black 145, 146 Murgatroyd r. Murgatroyd 339 Murieta v. Wolfhagen 1578 Murly V. M'Dermott 144 Murphv r. Eoese 871 Murphy v. Meredith 927 Murphy v. Nolan 1057 Murphy r. Sullivan 888 Murray, in the goods of 222 Murray r. Coster 689 Murray v. Sheriffs of Dublin 1263 Murray v. Gregory 384 Murray v. Place ' 294, 1002 Murray v. Mackenzie 957 Murray v. Milner 562 Murray v. Parker 970, 971 Murray v. E. of Stair 967, 1559 Murray v. Walter 1534 Musgrave v. Emerson 596 Mussumat Cheetha v. Baboo Miheen Lall 214 Mutual Loan Fund Ass. v. Sudlow 981 Mutual Society, Re 1531 Myers v. Defries 56, 57 Myers v. Perigal 891 Myers v. Sari 988, 989, 991 Myers v. Willis 227, 1512 Myles V. Burton Errata ]\lVrick V. Daine 981 Mytton V. Thornbury 542, 583 Nadin v. Bassett 463, 464, 465, 468 Nagle V. Shea 384, 1569, 1571 Naish V. Brown 364 Napper <;. Sanders 217 Nash V. Armstrong 973 Nash V. Gilkeson 333 Nash V. Hodgson 928, 930 Nash r. Turner 1571 Natchbolt v. Porter 861 Naj'lor !'. Semmes 1252 Neal V. Jay 1518 Neal V. Wilding 573 Neale r. Fry 1518 Neale r. Parkin 700 Nedbv ;•. Ncdby 173 (2810) TABLE OF CASES CITED. Ixxui PAGE Needham v. Bremner 1430 Needhaiu r. Fraser 1083 Needham (. Smitli 1184 Neeley c. Lock 134 Neil V. D. of Devonshire 551 Neil V Neil 180 Neile v. Jakle 707 Neilson v. Harford 61 Nelson, Re 919 Nelson, Ld , v. Ld. Bridport 67, 1215, 1216 Nelson v. Couch 1450 Nelson v. Stocker 723 Nelson v. Whittall 1575 Nepean v. Doe d. Knight 219 Neptunus 1420 Nesham v. Selby 877 Netherlands Steam Boat Co. t\ Styles, 227 Netherwood v. Wilkinson 1080 Neve V. Pennell 959 Nevil V. Johnson 427, 428 Nevill V. Snelling 174 Neville v. Wilkinson 721 Nevin v. Drysdale 976, 1043 Newall V. Elliott 1496 Newberry v. Benson • 622 Newbould c. Coltman 1427 New British Mutual Invest. Co. v. Peed, 1531 Newburgh r. Newburgh 1343 Newby v. Reed 223 Newcastle, D. of, v. Broxt<)we 539 Newcastle, D. of, v. Clark 144 Newcastle, D. of, v. Kinderley 137 Newell V. Radford 875 Newell y. Simpkin 1285 New England Bank v. Lewis 1471 Newenham c. Smith 1021 Newhall v. Holt 381 Newham r. Raithby 1355 Newington v. Levy 1449 Newman v. Jenkins 218 Newman v. Piercy 1039 Newman v. Stretch 522 Newry v. Ennisk. Ry. Co. v. Combe 128 Newsam v. Carr 333, 337 Newsome v. Coles 1421 Newton v. Askew 1130, 1133 Newton r. Belcher 709 Newton v. Beresford 795 Newton r. Blunt 1444 Newton r. Chaplin 418, 419 Newton r. Clarke 903 Newton V. Constable 1130, 1131, 1133 Newton v. YJWh 300 Newton v. Harland 1058, 1059 Newton v. Liddiard 709 Newton v. Ricketts 169, 1222 PAGE New Windsor case 666 Nias v. Nortli. & East. Ry Co. 795, 1285 Nichol (;. Godts 1004 Nicholas & Freeman v. Binns 216 Nicholle v. Plume NichoUs V. Dowding Nicliolls r. Downes Nicholls V. Goldsmith Nicholls V. Johnson Nicholls V. Osborn Nicholls V. Parker Nicholls ('. Walker Nichols, In re Nichols V. Webb Nicholson IV Bower Nicholson v Bradlield Union Nicholson r. Mulligan Nicholson V. Revill Nicholson r. Smith Nicholson, ex p , Re AVillson Nickalls v. Merry Nickells v. Atherstone Nickolson v. Kuowles Nicoll V. Greaves Nightingal v. Devisme Nigotti t\ Colville Niles V Brachett Noble r. Chapman Noble v. Durell Noble V. Kennoway 898 531, 655, 663, 1196, 1197 697 613 1556 1023 542, 557 1427 219 613 896, 899 840 862 Noble V. Phelps & Willock Noble ('. Ward Noble V. Willock Noble V. Willock & Phelps Noble's Trusts, Re Noden v. Johnson Nodm V. Murray Noel tJ. Wells Nolan v. Copeman Nolan V. Gumley Norden v. Williamson Nordon v. Defries Norman v. Cole Norman v. Morrell Norman v. Phillips Norreys v. I'ranks N orris v. Beach Norris v. Cooke Norris v. Cottle Norris v. Miles North of Eng. Joint-Stock Bk. Co., Re, ex p. Gouthwaite 95 North of Eng. Joint-Stock Bk. Co., Re, ex p. Straffon's Exors. 723 North German Llovd St. Ship. Co. v. Elder ' -227 North-West. Ry. Co. v. McMichael 128 1044 1550 689 1105 201 , 863 727 49 1340 21 1184 248 991 200, 309, 990, 1011 921, 1463 975 921 921, 1463 1033 266 387 1431, 1433 1057 951, 954 1163 1528 968 986 896, 899 1037 1127 870 722 530, 666 (2811) Ixxiv TABLE OF CASES CITED. I'AfiK Nortlicote v. Doughty 0'6U Northam v. Latouche 1319 Northumberlaiul, D, of, v. Todd 1189 >;orton r. J>aiett 90;> Norton c. JNU-lljouine 4G3, 464 Norton c I'ettibone 683 Norwich & Lowestoft Nav. Co. r.Theo bald 1422 Norwich, Bishop of, c. Pearse 1153 Notor r. Brook.s 1006 Nottidge (-. Prince 172 Nottingham, Guard of r. Tomkinson 817 Novelli V. Rossi 1478, 1555 Nowlan v. Ablett 49 Nowlan v. Gibson 114, 1438, 1441, 1472 Nugent r. Smith 998 Nunn V. Fabian 828 , 895 Nunn's Will, Ke 1033 Nute's case 748 Nye V. jMacdonald 11 Oakapple (. Copous 701 Oakeley v. Ooddeen 359 Oakes v. Hill 1517 Oakes v Turquand 1393 Oakley v. Monck 215 Oastler v. Henderson 863 Obicini v. Bligh 1479 O'Brien v. Lewas 172 O'Brien v. R. 1167, 1168 O'Brien v. Shell 869 Ocean, The 228 Ochsenbein v. Papelier 1464, 1474 O'Connell v. Barry 484 OX'onnell r. Butler 178 O'Connell v. The Queen 589 O'Connell's case 527 O'Connor v. Majoribanks 781 , 782 O'Connor f. Spaight 888 Odcll, Re 906 O'Donnell (. O'Donnell 22 , 991 O' Flanagan *•. Geoghegan 1011, 1109 Ogden V. Beuos 92 Ogden r. Hesketh 646 Ogilvie r. Currie 160 Ogilvie V. Foljambe 879 Ogle V. Cook 1573 Ogle r. Ld. Vane 975 Ogle I'. Norcliffe 25 O'Grady v. Corr 622 Okeden r. Clifden 1019 O'Leary v. Douglass 914 Olding, Re 905 Olive V. Guin 10 Oliver v. Bartlett 514 Oliver v. Woodroffe 951 , 952 Ollivant v. Bay ley 1005 Olver V. Johns 905 O' Meagher r. 0' Meagher 905 Omichund r. Barker Ommaney r. Stilwell O'Neill V. Allen O'Neill I- Bell O'Neill r. Read Onions r. Tyrer Onslow, Re I'AfiE 1174, 1175, 1177, 1180, 1517 220 153 995 654 919 932 Oppenheim v. White Lion Hotel Co. 207 Ord, In re O'Reilly, Re Ormerod v. Chadwick Ormrod v. Huth O'Rorke (■. Bolingbroke O'Rourke v. Perceval Orr V. ]\Iorice Orrell Colliery Co., Re Orrell v. Coppock Orrett r. Corsei- Osborn r. Lond. Dock Co. 1016 1028 166 1003 174 880 1569 1470 881 590 485, 1247, 1254, 1255 342, 362 1471 Osborn r. Thompson 341 Osgathorpe r. Diseworth Osgood V. Manhattan Co. 661 Ostler II. Cooke 1469 O'Sulhvan v. Burke 601 Oswald, In re 179 Ottawav *■. Hamilton 211 Otter, the 343 Ougier v. Jennings 990 Outhwaite v. Luntley 1549, 1559 Outram v. More wood 113, 114, 604, 1438, 1440, 1442, 1450 Overend, Gurney & Co. r. Oriental Fi- nance Corp. 982 Owen V. Flack 696 Owen V. Warburton 813 Owen V. Wynn 1283, 1524 Owings V. Wyant 386 Oxford, Worcester, and Wolverhampton Rail. Co. ;;. Scudamore 640 Oxlade v. North-East. Rail Co. 486 Pacey v. Lond. Tramways Co. 1528 Pacific St. Nav. Co. v. Lewis 240, 245 Packard v. Richardson 872 Paddock v. Forrester 678, 688 Paddon v. Winch 803 Padgett V. LavsTence 688 Page ?;. Carew 1055 Page r. Faucet 21, 27 Page V. Homans 1580 Pain V. Bee.ston 1235 Paine v. Hall 178 Paine & Lavton, ex parte 411, 1091 514 ! Paine v. M' In tier 983 Paine v. Strand Union 841, 842 Painter v. Abel 707 Palermo, The 1528 Palethorp v. Furnish 676 (2812) TABLE OF CASES CITED. Ixxv PAGE Pallikelagatha Marcar v. Sigg 961 Palmer v. Maclear 1206 Palmer i\ Newhall 1043, 1045 Palmer v. Wright 1538 Panton v. Holland 263 Pauton ('. Williams 42, 43 Papemlick v. Bridgwater 600, 603, 684 Pardington v. South Wales Rail. Co. 938 Pardee v. O'Connor Pardoe v. Price Parfitt V. Lawless Paigeter v. Harris Parker, In re Parker v. Carter Parker c. Gordon Parker v. Hoskins Parker r. Ibbetsoa Parker v. M'Kenna Parker v. M'William Parker v. Morrell Parker v. Palmer Parker v. Potts Parker v. Staniland Parker v. Taswell Parker v. Wallis Parker v. Wells Parker v. Yates 698 3t)7 172 119 185 791 46 430, 1572 196, 994 423 1194 531, 532, 663, 664 51 224 893 852 896 1538 798 Parkhurst v. Lowten 1242, 1243, 1244, 1248, 1250, 1251, 1253 Parkhurst v. Van Cortlandt 877 Parkin v. Moon Parkins v. Hawkshaw Parkinson v. Lee Parkinson v. Townsend Parmenter v. Webber Parmiter v. Coupland Parmiter v. Parmiter Parr, Ee Parr v. Cotchett Parrott v. Watts Parry v. Fairhurst Parry v. May Parry v. Nicholson Parsons v. Brown Parsons v. Carr Parsons v. Hancock Parsons v. Hayward Parsons v. Loyd Parsons r. Purcell Parsons r. Sexton Parteriche v. Powlet Partou V. Cole Parton v. Crofts Partridge v. Coates Partridge v. Scott Partridge v. Usborne Paske V. Ollat Pasley v. Freeman 1197, 1224 678, 792 1004 1463 858 66 926 919 609, 610 520 240, 246, 253 408 1546 372 481 737 214 108 383 1005 9(i4 375, 377 389 407 145 1454 PAGE Patent Type Founding Co. v. Walter 504 Pater v. Baker 245 Paterson v. Gandasequi 982 I'aterson c. Hardacre ' 346 I'aton r. Sheppard 185 Patrick t: Shedden 1486 Patrick.sou t\ Patrickson 191 Patten v. Poulton 182 Patterson v. Becher 698 Patterson v. Black 20 Pattinson v. Luckley 1552 Patton ('. Ash 197 Patton V. Goldsborough 688 Paul V. Cleaver 951 Paul V. Meek 393 Paul i=. -Roy 1486 Pauling V. London & North Western Ry. Co. 840, 844, 847 Paull ('. Simpson ' 866 Pawsey v. Armstrong 203 Paxton r. Douglas 1243, 1244, 1253 Patent Ty|ie Founding Co. v. Lloyd 504 I'eel, Re (2813 Paxton V. Popham 116, 967 Payne r. Barker 7 Payne v. Ibbotson 1203, 1205 Payne v. Rogers 654 Peaceable v. Watson 600,601, 602 Peacham's case 761 Peacock's Estate, Re 1043 Peacock v. Bell 27, 107 Peacock v. Harper 361 Peacock v. Harris 524, 694 Peacock v. Monk 969 Peacock v. Peacock 59, 203 Pearce v. D. 397 Pearce v. Hooper 1569 Pearce v. Morrice 393, 394 Pearce v. Ornsby 322, 323 Peardon v. Underbill 31 1 Pearn, Re 906 Pears v. Laing 607, 936 Pearse v. Coaker 1449 Pearse v. Grove 718 Pearse v. Pearse 783. 784, 786, 796 Pearson ;; Fletcher 791 Pearson v. Isles 1083 Pearson v. Le Maitre 322, 324 Pearson r. Pearson 906 Pearson r. Scott 201 Pearson v. Shaw 21 Pearson v. Spencer 146 Pearsons, Re 904 Pease v. Wells 951 Peck, Re 219 Peckham r. Potter 685 Pedler r. Paige 1567 Pedley v. Dodds 1040 178 Pedley v. Welleslev 1162 933 Peek r. N. Stafford Ry. Co. 880, 938, 977 1022 IXXVl TABLE OF CASES CITED. PAGE Peel's case V.iH-.i Peerless, The 9, 22(i Peile i: Stoddart ir>:j7 Peirce r. Corf 877, f)4H Peisch V. Dickson 9KH Pejepscot Prop's r. Ransom 152 Pelham r. Pickersgill 154 Pell V. Daubeny 1059, lOfiO Pelletreaii r. Jacksou 113, 514 Pembroke, Lady, Re 910 Pender r. Fobes 981 Pendleton v. Rooth G67 Pendrell r. Pendrell 565 Penfold i: Abbott 1001 Penn v. Bibby 159:5 Penn i: Jack . * 860 Pennefather v. Pennefather 219 Pennell v. Meyer 645 Penney v. Gk)ode 15o4 Penniman v. Hall 1193 Penny v. Watts 1257 Penrice v. Williams 1531 Penruddock v. Hammond 796 Pentreguinea Coal Co., Re 887 People, The, r. Holbrook 379 People, The, v. Mather 1244, 1247, 1248, 1251, 1257 People, The, v. Matteson 1177 People, The, ex. rel. Ordronaux v. Chegaray 1166 Peppiatt V. Smith 484 Peppin V. Solomons 266 Perchard r. Tindall 681 Percival v. Caney 645 Percival v. Nanson 595, 617 Perfect r. Lane 174 Perigal v. Nicholson 605 Perkins r. Bradley 171 Perkins v. Vanghan 322 Perring v. Hone 1549 Perry t: Davis 701 Perry v. Fisher 248, 253 Perry v. Fitzhowe 835 Perry v. Gibson 1221 Perry v. Meadowcroft 1430, 1432, 14(i4 Perry v. Smith 797 Perry v. Watts 251 Perry's case 1165 Persse v. Persse 1128 Perth Peer. 549, 575 1356 Peru, Rep. of, v. Weguelin 1522 Peruvian Ry. Co. v. Thames & Mersey Marine Ins. Co. 848 Fetch V Lvon 678 Petchell, Re 914 Peter v. Compton 888 Peters v. Brown 923 Peters v. Fleming 60 Petersfield case 666 PAOE Petherhridge v. Ash !>13 Petherick r. Turner 531,6()4 Peto r. Hague 534 Petrie r. Nuttall 122 , 552, 1445 Petty r. Anderson 676 Petty r. Styward 176 Peyton r. Harting 480 Peyton r. M'Derniott 388 Phayre, Lessee ol', r. Fahy 58 Phelps V. Foot 514 Phelps r. Prew 419, 420 Phene r. Popplewell 863 Phenc's Trusts 219 Phenix v. Ingraham 688 Phihideli^hia and Trenton Ry. Co. V. Simpson 1225 Philimore r. Barry ' 876 Philipps V. Philijjps 237, 290 Philips V. Hunter 1445, 1485, 1489 Philipson r. Chase 413, 414 Philipson v. Earl of Egremont 1464 Philipson r. Hayter 211 Phillips r. Barker 1021 Phillips r. Berrick 1454 Phillips r. Bistolli 896 Phillips V. Briard 990 Phillips V. Bury 1431 Phillips V. Clagett 660 Phillips V. Cole 588, 601, 685 Phillips r. Eames 1222 Phillips V. Evans 149ft Phillips r. Gibbs 954 Phillips r. Hall 727 Phillips r. Henson 939 Phillips V. Im Thurn 731 PhilliiJS IK Irving 5^ Phillips V. Kingtield 1257 Phillips V. Mullings 173, 177 Phillips V. Phillips 1043 Phillips V. Pound 1126 Phillips V. Routh 485 Phillips r. Ward 1444 Phillips r. Wimburn 770 I'jiillipsou r. Havter 211 Phil 1 potts r. I'h'illpotts 115 Phipps '(;. Hale 909 Phipps V. Parker 1567 Pickard r. Sears 718, 724 Pickering, Re 1535 Pickering v. Appleby 892. Pickering r. Dowson 981 Pickering i\ Noyes 419, 1253 Pickering v. Pickering 1535 Pickett V. Packham 214 Pickford r. Gutch 193 Pickup V. Thames Ins. Co. 224 Pickton's case 1418, 1518 Piercy's case 1518 Piers V. Piers 190 (2814) TABLE OP CASES CITED. Ixxvii Pierson r. Hutchinson Pierson v. Scott Pigg i'. Clarke Piggott r. Green Pigot V. Cubley PAGE 403 201 185 183 1009 Pigot's case 1548, 1554, 1556, 1557 Pigott r. Holloway 1204 Pike's case 1171 Pilgrim, Re 1087, 1095 Pilgrim v. Southampton & Dorchester Ey. Co. 643 Pilkington v. Eiley 302 Pillar v. Llynvi Coal Co. 939 Pilsworth ('. Mosse 915 Pirn i: Currell 538, 542, 551, 553, 1437 Pinches v. Harvey 955 Pinney v. Pinney 1353 Pipe '(,'. Fulcher 550 Piper V. Chappell 8, 9 Pirie v. Iron 464 Pitcher v. King 1053, 1054 Pitman v. Maddox 612 Pitman i\ Woodbury 880 Pitt r. Chappelow 729 Pitt r. Coomes 1128 Pitt V. Shew 51 Pittou r. Walter 1335, 1338, 1504 Pitts r. Beckett 389 Pizarro, The 130, 137 Placker v. Gonsalus 688 Planche v. Braham 64 Plant V. Kendrick 1534 Plant V. M'Ewen 664 Plant ('. Taylor 158, 564, 566 Piatt V. Att.-Gen. of N. S. Wales 228 Plaxton V. Dare 400, 542, 549 Playne v. Scriven 902 Plenty v. West 914 Plevins v. Downing 975 Plimmer v. Sells 676 Plowes V. Bossey 129, 817 Plumer v. Brisco 188, 1571 Plummer v. Woodburne 1474, 1485 Plunkett V. Cobbett 322, 814 Plunkett's Estate, Re 1033 PocDck r. Billing 687 Pocock r. Pickering 953 Podmore r. \\Tiatton 181, 403 Pogson V. Thomas 1040 Pohl V. Young 485 Polden V. Bastard 146 Pole '(•. Leask 720 Polet;. Rogers 342 Polini V. Gray 617, 1417 Pollack V. Pollack 467 Pollard V. Bell 1479, 1482 Pollard V. Scott 550, 1505 Pollock V. M'Alpin 226 Pollock V. Pollock 177 (281 PAGE Pollock V. Stables 200, 201 Pollock V. Stacy 858 Pomeroy v. Baddeley 1193 Pond V. Dimes 464 Ponsford v. O'Connor 465 Ponsibrd v. Swaine 808 Pontefract, ex parte 1471 Pontifex v. Bignold 106 Poole r. Bridges 519 Poole V. Dicas 612, 613, 615, 617, 618, 619 Poole V. Gould 1136 Poole V. Griffith 1505 Poole V. Hobbs 953 Poole ('. Huskinson 154 Poole V. Palmer 640 Poole ('. Richardson 1209 Pooley V. Driver 20;> Pooley V. Goodwin 168 Pooley V. Harradine 981 Pope V. Andrews 678 Pope V. Askew 1581 Pope V. Biggs 294 Porter v. Cooper 1335 Porter v. Weston 141 Porter's Trusts, Re 1365 Portland, D. of, v. Hill 549 Portmore, Ld., r. Taylor 174 Postlethwaite v. Freeland 196 Potez V. Glossop 186, 60ft Pothonier v. Dawson 1009 Pott V. Eyton 203 Pott V. Todhunter 970 Potter V. Baker 183 Potter V. Deboos 196 Potter V. Duffield 875 Potter ('. Nicholson 953 Potter V. Rankin 1058 Potter V. Webb 333 Potts V. Durant 582. 583 Potts r. Nixon 114, 118 Potts V. Smith 97 Potts V. Surr 173 Poulsum V. Thirst 300 Poultney v. Holmes 858 Poulton V. Lond. & S.West. Ry. Co. 842 Pound V. Wilson 12 IS Pouusett V. Fuller 1000 Pountney t'. Clayton 145 Powell, Re 908 Powell V. Bradbury 264 Powell r. Dillon 874 Powell r. Divett 1548, 1550 Powell i\ Edmunds 981 Powell V. Ford 1580 Powell V. Hellicar 837 Powell V. Hibbert 294 Powell V. Hodgetts 530 5) Ixxviii TABLE OF CASES CITED. PAGE PoAvell V. Jossop b9i Powell r. Laytuii 1423 I'owfll c. Milhurn 134 Powell c Powell 913 Powell V. Smith 103 Power r. Reeves 110 Power r. Webber 1077 Powers V. Bathurst 154 Powis Barony 1346 Powi.s V. Smith 54 Powys r. iVIanstield 868 Povser r. Minors 1455 Priinoc v. Sympson 922, 926 Pratt V. Hanbnry 245 Pratt, ex p., Re Hayman 1105 Pratt c. Pratt 419, 1524, 1526 Prentice f. Elliott 294 Prcscott r. Buflery 1514 President, The 228 Prestney v. Corp. of Chester 1521 Preston i\ Carr 795, 796 Preston v. Merceau 964, 9S1 Preston I'.' Peeke 109,1453 Prestwick v. Poley 680 Price, Re 1087, 1095 Price c. CaAer 951. 955 Trice v. Dewhurst 1474, 1475, 1479 1484 Price r. Dyer 974 Price V. Harwood 725 I'rice r. Hewett 723 Price V. Hollis 668 Price V. Ley 970 Price r. Littlewood 1511 Price V. Powell 917 Price (•. Price 173, 214, 917, 1539 Price V. Ramsay 702, 703 Price V. Richardson 872 Price V. Torrington 612, 615, 617 Price r. Woodhonse 554 Price r. Worwood 698, 699 Prichard v. Powell 541, 544, 545 Prideaux v. Bnnnett 1005 Prideaux r. Criddle 45 Priestley v. Fowler 1006 Priestman v. Thomas 1447 Prince r. Blackburn 1571 Prince v. Samo 644, 649, 650. 746, 1261 Prince Henry, In re 1182 Prince Peter Oldenburg, Re 1517 P. of Wales Life Ass. Co. v. Harding 842 Princess Charlotte, The 1512 Princeton, The 22(5 Prinsep & E. India Co. v. Dyce Sombre 178, 216, 347, 1429 Prist%vick v. Poley 680 Pritchard v. Bagshawe 670 Pritchard v. Brown Pritchard v. Draper Pritchard v. Foulkes Pritchard v. Hitchcock Prischard v. Walker Pritt V. Fairclough Proc. Gen. v. Williams Proctor r. .Jones Proctor r. Lainson Prole c. Wiggins Prosser v. Gwillim Prosser v. Wagner Protector, The Proudfoot V. Montefiore Provis V. Reed PAGE 869 531, 664 802 1422, 1423 188, 695 200, 614 562, 564 897 431, 665 115, 116 6S6 1431 227 778, 997 1262 Prowse V. The European & Amer. Steam Shipping Co. 9, 226 Prudential Ass. Co. v. Edmond.s 218 Prudential Mutual Ass. Co. v. Curzon 1501 Prudham v. Phillips 1464, 1465 Prudhomme i\ Eraser 250 Pruen v. Cox 943 Pryor r. Pryor 909 Pryor v. Swain e 951 Puddephatt, Re 907 Pugh V. Robinson 25 Pugh & Sharman's case 1092 Pujolas V. Holland 336 Pulbrook V. Lawes 895 Pullen V. Snelus 297 Pullen r. AVhite 363 Pulley r. Hilton 1359 Pulsford V. Richards 720, 721 Purcell r. Macnamara 1312, 1422 Purdon v. Ld. Longford 59 Purdon r. Purdon 931 Putnam v. Lewis 736 Pyer. Butteriield 480, 481, 485, 1242 Pver V. Carter 146 Pyke V. Crouch 423, 428, 1442 Pym V. Campbell 967 Pym V. Lockyer 1043 Pyne, Re 1054 QlARTERMAN V. CoX 1185 Quartz Hill Co., ex p. Young 1188, 1222 Quebec Marine Ins. Co. v. Commer. Bk. of Canada 997 Queen. The 224 Queen's, The, case 75, 77, 78, 80, 368, 369, 649, 746, 779, 1149, 1175, 1178, 1180. 1231, 1235. 1241, 1260, 1261, 1263 Queen's Proctor v. Fry 1358, 1366 Quennell r. Turner 1039, 1041 Quick r. Quick 181 Quick r. Staines 734 Quilter i: Heatly 1521 (2816) TABLE OF CASES CITED. Ixxix PAOE PAGE Quilter r. Jorss 405 R. V. Barry 315 Quincej r. Sharpe 927 R. v. Bartlett 756, 779 Quinn r. Butler 920 R. V. Barton 162 R.'s Trusts, Re 817 R. i\ Basingstoke 381 R. V. 161, 285 R. V. Bate 760 R. V. Abergavenny Union 828 R. V. Bateman 775 R. I'. Abergwilly 508, 569, 625 R. V. Bates 440 R. i: Abingdon 364 R. V. Bathwick 112 , 1162, 1163, 1164 R. V. Ackroyd 758 R. V. Bayley 2^6 R. L-. Adams 161 R. V. Beale 127 R. V. Addei'bury East 662 R. V. Beaney 22, 270 R. V. Addis 832 R. V. Beard 104, 139 R. V. Adey 1253 R. V. Beardsall 1511 R. V. Aickles 379 415, 1358 1509 R. V. Beokwith 364 R. V. Allen 127 , 191, 348, 367 R. V. Bedfordshire 538, 545 R. V. Allgood 1283 R. r. Bedingfield 519, 629 R. r. Allison 164, 386 R. v. Bedingham 697 R. v. All Saints 564 R. v. Beeston 425, 426, 439, 442 R. V. All Saints, South ampton 166, R. v. Beeton 318 1468 R. V. Beezley 1222, 1223 R. V. All Saints, Worcester 1163, 1164, R. V. Bell 770 1242 R. V. Bellamy 1335 R. V. Alnion 136 R. 11. Benson 163 , .367, 1311 R. V. Ambergate &c., Ry. Co. 1288 R. V. Bentley 771 R. V. Ambury 1072 R. V. Berenger 1198 R. V. Anderson 1173, 1331 R. V. Berigan 756, 1461 R. V. Andrews 277 R. r. Bernadotti 630 R. V. Antrobus 543 R. r. Berriman 285 R. V. Appleby 706, 780 R. V. Berry 1154, 1170 R. v. Archer 209 R. r. Betts 58 R. V. Arniitage 827 R. V. Beverley 1283 R. V. Arnold 757, 758. 765 R. V. Bigg 838 R. V. Arundel 137 R. v. Bignold 363 R. V. Ashburton 169 R. V. Bingham 1311 R. r. Ashton 632 R. (:. Bingley 279 R. ('. Aspinall 109. 340 R. V. Birch 1335 R. r. Aston 320 R. V. Birchenough 1458 R. V. Atkins 694 R. V. Bird 272 R. V. Atwood 830 R. V. Birdseye 315 R. t\ Austen 430 R. V. Birmingham 565, 591, 601, 602 R. V. Austin 99 R. V. Biss 284 R. V. Avery 784, 796, 799 R. v. Bjornsen 134 , 163, 1512 R. V. Azire 1165 R. V. Blackburn 756, 761 R. V. Babb 1284, 1288 R. r. Blake 526 , 528, 1132 R. V. Baines 166 R. V. Blakemore 115 , 1429. 1438. 1442 R. V. Bagshaw 1468 11. V. Bland 286 R. r. Baker 627 R. r. Blandy 86, 516, 517, 630 R. V, Baldry 748, 760 R. v. Bleasdale 313 R. V. Ball 326, 1197 R. r. Bliss 542, 546, 603 R. V. Balls 316 R. V. Bodle 1222, 1223 R. V. Banks 350 R. V. Bolton 1426, 1427, 1467 R. V. Ban nam 283 K. V. Bonner 629, 630 R. V. Barker 340, 408 R. V. Bond 769 R. t". Barnard 830, 1228 R. r. Borrett 694 R. V. Barnes 260, 695, 1073, 1353 R. r. Bos well 756, 761 R. V. Barnett 1075 R. V. Boucher 408 R. V. Barnsley 697 R. V. Boulter 824 R. V. Barrett 189, 1073 R. V. Bowden 755 R. c. BarrovF 364 R. V. Bowen 106. 109 (2817) Ixxx TABLE OF CASES CITED, PAGE PAGE K. V. Bowman 1472 R. V. Can well 272 R. V. Boyes 830, 1243, 1247, 1248, R. !;. Carew 944 1253 R. V. Carey 832, 1051, 1121 E. r. Bradlaugh 109 R. f. Cargenwen 219 R. V. Braintree 399 R. V. Carlile 108, 364 R. V. Braithwaite 823 R. r. Carnarvonshire 697 R. I'. Bramley 818, 1162 R. V. Carr 645 R. V. Brandretli 526 R. r. Carrol 440 R. V. Biangan 1275 R. V. Cart 758 R. V. Brasier 508 1171, 1172 R. V. Carter 327, 1319, 1514 E. V. Brayncll 775 R. v. Carty 769 R. V. Brecknock & Aberg. Can. Co. 1289 R. V. Casbolt 99 R. V. Brennan 415 R. V. Cass 749, 759 R. V. Brettell 64 R. V. Cassidy 1222 R. V. Brewer 795, 1240 R. r. Castle Morton 373 R, v. Brice 1183 R. V. Castleton 398, 402 R. r. Briggs 319 R. V. Catesby 165, 166 R. V. Brightside Bierlow, 311, 5.52 R. V. Cator 1590 R. r. Brisby 1495 R. V. Cavendish 135 R. V. Bristol & Exeter Ry. Co. 1289 R. V. Cellier 761, 762 R. V. Brittleton 210, 1166 R. r. Chadderton 569 R. V. Britton 775 R. r. Champney 823, 824 R. r. Broadbemston 165 R. V. Champneys 1458 R. i: Brogan 768 R. V. Chapman 1197, 1223 R. c. BroDimicb 694 R. V. Charlbury 1471 R. V. Brooke 1222 R. V. Cbarlesworth 1246, 1248 R. V. Brookes 270 R. V. Chatham 697, 69H R. V. Brooks 99, 210 R. V. Chawton 961 R. V. Brown 21, 153, 326, 800, 1257 R. r. Cheadle 978 R. V. Browne 372 , 1337, 133S R. V. Cherry 774, 1249 R. V. Brownell 1081 R. ('. Chester 1281 R. V. Bryan 753 R. v. Chester, Bp. of 1465 R. r. Buckingbam, Js. 1286. 1288, R. v.. Chester, Sheriff of 1288 1426, 1467 R. V. Cheverton 753, 759 R. v. Buckley 426, 591, 614 R. v. Cbidley 775 R, V. Budd 214 R. V. Christian 256, 1318 R. V. Bull 431, 1222 R. V. Christie 364, 629 R. r. Bullard 811 R. V. Christopher 372, 373, 385, 439, R. V. Bullock 270, 276 494, 1241 R. r. Burbage 10^6 R. V. Clapham 1507 R. V. Burdett 1223 R. V. Clare 819 R. V. Burgiss 1075 R. V. Clark 279, 285 R. V. Burke 78, 1234 R. V. Clarke 339, 340, 442, 517, 735, R. i\ Burley 756 1262 R. V. Burridge 23 R. r. Cleary 445, 628 R. V. Burt 330 R. r. Clement 1082 R. V. Bury St. Edmunds 625 ■R. v. Clements 441 R. V. Busb 285 R. r. Clewes 747, 753, 757 R. ;•. Butcher 777 R. r. Clint 1471 R. V. Buttle 1246 R. r. Cliviger 1163 R. r. Butterwick 1065 R. V. Cluderoy 1061, 1065 R. V. Buttery 1433, 1435 R. V Clure 340 R. r. Cadogan, E. of 1288 R. V. Coadv 67 R. V. Cain 755, 777 R. r. Cobden 314 R. V. Callagban 632 R. v. Cockburn 432, 435 R. V. Calvert 439 R. V. Cockcroft 340, 1232 R. V. U. of Cambridge 27 R. V. Cockin 161 R. V. Campbell 284 R. V. Cohen 350 R. V. Archbp. of Canterbury 1026, 1480 R. V. Colclough 326 (2818) TABLE OF CASES CITED. Ixxxi PAGE PAGE R. V. Cole 313 R. V. Dean 340 R. V. Coleman 1590 R. V. Dean of St. Asaph 34. 65 R. V. Coleorton 697, 698 R. V. De Berenger 24, 1417 R. V. Colerne 944 R. V. Deelev 267, 1152 R. V. Colley 1194 R. V. De laMotte 416, 1257 R. V. Collier 315 R. V. Dendy 267 R. V. Colmer 775 R. V. Denio 398 R. r. Com. of Sews, for T . Hamlets R. V. Dent 1217 1286 R. V. Derby 944 R. r. Compton 270, 1460 R. V. Derbyshire 944 R. r. Coney 831 R. V. Derrington 756 R. V. Connell 1457 R. V. De Salvi 1458 R. V. Conning 1331 R. V. Despard 833 R. V. Conolly 210 R. r. Devlin 756 R. V. Cook 1193, 1250 R. V. Dewhurst 770 R. V. Cooke 104, 256, 260, 326, 812, R. V. Dillon 371 1060 R. V. Dilmore 425, 442 R. V. Cooper 161 749, 752, 753 R. V. Dingier 438 R. r. Coote 773, 774 R. V. Dingley 753 756, 761 R. V. Cope 613, 619 R, V. Dixon 103, 136, 799, 1253 R. V. Coppard 1338 R. r. Doherty 752, 1165 R. v. CoppuU 381 R. r. Doolin 1256 R. r. Corden 166 R. V. Doran 388 R. V. Cork, Js. 1153 R. i\ Dossett 327 R. V. Cornelius 1288 R. V. Douglas 448, 449, 467, 1330 R. V. Cottingham 1471 R. V. Dowlin 492 R. V. Cotton 314, 545, 553, 555, 1496 R. r. Dowling 276 R. V. Court 752, 700 R. V. Downer 800 R. IK Courtney 757 R. V. Downham 408 R. V. Cousens 1060 R. V. Downing 750 R. V. Cox & Raijton Errata R. i\ Downshire, Dow. March of 277 R. V. Coyle 679, 705 R. V. Doyle 756 R. V. Cradoek 164 R. V. Drage 327 R. r. Cramp 831 R. ?'. Drew ♦ 749, 759 R. V. Crediton 1507 R. i\ Drummond 625, 628 R. !'. Creevey 139 R. i\ Drury 1472 R. ('. Cresswell 164 R. V. Duffin 104 R. V. Crick 277 R. tK Dukinfield 613 R. I'. Crockett 629 R. ^\ Dulwich College 1025 R. V. Croke 1469 R. V. Dunboyne, Ld. 99 R. V. Crondall 697 R. V. Duncombe 1206 R. V. Cross 1248 R. r. Dungey 1458 R. V. Cro.ssfield 740 R. V. Dunmurry 285 R. r. Croucher 435, 441 R. V. Dunn 315 , 327, 750 R. V. Crowther 439 R. V. Dunne 1274 R. r. Cruise 1273 R. V. Dunsford 64 R. r. Cruse 105, 210 R. r. Dunstan 58 R. r. Culkin . 281 R. V. Durham 830 R. r. Culpepper 402 R. V. Durkin 1072 R. V. Curgenwen 219 R. V. Durore 268 R. r. Curtis 1240 R. V. Dwyers 768 R. r. Daman 166 R. V. East. Count. Ry. Co. 1289 R. V. Dann 1458 R. V. East Fairley 397 R. V. Davie 988 R. V. East Mark 154 R. r. Davis 332, 771, 773 R. V. East Winch 697 R. r. Dawber 830 R. V. Eaton 277 R. V. Dawson 271 R. V. Ebrington 1462 R. V. Day 440 R. V. Edgar 745 R. r. Deacon 821, 822 R. V. Edge 348 F LAW OF KVID. — V. I. (2819) JXXXll TABLE OF CASES CITED. PAGE PAGE R. V. Edmonton 143 R. ?'. Forester 629, U30 R. r. Edmunds 425, 432, 70() R. V. Forster 325 R. V. Edmundson 340 R. r. Forsyth 20, 279 R. V. E.hvanl.s r2G7, 520,1 228, 1241, 12:)0 \{. V. Foster 519, 747, 766 R. V. Edwin.stowe G97 R. r. Prance 440 R. V. Ejiorlon 318 R. V. Francis 32() R. V. Elderahaw 127 R. v. Francklin 1417, 1418 R. V. Elderton 4 R. V. Eraser 1 152 R. V. Ellel 1471 R. V. Frederick 1160 R. V. Ellicombe 388, 411, 416 R. V. Freeman 351 R. 1!. Elliott 283 R. r. Fret well 104 R. V. Ellis 308,313,314, 318,756, 1152 R. r. Friend 1086, 1242, 1243, 1250 R. V. I-:! worthy 41G R. r. Frost 260, 285, 1075, 1168, 1183, R. V. Ely, Bp. of 1287 1184 R. V. Emmons 1072 R. r. Fullarton 260 R. V. Enoch 749, 760 R. r. Fuller 163 R. ti. Entrehman 1180 R. V. Fulllord 58 R. V. Eriswell 424, 431, 438, 446, 509, R. r. Furnivul 272 543, r,G\) R. r. Furscy 319, 405 R. V. Erith 56-<, 569 R. V. Gadbury 331 R. V. Errington 438, 629 R. v. Gallagher 830, 1152 R. V. Esdaile 1592 R. r. Galvin 440 R. V. Esop 103 R. i: Garbctt 776, 1242, 1247, 1254 R. V. Essex, Js. 1495 R. V. Gardiner 823 R. V. Evans 271, 284 R. V. Gardner 694. 1418 R. V. Evenwood Barony 1471 R. V Garner 314, 749, 759 R. V. Exall 161, 163 R. V. Gaunt 1495 R. V. Exeter 601, 602 R. V Ganz 1329 R. V. Exeter, Treasurer of 1064 R. V. Gay 631 R. V. Fagent 629, 631 R. V. Gaynor 823, 826 R. V. Farie 327, 1451 R. i: Gazard 808 R. V. Fanning 191 R. V. Geach 104 R. ?!. Farler 831, 832 R. i". Geering 314, 327 R. V. Farley 783 784, 795, 800 R. V. Genge 80 R. 1'. Farrell 435 R. V. Gibbons 750, 752, 787 R. V. Farrington 101 R. V Gibney 754, 756, 757 R. V. Feargus O'Connor 276 R. V Gibson 1433 R. V. Fearshire 372, 770 R. r Giddins 316 R. V. Felton 762 R. r Gilham 754, 775, 787, 1180 R. V. Fennell 759 K. r. G ilbrass 1072 R. V. Ferrers, E. of 1166 R. V. Gillis 756, 773, 775 R. V. Ferry P"ry stone 508, 569 R. r Gillow 106 R. V. Finacane 315 R. r Gilmore 1457 R. V. Firth 313 R. r. Gilson 38S R. V. Fisher 770 R. r. Gird wood 66 R. V. Fitzgerald 631, 1358, 1510 R. V Gisburn 1185 R. V. Fitzsimons 379 R. V Gisson 1458 R. V. Flaherty 384 R. V. Glassie 1160 R. V. Flannagan 'Errata R. V. Gleed 1164 R. V. Flatley 1222 R. V. Glynne 1495, 1496 R. V. Fleming 749, 759 K. r. Goddard 630 R. V. Fiemming 438, 446 R. r. Goldshede 774 R. V. Fletcher 747 R. r. Goldsmith 109 R. V. Flintshire 979, 1021 R. V. Goodere 1193 R. V. Folkes 316 R. r Gocdfellow 435 R. V. Fontaine Moreau 1446. 1447 R. r. Goodwin, 189 R. J'. Forbes 326, 439 R. V. Gordon 189, 397, 1338, 1547 R. V. Ford 1240 R. V Gordon, Li . G. 520. 1168, 1242, R. V. Fordingbridge 190, 398 (28 20) 1243 TABLE OF CASES CITED. Ixxxiii PAGE PAGE R. V. Gould 163, 777 R. V Hay 789 R. V. Grady 4:]9 R. V Hay, Dr. 221 R. V. Graham 267, 280 R. V Hayes 36.i R. V. Grant 1495 R. V Haynes 276 R. V. Gray 316, 326, 627 R. V Hay ward 629, 800 R. V. Great Bolton 1471 K. r Hazell 163 R. V- Great Cantield 27'J K. V Hazy 348, 307 R. t: Green o2G , 755, 757, 758, 705 R. V Healey 268 R. V. Greenaway 1051, 1081, 1121 J^. V Hearn 749, 755, 708 R. V. Greene 1417 K. V Hearne 747 R. V. Gregory 28:i K. V Heath li7;j R. V. Grillin 190, 754, 777, 789 U. V Hebden 113, 1442 R. V. Griffitlis 759, 1240 R. ?' Hedges 1200, 1201 R. V. Grimwood 1359 R. r Hecsom 3! 4, 435 R, V. Groombridge 127 R. V Helling 160, 107 R. V. Grove 280 R. r Hendei-son 14.57 R. V. Grundon 1430, 1431, 1436 R. r Hendon 593 R. V. Guinea 1204 U. r Hen wood 313 R. V. Gully 20 R. r. IFcrefordshire, Js 1274 Jt. V. Gumble 259, 280 R. r Herringt;)n 1495 R. V. Gurney 1183 R. r Herstmjnceaux 888 R. V. Guteh 136, 779 R. r Hervey 1168 R. v. Guthrie 272 R. r Hewett 749, 752, 754 R. V. Guttridge 432, 517 R. r Hewins 256, 260 R. V. llagan 327, 430 R. r Heydon 1-288 R. V. Haines 768 R. ?' Hickling 1427, 1431, 1436 R. V. Hains 1318, 1319, 1336, 1353, R. r Hickman 208 1304 R. V Higgins 716, 747 R. V. Hale 162 R. r Highlield 774 R. V. Hall 533, 747, 756, 770 R. r Higson 766 R. r. Halliday 1163 R. r Hill 104, 261, 1163 R. V. Hammond Pa ge 142.5 R. r. Hillam 774, 1249 R. V. PI amp 411 R. V Hinckley 165, 400 R. V. Handcock 1244 R. r Hind 623 R. V. Han kins 410, 799 R. V. Hinley 315 R. V. Hanson 101 R. r Hinxman 770 R. V. Hapgood & Wyatt 273 R. ■(' Hirst 706, 770 R. V. Harborne 135, 220 R. V Hodge 89 R. V. Harding 760 R. r. Hodgkiss 330, 1222 R. V. Hardwick 530, 531, 661, 662, R. r. Hodgson 286, 340, 1232, 1210 606. 752 R. r Hogg 284, 432 R. V. Hardy 328, 526, 529, 530, 809. R. r. fJblbrook 137, 779 810, 1204, 1224 R. V Hoi den 12,23, 1210 R. V. Hare 824 R. r Holl 1246 R. V. Hargrave 831 R. V Hollingberry 269 R. t'. Harriugworth 1566 R. V HoHond 276 R. V. Harris IGl, 325, 327, 332, 373, R. r. Holmes 760, 1171 441, 759, 760, 769, 826, 1223 R. V. Holmes &Furness 340, 1231, 1232 R. V. Harrison 326. 432, 446, 1285 R. V. Holt 20, 28, 105, 326, 1418, 1419 R. V. Hartington Mid. Quart. 1434, R. V. Holv Trinity, Hull 377 1463 R. V. Hood 1160 R. V. Harvey 139, 349, 435, 1468 R. r. Hook 85!6 R. V. Haslingfield 1344 R. V. Hooper 770 R. V. Hastings 830 R. V. Hopes 7o8 R. V. Hatfield 143 R. V. Home 303, 364 R. V. Haughton 115, 1437, 1473 R. r. Home Tooke 704. 1199, 1580 R. r. Hawes 1507 R. V. Hostmeu of Newcastle 1284, 1287 R. V. Hawkins 134, 348 R. V. Hough 325 R. V. Haworth 379, 416, 417, 775 R. V. Houlton 1161, 1165 (2821) Ixxxiv TABLE OF CASES CITED. PAGE PAGK B. V. Howard 188 R. V. King 1287, 1358, 1365 R. V. Howell 629, 630 R. V. Kinglake 1253 R. V. Howes 753 K. V. Kingsclere 1471 R. V. Hubbard 630 R. V. Kingston, Duch. of 702, 1431, R. V. Hucks 30, 65 1446, 1462. 1464 R. V. Huct 770 R. V. Kingston 315, 7^ 19, 750, 759 R. V. Hughes 209, 281, 318, 1318 R. V. Kinloch, Sir A. Gordon 1199 R. V. Hulcott 166, 1468 R. V. Kinloch 1170 R. V. Hull 99 R. r. Kinsey 1075 R. V. Hulme 1246 R. V. Kitson 388, 410, 416 R. V. Humphries 416 R. V. Knaptoft 1463 R. V. Hunt 104 328 , 386, 527 R. r. Knill 826 R. r. Hunter 791 R. V. Knollys 25 R. V. H untie V 1458 R. V. Koops 1331 R. r. Hurley"^ 367 R. r. Laindon 978 R. V. Hutchins 115, 1386, 146:2, 1472 j R. i\ Lallement 260 R. r. Hutchinson 026 R. V. Lamb 770 R. V. Hyde 440 R. ('. 1 am1je 766 R. V. lies 372, 1423 R. v. Lambeth 94 4 R. V. Ingham 278, 281 R. V. Lancashire 1471 R. V. Ingram 210 R. V. Landulph 141 R. V. Ings 406 R. V. Langbridge 440 R. V. Isle of Ely 23 R. V. Languiead 161 R. V. Jackson 270, 826, 1152 R. V. Langlon 191, 386, 1202 R. V. Jacobs 372, 770 R. r. Lark in 260 R. V. Jagger 1165 R. r. Laugher 749, 760 R. V. James 1228 R. V. Lavey 58 R, V. Jarrald 276 R. V. Lavin 757, 1194 R. V, Jarvis 105, 163 , 348, 7G0, 830, S.U R. V. Layer 770, 822 1250, 1257 R. V. Jeffries 27, 1303 R. V. Leatham 1246, 1253 R. V. Jellyman 1165 R. V. Ledbetter 426 R. V. Jenkins 62f , 749, 778 R. V. Lee 425, 440, 44' I, 823, 1232 R. V. Jennings 270, 1460 R. V. Leeds 1471 R. V. Jeyes 1001, 1062, 1064 R. V. Leicester Js. 1281, 1282 R. V. John 629 li V. Leigh 542, 55 [, 553, 1437 R. t. Johnson 197, 397 439 , 440, 517, R. r. Leonard 271 768, 769, 1064 R. V. Leominster 944 R. t\ Johnston 756 R. V. Levy 278, 315, 1384 R V. Johnstone 268 R. r. Lewen 1064 R. V. Joliffe 423, 491 R. V. Lewis 105, 326, 773, 1001, 1065, R. f. Jones 20, 24 , 88, 105 135, 188, 1228, 1250 194, 219, 268 315, 327, R. V. Ligbtfoot 1154 450, 49 >, 746 747, 749, R. V. Lilleshall 214 759, 760, 770 800, 830, R. r. Lin gate 753 831, 1062, 1073, 1075 R. V. Little 166, 1219 R. V. Jordon 127, 363 R. V. Liverpool, Mayor of 1468 R. V. Kain 363 R. V. Llanfaethly 418 R. V. Kea 818 R. V. Llangunnor 978 R. V. Kealey 268 R. V. Lloyd 626, 755 R. V. Kelly 281 R. V. Lockhart 777 R. V. Kelsey 1064 R. V. Lolley 1476 R. V. Kenilworth 399, 1431 R. V. Lond. & North- West. Ry. Co. 1429 R. V. Kenny 210 R. V. Lond. & St. Kath. D ck Co. 1296 R. r. Js. of Kent 943 R. r. Lond. & South Coast Ry Co. 696 R. V. Kerne G94 R. V. Long 314, 757 R. V. Kerr 756 R. V. Long Buckby 166, 168 R. V. Kiddy 439 R. V. Loom 285 R. V. Kilminster 99 R. V. Loughran 1136 E. V. Kimber 767 R. V. Lowe 1305 (2822) TABLE OF CASES CITED. Ixxxv PAGE PAGE E. V. Lower Heyford 593 R. V. Milnes 1312 R. V. Lubbenham 1507 R. V. Milton 550 R. V. Lucas 1282, 1283 R. V. Minton 268, 269 R. V. Luc'khurst 749, 754, 758 R. V. Mitchell 188, 272, 1460 R. V. Luffe 20, 129, 817, H18 R. V. Mockfbrd 162 R. ('. Lumley 135, 21 G R. V. Mogg 327 R. V. Lunny 517 R. V. Moore 749, 770 R. v. Lydeard St. Lawrence 1121 R. V. Moores 832 R. e. Lyon 277 R. V. Moors 387 R. V. M'Anerney 285 R. V. Morgan 385, 629 R. V. Macclesfield 1471 R. V. Morris 166, 279, 1311, 1458, 1461 R. V. Macclesfield, Ld. 1242 R. V. Morse 768 R. V. M'Cafiterty 529 R. 1-. Mortlock 414, 416 R. V. M'Conkey 281 R. V. Morton 398, 749, 759 R. V. M'Cue 144(1 R. V. Mosey 777 R. V. M'Culley 283 R. V. Moslcy 281, 629, 630 R. V. M' Donald 1318 R. V. Mothersell 1359, 1514 R. V. M' Govern 770 R. V. Mudie 824 R. V. Machen 1472, 1495 R. V. Murlis 1221 R. r. M'Hugh 773 R. V. ISIurphy 104, 188, 526, 528, 629, R. V. Mackay 629 1193, 1197, 1225, 1260, 1458, 1580 R. V. Mckenua 268, 525 R. V. Muscot 824 R. V. Macplierson 269 R. V. Musson 142 R. V. M'Phersod 272 R. V. Mytton 542, 583 R. V. xVIagill 757, 832 R. V. Napper 276 R. V. Main waring 99, 164, 386, 1364, R. V. Neal 832 1368 R. V. Nether Hallam 1473 R. V. Mallett 765 R. tJ. Netherthong 112. 585 R. V. Mallory Errata R. V. Neville 260, 732, 735 R. V. Manning 209 R. V. Newboult 287 R. V. Mansfield 129, 135, 571, 759, 817 R. V. Newman 700 , 780, 1193, 1338 R. V. Mariquita & New Granada ilin- R. V. Newton 188, 384, 440 ing Co. 1294 R. V. Nicholas 508 R. V. Marley 271 R. V. Nicholls 327 R. V. Marsden 361 R. r. Nicolas 629 R. V. Marsh 812 R. V. Nisbett 326 R. V. Marshall 431 R. V. Noakes 832 R. V. Martin 281, 331, 340, 505, 1231, R. V. North Bedburn 401 1358, 1511 R. V. Northleach & Whitney Roads R. )'. Mashiter 984 Trustees 1289 R. V. Mathews 269 R. V. North Pelherton 1507 R. V. IMay 1495 R. V. Norton 285 R. V. Mayhew 823 R. V. Norwich Road Trustees 1468 R. V. Mazagora 104 R. V. Nuneliani Courtney 508 R. V. Mead 626, 1166 R. V. Nute 754 R. V. Medley 136 R. V. O'Coigly 1250 R. V. Megson 517, 629 R. V. O'Connell 380, 386, 526, 528, 810, R. V. Merceron 775 1203 R. V. Merch. Tailors' Co 1282, 1283, R. r. Oddy 327 1284 R. r. O'Donnell 1075, 1152, 1153 R. V. Merthyr Tidvil 374 R. IK Ogilvie 267 R. V. Middlehurst 269 R. V. Oliver 272 R. V. Middlesex 944 R. V. Olney 978 R. r. Middlesex Js. 1276 R. ?'. Omant 435 R. V. Midlam 1281 R. V. O'Neill 277 R. V. Millard 325, 326 R. V. Onslow and Whalley 1136 R. V. Miller 20, 441. 1460 R. V. Orchard 288, 1223 R. V. Mills 749, 759 R. V. O'Reilly 757 R. V. Milne 1183 R. V. Osborne 440, 517, 518 (2823) Ixxxvi TABLE OF CASES CITED. PAGE PAGE R. V. Osman 6;i0 R. V. Preston, Ld. 1272 K. V. Otway 268 R. V. Price 210, 1240 K. V. Oulton 214 R. V. Pr ingle 21, 24 K. V. Owen 65, 208, 277, 771, 773 R. V. Pritehard 260 K. V. Oxford 26.S, 281 R. V. Puddifoot 283 K. V. I'acker 770 \i. V. I'lirefoy 446 ii. V. Padstow 376 R. V. Purnel'l 1288 li. K Page 372, 1338 U. V. Pye 268 K. V. I'ain 166 R. V. Oualter 629 \i. V. Paine 438, 1060 R. V. Queen's Cty. Js. 648, 11 5: J K. r. Painter 439 R. /;. Quigley 518 R. V. Palmer 1210 R. V. liadley 268 R. V. Patenter 737 R. V. Ramsey 137, 779 a. V. Parker 99, 440. 749, 824, 827, R. V. Ramsbottom 1352 1262 R. V. Ramsden 1205 R. V. Parratt 749, 7.59 R. V. Ratclitfe Cul ey 768, 1420, 1446 R. I'. Parry 316, 1273, 1458 R. V. Rawdeu 374, 398 R. V. Parsons 1384 R. V. Read 827 R. V. Partridge 161, 75i) R. V. Reader 1472 R. V. Payne 1152 R. V. Reading 768 817, 818, 1248 R. V. Peace 286 R. '('. Rcaney 630 R. V. Peacock 434 R. i\ Rearden 313 R. V. Pearce 318, 1166 R. V. Reason 63 1, 632, 760, 769, 770 R. r. Peat 1162 R. V. Reed 372, 770 R. V. Pedley 1208 R. V. Rees 18£ , 756, 1064 R. r. Peel 630, 1241 R. V. Reeve 760 R. V. Pegler. 1242 R. V. Reg. of Deeds for Middlesex 949 R. V. Penge 1471 R. V. Reid 776 R. V. Pel kin 1171 R. V. Reilly 1337 R. V. Perkins 629 R. r. Rho(ies 1358, 1510 R. I'. Perranzabuloe 1021, 1471 R. V. Richards 276 440, 753, 758, R. V. Perry 1160 1064 R. V. Petcherini 526 R. r. Richardson 327, 810 R. V. Petrie 154 R. V. Rickman 162 R. V. Philips 127 R. ('. Ridley 276, 277 R. V. Phillips 268, 326, 770 R. V. Rigg 446 R. V. Phillpott 1352 R. V. Riley 441 R. V. Philp 104 R. V. Ring 1081 R. V. Pick ford 66 R. V. Rishworth 562 R. V. Picton 67, 1215, 1216 R. i\ Rivers 372, 771 R. V. Piddlehinton 402 R. i\ Roadley 127 R. V. Pike 628 R. V. Roberts 188, 334 , 827, 1323 R. 'V. Pikesley 767, 771 R. V. Robey 1065 R. V. Pilgrim 1087 R. r. Robins 340, 1232 R. r. Pilkington 195 R. V. Robinson 67. 284,: 527, 1072, 1248, R. r. Pitcher 1228 13 35, 1 337, 1338, 1387 R. r. Pitts 285 R. V. Roche 765 , 776, 1486 R. V. Plant 1458 R. V. Roddam 1087 R. V. Pluraer 197 R. V. Roden 314 R. ?'. Plummer 438 R. V. Roebuck 326 R. V. Pollard 209 R. V. Rogers 348 R. V. Ponsonby 4 R. V. Rook 817 R. V. Pook 520 R. V. Rookwood 1257, 1258 R. V. Potter 439 R. V. Rooney 319, 1075 R. r. Pountney 749, 750 R. V. Ro.sa Rue 752 R. r. Povey 9, 1214 R. r. Rosewell 1196, 1243 R. V. Powell 152 R. V. Rosier 753 R. r. Pressly 766, 770 R. V. Rosser 1173 R. V. Preston 166, 1174 R. V. Row 752 14) TABLE OF CASES CITED. Ixxxvii PAGE PAGE R. V. Rowland 1152 R. V. Shelley 1282, 1288 R. V. Rowley 492 R. V. Shepherd 279, 749, 760 R. V. Rowtou 328, 330 R. V. Sheppard 104 R. V. Rudd 1160 R. V. Sherman 1152 R. V. Rndge 1228, 1459 R. i\ Shipley lOG R. V. Russell 58 R. V. Shott 1459 R; v. Russell, Ld. J. 1079 R. V. Shrimpton 331 R. V. Ruston 1170 R. ('. Sidney Westley 13W7 R. V. Ryan 105 R. V. Sinmionds 1222 R. V. Ryland 273 R. V.' Simmonsto 384 R. V. Ryle 468 R. r. Simons 232, 739, 757 R. r. Rymer 206 R. r. Sinip.son 23. 749 R. V. Rymes 260 R. V. Sippet ■ 756 R. V. Rvton 112, 585 R. V. Sirrell 327 R. V. Sadler 1053 R. V. Skeen & Freeman 1245 R. V. Saffron Hill 397, 398 R. i\ Slaney 1242 R. ti St. Andrew, Pershore 195 R. V. Slator 1246 R. V. St. Anne, Westminster 1470, 1472 R. V. Slaughter 750 R. V. St. Asaph, Dean of 34, 65 R. V. Slawstone 944 R. V. St. George 1260, 1467 R. V. Sleemaa ' 749, 751, 754 R. V. St. George, Bloomsbury 1467 R. V. Sleep .350 R. V. St. Giles 1572, 1579 R. V. Slogget 774 R. V. St. Giles-in-the-Fields 697 R. V. Sloman 1080, 1081 R. V. St. John 276 R. r. Smallpiece 1285 R. V. St. Kathrine 1507 R. V. Smart 318 R. V. St. Martin's, Liecester 378, 1202, R. V. Smith G6, 104, 209,284, 325, .326, 1204 425, 439, 631, 771, ' 99, 1160, 1335, R. V. St. Mary, Lambeth 1434, 1471 1337, 1446 R. V. St. Marylebone 190, 1282 R. r. Smithies 779 R. V. St. Mary Magdalen 165 R. i\ Somersetshire Js. 1467 R. V. St. Mary, AVarwick 613 R. V. Sourton 817 R. V. St. Mauriee 23 R. V. South Holland Drainage 1469 R. I'. St. Michael's 768 R. V. Southamjiton 944 R. r. St. Pancras 1437, 1473 R. V. Sow 702, 1463 R. V. St. Paul, Covent Garden 169, 170 R. r. Spencer 750, 1312 R. V. St. Weonard's 277 R. r. Spicer 283 R. f. Salisbury 890 R. ('. Spilsbury 629, 755, 769 R. r. Salt 325 R. r. Stafford 1207 R. t'. Salter 328 R. V. Staffordshire Js. 1268, 1281, 1282 R. V. Sansom 767, 770 R. V. Stain forth 165, 166 R. V. Savage 38^ , 432, 1217 R. V. Stamper 119 R. V. Scaife 430, 432, 433, 434, 631 R. V. Stanley cum Wrenthorpe 697 R. V. Seallan 629, 632 R. V. Stanton 1462 R. w. Scammonden 970, 978 R. V. Staple Fitzijaine 381 R. V. Schlesinger 1208 R. r. Stapleton 209 R. V. Scott 774, 1026, 1248, 1347 R. ('. Steel 1170 R. V. Searle 1212 R. V. Stephens 136 R. r. Sedgeley 64 R. V. SteiihenSon 435, 441 R. V. Sellers 630 R. r. Steptoe 747 R. V. Serjeant 1160, 1161, 1165 R. ?•. Stevenson and Coulter 1152 R. r. Serva 1180 R. V. Steventon 276, 277 R. V. Sewell 1517 R. V. Stewart 1331 R. V. Sexton 755, 765 R. I'. Stoke Golding 401 R. V. Shaftesbury 1248 R. V. Stoke-upon-Trent 079, 994 R. '/). Shaw 755, 757, 823, 1335, 1423 R. r. Stokes 1240 R. V. Sheehan 830, 832 R. r. Stone 484, 525 R. r. Sheen 284 R. r. Stonyer 314 R. V. Sheering 1061 R. V. Stourbridge 399 R. V. Shellard 1238, 1240 R. V. Stourton 562 (2825) Ixxxviii TABLE OF CASES CITED. PAGE Strahan 1-245 Strand Board of Works 141,142 Stretch 1079, 1080 Strijip 701), 770 Stroner 1223 Stroud 284 Stubbs 830. 831 Sturge 259 Suddis 1431 Sullivan 1153 Sulls 286 Summers 268 Surrey 944 SutclifTe 744 Sutton 4, 208, 542,548,1173,1416 Swatkins 22, 749, 757 Sweeny 284 Sweudsen 330 Tait 455 Tancock ' 14G0 Tanner 214 Tarrant 766, 768, 770 Tavener 325 Taylor 749, 751, 1064, 1178, 1222 Teal 1142 Tew 1195 Thanet, Earl of 808 Thistlewood 355, 381, 406 Thoman 279 Thomas 316, 439, 751, 759, 766, 1064, 1320, 1457 Thompson 281, 435, 749, 758 Thompson & others 1159 Thompson & Simpson 1160 Thornton Thring Thurscross Thurtell Tinckler Toakley Tolson Tomlinson Tooke Toole Torpey Torness Tower Towey Townsend Treble Treharne Trenwvth Trevelii Trowbridge Trueman Tubbv Tuffs" Tuberfield 755, 756, 757, 758 1335, 1338 1507 777 628, 630 364 1384 281 1337 285, 760 209 166 1282, 1283 823 189 1549 278 189 363 697 316 775 799 330 R. V. R. V. R. v. R. V. R. V. R. V. R. i: R. V. R. r. R. r. R. V. R. v. R. r. R. V. R. V. R. V. R. r. R. r. R. r. R. V. R. V. R. V. R. V. R. V. R. V. R. V. R. V. R. r. R. V. R. V. R. V. R. V. R. v. R. V. R. V. R. V. R. V. R. V. R. V. R. V. R. V. R. V. R. V. R. V. R. r. R. V. R. V. R. V. R. i: R. V. R. r. R. V. R. V. R. r. PAGE Tfirner 281, 329, 330, 332, 354, 355, 706, 778, 1312, 1429, 1446 Turweston 269 Tutdiin 65 Twyning 135 Tyler 752 Tylney 799 Tynims 2C0 Udall 65 Uezzell 277 Ulner 441 Unkles 744 Upchurch 749, 759 Upper Boddington 419, 790, 792 Upton Gray 159, 165 Upton-on-Seyern 26-*, 276 Van Butchell 629, 6:50 Vandercumb 272, 312, 1273, 1457 Vane Varlo Vaughan Verelst Vernon Vickery Vidil Vincent A^irrier Voke Wade AVain Wright 822 1025 821, 1193 188 749 1081 436, 438 259, 515, 1222, 1433 821 327 1170 520 Wakefield 687, 1162, 1165 Walker 285, 435, 518, 774, 1427, 1462 Walkley 747, 750 AVall 431, 446 Wallace 20, 139, 140 Walsh 439, 759 AValter 137, 768 Ward 58, 315, 1336 Wardle 268 AVardroper 210 AVarickshall 777 AVarman 281 AVarner 755 AVarringham 748, 749 AVarwickshire 944 AVashbrook 1465 AVaters 109, 281, 284, 285 AVatkins 770 AVatkinson 806 AVatson 162, 328, 387, 406, 526, 527, 528, 529, 530, 704, 770, 809, 812, 822. 1169, 1183, 1184, 1198 1228, 1255, 1257, 125-^, 1262 Watts 440 AVaverton 277 Waver tree 545 AVeaver 1365, 1368 Webb 773, 1142, 1160, 1193 (2826) TABLE OF CASES CITED. Ixxxix PAGE R. r. Weljstcr 2(jO K. r. Wfdderburn 821 li. V. Weeks 325 R. V. Wel))orn 629 R. V. Welch 381 R. V. Wcllaud 283 R. V. Wei lei- 439, 770 R. V. Wellings 435 R. V. AVclls 832 R. V. Weltnn 259, 285, 441 R. V. Wenham 1399 R. V. West, Dr. 1286 R. V. Westbury 944 R. V. Western 259 R. V. Westley 259 R. V. Wheater 774, 775 R. V. Wheatland 826 R. V. Wheeley 372, 771 R. V. Wheelock 1021, 1471 R. V. Whelam 1236 R. V. Whiley 326 R. V. Winston 165 R. 1-. Whitbread 1222 R. V. Whitchurch 165 R. r. White 117, 133, 1169, 1175, 1178 R. v. Whitehead 1184 R. V. Whitehouse 1165, 1166 R. V. Whitley Lower 662, 666 R. V. Whitworth 630, 631 R. V. Wick St. Lawrence 1021, 1431, 1471, 1473 R. V. Wickham 271, 978 Jt. V. Widdop 774 R. V. Widecombe in the Moor 1471 R. V. Wigan 697 R. V. Wigley 824 R. V. Wild 754, 756 R. V. Wilde 25 R. V. Wilkes 830, 832 R. V. Wilkinson 373, 769 R. V. Williams 162, 210, 268, 269, 271, 279, 285, 317, 425, 441, 442, 1160, 1202, 1210 R. v. Willis 284, 743, 744 R. r. Willshire 135 R. V. Wilmett 350 R. V. Wilshaw 432, 441, 446 R. V. Wilson 435, 441, 756 R. V. Wilton 435 R. V. Wilts & Berks Can . Co. 1281, 1289 R. V. W^indsor 749 R. V. Wink 517 R. V. Wink worth 328 R. V. Winslow 314, 327 R. V. Winsor, Charlotte 1152 R. V. Withers 27, 790 R. V. Whitney 165 PAGE R. V. Woburn UU2 R. V. Womerslv 1073 R. r. Wood " 330, 348, 450, 517, 518, 760, 1054, 1180 R. V. Woodchester 1434 R. V. Woodcock ?,G, 438, 625, 628, 629 6;!0, 632 R. V. Yv'oodfall R. V. Wood hall R. r. Wood head R. V. Yv'oodley R. V. W^oods R. V. Woodward R. V. Wooldale R. V. Woolford R. v. Worcester R. V. Worcestershire Js R. v. AVorlield R. i\ Worth R. V. Wrangle R. V. AVright R. V. Wycherley R. V. W^ye R. r. Wylde R. r. Wylie R. r. Yarwell II. V. Yiites R. V. Y'^eadou R. V. Y'eoveley R. V. Y'ewin R. v. Y'ore R. r. Y'ork, Mayor of, R. r. Y'onng R. V. Zelicote Raljey r. Gilbert Rackham v. Marriott Radcliffe v. Fursman Radclifie v. Un. Ins. Co. Radford r. IM'Intosh Radford v. Wilson Radnorshire, The liaggett r. Musgrave Raikes v. Todd Rain forth, Re Rainsford v. Smith Rajah, The Rajah of Coorg r. E. India Co Ramadge v. Ryan Rambert r. Cohen Rambler r. Tryon Ramchnrn Mullick v Radakissen Ramsbotham i\ Senior Ramsbottom v. Buckhurst Ramsbottom v. Mortley Ramsbottom t: Tnrnbridge Ramsden r. Dyson Ramuz v. Crowe 35, Go, 139 272 1222, 1:223 421 1261 21,276 725, 1015, 1029 1458 944 1468 195 591, 592, 615 379 260, 1209, 1212, 1213 497 1434 496. 1194 314, 326 697 823, 824 272 1021, 1336, 1471 1228, 1231, 1232 1105 1442 440, 768 831 7(;6 698 925 796 1418 192, 695 229 477 704 872 930 120 226 815 1211 385, 1202, 1203 1209 Luckmeccluind 52 806 108 375, 378 375, 378 720, 724 403, 404 (2827) xc TABLE OF CASES CITED. PAon PAGE Eanc'liffc r. Parkyns 58(J Redington v. Redington 868 Kaudali v. Gurney 1129, 1130,1132 Reece v. Rigby 54 1133 lieece?;. Trye 795 Randall r. Lynch 1570 Reed r. Deere 370 Rantlall v. Morgan 868, 880 Reed r. Devaynes 183 I\andall i\ Newson 1005 Iveed V. Fenn 936 IJandall's case 1102 Reed r. Jackson 108, 542, 544 552, Kandell r. Trimen 1009 1437 Kaudle r. Blackburn 044 Reed v. James 1221, 12;i2 Randolph v. Gordon 583 Reed r. King •1218 Ivaiids V. Thomas 1142 Reed v. Lamlj 1359, 1592 Ranee Khujooroonissa v. Mussamut Reed v. Passer 380 Ronshun Jehan VM Rees, Re 905 Rangeloy r. Webster 1480 Rees V. Bo wen 1239 Ranger v. Gt. West. Ry. Co 1533 Rees V. Lloyd 151 Rankin v. Horner G93 Rees V. Overbaugh 1550 Rankin v. Tenbrook GOO Rees V. Rees 180 Rann v. Hughes 854 Rees V. Smith 300 Ransley, ex parte lOi Rees V. AValters 584, 1440 Raper v. Birkbeck 1555 Rees V. Williams 1507 Rapliael v. Bk. ol' England 814 Reeside, Schooner, The 992, 1014 Rapp r. Latham G.r) Reeve v- Bird 802 Rasbotham v. Shropshire Union Ry Co. Reeve v. Hcdson 1341, 1305 48U Reeve v. Whitmore 049 Rashdall v. Ford 10(;9 Reeve v. Wciod 1106 Ratclifl' I!. Ratcliff & Anderson 135H, Reeve's Trusts, Re 183 1300 Reeves v. Hearne 930 Ravce v. Farmer 1455 Reeves v. Lindsay 905 Ravenga r. Mackintosh 513 Reeves v- Slater 725 Ravencrol't v. Jones 10 !3 Reflell V. Reffell 979 Rawley v. Rawley 933 Regicides, Trial of the 1173 Rawlins v. Desborough 5 ^, 3 12, :M9 Reid V. Batte 370, 37. -,, 377 Rawlins c. Richards 013, 920 Reid V. Langlois 792, 1534 Rawlins v. Turner 85 J Reid '(. MargisQU 1318 Rawlins v. West Derby 94.3 Read r. Teakle 211 Rawlinson v. Clarke 972 Reidpath's case 198 Rawlinson t-. Oriel 1444 Reidy v. Pierce 25 Raworth v. Marriott 178 Reilly v. Fitzgerald • 550, 14.32 Rawson v. Haigh 519, 520, 524, 525 Reimers r. Druce 1479 Rawson v. Walker 980 Remmett r. Lawrence 732 Rawstorne v. Gandell 000 Reneaux v. Teakle 211 Ray r. Jones 017 Kenner v. Bank of Columbia 993 Raymond, ex parte 100 Rennie v. Clarke 722 Rayner v. Allhusen 1527 Rennie v. Wynn 722 Read v. Anderson 817 Resp. V. Fields 739 Read v. Coker 300 Resp. V. McCarty 747, 763 Read v. Dunsmore 245 Reuss V. Picksley 880 Read v. Gamble 379, 410 Renter v Electric Telcgr Co. 841 , 844 Read v. Nash 883 Revell V. Blake 1492 Reed v. Passer 575. ] 355 Revis V. Smith 1126 Read v. Victoria St. & Pimlico Ry. Co. Rew r. Barber 1003 1429 Rew V. Hutchins 306, 484 Reade's case 734 Reynell v. Lewis 722 Reader v. Kingham 882, 884 Reyncll v. Sprye 97, 803, 1537 Read head v. Midi. Ry. Co. 99!) Reyncr v. Hall 736 Rearden r. Minter 1509 Reyncr v. Pears(!n 534 Reav's estate 1565 Reynolds, ex p., re Rev riolds 1106, Redding v. Wilks 885 1247 Redford v. Birley 515 Reynolds, Re J20, 1106 1247 (2328) TABLE OF CASES CITED. XCl PAGE Reynolds r. Fenton 9, 1478, 1480, 14ril Keynolds v. Reynolds Reynolds v. Staines Rej^noldson r- I'eikins Rhodes v. Airdule Drain Rhodes r. Rhodes Ricardo v. (Jarcias 1447, 1474 Com. Inclosure Commis 148 1578 607 1490 m-i 1475, 148.J 1527 908 724 964, 972, 981 543 251 301 1527 590 1174, 1181 707 400, 1560 Riccard t Rice, Re Rice w. Rice Rich r. Jackson Richards v. Bassett Richards i: 151 uck Richards r. Easto Richards c. (iellatly Richards i\ Gogarty Richards v. Hough Richards t\ Johnston Richards v. Lewis Richards v. Lond. & S. Coast Ry. Co. 26- Porter Richards Richards r. Rose Richaidsoii v. Anderson Richardson v. Barry Richardson v. Dubois Richardson v. Gifford Richardson v. Mellish Richardson v. Newconib Richardsiin ii Watsjn Richardson v. Williamson Richardson v. Willis Richardson r. Younge Richards v. Richards v. 398, 876 217, 324, 3!7 14() 1309 925 212 855 1355, 1358 1584 960, 1022 1009 248, 1383 059 Riches & JMarshall's Trust Deed, Re 204 Richey v. Garvey ' 389 Richmond v. Sm'ith 206 Rickards c. Murdock 1212 Ricketts, Re 1109 Ricketts v. Bennett 204 Ricketts D. Gurney 1127, 1129 Ricketts v. Turqu'and lOKi Rickford v. Ridge 45 Rickman r. Carstairs 1022 Rideout's Trusts, Re 817 Rider r. Wood 7 Ridgeway r. Darwin 647 Ridgway v. P:wl)auk 341, 343 Ridgway v. Wharton 876, 877 Ridler, Re, Ridler v. Ridler 171 Ridley v. Gyde 519, 523 Ridley v. Ridley 888 Rigden v. Vallier 175 Rigg V. Curgenven 732. 734, 738 Rigger;. Burbidge 711, 1452 Right V. Darbv 48 Riley v. Gerrish 981, 1561 Riley v. Home 998 PAGE Ripley, Re 968 Ripley v. Warren 20 Ripon case 606 Ripun v. Davics 803 Ittppon r. Priest 1500 Rishton i: Ncsbitt 570 Rishton v. Nisbctt 1127, 1130 Rishton V. Whatmore 877 , 948 Rising V. Dolphin 951 Rist r. Faux 334 Ritchie v. Van Gelder 252 River Steamer Co., Re 922 Roach r. Garvau 1483 Robarts v. Tucker 730 Robb i\ Conijor 1057 Robb V. Stai'key 406 Roberts, ex parte 722 Roberts, re, ex p. Brook 865 Roberts r. Allatt 1248, 1250 Roljerts v. Bcthcll 187 Roberts v. Bradshaw 414 Roberts v. Doxou 422 Roberts v. Eddiugton 1517 Roberts v. Fortune 1430 Roberts i\ Haines 144 Roberts v. Humphreys 35:; Roberts v. Justice 687 Roberts ii Ogilliy 727 Roberts v. Oppenheim 1521 Roberts v. Orchard 300 Roberts v. Phillips 909 Roberts ik Roberts 921 Roberts v. Snell 253 Roberts v Tucker 887 Robert's case 752 Robertson v French 148, 961 , 962 Robertson v. Jackson 988, 1011 Robertson v. Powell 915 Ivoliertson r. Struth 108 1475, 1487 Ixobins V. Bridge 1059 Rol)ins V. Dolphin 1476 Robinson v. Anderson 203 Robinson v. Brown 414 , 415 Robinson ?'. Collingwood 188 Robinson r. Curry 98 Robinson v. Davies 406 Robinson v. Davison 1009 Robinson v. Harnian 1000 Robinson v. Hawksford 45 Robinson v. Kitciiiu 723 Robinson v. Local ISoard of Barton 59 Robinson r. Mark is 430 , 408 Robinson v. Mollett 201 Robinson v. Nalion 721 Robinson v. Robinson 114 Robinson v. Robinson & Lane 746 ,747 Robinson v. Scotney 647 Robin.son r. Touray 1551 Rol)inson v. Vaughton 385 (2829) XCU TABLE OF CASES CITED. PAGE Robinson v. Ld. Vernon 370, })()/' Robinson v. Yarrow 729, 7oO, 731 Robinson's case 117 Robison v. Swett 51 'J, 1447 Robson V. Alexander (391 Robson V. Att.-Gen. 5G3, 572 Robson V. Eaton 1439 Robson V. Kemp 668, 807 Robson r. N. East. Ry. Co. 53 Robson r. Rolls 522 Roch V. Call en 1U4G Rochester, Dean and C. of, v. Pierce 124. 842 Rochfort V. Sedlev 641 Roddam v. Mc^rley 175, 607, 935 Roden r. Lond. ymall Arms Co. 1016 Roden v. Ryde 1578 Rodick V. Gandell 1533 Rodriques v. Melhuish 227 Rodriquez v. Tadmire 333 Rodwell V. Osgood 106 Rodwell V. Phillips 892, 893, 894 Rodwell r. Redge 134 Roe r. Birkenhead, Lane, &Ches.Junct. Ry. Co. 842 Roe r. Davies 241 Roc V. Davis 393 Roe V. Day 650 Roe V. Ferrars 652 Roe V. Harrison 699 Roe V. Harvey 138 Roe V. Hersey 109 Roe V. Ireland 153 Roe V. Minshal 698 Roe V. Parker 548, 550 Roe V. Rawlings 111, 566, 589, 592, 15S8 Roe V. Reade 159 Roe V. Wilkins 1.570 Roe V. Archbp. of York 159, 859, 860, 861 Roffev V. Henderson 835 Rotfey V. Smith 294 Rogers ;■. Allen 585 Rogers r. Custance 409, 410 Rogers v. Goodenough 920 Rogers v. Hadley 967 Rogers r. Payne 972 Rogers r. Pitcher 126 Rogers v. Powell 828 Rogers v. Spence 866 Rogers r. Taylor 145 Rogers v. Wood 540, 553 Rokeby Peer. 574 Roles V. Davis 250 Ralfe V. Dart 1318 Rolfe, ex. p., re Spindler 172 RoUason r. Leon 852 Rolls V. Pearce 837 PAQE Rolt V. White 720 Ronayne v. Sherrard 889 Ronkendorff r. Taylor 1510 Rooke V. Ld. Kensington 971 Rooker r. Rooker and Newton 191 Rookwood's case 313 Roos Barony 1303 Root ('. King 337, 1417 Kopps V. Barker 1019 Koscommon Peer. 573, 575 Rose V. Blakemore 1255 Rose V. Bryant 611 Rose V. Cunynghame 878 Rose V. Himely 1475 Rose V. N. East. Ry. Co. 53 Rose V. Savory 644 Ross V. Bruce 379 Ross V. Buhler 1173 Ross r. Clifton 301 Ross V. Gibbs ' 793 Ross V. Gould 37, 1547 Ross V. Hill 205, 206 Ross V. Lapham 337 l^oss V. Parkyns 203 Rossiter ('. Miller 875, 877 Rouch V. G. W. Ry. Co. 522, 523, 525 Rougemont v. Royal Ex. Ass. Co. 463 Roupell V. Haws 313, 805 Rousillon V. Rousillon 1478 Routledge r. Hislop 1448 Routledge v. Ramsay 63, 925 Rowan r. Jebb 737, 738 Rowliotham v. Wilson 144 Rowcliffe V. Leigh 1538 Rowcroft?'. Basset 612 Rowe V. Brenton 150, 308, 388, 592, 597, 598, 1341, 1345, 1346 Rowe V. Grenfel 5, 150 Rowe r. Osborne 389 liowe r. Parker 308 Rowe r. Rowe 1044 Rowe V. Tipper 44, 45 Rowland v. A.shby 769 Rowlands v. De Vecchi 614 Rowlands r. Samuel 42 Rowley r. Home 1422 Rowley c Lond & N. W. Ry. Co. 12;;9, 1214 Rowntree v. Jacob 118 Roval Ex. Ass. Co. r. Moore 982 Rudd r. Wright 541, 596 Ruddock c. Marsh 211 Rudge V. M'Carthy 374 Rugg r. Kingsmill 164 Rumball v. Met. Bank 7, 724 Rumsey v. Reade 714 Rush V. Peacock 407, 682 Rush V. Smith 1221 Rushworth v. Lady Pembroke 1446 (2830) TABLE OF CASES CITED. xcm PAGE Russel r. Russel 8i-i9 Russell, ex parte 1127 Russell, ex parte, re Butterworth 171 Russell V. ColHn 1204 Russell V. Dickinson 961, 1042 Russell (;. Jackson 784, 785, 799 Russell V. Langstafte 15(il Russell V. Rider 1205, 1242 Russell V. St. Aubvn 1043 Russell r. Smyth 1474, 1478, 1486, 1576 Rust V. Baker 218 Rustell r. Macquister 322, 323 Rutherford, Re 931 Rutland's, Lady, case 108, 964 Rutter y. Chapman 641 Rutter V. Tregent 291, 292 Ryall V. Hannam 1033 Ryan, Cornelius, Re 904 Ryan v. Dolan 1057 Ryan v. Nolan 211 Ryan t'. Sams 215 Ryberg r. Kyherg 1218 Ryder r. Walhorne 566 Rj'der v. Womhwell 39, 60 Sadler r. Robins 1474, 1486 Sadlier r. Biggs 338, 1026 Sage V. Wilcox 872 Sainsbury v. Matthews 240, 247, 893 Sainter v. Fergu.son 62 Sainthill v. Bound 1238 Sal« r. Lambert 875 Salisbury v. Marshall 1002 Salisbury, M. of, v. Gt. North Ry. Co. 142 Salkeld v. Johnson 96 Salm-Kvrburg v. Pomansky Errata Salmon 'r. Webb 980 Saloucci r. Woodmass 1482 Salte V. Thomas 1358, 1363, 1509 Saltmarsh i\ Hardy 663 Sampson i\ Yardley 507 Sanborn r. Neilson 689 Sanders v. Maclean 6 Sanders v. Meredith 609 Sanders r. St. Neot's Union 840, 844 Sanders r. Sanders 936 Sanderson, Re Errata Sanderson, Re, Wright v. Sanderson Errata Sanderson v. Collman 115, 728, 729 Sanderson v. Graves 975 Sanderson r. Nestor 1470 Sanderson v. Symonds 1548, 1551, 1557 Sanderson v. Westley 951 Sand ford r. Remington 807 Sand Hands, Re 170 Sandilands v. Marsh 205, 531 Sandys v. Hodgson 724, 733 Sanford v. Chase 1130 San ford v. Raikes PAGE 1016 Sangster v. Mazarredo 663 Saph V. Atkinson 1584 Sarell r. Wine 924 Sargeson v. Sealy 1429 Sari V. Bourdillon 873, 874, 875 Sastry Velaider v. Sembecutty 190 Satterthwaite ii Powell 222 Saunders, Re 911, 912 Saunders v. Bates 245 Saunders v. Cramer 872 Saunders v. Jones 478, 483 Saunders I). Mills 324 Saunders v. Saunders 182 Saunders r. Topp 896, 897 Saunderson v. Jackson 879 Saunderson v. Judge 197 Savage v. 193 Savage v. Binney 450 Savage v. Canning 243 Savage v. Hutchinson 1333 Savage v. Smith 266 Savery v. King 173 Sawyer i\ Birchmore 784, 804 Sawyer v. Eifert 338 Sawyer v. Maine Fire & Mar. Ins. Co. 1480 Saye and Sele Peer. 129, 575, 1418 Sayer v. Glossoi) 1590 Sayer c. Kitchen 1545 Sayer w. Wagstaff 1200 Sayers v. Walsh 690 Say re v. Hughes 868 Scaife v. Farrant 999 Scaife v. Tarrant 999 Scales V. Key 214 Scaramanga i\ Stamp 997 Scheihel v. Fairbairn 51 Schibsby r. Westenholz 1478 Schmeltz v. Avery 983 Schneider v. Norris 879 Schoiield, ex parte, in re Firth 1219 Schofield V. Heap 1043 Scholes r. Chadwick 603, 684 Scholes r. Hilton 10 79, 1080, 1081 Scholey v. Goodman 672 Scholey v. Walton 661 Schultz V. Astley 730, 1561 Schwalbe, The 227 Scoones v. Morrell 142 Scorell r. Boxall 894 Scott V. Bentley 1483 Scott V. Bourdillion 983 Scott V. Clare 384 Scott r. Crawford 72-^ Scott V. Fenoulhett 1039 Scott V. Irving 201 Scott V. Jones 379, 415 Scott V. Lifford 44 (2831 ) XCIV TABLE OF CASES CITED. Scott r Scott r Scott V. Scott r. Scott r. Scott V. Lond. Dock Co. Marshall Miller Oxford, Ld. Pilkington Sampson PAGE 2U7 GGV) 1247 322 1472, 1489 337 Scott r. Scott Scott i\ Shearman Scott V. Stanslleld Scott r. Waithman Sc )tt V. Walker Scott r. Z^'gomala Scoulcr r. Plowright Saa Nymph, The Saag ) r. Deanc Seaman v. Nctherclift Searlc i\ Barrington, Scarlc t'. Keeves Soarlo V. Lr.verick Ssorlc IK Price Searlo t\ Reynolds Seddon r. Ttitop See:l t'. Iliggins Solby ti. Browne Solby V. Harris Selby r. Hills Sclby V. Sdby Scldcn V. Williams Solfc V. leaacson Sellero v. Till SclLi ?'. Iloare Sells V. Soils Sclme J t'. Judge Sslway r. Chappell Selwood r. JMildmay Selw^-n's case Seni )r v. Armitage Serle v. Norton Saton c. Slade Sewcll r. Corp Sewell r. Evans Seymour v. Maddox Shaltesbury, Ld., t Ld. 605, 913 143) 1425 1571 1527 485 178 224 977 112G GOO 89 J 1000 G75 133 1453 58, G2 2J4 1311, 1351 1127, 1133 879 1015 1193 193 1180 971 300 1184 1038, 1039 222 995 45 8-^0 1517 1578 1006 Digby,- Ld. 1174 Shaw r. Beck Shaw v. Bran Shaw I". Broonx Shaw r. Gould Shaw r. Holmes Shaw ?'. Markham Shaw V. Picton PAGE 3G0 171 GS5, GH7 1476 1534 414 724 Shah Mukhun Lall v. Nawab Im. Dowlah 92/ Shand v. Bowes Gl Shankland r. City of Washington 982 Shannon v. Bradstreet 874 Shapcott V. Chappell 1594 Shardlow v. Cotterill 874, 876 Sharman r. Brandt 871 Sharp V. Carter 1244 Sharp V. Leach 174 Sharp V. Newsholme 520 Sharp V. Scoging 1258 Sharpe v. Bingley 1204 Sharpe v. Lamb 406, 641 Shatwell v. Hall 300 Shaw, ex parte 419, 1533 (2832) Shaw V. Porr Philip Gold Min. Co. Errata Shaw V. Shaw 463, 113f) Shearm v. Burnard 2i)6 Shearman v. Pj'ke 911 Shearn, in goods of 918 Shedden n Att.-Gen. &; Patrick 555, 55G, 559, 563, 1430, 1436 Shedden v. Patrick • 14G4 Sheehy v. The Profess. Life Assur. Co. .1480, 1481 Sheen r. Bumpstead 320 Sheffield & Manch. Ry. Co. t;. Woodcock 723 Sheldon v. Clark Shelly V. Wriglit Shelton r. Braithwaite Sheltjn r. Springett Shephard v. Payne Shepheard v. Bcetham Shepherd v. Chewter Shepherd v. Currie Shepherd v. Hills ' Shepherd v. Hodsman Shepherd v. Blackoul Shepherd v. Pybus Shepherd v. Sharp Shepherd v. Shorthose Sheppard v. Gdsnold Sheridan & Kirwan's case Sheridan v. The New Quay Co Sherman i\ Sherman Sherrington v. .Termyn Sherrington's case Shickernell r. Hotham Shiel r. O'Brien Shields v. Boucher Shiels r. Cannon Shiells r. Blackburne Shilcock r. Passman Shipworth r. Green Shirley r. Todd Shore r. Bedford Shore v. Wilson 9G2 44. 154. 1004, 354 118 874 213 1025 109G 736 196 98 852 211 1005 302 1353 1026 386 728 702 1558 752 924 914 536. 568, 569 1005 53 54, 343 118 685 797, 803 965, 985, 987, 98S, 989, 1015, 1022, 1023, 1024 Short V. Lee 541, 588, 589, 591, 597, 599, 604 Short V. Stoy 706 Short V. Williams 20 Shortrede r. Cheek 874 Shot V. Strealfleld 514 Shower v. Pilck 837 TABLE OP CASES CITED. XCV 164 1237, 869, 389, 160 19) 5(J 143 1247 1545 1041 529 927 391 837 1000 PAGE Shrewsbury's, Lady, case 761 Shrewsbury Peer. 405, 549, 560, 561, 575," 578, 1354, H17, 15U4, 1585 Shropshire Uniou Ry. & Canal Co. v. li. 1394 Shuttleworth v. Le Flemino; 97, 93d SibberiDg r. Balcarras Sichel c. Lambert Siddons r. Lawrence Siddons r. Short Sidebottom v. Adkins Sideways v. Dyson Sidmouth r. Sidmuutli Sidney, Algernon, case of Sidwell r. Mason Sievewright v. Archilmld Siggers r. Evans Sikes i\ Wild Silkstoneand Dodsworth Ccaland Iron Co., lie 1091 Sillick V. Booth 220, 222 Sills r. Brown 446, 1213 Silver r. Stein Simm V. Anglo-Araer. Tel. Co Simmonds, Ke Simmonds r. Andrews Simmonds r. Humble Simmonds c. Kudall 180, 181, Simmonds r. Simmonds Simm )nd;! r. Mitchell Simms r. Henderson 466, Simons r. Gt. AVest. Ry. Co. Simons v. Patchett Simpson r. Carter Simpson r. Dendy Simpson r. Dismore Simpson r. Flamank Simpson v. Fogo 1430, 1478, 1479 Simpson r. Loud. Gen. OmriibusCo. 999 1484 723 902 8 897 1547 829 1207 1342 938 1009 485 112 157(; 100 4, 1479, Simps m r. Margitson Simpson r. Pickering Simpson r. Pobinsjn 3: Simps :)n r. Smith Sims r. Marryat Sims V. Thon'ias 1478 Sinclair v. Baggaley Sinclair r. Fraser Sinclair?-. Sinclair655, 1439, 1476, 1483 Sinclair v. Stevenson 407, 968, 1204, 1205, 1242 Singleton v. Barrett 385 Singleton r. Tomlin.son 910 1, 938, 1016 1440 23, 700, 705 1221 loo;] 1489 186 1487 Sin(juasi, The Siordet r. Knczinski Sissons r. Di.xon Skaitc V. Jack.son Skeat v. I^indsay Skeet V. Lindsay Skelton v. Cole 654 226 371 134 736, 965 927 927 875, 876 Skelton v. Hawling Sketchley v. Conolly Skilbeck v. Garbett Skinner v. Gt. N. Ry. Co Skinner v. Lond. & Bright. Ry. Co. Skrine v. Gordon Skusc V. Da^■is S];3'ring v. Greenwood Shick r. Buchannan rikick r. Rusteed Sladc v. Tucker S'.ar.G Peer. Slancy v. Wade 556, 563, 574, 575 Slater r. Hodgson Slater r. Lawson Slater;-. Nolan Siattcrie v. Pooley C81, 382, 383, PAGE 711 483 197, 202 1527 207, 254 60 1387 724 690 902 577 583 601 173 653, Slaymaker v. Gundacker's Ex Slaymaker v. Wilson Slegiib V. Rhinelander Slings". yt-. Grainger Sly V. Sly Small V. Gibson Small r. Nairne Snmllcombc n Bruges Smart v. Harding Smart r. Hyde Smai t r. Morton Smait V. Rayner Smart v. West Ham Union Smartle v. Williams Smee r. Bryer Smec r. Smee Smith, Re, Smith v. AVent Smith, Knight & Co., Re Smith, I\Iary, case of Smith r. Adkins Smith r. Battams Smith V. Battens Smith V. Bcadnell Smith V. Dk. of Beaufort Smith r. Biggs Smith r. Bird Smith r. Blandy Smith r. Blakcly Smith V. Braine Smith V. Brandram Smith V. Brownlow, Ld. Smith V. Buller Smith V. Burnham Smith r. Can nan Smith r. Cartwright Smith V. Chester Smith V. Conder Smith V. Cramer Smith V. Crooker Smith V. Daniell 1251 661 158.) 991 962, 1037 001, 602 998 493 ■ 668 889 996 144 359 840 1572 906 347 Errata 1091 741 901 118 186, 610 692 1524, 590, 591 1537 647 642 644 014 346 253 541 1057 740 107 189 731 1017 520, 524 1551 793 730. (2833) XCVl TABLE OF CASES CITED. Smith ?• Davies PAGi: 343 Smith V L)e Wniitz 685 Smith r Doe d. Jersey 54 Smith r Dunbar 1.5.57 .Smith r East India Co. 815 Smith V Evans 909 Smith V Fell 794 Smith r Forty 9,10 Smith and Goddard V. Ridgway 1040 Smith r Harris 910 Smith r Hayes 700 Smith r Henderson 1576, 1577 Smith r Howden 143 Smith V. Hudson 899 Smith v. Hughes 1004 Smith V. James 943 Smith r Jeffries 354 Smith V Jefirj-es 1015 Smith V Johnson 1455 Smith V Keal 536 Smith V Keating 109 Smith V Knowelden 240 , 244 Smith r. I.ane 1204 SmJth V. Lloyd 1.50 Smith V Lovell 2G4 Smith r. Lyon 665 Smith V ]\Iapleback 8.58 Smith V. Marrable 294, 295, :iC2, 1002 Smith V. jMarsaok 729 Smith V. JIartin 345 Smith r. IMatthews 868 Smith V. Morgan 664, 1199, 1202 Smith V. .Alullett 44 Smith r. Neale 880, 886, 1006 Smith r. NicoUs 1474, 1485, 1490 Smith r. Poole 923 Smith V. Koyston 14,51 Smith V Kummons 1429, 1437, 1445 Smith V Sainsbury 1.381 Smith V. Scudder 675 Smith V. Sliaw 300 Smith r Simmes 688 Smith r Sleap 41)6 Smith V. Smith ."99, 51.5, 568 682, 903 8.37, 905 Smith v. Surman 894 896 897 Smith V. Surridge 1475 Smith V. Tavlor 192 193 695 Smith V. Tebbitt 216 564 573 Smith r. Thackeray- 145 Smith V. Thomas 274 Smith r Thompson 63 Smith r Thorne 922 925 Smith (• Tomljs 888 Smith V. Truscott 1080 Smith c. Voss 8 Smith V. Webster 870 Smith r. Whittingham 589 681 Smith V. Wilkins ' 306 293 114 PAGE 988, 991 293 385 714 1343 620 117 1127 684 195 887 665 337 868 152 1083 969 146 864 1201 141 •308 Erra ta i7, 140 228 116 Smith ?'. W'^ilson Smith V. Winter Smith V. Young Smith's Estate, Re Smithson's, Sir Hugh, case Smyth T. Anderson Smyth r. "Wilson Smythe r. Banks SkelgroAC )•. ]\Iartin Snell V. Finch Snelling v. Huntingtield Snowball v. Goodricke Snowden v. Smith Soar V. Foster Society, &c. v. Wheeler Solicitor, In re, A Solly V. Hinde Solomon r. Vintners' Co. Solomon, Re, ex p. Dressier Solomons r. Campbell Somerset, IX of, v. Fogwel Somerset, D. oi'; v. France Somerset v. Hart Somerville v. Hawkins Somerville v. Somerville Somes V. Skinner Soper r. Dibble Sopwith r. Sopwith Sotheran v. Dening Satilichos v. Kemp Souch V. Strawbridge Soule's case Souter V. Drake South-Eastern Ry. Co. v. Yv'arton 120 South of Ireland Colliery Co. ;•. Waddle 838, 840 Southall V. Rigg 263 Southami^ton case 666 Southamiiton, Mayor of. r. C! raves 1285 Southami^ton Dock Co. v. Richards 1515 Southard r. Wrexford 1244 Southee v. Denny 244 Southey r. Kash 1192,1193 Southward Bridge Co. v. Sills 843 Southwark Elect, case Southward Water Co. i". Quick Southwell r. liowditch So ward v. Leggatt Sowerby v. Butcher Spadwell v. Spaight V. Ted castle Spaight V. Twiss Spargo V. Brown Sparkes v. Barrett Sparrow x\ Farrant Sparrow x\ Hill Spartali r. Benecke Spears w Hartly Spence r. Healey 34) 1435 918 992 887, 888 1165 1000 341. 1194 1.528 995 342 ■ 982 567 226 1505 588, 653 464 1589 57 980, 996 102 972 TABLE OF CASES CITED. xcvn PAGE Spence r. Stewart 1130 Spenceley v. De Willott 1227 Spenceley v. Sehuleuburgh 803, 804 Spencer v. Barough (Ml Spencer v. Billing 422 Spencer ;;. Newton 1128, 112!) Spencer v. Thompson 202, 322, 1439 Spencer v. Williams 1433 Sperling Re 909 Spice P. Bacon 200, 207 Spicer v. Burgess 1559 Spicer v. Cooper 989 Spickernell v. Hotham 874 Spieres v. Parker 109 Spiers v. Willison 377 Spill V. Maule 140 Spindler, Re, ex p. Rolfe 172 Spittle V. Walton 11G9 Spollan V. Magan 922, 923 Spong V. Wright 924, 925 Spnoner v. Juddow 25, 293, 300 Spooner v. Payne 430, 1572, 1574 Spragge's case 410 Spratt V. Harris 1484 Sprigge p. Sprigge 182 Spring, The 8 Spring P. Eve 27 Spring p. Lovett 980 Spurr V. Trimble 218 Sqnire p. Campbell 971, 972 Srimut Rajah r. Katama Natchiar 1454 St. Catherine's Hospital Case 1518 St. George p. St. IMargaret 130 St. Losky V. Green 240, 254 Stace p. Griffith 58, 815, 810 Stackpole p. Arnold 730, 905, 982 Stackpole v. Howell 183 Stackpoole p. The Queen 543 Stafford Peer. 500, 504, 573 Stafford p. Clark 1455 Stafford, Mayor of, p. Till 124, 842 Stafford's Ld., case 12"8, 1200 Staines p. Stewart 910, 908 Stainton p. Chad wick 1524, 1537 Stainton and Wife p. Jones 8 Stalworth p. Inns 1344 Stamford, Ld. p. Dunbar 151 Stammers p. Di.xon 1025 Stancliffr. Hardwicke 195 Standage p. Creighton 678 Standard p. Baker 1085 Standen p. Chrismas 1507 Stauden p. Standen 590, 818 Standish p. Ross 732 Standley, Re 906 Stangor'r. Scarle 1580 Stanhope p. Knott 805 Stanley p. Dowdeswell 876 Stanley p. Stanley 1037 G LAW OF EA'in. — V. I. (283 PAGE Stanley p. White 308, 310, 700 Stanstield p. Hobson 935 Stanton p. Collier 800 Stanton r. Percival 000, 005 Stanton p. Styles 1452 Stanwix's, Gen. case 221 Stapleton p. Crolts 1147, 1158, 1104 Stapleton p. Ha^'man 850 Stapylton p. Clough 591, 013, 620 Startup p. ]\Iacdonald 47 State, the, p. Adams 161 State, the, v. Boswell 1257, 1258 State, the, v. De Wolf 1170 State, the, p. Freeman 813 State, the, r. Hayward 824 State, the, p. Molier 824 State, the, p. Rawls 707 State, the, p. Stinson 216, 1177 State, the, p. Whiscnhurst 1180 Staverton r. Ashburton 1467 Stead p. Dawber 975 Stead r. Heaton 596, 597 Steadman p. Ardcn 1534 Steadman r. Duhamel 729 Steamshii) Co. Norden p. Dempsev 201, 988 Stearine, &c. Co. v. Heintzmann 1210 Stearn p. Mills 737 Stebbing p. Spicer 213 Stedman p. Go(;ch 1339 Steel P. Prickett 142, 542, 548 Steel r. State iine Steamship Co. 999 Steele, Re 920 Steele p. Hoe 1019 Steele v. Mart 979 Steele r. Stewart 792 Steevens's Hosp. p. Dyas 181 Steiglitz p. Egginton 845 Steinkeller p. Newtun 424, 493, 494, 1200 Stephen p. Gwenap 5-"9 Stephens p. Clark 646, 1502 Stephens r. Foster 1205 Stephens p. Heathcote 663 Stephens p. Pinney 376 Stephens p. Webb 364 Stern p. Sevastopulo 484 Steuart p. Gladstone 463, 035 Stevens p. Lloyd 1551 Stevens p. IMicli. Ry. Co. & Lander 842 Stevens p. Thacker 071 Stewart, Re 910 SteAvart p. Alison 1517 Stewart p. Anglo-Califor. Gold Min. Co. 842 Stewart v. Cauty 51 Stewart p. Eddowes 871 Stewart p. Forbes 203 Stewart p. Smith 482 5) xcvni TABLE OF CAtit.0 CITED. Stewart v. Steele Htewartson v. Watts Hteyner v. Droit wich Still r. Haliord Stilwell V. Kiick Stimson v. Farnham Stoate V. Stoate Stobart r. Drydcn 508, G04, Stobart r. Totkl Stock r. M'Avoy Stockbridge /;. (^uicke Stcfkdale v. Hansard Stofken v. Collin Stocklieth r. De Tastet Stockil V. Punshon Stockton V. Demuth StockAvell V. Kitherdori Stoddart v. Grant Stoddart v. Manning Stoer, In re Stoevcr V. Whitman Stokeliill r. Pettingell Stokes i\ Bate Stokes V. Dawes Stokes V. Grant Stokes V. Pleron Stokes V. Mason Stokes V. Salomons Stokes V. White Stonaid v. Dunkin Stone, James, He Stone V. Blackburn Stone V. Forsj-th Stone V. Greening Stone V. Metcalf Stone V. Stone Stone V. Whiting Stone's case Stones V. Byron Stones V. Menhem Stoomvaart v. Pen. & O. St. Stoop's case Storey r. Ld. Gecrge Lennox Storr V. Scott Stotherd v. James Stott V. Fairlaml) Stovcld V. Hughes Stowe r. Querner Stowell V. Rdbinson Stracey v. Blake Stracy v. Blake Strai'fon's Exors., ex parte Strafford's, Ld., case Straker r. Graham Stranks r. St. .Jmas Blyth, The Thomas v. Ansley Thomas v. Brown Thomas v. Connell Tliomas v. Cook 159, Thomas v. David Thomas v. Evans Thomas v. Foyle Thomas v. Fredericks Thomas v. Jenkins Thomas i;. Ketteriche Thomas v. Lewis Thomas v. Morgan Thomas v. Newton Thomas v. Packer Thomas v. The Qneen Thomas v. Pawling.s Thomas v. Sorrell Thomas v. Steplienson Thomas v. Thomas 219, 7 Thomas v. Williams Thompson v. B)wyer Thompson v. Donaldson Thompson v. Falk Thomps )n v. Gardiner Thompson v. Gil)s m Thompson v. Hopper Thompson v. Lacy Thompson v. Lambe Thompson v. Mosely Thompson v. Nye Thompson v. Ross Thompson v. Small Thompson v. Trail Thompson v. Trevanion PAGE PAGH 51, 1301 Thompson v. Waithman (ir>S 13'J1 Thomson v. Austen 643, 689 1228 Thomson v. Davenport 696 160 Thomson v. Hall 905 243 Tlionis;)n v. Harding 683 116 Thomson v. Hempenstall 1033 1430 Thomson v. Wilson 858 334 Thorburn v. Crawford Errata 1562 Thorndike r. City of Boston 520 t'. The Roval Thorne v. Jackson 23, 24 972 Thorne v. Tilbury 727 1504 Thornes v. White 73.5 1581 ThornhiU v. Thornhill 1052 301 Thornton v. Charles 3;!0 446 Thorntrn v. Kempster 339, 392 1418 Thornton c. Meux 389 300 Thornton v. Place 1452 1528 Thornton v. Roy. Ex. Ass. Co. 121:; 215 Thorp, re. ex p. Tatton 1104 1359, 1514 Thorp V. Holdsworth 296 482 Thorpe o. Cooper 1453 263 Thorpe v. Maeaulay 1213 594 Thresh v. Rake 975 906 Thunder v. Warren 374 225 Thurbaine et al. 725 109, 372 Thurle v. Madi.son 1572 719, 875 Thurston v. Slatford 495 521 Thurtell v. Beaumont 134 862, 863, 884 Thurtell's case 1160 1194, 1231 Thwaites v. Foreman 183 915 Thwaites r. Richardson {)00 148 Thwaites r. Wilding 93) 836 Thynne, Lady E., v. Ld. Glengall 885, 542, 544 1043 1434 Tichborne ca.se 75, 804, 1221 227 Tickel r. Short 702 090 Tickle V. Brown 603, 684 1253 Tidey v. Mollett 852 215 Tidmarsh v. Grover 1549 1536 Tierney v. Wood 867 790, 791 Tighe V. Tighe 1484 83(i Tildesley v. Harper 236, 242, 291,2i)(i 301) Tiley v. Cowling 1447 01,1028,1034 Tilghman v. Fi.sher 697 884 Tiliotson, ex parte 1133 935 Tindal v. Baskett 359 1432 Tin ley v. Porter 1080 795 Tinn V. Billing.sley 639 389 Tippet's case 745 1387 Tippets V. Heane 928 998 Tippins V. Coates 1256 21)6 Tirzah, The 225 647 Tisdall V. Parncll 586, 1505 307, 419 Titus Gates' case 1142 338 Tobacco-pipe Makers' Co. V. Loder 93 334 Toby V. Lovibond 1496 195 Tod V. E. of Winchelsea 373 195 Todd V. Kerrick 49, 196 519 Todd V. Reid 201 (2838) TABLE OF CAfoES CITED. CI PAGE Todd V. Ld. Winchelsea 180, 491 Toft V. Stephenson 936 Toker v. Toker 173 Toleman v. Portbury 344, 698 Toleman, re, ex p. Bramble 42(J Tolleniache v. Tollemache 1476 Tolman & Ux. v. Johnstone 1230 Tomkins v. Att.-Gcu. 1359 Tomkins v. Saltmursh 521 Tomkins l\ Tomkins 59 Tomkinson v. Staight 897 Tomline v. The Queen 1532,1536, €ria(a Tomhnson v. Gell 883 Tompson r. Williamson 203 Toms i\ Cuming Tomsi-.n r. Judge Toogood V. Spyring Tooker r. Smith Topham v. iNI'Gregor Toppin V. Lomas Topping, ex parte Torriano v. Young Tottenham's Estate, Re Toulmin v. Copland Toulmin t'. Price Tourret v. Cripps Tove}'. In re Tovey v. Lindsay Towers v. Newton Towne v. Campbell Towne v. Cocks Towne v. Lewis Towne v. Smith Town end i'. Drakeford Townley v. Watson Townsend v. Ives Townsend, M. of, i Townsend v. Weld Tuwnshend Peer. Toyml)ee v. Brown Tracy Peer. Traill r. Baring Trasher v. Everhart Travers v. Blundell Treacy v. Corcoran Treeby, Re Tregany v. Fletcher Trelawney v. Colman Tremain v. Barrett Trent v. Hunt Tress v. Savage Trevanion, Re Trevivan v. Lawrence Trewhitt v. Lambert Tribe v. Tribe Ti'ickett V. Tomlinson Trimby v. Vignier 942, 943 173 140 855 422, 1201 889 922, 928 215 no 1447 404 879 911 1476 1133 48 483 195 1484 389, 390, 391 1)L8 1573 Strangroom 970, 971, 972 983 571 90 79, 572, 573, 575, 1209, 1504, 1588, 1590 721 67 1037 177 918 26 187, 518, 1208 1057 125, 194 856 90!) 114 378 903 720 69 Trimble v. Hill Trimlestown, Ld., Trimmer v. Bayue Tijist V. Johnson Tronson v. Dent Trotman v. Wood Trott V. Skidmore Trotter v. iMaclean Trowbridge v. Baker Trowel t\ Castle Trowel 1 r. Shenton Trower v. Lawson's case Truemau v. Loder 990, 992 PAGE 817 V. Kemmis 584,000, 601, 002, 052, 1564 1028, 1042, 1043 411 227 1006 906 . 202, 020 694 Trulock V. Robey Truro, Lady, Re Truslove v. Burton Trustee Relief Act, Re, Trusts Tucker v. Barrow Tucker v. Burrow Tucker v. Good, re Bonner Tucker v. Maxwell Tuckey r. Henderson Tutf ('.' Warmun Tufton V. Whitmore Tugwell V. Hooper Tull V. Parlett Tullock V. Dunn Tunniclifte v. Tedd Tupling V. Ward Tupper V. Foulkes Tupper V. Tupper Turley r. Thomas Turn ball v. Janson Turner, Re Turner v. Ambler Turner i\ Barlow 1547 885 1091 1010, 1013 935 910, 91 1 678 Higgins' 711 692 869 185 736 1042 8 493 803 909 661 1387 484, 1254 845, 1562 920 7 1057 182, 913 42 21 Turner r. Cameron's Coalbrook Steam Coal Co. 125 Turner v. Collins 173 Turner v. Crisp 005 Turner v. Eyles 207 Turner v. Goulden 482 Turner v. Heyland 56 Turner v. Mason 195 Turner r. Pearte 1184 Turner r. Power 374 Turner v. Walsh 154 Turner's case 1457 Turney v. Dodwell 931 Turquand v. Fearon 236 Turquand v. Knight 783, 785, 788, 808 Turquand and The Capital & Counties Bk. V. Fearon 291 Turquand v. Wilson 714 Turrill v. Crawley 206 Turton v. Barber 796 (2839) Cll TABLE OF CASES CITED. PAGE Tussaud V. Tussaud 1042, 104:5 Tussaud's Estate, Re 104;i Tutton V. Darke 21, 27 Tweedale, Re 912 Twemlow v. Oswin 22:5 Twiss V. Baldwin 2(J:5 Twynuvn v. Knowles 365, 377 Twyne's case 171 Tyerman v. Smith 725 Tyers v. Rosedale & Ferry Hill Iron Co. 975 Tvler V. Ulmer 1422 Tyler v. Yates 174 Tyrer v. Henry 234 Tyrwhitt v. Wyuee 312 U., falsely called J. v. J. 828 Udny ('. Udny 228 Underwood v. Ld. Courtown 689 Underwood i\ Wing 221 Ungley v. Ungley 885 Union Bk. ot London v. Lenandon 849 Union Bk. of London v. Manby 1532 Unity Jt. Ht. Alutual Banking Assoc. ex parte, re King 723 Urquliai't v. Macpherson 967 U.S. V. Battiste 35 U.S. r. Breed . 988 U.S. V. Buford 1517 U.S. V. Cushman 1444 U.S. V. Gibert 368 U:S. V. Gooding 525 U.S. V. Hayward 354 U.S. V. Leffler 969 U.S. V. M'Rae 1248 U.S. V. Moses 811 U.S. r. Reyburn 365 U.S. r. Spalding 1556 U.S. i\ Wagner 3 U.S. V. Wood 491, 825 Usticke V. Bawden 921 Utterton v. Robins 911 U-xbridge, Ld., v. Staveland 1243 520, 521, 1570 788, 71)8, 124« 420, 1533 1579 227 990, 1011 1480 Vachee v. Cocks Vaillat^t V. Dodemead Vale IK Oppert Valentine v. Piper Valesquez, The Vallance v. Dewar ValU'e V. Dumerque Valpy V. Gibson 874 Vance v. Lowther 1549 Vance v. Vance 699 Vandenburgh v. Spoon er 875 Vander Donckt v. Thellusson 1217 Vandevelde f. Lluellin 1135, 1136 Van Diemen's Land Bk. v. Victoria Bk. 52 Vane's, Ld., case 1165 Van Omeron )'. DowickS, 27, 200, 1418 Vanquelin v. Bouard 1484, 1489 Van Reinisdyk v. Kane 531, 063, 664 Van Sandau v. Turner 27, 712 Van Straubenzee v. Monck 910 Van Wart v. WoUey 678 Varicas v. French 429 Vasie /-. Delaval 813, 814 Vaughan v. Hancock 8H9 Vaughan v. Martin 1202, 1203 Vaughan v. "Worrall 1184 Vaughan's ca.se 313 Vaughton v. Bradshaw V.iXl Vaux Peer. 573, 575, 576, 1346 Vau.x r. Sheffer 1453 Velasquez, The 227 Venafra r. Jolin-son 769 Venables v. Schweitzer 1091 Vent V. Pacey 795 Verry v. Watkins 334, 340, 1232 Vice V. Lady Anson 411 Vickers v. Hertz 147 Victoria, The 227 Vidi r. Smith 504 Villeboisnet v. Tobin 485 Vincent v. Bp. of Sodor & Man 901 Vincent v. Cole 369, 375, 377 Vines v. Arnold 1456 Vinev V. Bar.ss 307 Vinnicombe v. Butler 905, 906 Violet V. Pattou 872 Viret V. Viret 886 Vivian v. Little 1533 Volant r. Soyer 420, 791 Von Stentz v. Comyn 178 Vooght ('. Winch 114 Vowles V. Young 560, 563, 564, 574, 575 Vulliamy v. Huskisson . 566, 573 Waddel, ex p., in re Lutscher 1105 Waddilove v. Barnett 294 Waddington (•. Bri.stow 893 Wade V. Nazer 916 Wade i\ Simeon 1184 Wade V. Tat ton 935 Wadeer v. East India Co. 815 Wad ley v. Bayliss 1025 Wadsworth r. Bentlcy 1453 Wadsworth v. Hamshaw 785 Wadsworth / . Marshall 1054 Wagstalf f. Wilson 678 Wain ('. Bailey . 404 Wainman v. Kynman 928 Waithman c. Wakelield 211 Waithman v. Weaver 337 Waketield (;. D. of Buccleuch 145 Wakefield v. Ross 1177 Wakeman v. West 1505 Wakley v. Johnson 324 (2840) TABLE OF CASES CITED. cm Walcot V. Alleyn Walcott ('. Hall Waldridge v. Kennison Waldron v. Co;)mbe Waldrnu r. Jacob Waldi-oa r. Tuttle Waldron v. Ward Waldy V. Gray Walford v. Fleetwood Walker v. Bartlett PAGE 216 337 689 1517 878 560 798 496 25 891 Walker v. Lady Beauchamp 398, 555 Walker v. Bennett 464 Walker v. Bradford Old Bk. 849 Walker v. Ih'oadstock 600 Walker v. Butler 928 Walker -v. Gardner 952 Walker v. Gode 701 Walker v. G. W. Ry. Co. 840 Walker v. Milne 81)1 Walker v. Moore 1000 Walker v. Poole 1189 Walker v. Richardson 159, 861, 862, 864 Walker ;;. Webb 1132 Walker r. Wildman 792, 796 Walker v. Wini>iield 1357 Walker v. Witter 1489 Walker's case 682, 1180 Wall's case 198 Wallace v. Brockley 951 Wallace v. Cook 1358, 1510 Wallace v. Fielden 227 Wallace v. Kelsall 654, 736, 965 Wallace v. Pomfret 1044, 1045 Wallace v. Seymaur 914 Wallace v. Small 689 Waller v. Lacy 924, 927, 930 Wallingford Petition, In re 489 Wallis (•. Littell 967 Wall is ?;. Smith 62 Walpole V. Alexander 1126, 1127, 1128 Walrond p. Hawkins 699 Walsh V. Nally 951 AValsh I). Trev'anion' 961 Walsh r. Wils m 1128 Walsham r. Stainton 793 Walsingham, Ld., v. Goodricke 784, 795, 793 Walter v. Bollman 617 Walter v. Cubley 1551 Walters. Haynes 197 Walters v. Morgan 888 Walters r. Rees 1130, 1133 Walton V. Chandler 951 Walton r. Gavin 189 Walton ?•. Green 672 Walton r. Hastings 1549, 1559 Walton V. Shelley 1142 Walton V. Waterhonse 122 Walton, ex parte, re Levy 864, 962 PAGE Wambough v. Shenk 218 Waukford v. Fotherley 721 Ward V. Day 698 Ward V. Dey 1216 Ward V. Hobbs 1005 Ward V. Johnson 1444 Ward V. Ld. Londesborough 202 Ward, Ld., v. Lumley Ward V. Pearson AVard v. Pomfret Ward V. Ryan Ward V. Siulield Ward (I. Ward Ward V. Wells Warde v. Warde Wardell v. Fermor AVardeu v. Jones AVare v. Cumberledge AVarickshall's case AVaring v. AA'aring AA'armsley v. Child Warner v. Mosses AVarner v. AA' illington AVarrall, Re AVarren v. Anderson AVarren v. Stagg AVarren v. AVarren AVarren Hastings case 861, 1553 240, 247 605 124 1229 1352, 1463 429, 1572 797 1574 8S5 890 741, 742, 748 347 404 468 875, 876, 880 1254 1577, 1580 975 197 1518 AVarrender v. AVarrender 1476 AVarrick ;;. Queen's Coll., Ox. 539, 543, 1283 AVarriner v. Giles 1359 AVarrington v. Early 1549 AVarwick v. Bruce 893 AVarwick v. Foulkes 323 AVarwick v. Hooper 698 AVarwick v. Queen's Coll. 1283 AVarwick v. Rogers 1555 AA'ason v. AValter 4 AVaterford, AVexford, AVicklow & Dub- lin Ry. Co. V. Pidcock l.)15 AVaterford, Corp. of, v. Price 1511 AVaterford Ry. Co. v. AA^olselv 1515 AVaterford, Estate of M. of. Re !)95 AA^^terloo Bridge Co. v. Cull. 142 AVaterman r. Soper 1 ! 1 AA^aterpark ?;. Fennoll 1025, 1026 AA^aters v. Earl of Thanet 923 AA'aters D. PTowlett 512 AVaters v. Thorne 89 AVaters r. Tom kins 928, 929. 932 AA^atkins, Re 910 AA^atkins, ex parte 1483 AA^tkins )'. Morgan 2 IS AA^atkins r. Nash 1560 AVatkins r. AVymill 111 AVatson v. Arundell 910 AVatson tt. Clark 224 Watson V. Gray 144 (2841) CIV TABLE OF CASES CITED. PAGE Watson V. King 220, 678, 1358, 1509 Watson V. Lane 124, 125 Watson V. Little 1424 Watson V. Spratley 890, 891, 892 Watson V. Threlkeld 721 Watson v. Wace 723 AVatson v. Watson 1043 Watson V. Wooduiah 532 Watters v. Smith 1444 Watts V. Aiuswortb . 880 Watts V. Fraser 324 Watts V. Kelson 14G Watts V. Lawson 689 Watts V. Thorpe 668 AVaugh V. Bussell • 1551 Waugh i". Carver 203 Waugh V. Cope 928 Wayman r. Hilliard 689 Waymell r. Keed 908 Weale v. Lower 217 Weall V. Eice 1043, 1045 Weaver v. Price, 1427 Webb, lie 902 Webb V. Austin 122 Webbf. Bird 97, 156 Wel)b v. Bornford 478 Webbr. Byng 1019 Webb V. East 1523, 1524 Webb V. Fox 147, 148 Webb V. Haycock 570 Webb V. Heme Bay Improving Com. 723 Webbu. Hunell It 45 Webb V. Manch. & Leeds Ry. Co. 1210 Webb V. Paternoster 83'j Webb r. Pctts 544 Webb f. Plummer 1011 Webb V. Salmon 980 Webb V. Smith 655, 788 Webb V. Tavlor 1130, 1131, 1134 Webb's Estate, Re 217, 218 Webber 1-. Corbet t 1028 Webber v. East Ry. Co. 1210 Webber r. Lee 889 Webber r. Stanley 1040 Webster v. Bray 20,'J Webster v. Cecil 971 Webster v. Cook 174 Webster r. Lee 1454 Web.ster v. Whewall 1521 Wedderburne's case 313 Wedge V. Berkeley 43, 54 Wedgwood's case 1510 Weeks v. Argent 797, 803 Weeks v. Maillardet 1562 Weeks v. Propert 1009 Weeks v. Sparke 53H, 541 , 543, 544, 547 AVeidman ;;. Kohr 600, 683 AVeiduer !•. Schweigart 196 AVelch V. Barrett AVelch r. Maiideville Weigh r. Nash Welch V. Phillips AVelch V. Seal)orn Weld V. Hornby PAGE 613 654 1467 181 197 1025 Welfare v. Lond. & Brigh. Ry. Co. 207 Welford r. Beezely 878 Wei land Can Co. r. Hathaway 384, 707 Wetland v. Ld. Middleton 1358, 1365, 1510 Wells V. Fisher 1162 Wells V. Fletcher 1162 Wells V. Horton 888 AVells ('. Jesus College 543, 547 Wells V. Kingston-upi,n-Hull 840, 889 Wells V. AVells 962 Wells r. AVren 489 AVelnian r. AVelman 177, 970 Welstead v. Levy 37, G66, 684, 688 Wemyss v. Hoi^kins 1462 AVeuman v. Mackenzie 553, 1446, 1496 AVentworth r. Lloyd 138 AVequelin v. AVequelin 491 AVest, Re 907 West r. Baxendale 42, 245 West V. Blakeway 720, 972. 973 West V. Lawday 1037 West v. Aloorc 184 AVest V. Rav 901 West V. Steward 1558, 1560, 1561, 1562 West Cambridge r. Lexington 600 West of Canada Oil, &c., Co., Re 460 West Cornwall Ry. Co. v. Alowatt 1515 AVest Jewell Tin Mining Co., In re 1596 AVest of Eng. Bk. r. Canton Ins. Co. 1519 AVest London Com. Bk. v. Kitson 1009 Westmoreland v. Huggins 463 AVestobv r. Day 8, 1445 AVeston" Re 913 AVeston's case, In re 1596 Weston r. Emes 1'79 AVetherall, ex parte 721 Wetherell r. Langston 880 AVey V. A^illy 9 AVhaley v. Carlisle 24, 597 AVhalley v. Pepper 1135 Wharam r. Riiutledge 1545 AVharram v. AVharram 403 AVharton Peer. 1339, 1417 AVharton r. Mackenzie 60 AVhateley v. Crowter 480, 482 AVhateley i\ Spooner 1017, 1031 Whatman, Re 10:!7 AVheatcroft's case 704 AVheatley r. AVilliams 807 AVheeldon r. Burrows 146 AVheeler, In re 918 (2842) TABLE OF CASES CITED. cv "Wheeler v. Alderson Wheeler v. Atkins Wheeler v. Cullier Cox Le Marchant Lowth Wheeler ( Wheeler i Wheeler v Wheeling's case Whicker /•. Hume Whiifeu v. Hartwright Whippy V. Hillary Whistler v. Forster Whitaker v. Izod Whitaker v. Tatham PAGE 178, 512, 1208 493 875 1130 1525 1339 745 1433 G88 925 729 1253 1028 787, 228 419, Wisbey 26, 109, 171, 372 Whitaker Whitcomb v. Whiting White, Re White V. Birch White V. Cuyler White V. Dowling White V. Greenish Witite V. Hawn White V. Lisle White r. M'Dermott White V. Morris Wliite V. Parkin White V. Proctor White V. Repton White V. Saver White V. Sharp White V. Smith White, ex parte, re Tomney White V. Wilson White's case AVhiteacre t'. Symonds Whitehead v. Clifford Whitehead v. Scott W'lntehead r. Tattersall Whitehouse r. Hemmant White ley v. King W^hitelocke v. Baker Wliitelock v. Musgrove AVhitefield v. Brand Whitdeld v. South-East Ry. Co Whitford v. Tntin Whitley v. Gough Whitmore v. HumjDhries Whitnash v. George Whittaker r. Edmunds Whittaker v. Jackson 1442, 1449, 1451 Whitting, re, ex p. Hall 849 G55 180, 907 1037 845 670 731 1181 541, 543 183, 184 646, 647 977 948 911 995 1344 1263 1464 216, 981 745 58 863 379, 416, 514 671 1593 182 555, 560 1575, 1578 378 140, 842 375 861) 147 591, 6>!1 345 Whittuck V. AVaters Whitwell V. Perrin Whitwell V. AVyer Whitwill r. Sclieer WhitATorth's case Whyman r. Garth Whyte V. Ahreus Whyte V. Rose 568, 575, 1355 227 644 245, 250, 253 1091, 1092 15G6 1532, 1538 23, 25, 1465, 1484 PAGE 24 949 836 1456 882 129 1004 995 959 1507 1259 ■ 1378 430, 491 927, 937 8S4 121 55, 249, 252 46, 698 869 1257, Wickens v. Goatley Wickham v. M. of Bath Wickham t\ Hawker Wickham v. Lee Wickham v. AVickham Widdow's Trusts, Re AVieler r. Schillizzi AVigglesworth r. Dallison AVight's Mortgage Trusts, Re Wihen v. Law AVike V. Lightner AVilberforce r. Hearfield AA'ilbur v. Selden ' AVilby V. Elgee Wildes V. Dudlow AViles r. AA'oodward Wilkin r. Reed AVilkiiis i: Jadis AVilkins v. Stephens AVilkinson v. Evans AVilkinson v. Gordon AVilkinson v. Johnson Wilkinson r. Kirby AVilkinson r. Storey Wilkinson r. Verity Wilkinson, In re Willeri'ord, Re AVilliams, Re Williams, ex parte AVilliams r. Armroyd Williams r. Ashton Williams v. Brjant AVilliams i'. Byrnes Williams v. Callender AVilliams v. Davies AVilliams v. E. Ind. Co. AVilliams v. Evans AVilliams v. Eyton Williams v. Farrington AVilliams t\ Geaves AA'illiams v. Griffith AVilliams v. Griffiths AVilliams v. Gutch AVilliams v. Hulie AVilliams i\ Innes AVilliams v. Jones Williams v. Jordan AVilliams v. Lake AVilliams v. Morgan AVilliams r. ISlorris AVilliams r. IMudie AVilliams v. Pigott AVilliams r. Smith AVilliams v. Steele AVilliams v. Stern AVilliams v. Swansea Canal Navi; 877 1445 1555 1449 63 93 918 910 907 1049 1482 180 285, 725 875 337 , 362 343 , 914 1345 360 134, 895 152, 92' 18 Williams v. Thomas Williams v. Tyley 1248 592 , 930 929 8 1194 668 , 301 875 875 365, 543 835 785 722 44, 924 1132 973 ;. Co. 1392 678 917 (2843) CVl TABLE OF CASES CITED. PAGE Williams r. "Walsby 845 Williams v. Wheeler 888 Williams v. Wilcox 159:2 Williams v. Williams 5, 185, 232. 355, 740, 869. 885, 914, 1044 AVilliams v. Williams & Padlield 746 Williams v. Wilson ' 149G Williams r. Youn "husband 398 Williamson v. Allison Williamson v. Barton Williamson v. Scott Willingham r. Matthews Willins c. Smith Willis V. Bernard Willis V. Jernegan Willis V. Newham Willis V. Peckham Willman v. Worrall Willmett V. Harmer Willock r. Noble Wi Hough by v. Willoughby AVillson, Ee Wilson V. Allen Wilson r. Beddard Wilson V. Boerem Wilson V. Bowie Wilson V. Butler Wilson V. Church Wilson V. Collum Wilson V. Lady Dunsany 2G2, 2.S 98? 7:;g 1127, 1130 924 518 702 9:;i 1059 1574, 1580 134 379, Wilson V. Finch Hatton Wilson V. Ford Wilsim V. Hoare Wilson V. ^litchcll Wilson V. N. & Banb. Ry. Wilson V. O'Leary Wilson V. Kastall Wilson V. Robinson Wilson ('. Rogers Wilson r. Sevell Sheriffs of London Turner Wallani 921 5,28 1105 157 909 626 1545 114 474 1571 14S5 294, 1002 211 54 672 796 1042 787, 798, 803 323 AVilson V. Wilson V. Wilson r. Wilson V. "Wilson Wilson's Trusts Wilton V. Dunn Wilton V. Webster Wiltshire r. Sidford Wiltzie V. Adamson Windle v. Andrews Wing V. Angrave Winn V. Ball Winn V. Patterson Winsor v. Duinford Winsor v. R. Winter v. Miles Winter v. Wroot Winterbottom v. Ld. Derby Wiuterbottom v. Ingram 1281 860 1133 678 864 149, 446 1476 125, 294 518 144 704 949 222, 962 877 582 1312 PAGE Wintle, Re 1508 Wisden v. Wisden 1053 Wise V. Great West. Ry. Co. 938 Wiseman's case 673 Wishart v. Wvllie 141 Witham r. Taylor 593 Withnell r. Gartham 543, 1025 Witmer r, Schlatter 1424 Witt v. Witt & Klindworth 51() AVogan v. Small 1209 Wolf V. Wyeth 492 Wolfe V. Washburn 1517 Wolff r. KopiK-U 882 AVolff r. Oxholm 1478 WoUaston r. Ilakewill .388, 1184 Wolverhampt )n X. W. Works Co. r. Hawkeslurd 483 AVolverton .Mortgaged Estates, Re 1033 Womersley v. Dally 306 Wood. Re 107 Wood v. Anglo-Italian Bk. 1538 Wood v. Duke of Argyll 722 Wood V. Beard 852 Wood V. Braddick 531. 655 Wood ('. Cooper 1199, 1202 Wood V. Drury 1567 Wood r. Fitz 19 Wood V. .Tackson 1 472 Wood r. Lake 836 Wood ;;. Lcadbitter 835, 836 Wood V. Mackinson 1221, 1222 Wood V. Manly ^:i(i Wood V. Alidgiey 873, 918 Wood r. Peer ' 498. 499 Wood V. Priestner 1019 Wo.d V. Rowclifle 1040 Wood V. Scarth 971 Wood V. Smith 227 Wood V. Underbill 62 Wood V. Wood 181, 403, 921 Wood's Estate, Re 212 Woodbeck r. Keller 819, 824 Woodbridge r. Spooner 980 Woodcock r. Houldsworth 19 Woodcraft v. Kinaston Woodfine, "Re Woodford v. Whiteley Woodgate v. Potts Woodham r. Edwards Woodley r. Coventry Wood ley, Re Woods t: Dean Woods V. Lamb Woods V. Woods 1152 Woodward, Re 4 518 156 295 Woodward r. Buchanan Woodward r. Cotton Woodward r. I^arking W & 16 v., c. 76, ss. 106—108 1300 s. 114 501, 505 ss. 117, 118 635 s. 222 235, 252 c. 77, s. 1 1354 c. 85 1291 c. 86, s. 22 18, 1333 ss. 49, 53 235 ;&17V.,c. 20, ss. 3, 4, 5 1141 c. 20, s. 6 1142 c. 30, s. 9 1088 c. 33 1379 c. 56, s. 6 1405 c. 59, s. 19 92 c. 70, s. 38 1429 s. 57 18 s. 60 1125 s. 100 1376 c. 78, s. 6 17, 18 s. 7 18 c. 83 516, 662, 672, 1147, 1154, 1163 s. 1 1147 s. 2 1148, 1158 s. 3 781, 1148 s. 4 1143, 1145, 1148 c. 96 268, 941, 1120, 1376 c. 97 941, 1120 s. 128 1050 c, 112, s. 12, Ir. 1379,1513 s. 36, Ir. 941, 946 s. 66, Ir. 1121 c. 113, s. 3, Ir. 1139 s. 20, Ir. 92, 98, 606, 607, 658, 937 s. 23, Ir. 98, 937 s. 24 Ir. 98, 606, 607, 656, 657, 921, 947 s. 30, Ir. 1347 s. 47, Ir. 503 s. 69, Ir. 302 s. 85, 91, 231, Ir. 235 s. 118, Ir. 635 s. 120, Ir. 413 s. 142, Jr. 1347 c. 128,s.l 1451 c. 134, s. 8 1291 c. 137, s. 6 12 s. 8 1378 ss. 10—14 1123 s. 61 1302 &18 v., C.26, Ir. 1167, 1273 c. 31, s. 7 938, 947, 1422 c. 34 1076 c. 38, ss. 5, 6 1246 c. 38, s. 10 1050 c. 78, s. 8 18 c. 47 1192 TABLE OF STATUTES CITED. CXV PAGE PAGE 17&18V.,c. 80, s. 58 1370 18 & 19 V. , c. 15, ss. 2, 3 1280 c. 81, s. 45 27 ss. 12, 14 958 c. 90, 724 1227, 1463 c. 39, s. 10 950, 1565 c. 102, s. 10 1063. 1466 c. 41 829 s. 12 1075 c. 42 16, 1178 s. 13 1063 s. 1 1333 s. 35 1246 s. 2 1334 c. 104 946 ss. 3, 4, 5 17 s. 2 850 c. 43 128 s. 7 1362, 1390 c. 63, s. 30 1375 ss. 15, 432 1124 c. 81, s. 11 1.389 s. 19 850 c. 91, s. 15 1373, 1512 s. 55 849, 850 c. 96, s. 36 1154 s. 76 850 c. 105, s. 15 941 s. 92 1302 c. Ill, s. 3 110 s. 107 1373, 1390, c. 119, s. 82 1415 1512 s. 89 351 s. 138 1390 s. 97 16 ss. 142 , 149, 150, c. 120, s. 60 1363 155 159, 160, ss. 61, 198, 199 175 940 1286, 1302 s. 163 940, 1547 s. 149 838 s. 165 417 s. 203 1413 s. 173 1345 s. 221 199 s. 249 1390 s. 222 945 s. 270 1330 c. 124, ss. 4, 5 12, 1378 s. 271 1359 ss. 6—9 1123 s. 277 1302, 1359, s. 42 959, 1406 . 1373 s. 44 1302 ss. 280—287 1358, 19 & 20 V. , c. 14, Ir. 946 1366, 1512 c. 36, Ir. 1419 ss. 388 503, 516 226 c. 47, s. 15 890 s. 518 1063 s. 20 . 846 s. 525 101 s. 41 847 s. 526 1565 c. 60, s. 5, Sc. 1004 c. 122, s. 15 1154 s. 6, Sc. 880, 933 c. 125, s. 1 30, 725 s. 17, Sc. 205 s. 3 31, 725 c. 64 283 s. 15 725 c. 79, s. 4 18 ss. 20, 21 1182 ss. 47, 73, 77, 140, s. 22 1218 147 1327 s. 23 1235 s. 102 1328 s. 24 1236 s. 174 18, 1327 s. 25 1229, 1384 c. 94 9 s. 26 366, 384, c. 96, s. 2 1370 402, 1564 c. 97 657 s. 27 1584 s. 3 871 , 881, 1019 ss. 51, 55, 56,57 471 s. 9 93 s. 52 471, 486 • s. 10 97 s. 53 471, 488, 1125 s. 13 93 , 657, 676j s. 54 1125 921, 947 s. 58 502 « s. 14 532, 657 s. 60 1125 C. 102, s. 4, Ir. 30 s. 65 1445 s. 21, Ir. 1224 s. 87 404 s. 23, Ir. 1182 s. 96 235 s. 25, Ir. 1219 s. 103 1182, 1219, s. 26, Ir. 1235 1229, 12.36, s. 27, Ir. 1236 1238, 1564, 1584 s. 28, Ir. 1229, 1384 (28 53) ex VI TABLE OF STATUTES CITED. 19«S:20V.,c.l02 , s. 29, Ir. PAGE 366, 384, 402, 1229, 1564 20 s. 30, Ir. 1584 s. 37, Ir. 371 ss. 51—59 , Ir. 1125 ss. 56—62 , Ir. 471 ss. 63, 69, Ir. 1445 s. 90, Ir. 404 s. 98, Ir. 1182, 1219, 1235, 1236, 1564, 1584 c. 108, s. 8 1323 s. 31 1089 s. 57 255 ss. 6S, 66 1571 c. 113 1116 ss. 1—5 1113 21 s. 6 1114 c. 119, s. 24 1389 20&21 V.,c. 3 1466 s. 2 15 c. 60, s. 126, Ir. 1104 ss. 267, 268, Ir. 866 ss. 271, 27 2, Ir. 865 s. 306, Ir. 1182,1249 s. 307, Ir. 1182 s. 308, Ir. 1104 ss. 334, 335, Ir. 9.56 s. 361, Ir. 1320 s. 362, Ir. 11, 19 s. 364, Ir. 1420 s. 365, Ir. 447 s. 369, Ir. 1192 s. 385, Ir. 1249 c. 62, s. 14 1154 c. 77 393 736, 1497 s. 3 829 s. 22 10 s. 24 1096 s. 26 1540 s. 32 496 s. 33 513, 829 ss. 61 --65 1497-1499 22 ss. 66, 67, 68 1272 s. 69 1353 s. 86 1465 s. 86 1271 23 c. 79 Ir. 1497 s. 5, Ir. 829 s. 27, Ir. 10 s. 29, Ir. 1096 s. 31, Ir. 1540 s. 37, Ir. 469 s. 38, Ir. 513, 829 ss. 65-69 , Ir. 1497, 1498 ss. 71, 72, 73, Ir. 1272 (25 54) «& 21 v., c 79, s. 74, Ir. 1353 s. 91, Ir. 1465 s. 96, Ir. 1271 c. 85 673 s. 2 829 s. 7 1430 s. 13 10 s. 16 816, 1430 s. 27 816, 1430 s. 31 1430 s. 33 187, 191, 334, 335, 518, 732, 816, 1208 ss. 41, 43, 46 1150 s. 47 469 s. 48 829, 11.50 s. 49 1097 &22V., c. 25 1291 s. 3 1370 c. 42, Jr. 97, 938 c. 56, ss. 12, 13 13.52 c. 72, ss. 8, 23, Ir. 11 ss. 33, 35, Ir. 1101 ss. 51, 85, Ir. 110 c. 78, s. 2 1093 c. 90, s. 27 1398 s. 31 695 s. 32 192, 298 s. 34 298 s. 37 1400 s. 40 354 c. 93 1430 c. 94, s. 20 199 c. 95, s. 23 1096 s. 27 1271 s. 31 17, 1334 s. 32 18 c. 98, s. 4 11 c. 108, s. 20 17, 1334 s. 21 18 22 v., c. 20, s. 1 1114 ss. 2—6 1115 c. 33, s. 3 1274 &23V., c. 17 1075 c. 21, s. 16 469 c. 35, s. 12 949 c. 63 9 & 24 v., c. 4, s. 9, Ir. 1358, 1371, 1510 c. 28 390 c. 32, Ir. 829 c. 38, s. 13 936 c. 53 95 c. 83, Ir. 128 c. 107, s. 32, Ir. 101 c. 127, ss. 18, 22 1399, 1400 c. 134, s. 5 98 c. 149, s. 9 1268 TABLE OF STATUTES CITED. CXVll PAGE 23 & 24 v., c. 154, s. 4, Ir. 855 s. 6, Ir. 701 ss. 7, 9, Ir. 857 s. 23, Ir. 393 s. 24, Ir. 148 s. 41, Ir. 1001 s. 42, Ir. 1002 s. 43, Ir. 699 s. 47, Ir. 196 s. 49, Ir. 177 s. 104, Ir. 852, 855, 856 s. 105, Ir. 855, 856 24 & 25 v., c. 5, ss. 18, 19 349 c. ' 9 955 c. 10 1098, 1318 s. 14 10 s. 17 471 s. 18 504 s. 21 109H c. 11 9 c. 62 95 C 66, s. 1 1182 c. 94, s. 1 1459 c. 95 105, 272, 694 c. 96, ss. 5, 6 317 s. 10 283 s. 13 348 ss. 14,35,65,66 351 ss. 24, 26 277 s. 28 1245 s. 29 288, 1245 ss. 30, 31 288 ss. 32, 74 279 ss. 40, 43, 56, 61 67 270 s. 41 272, 1460 ss. 44, 46 66 s. 58 331, 349 s. 60 270, 279 s. 71 280, 316 s. 72 1460 ss. 75—86 1245 s. 86 1445 s. 87 1466 s. 88 191, 287, 1457, 1459 s. 91 1458 s. 92 317 s. 94 269 s. 109 1461 s. 110 1050, 1324 s. 112 1324, Ermla s. 113 94, 302, 717 s. 116 331, 1385 s. 121 1064 C. 97, ss. 20, 21 279, 348 s. 51 279 s. 60 287 24 25 PAGE &25 v., c. 97, s. 67 1461 s. 68 1050, 1324 s. 70 1324, Errata s. 71 94, 302, 717 s. 77 1064 c. 98, ss. 9, 10, 11, 14, 16, 17, 18, 19 349 ss. 27, 28, 29 15 s. 42 284 s. 43 284 s. 44 287 a 54 1064 c. 99, ss. 6, 7, 8 349 s. 12 1457 ss. 14, 19, 24, 25 349, 1460 s. 29 499 s. 33 94, 302, 717 s. 37 331, 1385 s. 42 1061, 1064 c. 100 105 s. 6 281 s. 25 272 ss. 42, 43 1386 c. 100, ss. 44, 45 1387, 1461 s. 52 127, 271 ss. 53, 54 1165 s. 57 190, 219 s. 60 137, 272 s. 77 1004 c. 101 272, 349 c. 104, ss. 10, 11 448 c. 114, s. 1 912 s. 3 913 c. 134, ss. 102, 189 1249 s. 203 1320 s. 204 10, 19 s. 211 1182 & 26 v., c. 17 955 c. 53, ss. 2, 68, 70, 71 1401 s. 9 150 s. 123 11 c. 59, s. 1, Ir. 690 s. 2, Ir. 147 c. 63, ss. 5—12 1390 ss. 25, 28 7 s. 26 7, 1362, 1373 s. 54 224, 226 c. 67, s. 22 1402 c. 68, s. 3 947 ss. 4, 5 1297, 1372, 1513 c. 86, s. 18 1125 c. 88, s. 11 1245 s. 18 101 ss. 19, 20 1006 c. 89 846, 847 ss. 11, 16 848 s. 18 386, 1393 (2855) CXVIU TABLE OF STATUTES CITED. PAGE 25 & 26 V. c. 89, s. 22 890 ss. 25, 29 1513 s. 31 1394 s. 32 1294 s. 37 1512 ss. 47, 55 848 s. 61 1372 ss. 62, 63 199 s. 64 945 s. 67 1360 1514 ss. 115,126,138 1091 s. 125 13, 19 s. 154 1514 s. 174 1294, 1359, 1371, 1393, 1394 192 1393 205 846 20 1120 1124 12, 1357, 1370 s. 50—52, Ir. 1290 c. 27, ss. 2, 3, Ir. 1291 s. 16, Ir. 100, 1357 c. 41, ss. 1, 2, 3, 4 206 c. 49, s. 2 10 ss. 30—33 957, 1404 s. s. c. 104 c. Ill s. 46 26 & 27 v., c. 11, s. 5, Ir 27 & 28 V. c. 56 c. 65, s. 24 s. 29 87, s. 4 88, ss. 3, 5, Ir. 90, Ir. 100, s. 1, Sc. s. 2, Sc. 113, s. 5 114, s. 33, Ir. s. 38, Ir. c. 118, s. 22 c. 119, s. 5 125 13 19 51 10 2 5 5 ss. 6, 8, 10 s. 24 s. 35 54, ss. 9, 50, Ir. 77, s. 7 c. c. c. c. 25, s c. 37, s c. 47, s, c. 48, s, c. 53, s 1375 1374 1386 1367 12 1371 690 147 1245 12 1123 891 1245 170, 620, 621, 1055 955 848 94 352 15, 1307 1414 257 1116 101 94 11 1356 ss. 8, 10 1357, 1366 s. 95 97, s. s. 1293, 1357 93, 1450 1368, 1509 1291, 1368 (•2>t56) 28 28 29 & 28 v., c. 99, s. 43, Ir. 1089 s. 48, Ir. 256 s. 49, Ir. 257 s. 57, Ir. 1323, 1336 c. 101, s. 12 1336, 1377 c. 113, s. 33 1414 c. 120, ss. 18, 30 1397 c. 121, ss. 20, 60 1397 & 29 v., c. 9, Sc. 1182 c. 18, s. 1 1219, 1235, 1236, 1239, 1564, 1585 s. 2 1224 s. 3 1219 s. 4 1235 s. 5 1236, 1239 s. 6 1203, 1229, 1384, 1564 s. 8 1584 c. 27, ss. 3, 5 1392 c. 50, Ir. 690 s. 7, It. 147 c. 60 690 s. 2 147 c. 63, s. 6 15 0. 72 901 c. 78 849, 1296 c. 86 203 c. 88, ss. 9, 16, 18, 20, 21, 32, Ir. 1402 s. 56, Ir. 11 s. 59, Ir. 1246 c. 104, ss. 18, 43 18 ss. 33, 34 1154 c. 112, s. 1 901 &29 v., c. 118,s. 2, Ir. 1419 c. 126, s. 50 94 & 30 v., c. 44, ss. 21, 23, Ir. 1413 c. 49, s. 20, Ir. 1376 s. 21, Ir. 12 c. 52, ss. 1, 2 1073 c. 57 955 c. 66, s. 7 1123 c. 84, s. 12, Ir. 958 ss. 15, 26, 29, Ir. 1298 ss. 28, 32, Ir. 1399 c. 97, s. 7, Ir. 1379 s. 12, Ir. 1513 c. 108, ss. 7, 8, 9, 12 1296 c. 109 4, 1309 s. 48 273 s. 54 100 s. 61 1099 s. 66 1099,1100. 1134 s. 92 11.55 c. 112 4.52 c. 117 s. 4 1388 s. 33 1375, 1377, 1388, 1419 TABLE OF STATUTES CITED. CXIX 29 & 30 V. PAGE , c. 118, ss. 7, 9, 46 1388 31 & 32 V , c. 59, s. 29, Ir. PAGE 1375, 1377, s. 24 1377 1388, 1415 s. 29 1375 c. 86, ss. 1, 2 851 s. 30 1388 c. Ill 12 30 & 31 V ., c. 35, s. 2 1075 c. 118, s. 8 . 91 s. 3 442, 1049, 1074 c. 119, ss. 39, 47 1361 s. 4 443, 1049, 1074 s. 126 1528 s. 5 1074 c. 121, s. 13 1398 s. 6 443 c. 125, ss. 2, 26 489 s. 7 445 s. 15 1124 C. 44, Ir. 1341 s. 31 1092 s. 81, Jr. 18 s. 32 1093 s. 99, Ir. 1341 s. 33 1388 s. 100, Ir. 1089 s. 34 1056 s. 101, Ir. 1260 s. 56 1124, 1246 s. 102, Ir 1341 32 & 33 V. , c. 24 1246 ss. 138, 139, Ir. 1090 c. 41. s. 18 165 , 381, 1366 ss. 154, 158, Ir. 235 c. 42, s. 21, Ir. 11 s. 159, Ir. 622, 704 c. 56, s. 47 91 c. 58, s. 172 101 s. 49 1123 ss. 175, 179—181 s. 57 199 1116 c. 57, ss. 4, 5 350 c. 59 162, 348 s. 6 94, 302, 717. c. 70, ss. 3, 5, Ir. 1270 1050, 1324, 1461 ss. 17, 19, Ir. 1266 c. 62, s. 11 279, 352. 774 s. 18, Ir. 12 s. 12 279, 352 ss. 19, 20, Ir. 1266,. s. 17 1064 1310 s. 18 1075 C. 101, s. 61 1379 s. 19 284 c. 102, s. 6 1511 s. 20 1466 c. 105, s. 4 1109 ss. 24, 25 950 c. 114, Ir. • 1318 ss. 26, 27, 28 956, s. 21, Ir. 10 1280 s. 41, Ir. 471, 1540 c. 67, s. 45 92, 1510 s. 50, Ir. 1192 s. 64 1371 ss. 52, 69, Ir. 1098 s. 65 199 s. 57, Ir. 18 ss. 67—69 1301 s. 66, Ir. 504 c. 68 1147 ss. 104, 105, Ir. 1096 s. 1 1146, 1148, 1149 c. 116, s. 1 1459 s. 2 828, 1149 c. 131, s. 37 847 s. 3 817, 1150 c. 134, s. 17 349 s. 4 1172, 1176 c. 142, s. 5 55 c. 70, s. 33 1400 s. 6 253 s. 57 1005 31 v., c. 4, s. 1 174 c. 71, s. 15 892 31 & 32 V. , c. 20, Ir. 490 s. 97 774 c. 25, ss. 6, 8, 36, Ir. 1388 \ s. 105 660 s. 18, Ir. 1377 c. 71, s. 107 1320 s. 23, Ir. 1375 s. 109 ]0 s. 24, Ir. 1388 s. 127 91 c. 37, s. 2 5, 20, 1305, 1418 c. 81, s. 5 1386 s. 3 1306 c. 92, Ir. 12. 1123 s. 4 14, 1306 s. 14, Ir. 1513 s. 5 20, 1306, 1418 c. 102, s. 13 1511 s. 6 1307 c. 115, ss. 6,8,11, 15 1379 c. 44 955 c. 117, s. 1 1398 c. 45, s. 24 1512 33 & 34 v.. c. 14, s. 12 ] 1305, 1372. s. 61 1330 1391 c. 59, ss. 4, 5, Ir 1388; (2857) cxx TABLE OF STATUTES CITED. PAGE PAGE 33 & 34 v., c. 23, ss. 1, 31 820 34 & 35 v., c. 112, s. 18 1384 ss. 10, 18 867 s. 19 326, 331 c. 29, ss. 4, 8, 9 940 c. 113 s. 23, 37 1296 c. 35 981 s. 25 1414 . ss. 2, 5, 7 177 c. 116 1272 c. 46, ss. 31, 41, Ir. 26 35 & 36 V. c. 24, ss. 1, 6 1393 s. 58, Ir. 168, 701, c. 33 1300, 1359, 1371, 942 1511 c. 49, s. 1 1176 c. 38, s. 11 353, Errata c. 52, s. 5 1420 c. 46, s. 1 1109 ss. 14, 15 1328 c. 48, ss. 2, 4, Ii . 141, 1506 s. 24 1116 s. 3, Ir. 148, 1419, c. 60, s. 2 390, 723 1506 c. 75, s. 30 1514 c. 57, ss. 11, 12, Ir. 279, 352 s. 64 1388 s. 17, Ir. 1064 s. 81 199 s. 18, Ir. 1075 s. 83 1308, 1388 s. 19, Ir. 284 s. 87 1294 ss. 23, 24, Ir. 950 c. 79, s. 21 1308 C. 58, s. 6, Ir. 11, 19, c. 90, s. 9 350 1104 c. 91 956 ss. 52, 53, Ir. 107 s. 7 1410 ss. 57, 58, 116, Ir. c. 93, s. 12 1442 1492 c. 97 850, 1571 ss. 73, 74, Ir. 1089 ss. 2, 18, 19 1500, ss. 91, 121 , Ir. 866 1501 s. 97, 98, Ir. 865 s. 16 370 s. 124, Ir. 26 s. 17 370 c. 65, s. 4 818, 827 s. 52 92, 294 c. 69, s. 2, Ir. 1413 s. 93 393, 640 s. 4, Ir. 11, 946, c. 98, ss. 18, 22 349 1414 c. 110,s. 11, Ir. 10 s. 5, Ir. 1122, 1413 s. 24, Ir. 469 c. 73, s. 4 1302 34 & 35 v., c. 22, s. 25, Ir. 18 c. 76, s. 59 1414 c. 25, s. 5, 1419 s. 61 1050 c. 31, s. 13 1396 s. 63 101 353, 1155, c. 41, s. 20 203 Errata s. 38 353 s. 70 64 c. 43, ss. 27, 46, 50 1396 s. 71 199 s. 69 199 C. 77, s. 30 1414 c 49, s. 6, Ir. 1096 s. 32 1050 s. 8, Ir. 829 s. 34. 101 I, 353, 1 155 s. 16, Ir. 17, 1334 Errata s. 17, Ir. 18 s. 39 64 c. 65, ss. 12, 18, Ir. 1300 s. 40 199 s. 38, Ir. 501 c. 93, s. 8 136 c. 70 1301 s. 23 352 s. 2 1122, 1500 s. 24 941, 946 s. 5 1] , 946, 1308 s. 25 148 c. 7S, S.5. 4. 7, 11 , 15 11 23 s. 31 352 s. 17 1412 c. 94, s. 51 353, 1156. c. 83, s. 1 1095 Errata c. 96, s. 20 353 s. 58 1372 c. 97 894 s. 70 199 s. 1 939 36 v., c. 9 s. 5 818, 827 c. 105, s. 15 353, Errata 36 & 37 V. , c. 33, s. 3 1516 c. 112, ss. 9, 20 331, 1385 c. 36, s. 5 1366 s. 15 1166 s. 6 1309 s. 17 353 (2.« 58) c. 48, s. 4 12 TABLE OF STATUTES CITED. CXXl 36 & 37 v., c. 48, ss. 21, 25 PAGE 1123 38 & 39 v., PAGE c. 55 352, 1377, 1379, 1516 s. 30 1361 s. 7 11 s. 35 199 ss. 44, 80, 90, 113, c. 60, s. 4 1329 141, 157, 164, s. 5 1116 167, 169, 172, c. 66 14 182—188, 314, s. 16 513, 1078 326 1415 s. 24 4, 7 s. 59 203 s. 25 4, 176, 194, 849, | s. 60 353 865, 1573 s. 76 1379 s. 34 31 ss. 130, 135, 297, 1308 ss. 56, 57, 1108, 1531 s. 174 848 s. 61 10 ss. 219, 237 1294 s. 67 55 s. 223 1366 s. 87 2.5, 1400 s. 252 101, 353, s. 91 55 Errata c. 71, s. 45 1414 s. 264 04 c. 77, s. 22 1374 s. 267 199 s. 36 353, Errata s. 280 11 c. 85, s. 7 940 c. 57, s. 27, Ir. 1398 s. 16 224 c. 59, Ir. 1270 s. 17 225, 1453 ss. 9, 10, Ir. 1310 c. 86, s. 24 353 c. 60, s. 10 1375 c. 89, s. 14 26 s. 11 1395 37 & 38 v., c. 35 1139 s. 13 1396 c. 36 1466, Errata s. 14 1297 c. 42, s. 20 1375, 1396 s. 15 128, 1382 s. 42 865 s. 16 865, 867 c. 50, ss. 1, 2, 5 715, 1442 s. 22 1110, 1544 57 96, 658 s. 33 199, 3.53, s. 7 659, 935, 946 Errata ss. 8, 9 935, 947 s. 39 1375, 1382 s. 12 96, 151, 658 c. 63, s. 21 1156, 1400 c. 62 128, 654 c. 66 932, 1139 s. 2 932 c. 70, s. 14 1401 c. 64, ss. 1, 2 1142 c.77,lSched.,Ord.XXXI. c. 67, s. 8 1413 471 c. 69, ss. 35, 36, Ir. 1372 s. 14 1400 c. 78, s. 1 97 s. 18 513 s. 2 153 s. 22 30, 1592 C.81, ss. 5, 10 1316 c. 83, ss. 5, 6, 7, 22 849 C.84, s. 2 12 s. 23 1512 C.85, s. 9 1098 s. 24 1296, 1512 C.87, s. 1 1123 c. 86, ss. 4, 5, 6, 11 11.56 C.88, s. 32 1290, 1368 c. 87, .ss. 5,10,16,22,80, 1402 s. 38 ■ 1508 s. 18 150 s. 46' 99 s. 104 1297 s. 54 1290 ss. 107, 120 11 c. 94, ss. 13, 34 96 ss. 109, 110 1110 c. 96 1145, 1280, s. Ill 26 1466 c. 89, s. 47 199 38 & 39 v., c. 14, Ir. 1419 c. 90, s. 10 1007 c. 17, ss. 34, 38 84 1414 c. 94, ss. 3. 4 127 s. 60 1377 39 & 40 V. , c. 36, s. 10 945 s. 85 199 ss. 36, 37 1122 c. 22, s. 8 197 .ss. 177, 180 137 c. 25, ss. 4, 7, 8 9 350 ss. 178, 191 350 c. 50, s. 2 1106 s. 227 1121 s. 3 1350 s. 257 99 (28 59) cxxu TABLE OF STATUTES CITED. PAGE PAGE 39*S:40 V.,c. 36, s. 259 350, 1154 41 V. c. 16 , s. 91 101, 353, Errata s. 261 188 s. 92 352, 1324, 1400 s. 263 1325 41 & 42 v., c. 12, s. 1 351 s. 272 94 c. 26, s. 13 1294, 1300 c. 37, Ir. Errata s. 36 1108 39 & 40 v., c. 45, s. 7. 1396 c. 31, ss. 4, 5 956 s. 12 865 s. 10 950, 1406 c. 48 1380 s. 11 956 c. 61, s. 34 828 s. 12 1280 c. 63, Ir. 49 s. 16 1315 c. 80, s. 4 351, 1155 ,41 & 42 v., c. 33, s. 5 192 s. 5 1007 s. 29 1398 40 & 41 v., c. 7. s. 13 1134 s. 39 199 c. 8, s. 18 1134 c. 38 1010 c. 14, s. 1 1156 c. 49 164 c. 18, s. 48 168 ss. 37, 41 1391 c. 21, s. 6 12 s. 56 353. Errata s. 31 51, 1424 c. 52, s. 13, Ir. 11 c. 25 1298 ss, 41, 54, 100, 103, s. 16 1399 105, 129, Ir. 1416 s. 19 1362 s. 69, Ir. 203 s. 20 1363 s. 70, Ir. 353 c. 26, s. 6 1371, 1394 ss. 91, IOC ,Ir. 1413, c. 39 147 1416 c. 41 1304 s. 201, subs. 1, ss. 3, 5 26, 1305 Ir. 848 s. 4 10 s. 223, Ir. 1416 c. 48, ss. 4, 9 12 s. 250, Ir. 101, 353 c. 49, s. 4, Ir. 12 s. 263, Ir. 94 s. 11, Ir. 1123 s. 265, Ir. 1308 s. 43, Ir. 51, 1424 s. 267. Ir. 199 s. 57, Ir. 1419 c. 67 1113, 1114 c. 56, s. 3, Ir. 1089 c. 74, s. 28 1513 s. 31, Ir. 1511 s. 44 1377 s. 32, Ir. 1371,1511 s. 55 94, 717 c. 57, s. 7, Ir. 1101 s. 57 199 s. 21, Ir. 1078 ss. 61, 62 352, 1005 s. 27, subs. 4. Ir. 4 s. 66 353, Errata subs. 6, Ir. 4 c. 76, s. 12 199, 945 s. 28, subs.3,4,5. 42 V. c. 8 1358, 1370 6, Ir. 176, c. 9 199 194, 849, c. 1] L, ss. 2, 3, 4, 5, 6, 8,9, 865 10 1380 subs. 11, Ir. 4 s. 7 1302 • s. 34, Ir. 1096 s. 11 1381 s. 38, Ir. 1101 42 & 43 V. c. 34, s. 4 352 s. 78, Ir. 1400 c. 49, ss. 10—14 1386 c. 59 1393 -s. 10, subs. 5 127 ss. 1, 18 1287 s. 24, subs. 2 50 ss. 4, 6 1565 s. 27, subs. 4 1386 s. 17 1511 s. 28 1073 s. 22 890 s. 29 26 c. 63, s. 6 1396 ss. 36, 55 1119 c. 77, Ir. 471 s. 39 353, Errata 41 v., c. 8, s. 20 1416 s. 41 1350 c. 12, s. 3 1155 C. 50, s. 4, Ir. 956 c. 15, s. 19 352 s. 8, Ir. 172, 956 c. 16, ss. 27—30 1400 s. 11, Ir. 956 s. 79 199 60) s. 16, Ir. 1315 TABLE OF STATUTES CITED. CXXIU PAGE 42 & 43 V. c. 59 235, 716 44 s. 3 1431 c. 72, s. 2 1213 c. 78 1268, s. 5 955, 956 1079, ss. 5—8 1404 957, 1081 1280 43 & 44 v., c. 9, 5.1 22 c. 13, s. 36 99 c. 19 1365 c. 42, ss. 1,2, 3, 8, 9, 10 s. 4 s. 7 1007 93 199 c. 45, s. 2 127 43 & 44 V. c. 47, ss. 1, 3 1001 44 v., c. 12, ss, 38, 39 Errata s. 44 , subs. 1 370 ss. 26—43 737 44 & 45 V. c. 20, ss. 6, 7 1308 c. 24, s. 4, subs. 1 s. 4, subs. 3 1350 1060 c. 35, s. 5, Ir. s. 9, Ir. 1103 1274 c. 37, s. 25 s. 26 137 200 c. 41, ss. 3, 7 s. 30 * s. 67 1000 866 199 c. 44, s. 8 939 c. 47, s. 8, Sc. 218 45 c. 49, s. 42, Ir. 11 s. 48, subs. 2, Ir 1102 s. 50, subs. 2, Ir . 26 45 c. 58, ss. 28, 44 s. 29 s. 52, subs. 3 s. 52, subs. 4 s. 53, subs. 7 s. 56 s. 60. subs. 8 s. 63, subs. 7 s. 69 5 s. 70 s. 70, subs. 1, ; s. 80 s. 124 s. 125 s. 126, subs. 1 s. 126, subs. 2 s. 126, subs. 3 ss. 127, 128 s. 142, subs. 3 s. 156, subs. 1, s. 156, subs. 3 s. 157 s. 161 1099 1172 1172 1176 505 273 1089 1089 1309 5 i 5 1374 1276 1098 1060, 1099 1172 1099 69 1466 2 351 1155 1385 100 s. 162, subs. C> 1385 (28 61) PAGE & 45 v., c. 58, s. 163, subs. A. 1374 s. 163, subs. B. 1362 s. 163, subs. C. 1309 s. 163, subs. D. 1399 s. 163, subs. E. 1374 s. 163, subs. F. 200 s. 163, subs. G. 1374 s. 163, subs. H. 1374 s. 163, subs. I. 1362 s. 164 1386 s. 165 1324 s. 170 94 s. 170, subs. 1 94 s. 170, subs. 2 717 s. 172, subs. 1 1361 ss. 175, 176, 177, 178 5 s. 179, subs. 6 5 s. 179, subs. 11 1309 s. 190 5 c. 59 235, 471, 1523 c. 60, s. 6 1075 s. 13 1302 s. 15 1372 c. 62, s. 3, subs. 2 1399 s. 9 1399 c. 69, s. 15 1060 s. 27 1060 s. 29 433, 1330 v., c. 9, ss. 2, 4 1303, JSOS, 1306, 1307 c. 10, ss. 5, 10 1309 & 46 v., c. 25, ss. 16, 17, Ir. 1122 c. 38, s. 48 12 s. 65, subs. 9 12 c. 39, s. 2 1314 s. 7, subs. 7, 8 1314 c. 43, s. 8 172, 956, 1280, 1406 s. 10 950 s. 11 1280 s. 16 1280 c. 48, s. 27 1374, 1386 c. 49, s. 44 1374, 1386 s. 46 94 s. 46, subs. 3 717 c. 50, s. 22, subs. 5 , 1516 s. 24 1415. s. 78 101, 1075 s. 84 1063 s. 94, subs. 1 1092 s. 94, subs. 2-4 1093 s. 94, subs. 5-8 1246 s. 94, subs 9 1056 s. 219, subs. 1 101 s. 226 94, 303 s. 233 1293 CXXIV TABLE OF STATUTES CITED. PAGE 45 & 46 v., c. 57, s. 4 55 c. 59, s. 10 10 c. 61, s. 4 92 s. 10 993 s. 13 186, 187 s. 14 993 s. 14, subs. 4 21 s. 17 939 s. 19 1549 s. 20 1561 s. 30 168, 344 s. 30, subs. 2 346 s. 45, subs. 2 45 s. 49, subs. 12, 13 44 s. 54 729 s. 55 731 s. 60 92 s. 63, subs. 3 1556 ss. 69, 70 404 s. 74, subs. 2 45 s. 76 46 s. 86, subs. 2 45 s. 89 21 c. 72, s. 11 subs. 2 1381 c. 75 866 c. 75, ss. 1,2 675, 721, 866 ss. 12, 16, 25 210 1166 ss. 14, 15 c. 77, ss. 3, 4 46 V:, c. 7, s. 6, Ir. s. 8, Jr. s. 10, Ir. ss. 11, 16, Ir. 46 & 47 v., c. 22,s. 8 s, 17 s. 30 36, s. 2 s. 36 s. 43 40 41, ss. 3—23 s 22 715, 1442 198 956 956, 1280 950 1280 1512 1362 1330 1123 1420 199 1073 940 1547 c. 49 18, 235, 469, 486, 488, 489, 502, 1332 c. 51, C. 52, s. 4, s. 11 469 1445 101 1460 1063 11.55 1386 1246 200 1056, 1075, 1092, 1124, 1246 subs. 1 701 198 (2862) 5 s. 7 s. 51 s. 52 s. 53, subs. 1 s. 53, subs. 2 s. .53, subs. 3 s. .59 s. 62 s. 70 46 «& PAGE 47 V., c. 52, s. 13 1321,1491 s. 16, subs. 4 1276 s. 17, subs. 8 1249, 1277 s. 18, subs. 2 942 s. 18, subs. 9 91, 1321, 1491 s. 18, subs. 12, 866, 1321 s. 18, subs. 13 1321 s. 20, subs. 2 1321, 1491 s. 21, subs. 4 1492 s. 23 942 s, 24 1249 s. 27, subs. 1-3 1104 1182, 1249 s. 27, subs. 6 470 s. 28, subs. 2, 4 1321 s. 30 1492 s. 31 284 s. 32, subs. 2 1492 s. 35, subs. 3 1491 s. 43 186 s. 44, subs. 3 892 ss. 47, 48 107 s. 54 866 s. 55 864, 865 s. 56 865 s. 68, subs. 2 1179 s. 78, subs. 4 1277 ss. 79, 80 1277 s. 82, subs. 3 1492 s. 92 26 ss. 93, 100 254 s. 105, subs. 5 470, 1192 s. 113 660 s. 127 26 s. 132 1320, 1321, 1491 s. 133 1322 s. 134 1320 s.135 1322, 1333 s. 136 447 s. 137 10, 19 s. 138 1321, 1492 s. 140 1492 s. 142 198 s. 149, subs. 2 284, 1064, 1075 s. 163 279, 284, 352 ss. 164, 165, 166, 167 284, 1064 s. 168 866 C 57, ss. 23, 55, 76, 78, 114 1509 s. 29 303 s. 30 503 TABLE OF STATUTES CITED. cxxv PAGE PAGE 46&47 V.,c. 57, ss. 31, 96 1392 c. 43 Errata s. 49 1393 c. 53, s. 2 1155, Errata s. 84 12 c. 54, ss. 7, 31, 32 1402 s. 87 849 . ss. 20. 21 1403 s. 88 1298 ss. 22, 44, 45 1407, ss. 89, 100 1371 1408 s. 97 199 s. 51 Errata s. 113 Errata c. 61, s. 16 Errata c. 61, s. 28 199 c. 70, s. 30 1155, Errata ss. 33, 54 49 s. 38 Errata 47&48 v., c. 14,s. 1 1166 c. 76, s. 15 1308 c. 30, s. 3 1304 (2863) RULES AND FORMS OF SUPREME COURT, 1883, CITED. ORD. B. PAGE ORD. VIII. 1, 2, 3 . . 1347 XXXI. X. 1 . . 1349 XII. 25 . . 26 . . . . 684 . . 684 XVI. 1 . . 2 . . 4 . . 9 . . 236 . . 236 . . 236 422 11 . . . . 236 12 . . 236, 237 XVIII. 2 123, 475 XIX. 2 4 ". *. 6 . . 12 . . 290, 422 290, 645 . . 1538 . . 299 13 . . 291, 297 712, 715 XXXII. 14 . . . . 291 15 . . . . 291 16 . . . . 292 17 . . . . 292 18 . . 290, 292,295, 346 19 . . . . 295 20 . . . . 297 21 . . . . 1519 XXXIII. 25 . . 131, 344 27 . . . . 237 XXI. 5 . . 19 . . 20 . . . . 297 . . 299 . . 1444 XXXVI. 21 . . 292, 356, 361 XXII. 1 716, 717 2, 4, 5, 6, ' 7 . . . . 716 XXIII. 6 . . 292, 361 XXV. 1,2 . 114, 297 2, 3, 4, 5 714, 715 XXVI. 1 . . . 1470 XXVII. 2 106, 358 XXXVII 13 . . 290 292 712, 715 XXVIII. 1—13. 238- -240, 295 XXXI. .. . 1288 1 472 479, 485 • 2 . . . 473 3 . . . 475 4 . . . 472 5 . 473, 15.36 6 . 476, 1247 7 . . . 476 8, 9, 10. 11 . . 478 (28 64) R. PAGE 12 1531 13 . . 1520, 1532, 1534, 1536 14 . . 1523, 1531, 1532 15 ... 485, 1519, 1521 17 1520, 1521 18 1521, 1538 19 1282 20 1521, 1538 21 1539 22 1521, 1539 23 .... 1521, 1.539 24 648 25 475, 1-532 26 475, 1532 1 635 2 635, 641 3 635 4, 5 637 6 639, 713 7 639 8 408, 413 9 418 2 622 3 623, 704 5 1195 2—10 20—32 11, 12 .... . 30, 1470 30 1347 36 1224 37 325, 338 38 1227 48 504 49 1108 50 1531 57 .359, 1125 1 1186, 1187, 1567, 1571 2 1188 4 . . . 5.53, 1238, 1313 5 .461.467,1110,1341, 1342, 1.567, 1571 6 a Errata 7, 8, 9 1110 55—25 . . 452—461, 467 12, 16 490, 1341 13, 19 . . 1089, 1178, 1190 17 1110 18 .... 428, 431, 467 TABLE OF RULES AND FORMS. CXXVll ORD. R. PAGE XXXVII. 20 Errata 24 1191 25 428 26, 27 1051 28 1090 29, 30, 31, 34 . . . 1052 32 1054 33 1055 35 489 36. 37, 38 490 39 461, 462 40 461 41, 42, 44. 46, 49 . . 462 45, 47 .... 462, Errata XXXVIII. 1 1187 3, 8, 11, 12 ... . 1189 6 17, 1190 4, 5, 13 1190 15, 16, 17 . . 1191, 1313 27 361 28, 29 ... . 1188, 1222 6 ■ . 1593 8 371 1 1347 6 1470 20, 21, 24 1347 2 1082. 1541 7 1445 3—6 502, 503 7, 8 28 16, 17 . 1090, 1178, 1190 1 1592 4 242 7 1594 3 1269, 1365 1—6 10, 1314 1 . . .10, 955, 956, 957, 1081, 1269, 1277, 1280, 1315, 1365, 1404, 1405, 1410 5 1178, 1190 6 10 7 10,1314 9 1410 17, 18, 23, 24 . 1278, 1279 28 1310 29 1056 LXIV. 1 21 11 411, 1348 12 1348 LXV. 1, 12 55 XXXIX. XLI. XLII. XLIV. XLV. L. LI. LV. LVII. LIX. LX. LXI. ORD. R. PAGE LXV. 27, par. 9 1057 27, par. 27 ... . 1522 27, par. 20 ... . 422 27, par. 25, . . 1090, 1178 27, par. 53—54 . . 1313 LXVI. 1 408 LXVII. 1—9 1348 3 198 LXVIII 1288, 1523 1 33, 236, 254 2 236, 254 LXXI. 1 55 APPENDIX B. FORMS. 6 472 7 478 8 1532 9 1520 10 1.520 11 636 12 638 13 638 14 408 APPENDIX G. 21 1051 APPENDIX J. 1 1051 2 1084 3—7 1051 13 455, 465, 467 14 457, 469 APPENDIX K. 35 4.52, 469 36 453 37 453, 468 APPENDIX L. 1090 RULES OF SUPREME COURT, OCT., 1884, CITED. RE. 6, 7, 8 Errata R. 15, 1594 (2865) TABLE OF COUNTY COURT RULES AND FORMS CITED. YEAR. 18-; ORDERS. VIII. XL XIII. XIV. RULES. PAGE 9 1107 26 . . . 1107 504, Errata \ 1 . . . 1541 2 . . . 1542 3 . . . 1,543 4 . . . 1.543 5 . . . 1544 6 . . . 486 7 . . . 487 8 . . . 488 9 . . . 643 1 . . . 1106 2 . . . 1106 3 . . . 1191 4 . . . 1107 5 . . . 1591 6 . . . 1191 7 . . 471, 488 8 . . . 47] 9 . . . 471 1875. 1883 1875 1876 ORDERS. XIV. XVI. XVII. 10 17 10 11 20 21 54 55 56 57 285 286 287 288 289 255, PAGE . 471 . 14.55 Errata . 1591 1106 1106 1541 1.542 1542 487 487 1.543 1543 643 1106 (2866) A PRACTICAL TREATISE LAW OF EVIDENCE. PART I. NATURE AND PRINCIPLES OF EVIDENCE. CHAPTER I. PRELIMINARY OBSERVATIONS. § 1.^ The word Evidence, considered in relation to Law, s j includes all the legal means, exclusive of mere argument, which tend to prove or disprove any matter of fact, the truth of which is submitted to judicial investigation. This term and the word proof are often used as synonyms ; but the latter is applied by accurate logicians, rather to the effect of evidence, than to evidence itself.^ None but mathematical truth is susceptible of that high degree of evidence called demonstration, which excludes all pos- sibility of error. In the investigation of matters of fact such evidence cannot be obtained ; and the most that can be said is, that there is no reasonable doubt concerning them.^ The true question, therefore, in trials of fact is not, whether it is possible ' Gr. Ev. I 1 , in great part. 2 See Wills Cir. Ev. 2 ; Whately's Log. B. ii. c. iii. §1 ; N. York Civ. Code, § 1660. ^ See Gamb. Guide, 121. Even of mathematical truths this writer justly remarks, that, though capable of demonstration, they are admitted by most men solely on the moral evidence of general notoriety. Id. 196. See N. York Civ. Code, I 1662. (2867) 2 . • PRELIMINARY OBSERVATIONS. [pART I. that the testimony may be false, but whether there is sufficient probability of its truth ; that is, whether the facts are proved by competent and satisfactory evidence. § 2.' By competent evidence is meant that which the law § 2 requires, as the fit and appropriate proof in the particular case, such as the production of a writing, where its contents are the subject of inquiry. By satisfactory evidence, which is sometimes called sufficient evidence, is intended that amount of proof which ordinarily satisfies an unprejudiced mind beyond reasonable doubt. The circumstances which will amount to this degree of proof can never be previously defined ; the only legal test of which they are susceptible is their sufficiency to satisfy the mind and conscience of an ordinary man ; and so to convince him, that he would ven- ture to act upon that conviction in matters of important personal interest.^ Questions respecting the competency or admissibility of evidence are entirely distinct from those which respect its suffi- ciency or efPect ; the former being exclusively within the province of the court ; the latter belonging exclusively to the jury.^ § 3.* This branch of the law may be considered under three g 3 general heads, namely, First, The Nature and Principles of Evidence ; — Secondly, The Object of Evidence, and the Rules which govern its production ; — And, Thirdly, The Means of Proof, or the Instruments by which facts are established. This Order will be followed in the present Treatise ; but before proceeding further, it will be convenient, first, to consider what matters the courts will of themselves notice without proof, and next, to ofPer a few observations respecting the functions of the judge, as distinguished from those of the jury. 1 Gr. Ev. § 2, almost verbatim. "" 1 St. Ev. 578. ' 1 Ph. Ev. 2 ; Carpenters' Co. v. Hayward, 1 Doug. 375, per Buller, J. * Gr. Ev. § 3, in great part. (2868) CHAP II.] MATTERS JUDICIALLY NOTICED. CHAPTER II. MATTERS JUDICIALLY NOTICED, WITHOUT PROOF. ^ § 4." All civilised nations, being alike members of the great g 4 family of sovereignties, may well be supposed to recognise each other's existence, and general public and external relations. Every sovereign therefore recognises, and, of course, the public tribunals and functionaries of every nation notice, the existence and titles of all the other sovereign pov^ers in the civilised world.* If, how- ever, upon a civil war in any country, one part of tbe natioTi should separate from the other, and establish for itself an inde- pendent government, the newly- formed nation cannot be recognised as such by the judicial tribunals of other nations, until it has been acknowledged by the sovereign power under which those tribunals are constituted.* Still the judges are bound, ex officio, to know whether or not the government has recognised such nation as an independent state. ^ 1 See N. York Civ. Code, U 1^05, 1T06. ^ Gr. Bv. § 4, in great part. ^ United States of America v. Wagner, 2 Tjaw Rep. Ch. Ap. 585, per Ld. Chelmsford, Ch.; 36 L. J., Ch. 628, S. C. From Yrisarri v. Clement, 11 Moore, 314, 315; 2 C. & P. 225, S. C, it seems that the existence of States •unacknowledged by the government must be proved by evidence, showing that they are associations formed for mutual defence, supporting their own independence, making laws, and having courts of justice. The two Reports somewhat differ, but the latter lays down the soundest law. This case is also reported in 3 Bing. 432. * City of Berne v. Bk. of Eng., 9 Ves. 347. ^ Taylor v. Barclay, 2 Sim. 213. In that case it was falsely alleged in the bill, with the view of preventing a demurrer, that Guatemala, a revolted colony of Spain, had been recognised by Great Britain as an independent state; but the V.-Ch. took judicial notice that the allegation was false. See> however, Dolder v. Bk. of Eng., 10 Ves. 354, where Ld. Eldon observed, "I cannot affect to be ignorant of the fact, that the revolutions in Switzerland have not been recognised by the government of this country; but as a judge, I cannot take notice of that." It may well be doubted whether this last case is law. (2869) 4 LAWS JUDICIALLY NOTICED. [pART I, § 5. In like manBer the judges will recognise, without proof, g 5 the common ^ and statute law," and all legal claims, demands, estates, titles, rights, duties, obligations, and liabilities existing by the common law, or by any custom, or created by any statute;' the rules of equity, and all equitable estates, titles, rights, duties, and liabilities; * the cardinal doctrine that, whenever the rules of equity and of the common law differ, those of equity must prevail;^ the law of nations; the law and custom of parliament, and the privileges and course of proceedings of each branch of the legisla- ture;® the prerogatives of the erown,^ and the privileges of the royal palaces;' the maritime law;' the ecclesiastical law;'" the articles of war, whether in the naval," the marine, or the land ^ Hein. ad Pand., L. xxii. t. iii. § 119. ,^ R. V. Sutton, 4 M. & S. 542; 13 & 14 V., c. 21, § 7. As to private Acts of Pari., see 8 & 9 V., c. 113, | 3, cited post, § 7. 3 36 c& 37 v., c. 66, g 24, subs. 6; 40 & 41 V., c. 57, ? 27, subs. G, Ir. * 36 »& 37 v., c. 66, § 24, subs. 4, enacts, that the High Court of Justice and the Court of Appeal "respectively, and every judge thereof, shall recognise and take notice of all equitable estates, titles, and rights, and all equitable duties and liabilities appearing incidentally in the course of any cause or matter, in the same manner in v^hich the Court of Chancery would have recognised and taken notice of the same in any suit or proceeding duly in- stituted therein before the passing of this Act." See, also, 40 & 41 V., c 57, ^ 27, subs. 4, Ir. ^ 36 & 37 v., c. 66, § 25, subs. 11, enacts, that generally in all matters, "in which there is any conflict or variance between the Rules of Equity and the Rules of the Common Law with reference to the same matter, the Rules of Equity shall prevail." See Bustros v. White, 45 L. J., Q. B. 642, per Ct. of A.pp.; L. R., 1 Q. B. D. 423; S. C. See, also, 40 & 41 V., c. 57, ^ 28, subs. 11, Ir. « Lake v. King, 1 Wms. Saund. 131 a; Stockdale r. Hansard, 7 C. & P. 731; 9 A. & E. 1, and 2 P. & D. 1, S. C; Wason v. Walter, 8 B. «fe S. 671; 38 L. J., Q. B. 34; 4 Law Rep., Q. B. 73, S. C; Cassidy v. Steuart, 2 M. & Gr. 437; Case of the Sheff. of Middlx., 11 A. & E. 273; Sims r. Marryat, 17 Q. B. 292. Bradlaugh v. Gosset, 53 L. J., Q. B. 209; L. R. 12; Q. B. D. 271, S. C. ^ R. V. EldertoD, 2 Ld. Ray. 980. ^ Id. Reported, also, in 3 Salk. 91, 284; 6 Mod. 73; and Holt, 590; Winter v. MUes, 10 East, 578; 1 Camp. 475, S. C; Att.-Gen. v. Donaldson, 10 M. & W. 117. Hampton Court has ceased to have privileges as a royal palace, Att.-Gen. v. Dakin, 36 L. J., Ex. 167; and 2 Law Rep., Ex. 290; S. C, per Ex. Ch., 3 Law Rep., Ex. 288; and 37 L. J., Ex. 150; S. C. in Dom. Proc. 4 Law Rep., H. L. 338; and 39 L. J., Ex. 113; R. v. Ponsonby, 3 Q. B. 14. 9 Chandler v. Grieves, 2 H. Bl. 606 n. '« 1 Roll. Abr. 526; 6 Vin. Abr. 496; Sims v. Marryat, 17 Q. B. 292, per Ld. Campbell. " 29 & 30 V., c. 109. (2870) CHAP. II.] ARTICLES OF WAR JUDICIALLY NOTICED. 5 service,' including those made for the government of the forces in India,^ as well as the auxiliary forces, — that is, the militia, the yeomanry, and the volunteers,' — and also the reserve forces;* the rules of procedure made in pursuance of § 70 of the Army Act, 1881, " whether signified under the hand of a secretary of state" in relation to the army,^ or promulgated by the admiralty with respect to the marines f royal proclamations, such being acts of State;' the general practice of conveyancers f the custom of merchants,^ at least where such custom has been settled by judicial determinations,'" — such, for example, as the lieu which a vendor has ^ By ^ 69 of the Army Act, 1881, 44 & 45 V., c. 58, the Queen is em- powered ' 'to make articles of war for the better government of ofiScers and soldiers, and such articles shall be judicially taken notice of by all judges, and in all courts whatsoever;" and by § 179, subs. 1, and 20, of the same Act, power is reserved to the Ld. High Admiral, or any two of the commissioners for executing his office, to "make articles of war for the Eoyal Marines;" and such articles it is presumed — though the Act is silent on the subject — must also be judicially noticed. 2 Id., ? 180. ^ Id., ^§ 175— 178. * Id., ^ 190, subs. 9. ^ Id., i 70, subs. 1 & 3. « Id., I 179, subs. 6. ^ There exists some doubt upon this point. In Dupays i\ Shepherd 12 Mod. 216, Ld. Holt held that a proclamation in print was of as public a nature as a public act of parliament; but in Van Omeron v. Dowick, 2 Camp. 44, Ld. Ellenborough refused to take notice of a proclamation, on the ground that the Gazette containing it was not produced. The marginal note to this last case is calculated to mislead, as it asserts broadly, that "a judge at Nisi Prius will not take judicial notice of the king's proclamations." The case does not go this length, which is tantamount to saying that royal proclama- tions must be laid before the jury, but simply decides that, when a judge's memory is at fault, some document must be at hand to establish the fact which he is called upon to notice. Copies of royal proclamations, if piirporting to be printed by the Queen's printer, are rendered admissible by 8 & 9 V., c. 113, § 3; see post, § 7. They may be proved also in a variety of other ways. See 31 & 32 v., c. 37, § 2, cited post, ^ 1527. 8 Willoughby v. Willoughby, 1 T. E. 772, per Ld. Hardwicke: Doe v. Hilder, 2 B. & Al. 793; Doe v. Plowman, 2 B. & Ad. 577; Rowe o. Grenfel, Ry. & M. 398, per Ld. Tenterden. Ld. St. Leonards observes, in 3 V. & P. 28, "It matters very little what is the opinion of any individual convey- ancer; but the opinion of the conveyancers, as a class, is of the deepest importance to every individual of property in the state. Their setiled rule of practice has, accordingly, in several instances been adopted as the law of the land, not out of respect for them, but out of tenderness to the numerous pur- chasers who have bought estates under their advice." See also Howard v. Ducane, 1 Turn. & R. 86, per Ld.. Eldon. In Re Rosher 53 L. J., Ch. 722, 731, per Pearson, J. ^ Eriskine v. Murray, 2 Ld. Ray. 1542; Soper v. Dibble, 1 Ld. Ray. 175; Carter v. Downish, Carth. 83; Williaois v. Williams, id. 269. ^° Barnett v. Braudao, 6 M. & Gr. 630. lu that case, where judicial notice (2871) 6 CUSTOMS JUDICIALLY NOTICED. [PAKT I. on goods remaining in his possession for unpaid purchase-money,' or the general lien of an innkeeper on all the property belonging to his guest for the entire amount of his bill," or the general lien of bankers and factors on the secui-ities of their customers in their custody,^ or the practice of drawing bills of lading in sets, and of dealing with one of a set as representing the cargo independently of the rest,* or the usage among money dealers of treating scrip ■was taken by the Ct. of Ex. Ch. of the general lien of bankers on the securities of their customers in their custody, Ltl. Denman, in pronouncing the judg- ment of the court, said, "The law-merchant forms a branch of the law of England; and those customs, which have been universally and notoriously prevalent amongst merchants, and have been found by experience to be of public use, have been adopted as a part of it, upon a principle of convenience, and for the benefit of trade and commerce: and when so adopted, it is un- necessary to j;i'frtrf and prove them. They are binding on all without proof. Accordingly we find that usages affecting bills of exchange and bills of lading, are taken notice of judicially." — P. 665. His lordship then states, that, "in the case of aC factor, the right to a general lien" is, "in modern practice, treated as a matter of settled law, and no proof is ever required that such general lien exists, as a matter of fact;" and he adds, that "the lien of bankers, who are a species of factors in j)ecuniary transactions, stands on the same footing, " and, consequently, their right to such lien "need not be pleaded, but the courts are judicially bound to take notice of it." — P. 666. This lien extends to Exchequer bills. — Id. The judgment of the Ex. Ch. in the above case was afterwards reversed by the House of Lords, but that portion of it which relates to judicial notice of the general lien of bankers, was affirmed. Brandiw r. Barnett, 12 CI. & Fin. 787; 3 Com. B. 519, S. C. So, in Edie v. E. India Co., 2 Burr. 1226, which turned upon the question, whether a bill payable to A. or order, and indorsed personally to B., could be afterwards indorsed by B. to another, Mr. J. Wilmot observed, "The cu.stom of merchants is part of the law of England, and courts of law must take notice of it as such. There maj", indeed, be some questions depending upon customs amongst merchants, where, if there be a doubt al)out the custom, it maybe fit and proper to take the opinion of merchants thereupon; yet that is only where the law remains doubtful, and even then the custom must be proved by facts, not by opinion only; and it must also be subject to the control of law." — P. 1228. Ld. Mansfield, however, with Denison and Foster, JJ.'s. rejected the testimony of witnesses to prove the usage, solely on the ground that the question had already been solemnly settled by two adjudications in the courts of law. See pp. 1224 — 1226. See also Jones v. Peppercorn, 28 L. J., Ch. 158. 1 Imperial Bk. v. Lond. & St. Katherine's Dock Co., 46 L. J. Ch. 337, per Jessel. M. R. ; L. R. 5 Ch. D. 195, S. C. 2 :Mulliner v. Florence, L. R. 3 Q. B. D. 484, per Ct. of App. ; 47 L. J. Q. B. 700, S. C. ^ See cases cited, ante, n^", p. 5; also Lond. Chart. Bk. of Australia r. White, L. R. 4 App. Cas. 413, 422. * Sanders v. Maclean, 52 L. J. Q. B. 481, per Ct. of App. ; L. R. 11 Q. B. D. 327, S. C. (2872) CHAP. II.] CUSTOMS JUDICIALLY NOTICED. 7 certificates payable to bearer, whether of a foreign Government or of a company, as negotiable instruments transferable on delivery,* or the custom of hotel- keepers holding their furniture on hire ; ^ the customs which regulate the special descent of gavelkind and borough English lands,^ and it seems any other custom incident to such tenures ; * the custom or law of the road, viz., that horses and carriages should respectively keep on the near or left side ; ^ and the following rules with respect to navigation, — first, that ships and steamboats, on meeting " end on or nearly end on, in such a manner as to involve risk of collision," should port their helms, so as to pass on the port, or left, side of each other ; next, that steam- boats should keep out of the way of sailing ships ; and next, that every vessel overtaking another should keep out of its way." So, ^ Goodwin v. Robarts, L. R. 1 App. Cas. 476 ; 10 Law Rep., Ex. 76 and 337, S. C. ; Rumball v. Metrop. Bk., L. R., 2 Q. B. D. 194 ; 46 L. J., Q. B. 346, S. C. 2 Crawcour v. Salter, L. R. 18 Cli. D. 30, 53, 54, per Ct. of App. ; 51 L. J. Ch. 495. S. C. 3 1 Bl. Com. 76 ; Doe v. Seudamore, 2 Ld. Ray. 1025 ; Co. Lit. 1756 ; Crosby V. Hetlierington, 4 M. & Gr. 946, per Tindal, C.J. * In Rider v. Wood, 24 L. J. Ch. 737, Wood, V.-C, acting on the authority of Payne v. Barker, as reported in Bridg. 18, 23, 26, held that the court would judicially notice all the customs incident to borough English tenures. See also 36 & 37 v., c. 66, § 24, subs. 6. ^ This rule has been embodied by Professor Selwyn, in what an Etonian would call ' ' Longs and Shorts : ' ' — " Sed precor hoc posthac reminiscere, carpe sinistram : Dextram occurrenti linquere norma jubet." What is perhaps more to the lawyer's purpose, the rule has also been re- peatedly recognised by the judges at Nisi Prius, in actions for negligent driving and riding. See Leame v. Bray, 3 Ea.st, 593, as to carriages, and Turley v. Thomas, 8 C. & P. 104, per Coleridge, J., as to saddle horses. See also 14 & 15 V., c. 92, § 13, Ir. In France the law of the road is different, and horses and carriages there pass on the off side. ^ The regulations for preventing collisions at sea, which contain the rules concerning lights, fog sign.als, steering and sailing, are now embodied in a table issued by virtue of the Act 25 & 26 V., c. 63, | 25, "Ord. of 11 Aug. 1884, as to British ships and boats, and Ord. of 14 Aug. 1879, as to Foreign ships." See 32 L. J., Pr. Mat. & Adm. 1; 1 Lush. Adm. R., App. i. ; and 3 Law. Rep. Adm. & Ecc. 611, 612. I 26 of the same Act enacts how these regulations are to be published and proved, and § 28 enacts, that in case any damage to person or pro- perty arises from the non-observance by any ship of these regulations, such dam- age shall be deemed to have been caused by the wilful default of the person in charge of the deck of such ship, unless it be proved that circumstances made a (2873) 8 CUSTOMS JUDICIALLY NOTICED. [pART I. every judge will notice the particular customs which have been tried, determined, and recorded in his own court/ So, also, the customs of London, which have been certified by the recorder,^ such, for example, as the custom of foreign attachment^ — the custom that every shop is a market overt for goods of the same kind as are usually sold there* — the custom that married women may be sole traders'' — and the custom which defines the nature of a liveryman's office,'' — will be judicially noticed by the respective departure from the regulations necessary. See post, ^ 206 ; Gen. St. Nav. Co. V. Hedlej^, 3 Law Rep. P. C. 44 ; Dryden v. Allix, 1 Moo. P. C. N. S. 528 ; The Concordia, 1 Law Rei^., Adm. & Ecc. 93 ; The Spring, 1 Law Rep., Adm. & Ecc. 99. As to the law prior to these regulations, see Chadwick v. City of Dublin St. Packet Co., 6 E. & B. 771 ; Smith v. Voss, 2 H. «& N. 97 ; Zugasti V. Lamer, 12 Moo. P. C. R. 331 ; Maddox v. Fisher, 14 Moo. P. C. R. 103 ; Williams v. Gutch, id. 202 ; Tuft v. Warman, 2 Com. B., N. S. 740. See Morrison v. Gen. St. Navig. Co., 8 Ex. R. 733 ; Gen. St. Navig. Co. v. Morrison, 13 Com. B. 581 ; Gen. St. Navig. Co. v. Mann, 14 Com. B, 127 ; Lawson v. Carr, 10 Moo. P. C. R. 162 ; Churchward v. Palmer, 10 Moo. P. C. R. 472 ; La Plata, 1 Swab. Adm. R. 298 ; Morgan v. Sim, 11 Moo. P. C. R. 307. ' Dr. & St. 34 ; 1 Bl. Com. 76. 2 Crosby i'. Hetherington, 4 M. & Gr. 933, 946 ; Bruin v. Knott, 12 Sim. 452 — 456 ; Blacquiere ?;. Hawkins, 1 Doug. 380, per Ld. Mansfield. See Blunt V. Lack, 26 L. J. Ch. 148. But uncertified customs must be proved in West- minster Hall, though they will be judicially noticed in the City Cts. ; Stainton & wife V. Jones, 1 Doug. 380, n. 96, per Ld. Mansfield. So, also, the Q. B. Div. in Ireland will not judicially notice a custom of the Ld, May. & Sheft.'s Ct. in Dublin, unless certified by the recorder ; Simmonds v. Andrews, 1 Jebb & Sy. 531. '■'. Certified by Starkey in 22 Ed. 4. See 1 Roll. Abr. 554 K 5 ; Bruce v. Wait, 1 IVI. & Gr. 39 ; Crosby v. Hetherington, 4 M. & Gr. 933 ; Westoby v. Day, 2 E. & B. 605, * Certified by Sir E. Coke, 5 Rep. 83 6 ; S. C, rather more at length, as L'Evesque de Worcester's case, M. 360; S. C, Poph. 84. See Lyons v. De Pass, 11 A. & E. 326 ; and 9 C. & P, G8, S. C, where the custom was held to apply, though the premises w^ere described in evidence as a warehouse, and were not sufficiently open to the street for a person on the outside to see what passed within. See, also, Crane v. London Dock Co., 33 L. J. Q. B. 224 ; 5 B. & S. 313, S. C. ^ Lavie v. Phillips, 3 Burr. 1776. Other local customs, as that of carting whores in London, or that of foreign attachment in Bristol, Liverpool, and Chester, are noticed in the respective city courts, 1 Doug. 380, n. 96, and therefore need not be set out on the record. In such cases, if the judgment of the court below is brought before a court of error, such court will also judicially notice the existence of the custom. See Bruce v. Wait, 1 M. & Gr. 24, 41, n. a. * King V. Clerk, 1 Stalk. 349 ; cited by Parke, B., in Piper v. Chappell, 14 M. & W. 649, (2874) CHAP. II.] LAWS AND CUSTOMS OF FOREIGN STATES. 9 courts in which the certificates are recorded;' but no one court can take notice of a custom, which has merely been certified to another.^ Neither can judicial notice be taken of the usages prevalent among mining partnerships conducted on the cost- book principle, foi", without evidence, the judges cannot determine the meaning of the term "cost-book principle."^ Moreover, the courts will not take cognisance of the laws, usages, or customs of a foreign state; and so strictly is this rule enforced, that all foreign laws, the laws of the colonies,* and even the laws of Jersey,'^ Guernsey, or Scotland, must be proved as facts," unless steps have been taken, either under the '"British Law Ascertainment Act, 1859,"^ or under the " Foreign Law Ascertainment Act, 1861,"^ to obtain a legal opinion on the subject from a superior court of the country, whose laws are under dispute.^ As the laws of Ireland are substantially the same as those of England, except so far as they are varied by statute, it is apprehended that no proof respecting them would be required; and in accordance with this view a very able judge has suggested that the courts at Westminster would judicially recog- nise the fact, that an action must be commenced by process in Ireland. '« § 6. The courts will also judicially notice the following seals : — ^ g the Great Seal of the United Kingdom, and the Great Seals of ^ The custom, which formerly regulated the distribution of the personal estate of intestate freemen of the city of London, and other similar customs in York and other places, are now abrogated by 19 & 20 V., c. 94. 2 Piper V. Chappell, 14 M. & W. 649, 650, per Parke, B. 3 In re Bodmin United Mines Co., 23 Beav. 370. * Prowse V. The European & Amcr. St. Shipping Co., 13 Moo. P. C. R. 484; S. C, nom., The Peerless, 1 Lush. Adm. E. 103. ^ Brenan's case, 10 Q. B. 498, per Patteson, J. ^ Dalrymple v. Dalrymple, 2 Hagg. Cons. 54 ; Mostyn v. Fabrigas, 1 Cowp. 174, per Ld. Mansfield; Sussex Peer, case, 11 CI. & Fin. 114— ] 17; Male v. Roberts, 3 Esp. 163, per Ld. Eldon; R. v. Povey, 22 L. J., M. C. 19; Pearce & D. .32, S. C; Woodham v. Edwards, 5 A. & E. 771; 1 N. & P. 207, S. C; Wey V. Yally, 6 Mod. 194; Story, Conii. § 637, and cases cited in n. See also post, U 48, 1423—1425. ^ 22 & 23 v., c. 63. ' 24 & 25 V., c. 11. * See Lord v. Colvin, 1 Drew. & Sm. 24; Login v. Princess of Coorg. 30 Beav; 632. ^^ Reynolds v. Fenton, 3 Com. C. 194, per Maule, J., explaining Ferguson V. Mahon, 11 A. & E. 179; 3 P. & D. 143, S. C. (2875) 10 SEALS JUDICIALLY NOTICED. [PART I. England, Ireland, and Scotland respectively, ' the Queen's Privy- Seal and Privy Signet, whether in England, Ireland, or Scjtland;^ the Wafer Great Seal, and the Wafer Privy Seal, framed under the Crown Office Act, 1877;^ the seal, and the privy seal, of the duchy of Lancaster; the seal, and the privy seal, of the duchy of Corn- wall;* the seals of the old superior courts of justice; and of the Supreme Court, and its several Divisions; the old Chancery Com- mon Law seal,^ and the seal of the old Chancery Enrolment office;*^ the seals of the old High Court of Admiralty, whether for England or Ireland;' of the Prerogative Court of Canterbury;* and of the Court of the Vice- Warden of the Stannaries ;'^ the seals of all courts constituted by Act of Parliament, if seals are given to them by the Act,^° and, therefore, the seals of the Court for Divorce and Matrimonial causes in England;" of the Court for Matrimonial causes and matters in Ireland;'" of the Central Office of the Royal Courts of Justice, and of its several Departments;'^ of the principal Registry, and of the several district Registries of the Supreme Court of Judicature;'* of the principal Registry, and of the several district Registries of the old Court of Probate in England'^ and of the present Court of Probate in Ireland;"* of the old " and new Courts of Bankruptcy;'^ of the Insolvent Debtors' Court,'^ now 1 Lord Melville's case, 29 How St. Tr. 7U7. ^ Foggassa's case, 24 Edw. 3, 23, cited in Olive v. Guin, 2 Sid. 146; Laue's case, 2 Rep. 17 b. MO & 41 V., c. 41, § 4. * 26 & 27 v., c. 49, § 2. ^ ^2 & 13 V., c. 109, § 11. « 12 & 13 v., c. 109, g 17. ■^ Green v. Waller, 2 Ld. Ray. 893; 24 & 25 V., c. 10, § 14, now repealed by 44 &45 V.,.c. 59; 30 & 31 V., c. 114, ? 21, Ir. ® Kempton v. Cross, Rep. Tern. Hardw. 108. » 6 & 7 AV. 4, c. 106, I 19. '" Doe V. Edwards, 1 P. & D. 408; 9 A. & E. 554, S. C. " 20 & 21 v., c. 85, § 13. 12 33 & 34 V., c. 110, | 11, Ir. 13 Rules of Sup. Ct. 1883, Ord. LXI., rr. 1, 6, 7. " 36 & 37 v., c. 66, ? 61. " 20 & 21 V., c. 77, § 22. 18 20 & 21 v., c, 79, § 27, Ir. " See 24 & 25 V., c. 134, ? 204, and 32 & 33 V., c. 71, ? 109. 1^ 46 & 47 v., c. 52, ^ 137, enacts, that every court having jurisdiction in bankruptcy, shall have a seal, and " judicial notice shall be taken of the seal, and of the signature of the judge or registrar of any such court, in all legal proceedings." The Bankruptcy Rules of 1883 provide, by r. 12, that " all summonses, petitions, notices, orders, warrants, and other process issued by the court, shall be sealed." See also r. 14, as to sealing of "office copies." i» Doe V. Edwards, 1 P. & D. 408; 9 A. & E. 554, S. C. (2876) CHAP. II.] SEALS JUDICIALLY NOTICED. 11 abolished; of the Court of Bankruptcy and Insolvency in Ireland/ which, since the 6th of August, 1872, has been called " The Court of Banki'uptcy in Ireland;"' of the several United Diocesan Courts and Kegistries in Ireland;"^ of the Landed Estates Court, Ireland;* of the Record of Title Office of that Court ;^ and of the County Courts.® They will also judicially notice the seal of the corporation of Loadon,' and perhaps the seal of a notary -public, he being an officer recognized by the whole commercial world.^ Several other seals are rendered admissible in evidence without proof of their genuineness, by the express language of particular statutes; and among them may be noticed the seal of the Local Government Board, whether for England** or for Ireland;'" of the late Poor-law Board" of the late Local Boards of Health,'^ and of the new Urban Sanitary Authorities,'^ and Joint Sanitary Boards;" of the now abolished Commissioners for the Sale of Incumbered Estates in Ireland;'^ of the Land Registry Office in England,'® whether estab- lished under the Act of 1862 or under that of 1875; of the District Registry Offices created under the Act last referred to" of the Office for the Registration of Assurances of Lands in Ireland;'^ of the Irish Land Commission;" of the General Register Office in 1 20 & 21 v., c. 60, § 362 Ir. '^ 35 & 36 V., c. 58, § gTit. =* 27 &28 v., c. 54, ^ 9, 50, Ir., now repealed by 32 & 33 V., c. 42, ^ 21, Ir. * 21 & 22 v., c. 72, § 8, Jr. ^ 28 & 29 v., c. 88, § 56 Ir. « 9 & 10 V., c. 95, U 3, 57, 111. ^ Doe V. Mason, 1 Esp. 53, per Ld. Kenyon. » Anon., 12 Mod. 345; Bayl. Bills, 490; Hutcheon v. Mannington, 6 Ves. 823; Cole v. Sherard, 11 Ex. R. 482, and Furnell v. Stackpoole Milw., Ec. Ir. R. 485, 486. But see In re Earl's Trusts, 4 Kay & J. 300, where it was held that the seal of a notary public of a foreign country not under the Queen's dominion could not be judicially noticed. See, also, In re Davis's Trusts, 8 Law Rep. Eq. 98; Nye v. Macdonald, 39 L. J., P. C. 34; 3 Law Rep., P. C. 331, S. C. ; in which last case it was held that the execution of a deed in a colony could not be proved by a notary's certificate. " 34 & 35 v., c. 70, ? 5. i» 35 & 36 V., c. 69, | 4, Ir. " 10 & 11 v., c. 109, I 5; 1 & 2 v., c. 56, ^ 121, Ir.; 10 «& 11 V., c. 90, I 3, Ir. 12 11 & 12 v., c. 63, ? 35; 21 & 22 V., c. 98, g 4. '3 38 & 39 v., c. 55, | 7. " 38 & 39 v., c. 55, § 280; 41 & 42 V., c. 52, § 13, Ir. '^ 12 & 13 v., c. 77, ? 2, Ir. See 21 & 22 V., c. 72, § 23, Ir. i« 25 & 26 v., c. 53, ^ 123, enacts, that "a seal shall be prepared for the land registry office; and any instrument purporting to be sealed with such seal shall be admissible in evidence;" 38 & 39 V., c. 87, § 107. '' 38 & 39 v., c. 87, § 120. is 13 & 14 V., c. 72, ? 45, Ir. i''44&45 v., c. 49, n2, Ir. (2877) 12 SEALS JUDICIALLY NOTICED. [PART, I. England/ or Ireland;" of the Charity Commissioners for England and Wales ;'^ of the Railway Commissioners;* of the Commissioners of Her Majesty's Works and Public Buildings;^ of the Land Com- missioners for England, by which general title the old Inclosure Commissionei's, Copyhold Commissioners, and Tithe Commissioners are now designated;® of the respective Commissioners for the Uni- versities of Oxford and Cambridge;^ of the Prison Commissioners for England, and of the General Prisons Board for Ireland;^ of the special Commissioners for Irish Fisheries;'' of the Commissioners of Public "Works in Ireland, at least for the purposes of the Drainage Acts,'« and of the Settled Land Act, 1882;" of the Patent Office;'' of the Office of the Registrar of Designs for articles of- manufac- ture;'^ and of the Record Office, whether in England" or in Ire- land.'* In all proceedings, too, under the winding-up clauses of the Companies Act, 1862, the seal of any office of the Court of Chancery, or Bankruptcy, in England or in Ireland, of the Court of Session in Scotland, or of the Court of the Vice-Warden of the Stanneries, when appended to any document made, issued, or signed 1 6 & 7 W. 4, c. 86, I 38. See 3 & 4 V., c. 92, § 9. '^26&27 v., c. 11, ? 5, Ir. 3 16 & 17 v., c. 137, § 6. 18 & 19 V., c. 124, ? 4, enacts, that "every act of the board may be sufficiently authenticated by the seal of the Com- missioners, and the signature of the secretary, or, in his absence, of the chief clerk." § 5 enacts, that all "orders, certificates, schemes, and other documents, issued under the seal of the board shall be deemed and taken to be the originals, and copies thereof shall be entered in the books of the board, and all such entries may be sufficiently certified by the signature of the secre- tary, or, in his absence, of the chief clerk; every order, certificate, scheme, and other document, purporting to be sealed with the seal of the board, shall be received In evidence without further proof; and any writing purporting to be a copy extracted from the said books, and to be certified as aforesaid, shall be received in evidence in like manner." * 36 & 37 V., c. 48, ^ 4. Mo & 16 v., c. 28, § 1; 37 & 38 V., c. 84, § 2. « 45 & 46 v., c. 38, ^ 48. MO & 41 v., c. 48, U 4, 9. 8 40 & 41 v., c. 21, § 6, and c, 49, ? 4, Ir. 9 26 & 27 V, c. 114, § 33, Ir. ; continued by '31 & 32 V., c. Ill; and amended by 32 & 33 V., c. 92, Ir. 1" 26 & 27 v., c. 88, U 3, 5, Ir. ; 29 & 30 V., c. 49 ? 21, Ir. " 45 & 46 v., c. 38, U 48, 65, subs. 9. 12 46 & 47 v., c. 57, ? 84. 13 5 & 6 v., c. 100, § 16; and 6 & 7 v., c. 65, R6,^. "Both these Acts now repealed by 46 & 47 V., c. 57, § 113, &Sch. 3." " 1 & 2 v., c. 94, g 11. " 30 (i 31 v., c. 70, ? 18, Ir. (2878) CHAP. II.] DOCUMENTARY EVIDENCE ACT, OF 1S45. 13 under those clauses, or any official copy thereof, must be judicially noticed.^ § 7. The principle of admitting in evidence official documents g 7 without formal proof, was extended to a numerous class of cases by the Documentary Evidence Act, of 1 845.^ That statute, after reciting that "it is provided by many statutes that various certifi- cates, official and public documents, documents and proceedings of corporations and of joint-stock and other companies, and certi- fied copies of documents, by-laws, entries in registers and other books, shall be receivable in evidence of certain particulars in courts of justice, provided they be respectively authenticated in the manner prescribed by such statutes," — that "the beneficial effect of these provisions has been found by experience to be greatly diminished by the difficulty of proving that the said documents are genuine," — and that "it is expedient to facilitate the admission in evidence of such and the like documents :" enacts, that " whenever by any Act noiu 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, by-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 justice, or before any legal tribunal, or either House of Parliament, or any committee of either House, or in any judicial proceeding, 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 necessary, or of the signature, or of the official character of the person appearing to have signed the same, 1 25 & 26 v., c. 89, § 125. ^8 & 9 v., c. 113. The author of the present work naturally feels some satisfaction in referring to this statute, as he originally suggested to the Law Amend. Soc. the alterations embodied therein, and afterwards prepared the bill, which, under the protection of Ld. Brougham, obtained the sanction of the legislature. (2879) 14 DOCUMENTARY EVIDENCE ACT, OF 1845. [PART I. and withotiL and further proof thereof in every case in which the original record could have been received in evidence."* Sect. 2 enacts, that "all courts, judges, justices, masters in chancery, masters of courts, commissioners judicially acting, and other judicial officers, shall henceforth take judicial notice of the signature of any" judge of the Supreme Court of Judicature,'' "provided such signature be attached or appended to any decree, order, certificate, or other judicial or official document." Sect. 3 enacts, that " all copies of private and local and personal Acts of Parliament not public Acts, if purporting to be printed by the Queen's printers, and all copies of the journals of either House of Parliament, and of royal proclamations, purporting to be printed by the printers to the Crown, or by the printers to either House of Parliament, or by any or either of them, shall be admitted as evi- dence thereof by all courts, judges, justices, and others, without any proof being given that such copies were so printed."^ ' The words after the last comma were introduced into the Act while pass- ing through the House of Commons. They appear to have been copied from the Act of 1 & 2 v., c. 94, | 13 (cited post, § 1533, n.) by some Honourable Member, who did not know distinctly what he was about. 2 36 & 37 v., c. 66. ^ ^ 4 provides, that "if any person shall forge the seal, stamp, or signature of any certificate, official or public document, or document or proceeding of any corporation or joint-stock or other company, or of any certified copy of any document, by-law, entiy in any register or other book, or other proceeding as aforesaid, or shall tender in evidence any such 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, by-law, entry in any register or other book, or of any other proceeding, with a false or counterfeit seal, stamp, or signature thereto, knowing the same to be false or counterfeit, whether such seal, stamp, or signature be those of or relating to any corporation, or company already established, or to any corporation or company to be hereafter established, — or if any person shall forge the signature of any such judge as aforesaid to any order, decree, certificate, or other judicial or official document, or shall tender in evidence, any order, decree, certificate, or other judicial or official document with a false or counterfeit signature of any such judge as aforesaid thereto, knowing the same to be false or counterfeit, — or if any person shall print any copy of any private Act, or of the journals of either House of Parliament,* which copy shall falsely purport to have been printed by the * The words "or of any royal proclamation," were introduced into the original draft of the bill, and would seem to have been accidentally omitted. The omission, however, is remedied by 31 & 32 V., c. 37, I 4, cited, post, I 1527, in n. (2880) CHAP. II.J COLONIAL LAWS AND PROCLAMATIONS. 15 § 9. An Act, which was passed in the year 1865 to remove ^ 8a doubts as to the validity of colonial Imvs,^ has simplified the mode of proving such laws, by enacting iu § 6, that " the certificate of the clerk or other proper officer of a legislative body in any colony, to the effect that the document to which it is attached is a true copy of any colonial law assented to by the Governor of such colony, or of any bill reserved for the signification of Her Majesty's pleasure by the said Governor, shall be prima facie evidence that the document so certified is a true copy of such law or bill, and, as the case may be, that such law has been duly and properly passed and assented to, or that such bill has been duly and properly passed and presented to the Governor; and any proclamation purporting to be published by authority of the Governor in any newspaper in the colony to which such law or bill shall relate, and signifying Her Majesty's disallowance of any such colonial law, or Her Majesty's assent to any such reserved bill as aforesaid, shall be prima facie evidence of such disallowance or assent." § 10. Other facilties in the proof of foreign and colonial docu- g 9 ments had already been aflPorded in 1851 by Lord Brougham's Act to amend the Law of Evidence.^ The seventh section of this statute enacts, that " all proclamations, treaties, and other acts of printers to the Crown, or by the printers to eitlier House of Parliament, or by any or either of them, — or if any person shall tender in evidence any such copy, knowing that the same was not printed by the person or persons by whom it so purports to have been printed, — every such person shall be guilty of felony, and shall upon conviction be liable to " (penal servitude for a period not exceeding se ven years or less than five years, see 20 & 21 V., c. 3, ^ 2, as amended by 27 & 28 V., c. 47, | 2), "or to imprisonment for any term not more than three nor less than one year, with hard labour : Provided also, that whenever any such document as before mentioned shall have been re- ceived in evidence by virtue of this Act, the court, judge, commissioner, or other person officiating judicially who shall have admitted the same, shall, on the request of any party against whom the same is so received, be authorised, at its or at his own discretion, to direct that the same shall be impounded, and be kept in the custody of some officer of the court or other proper person, until further order touching the same shall be given, either by such court, or the coui't to which such master or other officer belonged, or by the persons or person who constituted such court, or by some one of the equity or common law judges of the superior courts at Westminster, on application being made for that purpose." § 5 enacts, that the Act shall not extend to Scotland. See 24 & 25 V., c. 98, ^ 27—29. 1 28 & 29 v., 0. 63. * 14 & 15 V., c. 99. (2881) 16 FOREIGN AND COLONIAL DOCUMENTS. [PABT I. state of any foreign state, or of any British colony, and all judg- ments, decrees, orders, and other judicial proceedings of any court of justice, in any foreign state or in any British colony, and all affidavits, pleadings, and other legal documents filed or deposited in any such court, may be proved in any court of justice, or before any person having by lavv^ or by consent of parties authority to hear, receive, and examine evidence, either by examined copies, or by copies authenticated as hereinafter mentioned : that is to say, if the document sought to be proved be a proclamation,^ treaty, or other act of state, the authenticated copy, to be admissible in evidence, must purport to be sealed with the seal of the foreign state or British colony to which the original document belongs; and if the document sought to be proved be a judgment, decree, order, or other judicial proceeding of any foreign or colonial court, or any affidavit, pleading, or other legal document filed or deposited in any such court, the authenticated copy, to be admissible in evidence, must purport either to be sealed with the seal of the foreign and colonial court to which the original document belongs, or in the event of such court having no seal, to be signed by the judge, or if there be more than one judge, by any one of the judges of the said court, and such judge shall attach to his signature a statement in wrriting on the said copy that the court whereof he is a judge has no seal; but if any of the aforesaid authenticated copies shall purport to be sealed or signed as hereinbefore respectively directed, the same shall respectively be admitted in evidence in every case in which the original document could have been received in evidence, without any proof of the seal where a seal is necessary, or of the signature, or of the truth of the statement attached thereto, where such signature and statement are necessary, or of the judicial character of the person appearing to have made such signature and statement." § 11. Moreover, the statute passed in 1855 to enable British | 9a dij)]omatic and consular agents to administer oaths and to perform notarial acts," much simplifies the proof of affidavits sworn " in ^ See 18 & 19 V., c. 119, ^ 97, as to proof of proclamations made by- governors of colonies under the Passengers' Act, 1855. * 18 & 19 v., c. 42. The provisions of this Act, somewhat enlarged, are (2882) CHAP, II.] FOREIGN AND COLONIAL DOCUMENTS. 17 foreign parts out of Her Majesty's dominions ;''^ for it enacts, in § 3, that " any document purporting to have affixed, impressed, or subscribed thereon or thereto the seal and signature of any British ambassador, envoy, minister, charge d'affaires, secretary of embassy or of legation, consul-general, consul, vice-consul, acting consul, pro-consul, or consular agent, in testimony of any oath, affidavit, affirmation, or " notarial " act having been administered, sworn, affirmed, had, or done by or before him, shall be admitted in evidence, without proof of any such seal and signature being the seal and signature of the person whose seal and signature the same purport to be, or of the official character of such person." ' § 12. Order XXXVIII. of the Eules of the Supreme Court, 1883, ^ lo contains an important clause on this subject; for, after providing, in Bule 6, that " all examinations, affidavits, declarations, affirmations, and attestations of honour in causes or matters depending in the High Court, and also acknowledgments required for the purpose of enrolling any deed in the Central Office, may be sworn and taken in Scotland, or Ireland, or the Channel Islands," or in any colony, island, plantation, or place tender the dominion of Her Majesty in foreign parts, before any judge, court, notary public, or person lawfully authorised to administer oaths ^ in such country, colony, island, plantation, or place respectively, or before any of Her Majesty's consuls or vice-consuls * in any foreign parts out of Her Majesty's dominions," — it goes on to provide, that "the judges made applicable to affidavits, &c., used in the Court of Probate, or in the- Court for Divorce, or in the Irish Court for Matrimonial Causes. See § 31 of 21 & 22 v., c. 95; | 20 of 21 & 22 V., c. 108; and ^ 16 of 34 & 35 V.,. c. 49, Jr. ' § 4 enacts, that persons swearing or affirming falsely under the Act shall be guilty of perjury, and | 5 enacts, that persons forging the .seal or signa- ture of any such diplomatic or consular agent, or knowingly tendering in evidence any document with a false seal or signature thereto, shall be guilty of felony. See post, U 1567, 1568, as to §? 1 & 2 of the Act. 2 Or the Isle of Man, see 16 & 17 V., c. 78, | 6. ' In Baillie v. Jackson, 3 De Gex, M. & G. 38, the Lds. Js. refused to take judicial notice of the .signature of the Eegistrar of Deeds in St. Vincent, which was appended to the certificate of a deed as registered in the proper office of the island, it being admitted that the Eegistrar had no authority to administer an oath. * If there be no consul or vice-consul accessible, the affidavit may be sworn before a notary public. Cooke v. Wilby, 53 L. J. Ch. 592, per Chitty, J. 2 LAW OF EVID.— V. I. (2883) 18 AVUAT AFFIDAVITS ARE JUDICIALLY NOTICED. [PAET I. and other officers of the High Court ' shall take judicial notice of the seal or signature, as the case may be, of any such court, judge, notary public,^ person, consul, or vice-consul, attached, appended, or subscribed to any such examinations, affidavits, affirmations, attestations of honour, declarations, acknowledgments, or to any other deed or document." ^ A similar clause is also inserted in the English Chancery Act of 1852," the Chancery (Ireland) Act, 1867,' the Lunacy Regulation (Ireland) Act, 1871,'^ the Court of Admiralty Act, 1854,' the Court of Admiralty (Ireland) Act, 1807,' the Court of Probate Act, 1858,' the Court for Divorce Act of the same year,'" the Matrimonial Causes (Ireland) Act, 1871,'' and the Crow& Suits, &c.. Act, 1805.'' § 13. Again, the Bankruptcy Act for Scotland,'^ which was passed in 1856, facilitates the proof of certain Scottish judicial documents by enacting in § 174, that " all deliverances," — which fantastical term includes all orders, warrants, judgments, deci- sions, interlocutors, or decrees under that Act,'* — "purporting to be signed by the Lord Ordinary or by any of the judges of the Court of Session, or by the sheriff [or sheriff substitute],'^ as well as all extracts or copies thereof, or from the books of the Court of Session, or the Sheriff Court, purporting to be signed or certified by any clerk of court, or extracts from or copies of registers pur- porting to be made by the keeper thereof, or extractor, shall be ^ Or of the Chancery of the County Palatine of Lancaster, see 16 & 17 V., c. 78, § 7. ^ See ante, n. *, p. 11. =• See Brooke v. Brooke, 50 L. J. Ch. 52R, per Fry, J.; L. R. 17 Ch. D. 833, S. C. The same law applies to affidavits made in matters in lunacy, see 16 & 17 v., c. 70, § 57, and also to "all affidavits, declarations, and affirma- tions, to be used before any registrar or other officer of any registry office in Great Britain or Ireland, for any purpose connected with registration of deeds or wills or other documents or things, under the authority of parliament," see 16 & 17 v., c. 78, §6. * 15 & 10 v., c. 86, 'i 22, which, lor some occult reason, or for none, was not repealed by 46 & 47 V., c. 49. * 30 & 31 v., c. 44, I 81, Ir. « 34 & 35 Y., c. 22, ^ 25, Jr. ^ 17 & 18 v., c. 78, ^ 8. « 30 & 31 V., c. 114, | 57, Ir. 9 21 «fe 22 v., c. 95, I 32. '» 21 & 22 V., c. 108, ^ 21. " 34 & 35 v., c. 49, I 17, Ir. " 28 & 29 v., c. 104, ? 18. See also ? 43 of the same Act. " 19 & 20 v., c. 79. '* ? 4. '^ Id. (2884) CHAP, tl.] WHAT SIGNATURES ARE JUDICIALLY NOTICED, 19 judicially noticed by all courts and judges in England, Ireland, and Her Majesty's other dominions, and shall be received as prima facie evidence, without the necessity of proving their authenticity or correctness, or the signatures appended, or the official character of the persons signing, and shall be sufficient warranty for all diligence and execution by law competent." § 14/ In America, the signature of the Chief of the Executive | 12 of the State is recognised without proof ; ^ and so, in Louisiana, are also the signatures of executive and judicial officers to all official acts.^ The English doctrine certainly does not extend this length, though it is difficult to define its exact limits. On the one hand, the signatures of the judges of the Supreme Court of Judicature, and of the old siaperior equity and common law j udges, must be judicially noticed, if appended to any judicial or official document ; * and the legislature has attached the same credit to the signatures of the judges, commissioners and registrars of the old Courts,'^ and of the judges and registrars of the new Courts," of Bankruptcy in England, and of the judges, registrars, and chief clerks, of the Court of Bankruptcy and Insolvency, now called the Court of Bankruptcy," in Irelaijd.^ So, in all proceedings under the winding-up clauses of the Companies Act, 1862, judicial notice must be taken of the signatures of the officers of the old Courts of Chancery in England or Ireland, or of the Courts of Bankruptcy in England or Ireland, or of the Court of Session in Scotland, or of the registrar of the Court of the Vice- Warden of the Stannaries, whenever such signatures are subscribed to any document made, issued, or signed under such clauses, or any official copy thereof.^ Many other signatures attached to documents, which are rendered admissible by statutes, need not be proved; '" and it seems also that, ^ Gr. Ev. ? 6, in part, as to first four lines. * Jones V. Gale's Exors., 4 Mart. 635. 3 Id. ; Wood V. Fitz, 10 Mart. 196. * 8 & 9 V., c. 113, § 2, ante, g 7. * 24 i& 25 v., c. 134, ?, 204 ; 32 & 33 V., c. 71, ? 109. « 46 & 47 v., c. 52, | 137, cited ante, p. 10, n. '«. '35&36 v., c. 58, ? 6, Ir. 8 20 & 21 v., c. 60, I 362, Ir., cited ante, p. 11, n. 1. »25&26 v., c. 89, ? 125. '" 8 & 9 v., c. 113, ? 1, ante, ? 7. A partial list of the more important of these documents will be given in Part iii. Ch. iv., on Public Documents. (2885) 20 GAZETTES WHEN JUDICIALLY NOTICED. [pART I. in practice, no proof is required of the handwriting of the governor of Holloway Prison/ which for all purposes of law is now regarded as the Queen's Prison.^ On the other hand, it appears highly probable that the courts would not recognise the signatures of the Lords of the Treasury to their official letters ; ^ and it is even a matter of some doubt whether the royal sign -manual would be judicially noticed. On one occasion,* before the House of Peers, a warrant purporting to be so signed was admitted without proof, but as the party putting in this document was prepared to prove it if necessary, the acquiescence of the opposite counsel amounts to little. In another case,^ the judges decided that the King's sign- manual was admissible to show His Majesty's intention of pardoning a prisoner ; and, in a third case,^ the sign-manual was actually produced for the very purpose ; but on neither of these occasions was any question raised as to the necessity of proving the signature to be genuine. § 15. The judges will take notice of the London, Dublin, or ^ 13 Edinburgh Gazette on its mere production, and it is unnecessary to prove that it was bought at the office of the Queen's printer, or to offer any evidence as to whence it came.' § 16.* It is unnecessary to prove facts which may certainly be § 14 known from the invariable course of nature ; such as that a man is not the father of a child, where non-access is already proved until within six months of the woman's delivery ; ® neither is it necessary to prove the coui'se of time,"* or of the heavenly bodies : '' nor the >25&26 v., c. 104, § 12. ^ See Alcock v. Whatmore, 8 Dowl. 615 ; Short v. Williams, 4 Dowl. .357 ; Fogarty v. Smith, Id. 598, n. ; 5 & 6 V., c. 22. * R. V. Jones, 2 Camp. 131. per Ld. Ellcnborongh. See 12 & 13 V., c. 89, cited post, ? HOG ; and 31 & .32 V., c. 37, cited post, P^ 1527. * Ld. Melville's case, 29 How. St. Tr. 706. 5 R. V. Miller, 2 AV. Bl. 797 ; 1 Lea. 74, S. C. * R. v. Gully, 1 Lea. 98. ^ R. V. Forsyth, R. & R. 274 ; 31 & 32 V., c. 37, U 2, 5, cited post, ? 1527. See R. V. Holt, 5 T. R. 436. The Irish case, R. v. Wallace, 17 Jr. Law R., N. S. 206, can no longer be relied upon. See post, | 1527. ^ Gr. Ev. § 5, in part. » Heathcote's Divorce, 1 Macq. Sc. Cas. H. of L. 277 ; R. v. Luffe, 8 East, 202. "> See Bury r. Blogg, 12 Q. B. 877, 882. " However, in Collier tj. Nokes, 2 C. & Kir. 1012, Wilde, C. J., is reported (2886) CHAP. II.] MATTER;5 JUDICIALLY NOTICED. 21 ordinary public fasts and festivals;' nor the commencement or ending of the legal sittings;^ nor the coincidence of the years of the reign of any sovereign of this country with the years of our Lord ;'^ nor the coincidence of days of the week with days of the month;* nor the order of the months;^ nor the meaning of the word "month," which at common law and in equity** used to mean four weeks, but which in the ecclesiastical courts,^ and also when used, either in mercantile transactions in the city of London,^ or in bills of exchange or promissory notes," or in any statute passed since the commencement of 1851,'" or, in the Rules of the Supreme Court," or in any judgment or order of that court,'^ means a calendar month, ''^ unless words be added showing lunar month to be intended; nor the meaning of other words in the vernacular language,'* as for instance, the word "time," which, unless speci- to have held that he could not judicially notice at what hour the sun set in the month of November. See, also, Tutton v. Darke, 5 H. & N. 649, 650, per Pollock, C. B. Sed qu.? ' 6 Vin. Abr. 492, pi. 8—44. ' 6 Vin. Abr. 490, pi. 32. * Holman v. Burrow, 2 Ld. Ray. 795; R. v. Pringel, 2 M. & Rob. 276. * 6 Vin. Abr. 492, pi. 0, 7, 8; Hoyle v. Ld. Cornwallis, 1 Str. 387; Page V. Faucet, Cro. El. 227; Harry v. Broad, 2 Salk. 626; Brough v. Parkings, 2 Ld. Ray. 994, per Ld. Holt. Thus the Court is bound judicially to notice what days of the month full on Sundays, Hanson v. Shackelton, 4 Dowl. 48; Pearson v. Shaw, 7 Ir. Law R. 1. ^ R v. Brown, M. & M. 164. ^ See Cons. Ord. Ch. 1860, Ord. xxxvii., r. 10, now annulled. '' Bluck V. Rackman, 5 Moo. P. C. R. 308, per Knight-Bruce, V.-C; Man V. Ricketts, 2 Coop. 21, per Ld. Lynhurst; Simpson v. Margitson, 11 Q. B. 23; Johnstone v. Hudleston, 4 B. & C. 932; per Bayley, J. ** Turner v. Barlow, 3 Post. & Fin. 946, per Erie, C. J. M5 & 46 v., c. 61, § 14 subs. 4, and § 89. "13 & 14 v., c. 21, ?.|4, 8. " Ord. Ixvi. r. 1, "Where by these Rules, or by any judgment or order given or made after [the 24th of October, 1883,] time for doing any act or taking any proceeding is limited by months, and where the word 'month' occurs in any document which is part of any legal procedure under these Rules, such time shall be comjiuted by calendar months, unless otherwise expressed." '^ Id. " As to the meaning of a "calendar month" as applied to imprisonment, see Migotti v. Colville, 48 L. J., C. P. 695, per Ct. of App.; S. C. nom. Nigotti V. Colville, 14 Cox, 305. " Clementi v. Golding, 2 Camp. 25, as to the meaning of the word "book"; Com. V. Kneeland, 20 Pick. 229; 6 Vin. Abr. 491, 492, pi. 6, 7; R. v. Wood- ward, 1 Moo. C. C. 323. In that case the prisioner was indicted under 7 & 8 G. 4, c. 30, § 17, which made it a felony maliciously to burn any stack of pulse, for setting fire to a stack of beans, and the judges unanimously held (2887) 22 MATTERS JUDICIALLY NOTICED. [PAET I. fieally stated, indicates in Great Britain "Greenwich mean time,"and in Ireland "Dublin mean time;'" or the word "distance," which, except under special circumstances, is measured as the crow flies ;^ nor the legal weights and measures,^ nor the positive value of the coin of the realm;* nor its relative value at different periods of time;^ nor, it seems, any matters of public history, affecting the whole people.** § 17.^ Courts also notice the territorial extent of the jurisdiction § 15 and sovereignty exercised de facto by their own government;^ and that they were hound to notice that heans were a species of pulse. So in R. *). Swatkins, 4 C. & P. 548, Patteson, J., after conferring with Bosanquet, J., judicially noticed that barley was corn, in an indictment for arson under the Act just mentioned. In R. v. Beaney, R. & R. 416, however, the judges refused to notice that a colt was an animal of the horse species. There the indictment charged the prisoner with stealing two colts. By the Act then in force, the benefit of clergy was taken away from persons stealing "horses, geldings, or mares"; and as colts were not mentioned co yiomine, the prisoner was merely convicted of simple larceny. '43 & 44 V., c. 9, § 1. " Mouflet V. Cole, 7 Law Rep., Ex. 70; 41 L. J., Ex. 28, S. C. ; and 8 Law Rep., Ex. 32; 42 L. J., Ex. 8, S. C, per Ex. Ch. ^Hockin v. Cooke, 4 T. R. 314; O'Donnell v. O'Donnell, 1 L. R. Jr. 284; 41 & 42 v., c. 49. * Glo.s.sop V. Jacob, 1 Stark. R. 69; Kearney v. King, 2 B. & Al. 301. 5 Bryant v. Foot, 3 Law Rep., Q. B. 7; 37 L. J.,Q. B. 217; 9 B. & S. 444, S. C. * Bk. of Augusta v. Earle, 13 Pet. 590. '' Gr. Ev. ^ 6, as to first seven lines, in great part. ^ See 6 & 7 V., c. 94, which, — after reciting that "by treaty, capitulation, grant, usage, sufferance, and other lawful means, Her Majesty hath power and jurisdiction wdthin divers countries and places out of Her Majesty's dominions; and whereas doubts have arisen how far the exercise of such power and jurisdiction is controlled by and dependent on the laws and customs of this realm; and it is expedient that such doubts should be removed:" — enacts, that "it is and .shall be lawful for Her Maje.sty to hold exercise, and enjoy any power or juri.sdiction which Her Majesty now hath, or may at any time hereafter have, within any country or place out of Her Maje-sty's dominions, in the same and as ample a manner as if Her IMajesty had acquired such power or jurisdiction by the cession or conquest of territory. ' ' ^ 2 enacts, that "every act, matter, and thing which may at any time be done, in pursuance of any such power or jurisdiction of Her Majesty, in any country or place out of Her Majesty's dominions, shall in all courts ecclesiasti- cal and temporal, and elsewhere within Her Majesty's dominions, be and be deemed and adjudged to be, in all cases, and to all intents and purposes what- soever, as valid and elfectual as though the .same had been done according to the local law then in force within such country or place." I 3 enacts, that "if in any suit or other proceedings, whether civil oi (2888) CHAP. II.] MATTERS JUDICIALLY NOTICED. 23 the local divisions of their country, such as states,' provinces,^ counties,'^ counties of cities, cities,* towns, parishes, and the like, so far as political government is concerned or affected ; but not the relative positions of such local divisions, nor their precise boun- daries, further than they may be described in public statutes.'^ Thus the courts refused to say judicially that " a part of the coast called Suffolk" was not in Kent, or that "Orfordness, in the county of Suffolk," was not situated between the North Foreland and Beachy Head." Neither will they notice that a particular place is within a certain city;^ nor that a particular town is within a certain diocese;* nor that a street mentioned in the pleadings is a criminal, in any court ecclesiastical or temporal within Her Majesty's dominions, any issue or question of law or of fact shall arise, for the due determination whereof it shall, in the opinion of the judge or judges of such court, be necessary to produce evidence of the existence of any such power or jurisdiction as aforesaid, or of the extent thereof, it shall be lawful for the judge or judges of any such court, and he or they are hereby authorised to transmit, under his or their hand and seal or hands and seals, to one of Her Majesty's principal secretaries of state, questions, by him or them properly framed respecting such of the matters aforesaid as it may be necessary to ascertain in order to the due determination of any such issue or question as aforesaitl ; and such secretary of state is hereby empowered and required, within a reasonable time in that behalf, to cause proper 'and sufficient answers to be returned to all such questions, and to be directed to the said judge or judges, or their successors ; and such answers shall, ujjon production thereof, be final and conclusive evidence, in such suit or. other proceedings, of the several matters therein contained and required to be ascertained thereby." 1 Whyte V. Rose, 4 P. & D. 199 ; 3 Q. B. 495, S. C. There the Court noticed, that by "the Kingdom of Ireland" was meant that part of the United Kingdom called Ireland. '"' Id. ^ Deybel's case, 4 B. & A. 242 ; 2 Inst. 557, where it is said, "the King's Courts" " take notice of all the counties of England." In R. v. Isle of Ely, 15 Q. B. 827, the court judicially noticed that the Isle of Ely was a division of a county in the nature of a riding, and, as such, prima facie liable to repair bridges within it. So, also, in Harris v. O'Loghlen, 5 I. R. Eq. 514, 520, the Irish M. R. took judicial notice of the baronies in an Irish county, such baronies having been enumerated in 13 & 14 V., c. 68, Sch. A. * R. V. St. Maurice, 16 Q. B. 908. ^ Deybel's case, 4 B. & A. 242 ; 2 Inst. 557 ; Fazakerley v. Wiltshire, 1 Str. 469 ; R. v. Burridge. 3 P. Wms. 497 ; Thorne v. Jackson, 3 Com. B. 661. « Deybel's case, 4 B. & A. 243. See, also, Kirby v. Hickson, 1 L. M. & P. 364, where the Court of C. P. refused to take judicial notice that Park -street, Grosvenor-square, in the county of Middlesex, was within twenty miles of Russel-square, in the same county. '' Brune v. Thompson, 2 Q. B. 789, in which case the plaintiff was non- suited for not proving that the Tower of London was within the City of London. * R. v. Simpson, 2 Ld. Ray. 1379. (2889) 24 MATTERS JUDICIALLY NOTICED. [paET I. public thoroughfare, though the word " street," via strata, would rather imply that it was;' nor that a particular street is not in a certain county, though it be notorious that a street bearing the same name is in another county;" nor that a city mentioned in a document is in a particular country, even though it appear that one with a similar name is the capital of such country.^ They have, however, noticed that the Queen's Prison is situated in England/ § 18.^ The courts will judicially recognise the political consti- g is tution or frame of their own government ; its essential political agents or public officers sharing in its regular administration ; and its essential and regular political operations and actions. Thus all tribunals notice the accession and demise of the sovereign of their country f the heads of departments, and the principal officers of state, whether past or present ;^ the marshals and sheriffs, but not the deputies of these functionaries f the existence of a war in which their country is engaged, at least when such war is recognised in public proclamations or Acts of Parliament ;" the days of special public fasts and thanksgivings, when recognised in like manner ; the stated days of general political elections ; the 1 Grant v. Moser, 5 M. & Gr. 129, per Tindal, C. J. "^ Humphrey's v. Budd, 9 Dowl. 1000. See Thorne v. Jackson, 3 Com. B. 661. ^ Kearney v. King, 2 B. & A. 301. There the declaration was on a bill drawn and accepted at Dublin, to wit, at Westminster, for 542?. The court held that, upon this declaration, the bill must be taken to have been drawn in England for English money, and therefore, that proof of a bill drawn at Dublin in Ireland for Irish money, which is of less value, was a fatal variance. * Wickens v. Goatly, 11 Com. B. 666. ^ Gr. Ev. ? 6, in part. « Holman v. Burrow, 2 Ld. Ray. 794 ; R. v. Pringle, 2 M. & Rob. 276. ' R. V. Jones, 2 Camp. 131 ; Bennett v. The State of Tennessee, Mart. & Y. 133 ; Whaley v. Carlisle, 17 Ir. Law R., N. S. 792. In this last case, the court, in 1866, judicially noticed that Ld. Hawkesbury had been foreign minister in 1803. * See Grant v. Bagge, 3 East, 128. 8 Dolder v. Ld. Huntingfield, 11 Ves. 292; R. v. De Berenger, 3 M. & Sel. 67. It seems that when war is neither publicly proclaimed, nor noticed in any statute, the question of its existence is one solely for the jury, 1 Hale, 164 ; Post. C. L., d. 1, c. 2, ? 12 ; and the existence of war between foreign countries will not be judicially noticed, Dolder v. Ld. Huntingfield, 11 Ves. 292, per Ld. Eldon. (2890) CHAP. II.] MATTERS JUDICIALLY NOTICED. 25 date and place of the sittings of the legislature;' and, in short, to borrow the language of the court in Taylor v. Barclay, " all public matters which affect the government of the country." ^ But they will not recognise private orders made at the council-table,^ for these are matters of particular concernment; nor, it seems, any orders of Council, even though they regard the Crown and the government; * nor the transactions on the journals of either House of Parliament.^ § 19. Lastly, each Division of the Supreme Court is bound ? 17 judicially to notice its own rules and course of proceeding;® as well as the rules and practice of the other Divisions;' and also the limits of their respective jurisdictions,^ as, for instance, that the Probate, Divorce, and Admiralty Division has so far jurisdiction over the personal estate of an intestate British sub- ject, whether situated in Ireland, the colonies, cr any foreign country, that it may grant letters to administer such property, and, indeed, must do so before the administrator can sue in any English Court in respect thereof.^ They will further notice the privileges of their officers ^" and solicitors.'' which last term, — probably, as being more euphonistic than " attorneys," — is now made by the legislature to include those functionaries as well as the heretofore proctors of the Ecclesiastical Courts.'" So all Courts will judicially notice the fact ^ E. V. Wilde, 1 Lev. 396; 1 Doug. 97, n. 41; Birt v. Rothwell, 1 Ld. Eay. 210, 343. 2 2 Sim. 221 3 6 Vin. Abr. 490. * Att.-Gen. v. Theakstone, 8 Price, 89. See post, U 1527, 1664. * R. V. Knollys, 1 Ld. Ray. 10, 15. Copies of tlie journals are now ad- missible, if purporting to be printed by the official printers, 8 & 9 V., c. 113, § 3, cited ante, ^ 7. « Dobson V. Bell, 2 Lev. 176; Pugh v. Robinson, 1 T. R. 118. ' Lane's case, 2 Rep. 16 b. ; Worlich v. Massey, Cro. Jac. 67; Mounson V. Bourn, Cro. Car. 526; Reidy v. Pierce, 11 Ir. Law R., N. S. 374, per Pigot, C. B. ; Caldwell v. Hunter, 10 Q. B. 85, 86. « Doe V. Caperton, 9 C. & P. 116. See Spooner v. Juddow, 6 Moo. P. C. R. 257. * See Whyte v. Rose, 3 Q. B. 493, per Ex. Ch. '» Ogle V. Norcliffe, 2 Ld. Ray. 869. " Stokes V. Mason, 9 East, 426; Chatland v. Thornley, 12 East, 544; Hunter v. Neck, 3 M. & Gr. 181; 3 Scott, N. R. 448, S. C; Walford v. Fleet- wood, 14 M. & W. 449. 12 Sup. Ct. of Jud. Act, 1873, 36 & 37 V., c. GG, I 87. (2891) 26 MATTERS JUDICIALLY NOTICED. [PAST I. that the assizes, though constituting for some purposes one legal day, may be continued from day to day with or without adjournment, and often occupy several natural days,' — the existence of Courts of general jurisdiction," — the powers of the Ecclesiastical Courts, — and the jurisdiction of the Bankruptcy Courts,^ together with all general rules made by the Lord Chancellor with the concurrence of the President of the Board of Trade, for carrying into effect the objects of the Bankruptcy Act, 1883/ So, all general orders or regulations, which from time to time may be made by the Board of Trade, for regulating matters of an administrative character under the same Act, must be judicially noticed, provided they be printed by the Queen's printers, and purport to be issued under the authority of the Board.^ So the rules made under " the Banki'uptcy, Ire- land, Amendment Act, 1872," must be judicially noticed;** and the same law applies to the rules made by the Board of Trade under the Gas and Water Works Facilities Act, 1873,' — to those made either by Order in Council, or by the Committee of Council, under the Crown Office Act, 1877,^ — to those made by the Lord Chancellor, under the Summary Jurisdiction Act, 1879,® — to those made by the Lord Chancellor with the assistance of the Registrar, under the Land Transfer Act, 1875,'° — to those made under the Landlord and Tenant (Ireland) Act, 1870, either by the Court for Land Cases Reserved, or by the Privy Council in Ireland," — and to those made by the Irish Land Commission under the Land Law (Ireland) Act, 1881.'' § 20. It does not seem clear, whether or not the judges of the § 19 Supreme Court of Judicature are bound to notice who ai*e the judgea in inferior courts of record. The weight of American authorities is in favour of recognising them ; " but the Court of Queen's Bench ' Wliitaker v. Wisby, 12 Com. B. .56, 59. ^ Tregany v. Fletcher, 1 Ld. Eay. 154. •' 4G & 47 v., c. 52, §? 92, et seq. * Id. ^ 127. ^ Bkruptcy. Rules, 18S3, r. 257. « 35 & 36 v., c. 58, ? 124, Ir. ^ .36 & .37 V., c. 89, § 14. 8 40 & 41 v., c. 41, ?§ 3, 5. s 42 & 43 V., c. 49, § 29. 1" 38 & .39 v., c. 87, § 111. " 33 & 34 V., c. 46, U 31, 41, Ir. 12 44 & 45 v., c. 49, | 50, snbs. 2, Ir. '^ Hawks V. Kennebec, 7 Mass. 461; Ripley «. Warren, 2 Pick, 592; Despau V. Swindler, 3 Mart. N. S. 705. (2892) CHAP. II.] REFRESHING MEMORY OF JUDGE. 27 not very long ago refused to notice who was judge of the then Court of Review.' With regard to inferior courts of limited jurisdiction, the Supreme Court will not, unless when called upon to review their judgments,^ take cognizance of the customs and proceedings there- in,^ except so far as they are regulated by statute.* § 21.^ In all these and the like cases, where the memory of the § 20 judge is at fault, he resorts to such documents or other means of reference as may be at hand, and he may deem worthy of confi- dence.® Thus, if the point at issue be a date, the judge will refer to an almanac ; Mf it be the meaning of a word, to a dictionary ; * if it be the construction of a statute, to the printed copy ; ® or, in case that appears to be incorrect, to the parliament roll.'" In some instances, the judge has refused to take cognizance of a fact, unless the party calling upon him to do so could produce at the trial some document by which his memory might be refreshed ; as was the case in Van Omeron v. Dowick," where Lord Ellenborough declined to take judicial notice of the King's proclamation, the counsel not being prepared with a copy of the Gazette in which it was published. So, also, in R. v. Withers, tried before Mr. Justice Buller, in which case it became a material question to consider how far the prisoner owed obedience to his sergeant, and this depended on the articles of war, which were not produced at the trial, the judges thought that 1 Van Sandau v. Turner, 6 Q. B. 773, 786. 2 Chitty V. Dendy, 3 A. & E. 324 ; 4 N. & M. 842, S. C. ^ R. V. U. of Cambridge, 2 Ld. Ray. 1334. In that case the Court refused to notice tliat the University Court in Cambridge proceeded according to the rulesof the civil law. See, also, Lane's case, 2 Rep. 16 b. n. d ; Peacock v. Bell, 1 Wms. Saund. 75 ; and Dance v. Robson, M. & M. 295. * As in the case of the Court of the V.-Ch. of Oxford, which, under the Act of 17& 18 v., c. 81, ? 45, must now, in all matters of law, be governed by the common aad statute law, and not by the rules of the civil law. * Gr. Ev. I 6, as to first three lines. « Gresl. Ev. 295. ^ Page V. Faucet, Cro. El. 227. See Tutton v. Darke, 5 H. & N. 649. * Clementi v. Golding, 2 Camp. 25. ® Since the commencement of the year 1866, a copy of the Public General Acts has been printed each year by Messrs. Eyre and Spottiswoode, as printers to the Queen, for the proprietors of the Law Journal, and has been published in the thirty-fifth and siicceeding volumes of that excellent work. 1" R. V. Jeff'ries, 1 Str. 446 ; Spring v. Eve, 2 Mod. 240. " 2 Camp. 44. (2893) 28 BEFRESHING MEMORY OF JUDGE. [PAKT. I. they ought to have been produced/ But in many other cases, the courts have themselves made the necessary inquiries, and that, too, ■without strictly confining their researches to the time of the trial. Thus, to give but a few examples : in Taylor v. Barclay, where the question was, whether the federal republic of Central America had been recognised by the British Government as an independent state, the. Vice-Chancellor sought for information from the Foreign Office ; ^ in Chandler v. Grieves, the Court of Common Pleas directed an inquiry to be made in the Court of Admiralty as to the martime law ; ^ in Doe v. Lloyd, the same court caused an inquiry to be made by their officers, as to the practice of the Inrolment Office in the Court of Chancery ; * and in Willoughby v. Willoughby, Lord Hardwicke himself asked an eminent conveyancer respecting the existence of a general rule of practice in that branch of the profession.^ 1 Cited by Buller, J., in R. v. Holt, 5 T. R. 446. 2 2 Sim. 231. See also The Charkieh, 42 L. J. Adra. 17. » 2 H. Bl. 606, n. a. * 1 M. & Gr. 685. The court in that case acted on the authority of Worsley V. Filisker, 2 Roll. R. 119. M T. R. 772. See, also, Sup. Ct. Rules, 1883, Ord. li. rr. 7, 8. (2894) CHAP. III.] TRIAL BY JURY, LESS TRUSTED NOW THAN FORMERLY. 29 CHAPTER III. HOW QUESTIONS OF FACT TRIED FUNCTIONS OF JUDGE IN JUKY TRIALS. § 21a. Trial by Jury, — an institution which, at least in a rudimentary form, may be traced back to the times of our Saxon ancestors — which optimists love to call " the sacred Palladium of British liberty," and pessimists denounce as only less unwise than trial by battel, or even trial by ordeal — has, during the last half century, received some rude shocks. The first heavy blow aimed at it was in the year 1846, when the creation of our modern County Courts afforded to suitors an opportunity of determining for them- selves whether their disputes should be settled by a single judge, or by the unanimous verdict of five jurors. An overwhelming majority in favour of the judge was the verdict pronounced by those parties, who were assuredly most interested in arriving at a sensible con- clusion.' Some years, however, elapsed before the public became acquainted, through the medium of the Annual Parliamentary Returns, with these startling statistics. The seed was indeed sown, but much fell by the way- side, or in stony places, or among thorns, and it was only a small portion of the whole which was allowed to fructify. Still, by slow but sure degrees, doubts respecting the efificacy of " our inviolate bulwark " were bruited about, and those who had ears to hear heard the confused rumour of approaching change. The Common Law Commissioners in 1853^ set forth very fairly the merits and demerits of trial by jury, and, in so ^ In the County Court Eeturn, published in June, 1882, the following figures appear: — "Actions determined with a jury, 981; Avithout a jury, 631,647." No doubt a large number of the cases tried by the judge alone were for sums under 5?., and in these cases a jury could not be summoned without leave; biit say that three-fourths of the claims were of that character, (this being a liberal estimate), and the fact still remains that a jury was only called in one case out of 150, in which it might have been demanded at the instance of either litigant. The additional cost of a jury is, in the county courts, only 5s. '^ Second Report, pp. 3 — 6. (2895) 30 TRIAL BY JURY IN CRIMINAL AND IN CIVIL CASES. [PART I. doing, prepared men's minds for the wider adoption of the County- Court mode of procedure. § 21b. It is not here intended to enumerate, in historial sequence the tentative changes that have been introduced with the above view;' but it will suffice to point out shortly at what stage they have at present arrived. And first, it must be borne in mind, that hitherto no attempt has been made to shake the nation's faith in trial by jury, as the best institution ever devised by the wit of man for protecting innocence when unjustly charged with the commis- sion of crime. In criminal cases the party accused, whether by indictment or information, has still, as in the days of King John, the inalienable right to be tried " per legale judicium parium suorum;" and may the rash hand of Innovation never presume to touch that revered fabric, except so far as may tend to strengthen its foundations, and to enlarge its efficacy. In dealing with civil causes, however, the case is widely different; and here, it is not improbable, that we have scarcely as yet reached the limits of change, which the progress of law reform will force the country to adopt. § 21c. The present law on this subject, as it applies to civil actions, and is recognised in the High Coxirt of Justice, will be found — if careful search be made for it — in Order XXXVI. of the Kules of 1883. The Rules run thus : — " 2. In actions of slander, libel, false imprisonment, malicious prosecution, seduction, or breach of promise of marriage, the plaintiff may, in his notice of trial to be given as hereinafter pro- vided,^ and the defendant may, upon giving notice within four days from the time of the service of notice of trial or within such extended time as the court or a judge may allow, or in the notice of trial to be given by him as hereinafter provided,^ signify his 1 See 17 & IS v., c. 125, ? 1; 38 & 39 V., c. 77, ? 22; Rules of Sup. Ct, 1875, OrJ. xxxvi. rr. 2, 3, 26, 27; 19 & 20 V., c. 102, § 4, Ir. ; 13 & 14 V., c. 36, §? 46 — 48, Sc. ^ R. 11 of same Order. 3 R. 12. (2896) CHAP III. J TRIAL BY JURY — OR BY JUDGE ALONE. 31 desire to bave the issues of fact tried by a judge with a jury, and thereupon the same shall be so tried. " 3. Causes or matters assigned by the principal Act' to the Chancery Division shall be tried by a judge without a jury, unless the court or a judge shall otherwise order. ( Cardinall v. Cardinall, L. R., 25 Ch. D. 772, where held by Pearson, J., that this Order should not be made, unless the case involves a simple issue of fact, and that it will not suffice to show that the action could be tried more quickly at the assizes. S. C. 53 L. J., Ch. 63G. ) " 4. The court or a judge may, if it shall appear desirable, direct a trial without a jury of any question or issue of fact, or partly of fact and partly of law, arising in any cause or matter which pre- viously to the passing of the principal Act,^ could, without any consent of parties, have been tried without a jury ^ " 5. The court or a judge may direct the trial without a jury of any cause, matter or issue requiring any prolonged examination of documents or accounts, or any scientific or local investigation, which cannot in their or his opinion conveniently be made with a jiuy. "6. In any other cause or matter, upon the application of any party thereto for a trial with a jury of the cause or matter or any issue of fact, an order shall be made for a trial with a jury. "7. (a.) In every cause or matter, unless under the provisions of Rule 6 of this Order, a trial with a jury is ordered, or under ^ 36 & 37 v., c. GG, 'i 34, gives the following list. All causes and matters in respect to which any Act has given exclusive jurisdiction to the Court of Chancery, or to any judge of that court, e. ff., matters relating to lunatics, or charities ; and next, " All causes and matters for any of the following purposes : — The administration of the estates of deceased persons ; The dissolution of jiartnerships, or the taking of partnership or other accounts ; The I'edemption or foreclosure of mortgages ; The raising of portions, or other charges on land ; The sale and distribution of the proceeds of property subject to any lien or charge ; The execution of trusts, charitable or private ; The rectification, or setting aside, or cancellation of deeds or other written instruments ; The specific performance of contracts between vendors and purchasers of real estates, including contracts for leases ; The partition or sale of real estates ; The wardship of infants, and the care of infants' estates." * 5th Aug., 1873. ^ E. g., '■ where matter in dispute consists wholly or in part of matters of mere account, which cannot conveniently be tried in the ordinary way" ; 17 & 18 v., c. 125, I 3. (2897) 32 TRIAL BY JURY — OR BY JUDGE ALOXE. [PART. I. Rule 2 of this Order either party has signified a desire to have a trial with a jury, the mode of trial shall be by a judge without a jury ; provided that in any snch case the court or a judge may at any time order any cause, matter, or issue to be tried by a judge with a jury, or by a judge sitting with assessors, or by an official referee or special referee with or without assessors : " (6.) The plaintiff in any cause or matter in whichhe is entitled to a jury may have the issues tried by a special jury, upon giving notice in writing to that effect to the defendant at the time when he gives notice of trial : " (c. ) The defendant, in any cause or matter in which he is entitled to a jury, may have the issues tried by a special jury, on giving notice in writing to that effect at any time after the close of the pleadings or settlement of the issues and before notice of trial, or if notice of trial has been given, then not less than six clear days before the day for which notice of trial has been given : " (d. ) Provided that a judge may at any time make an order for a special jury upon such terms, if any, as to costs and otherwise as may be just. - " 8. Subject to the provisions of the preceding Rules of this Order, the court or a judge may, in any cause or matter, at any time or from time to time, order that different questions of fact arising therein be tried by different modes of trial, or that one or more questions of fact be tried before the others, and may appoint the places for such trials, and in all cases may order that one or more issues of fact be tried before any other or others. " 9. Every trial of any question or issue of fact with a jury shall be by a single judge, unless such trial be specially ordered to be by two or more judges. " 10. Nothing in this Order shall affect any proceedings under any of the provisions of the Common Law Procedure Acts relating to arbitration." § 21d. On a critical examination of these Rules, — which it musjb be admitted have been framed by a draughtsman who had no clear idea of what he was undertaking, — it will be seen, 1st, that in most cases coming before the Chancery Division, the litigants have no (2898) CHAP. III.] HOW DIVORCE CASES ARE TRIED. 33 longer any power to demand the attendance of jurors, but the issues will be tried without a jury, unless the court or a judge otherwise orders ; and next, that actions brought and other matters' pending in the Common Law Division must now be tried by the judge sitting alone, unless one or other of the parties has signified his desire, either by notice to his opponent in some particular cases,^ or by application to the court in others,^ that a jury should be summoned ; or unless a special order has been given by the court or a judge, that the matter should be tried "by a judge with a jury, or by a judge sitting with assessors, or by an official referee, or special referee, with or without assessors."* In a few instances referred to in Rules 4 and 5 the court or a judge is empowered to exclude the intervention of a jury, even though both litigants are desirious of adopting that mode of trial. § 21e. As the Rules just cited, — besides having no effect either in criminal proceedings, or in proceedings on the Crown or Revenue side of the Queen's Bench Division, — are also inapplicable " in pro- ceedings for divorce or other matrimonial causes,"^ it will here be convenient to state, that, by virtue of a Rule made in July, 1880,^ for divorce and matrimonial causes, if damages be not claimed, the cause is heard by oral evidence before the court without a jury, and if damages be claimed, the cause is tried before the court with a common jury; but in either case any party may apply by summons for a direction that the cause be heard or tried in a different, manner. § 22. With respect to trial by jury, Lord Hardwicke has ^ 21 observed, — and all reflecting men will agree in the observation, — • that "it is of the greatest importance to the law of England, and to the subject, that the powers of the judge and jury be kept distinct ;" yet, important as this object undoubtedly is, it is one which, even at the present day, is not very perfectly eftected. The ' See E. 7 (a), cited ante, p. 31. Thus an interpleader may now be tried without a jury in the Sup. Ct., notwithstanding Hamlyn v. Betteley, 50 L. J., Q. B. 1. 2 jj 2. 3 E. 6. ■* R 7 (a). ^ Ord. Ixviii., r. 1. * Rules in Div. and Mat. Causes, R. 205. 3 LAW OF EVID.— V. I. (2899) 34 RESPECTIVE DUTIES OF JUDGE AND JURY. [PAKT I. general principle, that the judge must determine the law, and the jury the fact, is not, and cannot be disputed ;' but in the applica- * In R. r. The Dean of St. Asaph, Ld. Mansfield declared, " that the fundamental definition of trial by jury depended upon the universal maxim, ad qua.>stionem juris non respondent juratores ; ad qutestionem facti non respondent judices;" and his lordship added — "Where a question can be proved by the form of pleading, the distinction is j^reserved upon the face of the record, and the jury cannot encroach upon the jurisdiction of the court ; when, by the form of pleading, the two questions are blended together, and cannot be separated upon the face of the record, the distinction is preserved by the honesty of the jury. The constitution trusts that, under the direction of a judge, they will not usurp a jurisdiction which is not in their province. They do not know, and are not presumed to know, the law : they are not sworn to decide the law ; they are not required to decide the law It is the duty of the judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences." 21 How. St. Tr. 10.39, 1040. So, in an elaborate essay on this subject, pub- lished by Mr. Hargrave, as a note to 1 Co. Litt. 155 b., the learned author states the result to be, "that the iinmediate and direct right of deciding upon questions of law is intrusted to the judges ; that in a jury it is only incidental; that in the exercise of this incidental right, the latter are not only placed under the superintendence of the former, but are in some degree controllable by them ; and, therefore, that in all points of law arising on a trial, juries ought to show the most respectful deference to the advice and recommendation of judges." In America, the same principles have been expounded, in forcible language, by Mr. Justice Story. •' The learned counsel for the prisoner," said he, "contends that in criminal cases, and especially in capital cases, the jury are the judges of the law, as Avell as of the fact. My opinion is, that the jury are no more judges of the law in a capital or other criminal case, upon the plea of not guilty, than they are in etery civil case, tried upon the general issue. In each of these cases, their verdict, Avhen general, is necessarily compounded of law and of fact, and includes both. In each, t'aey must necessarily determine the law, as well as the fact. In each, they have the physical power to disregard the law, as laid down to them by the couit. But I deny that, in any case, civil or criminal, they have the moral right to decide the law accoi'ding to their own notions or pleasure. On the contrary, I hold it the most sacred constitutional right of every party accused of a crime, that the jury .should respond as to the facts, and the court as to the law. It is the duty of the court to instruct the jury as to the law; and it is the duty of the jury to i'ollow the law, as it is laid down by the court. This is the right of every citizen, and it is his only protection. If the jurj' Avere at liberty to settle the law for themselves, the effect would be, not only that the law itself would be most uncertain, from tlie different views whicli ditferent juries might take of it, but in case of error, there would be no remedy or redress l)y the injured party ; for the court would not have any right to review the law, as it had been settled by the jury. Indeed, it would be almost imi^racticable to ascertain what the law, as settled by the jury, actually was. On the contrary, if the Court should err in laying down the law to the jnry, there is an adequate remedy for the injured party by a motion for a new trial, or a writ of error, as the (2900) CHAP. III.] DUTIES OF JUDGE. 35 tion of this principle at Nisi Prius, embarrassing questions not unfrequently arise, from the experienced difficulty of defining with clearness the obscure and shifting boundaries of law and fact. In the present chapter it is proposed briefly to discuss this subject, and to lay down such general rules, as may practically be of use in distinguishing the relative duties of judges and jurors. § 23. The duty of a judge presiding at a trial by jury is four- 2 22 fold; — First, he must decide all questions respecting the admissi- bility of evidence; secondly, he must instruct the jury in the rules of law, by which the evidence, when admitted, is to be weighed; thirdly, he must determine, as a legal question, whether there be any evidence fit to be submitted to the jury for their consideration; and lastly, he must explain and enforce those general principles of law, that are applicable to the point at issue.' In discharging the first duty, it frequently happens that the admissibility of a witness or an instrument is found to depend on a disputed fact, in which case all the evidence adduced both to prove and disprove that fact must be received by the judge, and adjudicated on by him alone.^ Thus, for example, — if the question be whether a confession should be excluded on account of some previous threat or promise, the judge must decide, first, whether the threat or promise was really niiture of the jurisdiction of the ijarticuhir court may require. Every person accused as a criminal has a right to be tried according to the law of the land, the fixed laAV of the land; and not by the law as a jury may understand it, or choose, from wantonness, or ignorance, or accidental mistake, to interpret it. If I thought that a jury were the proper judges of the law in criminal cases, I should hold it my duty to abstain from the responsibility of stating the law to them upon any .such trial. But believing, as I do, that every citizen has a right to be tried by the law, and according to the laAv, — that it is his privilege and truest sliield against oppression and wrong, — I feel it my duty to state my views fully and openly on the present occasion." U. S. v. Battiste, 2 Sumn. 243. See further, on this interesting subject, 2 Wynne's Eunomus; Bushell's case, 6 How. St. Tr. 999, 1008, 1013, 1014; Vaugh. 13.-,, S. C; Franklin's case, 17 How. St. Tr. 625; and R. v. Woodfall, 5 Burr. 2GG1. ' Among the questions propounded by the Irish Parliament to the judges of that country in 1641, was one, "whether the judge or jurors ought to be judge of the matters of Axct," to which the judges replied, that, "although the jurors be the sole judges of matter of fact, yet the judges of the court are judges of the validity of the evidence, and of the matters of law arifiinri out of the same, w'herein the jury ought to be guided by them." 2 Nalson's Coll. of State Pap. o75, 582, Lond. 1683. ^ Bartlett v. Smith, 11 M. & W. 486. (2901) 36 DUTIES OF JUDGE. [pART I. made; and, secondly, "whether, if made, it was sufficient in law to warrant the exclusion of the evidence.' So, if a dying delaration be tendered in evidence, and its admissibility rest upon the fact that the deceased believed, when he made it, that he was on the point of death, the question whether this fact be satisfactorily proved must be determined by the judge.^ So, where the receipt in evidence of a deposition depends on the inability of the deponent to attend the trial, the bickness of the witness or other special cause disabling him from attendance must be proved to the satis- faction of the judge.^ So, the judge alone must decide, whether the declarant in a question of pedigree has been proved to be a deceased member of the family; and it makes no difference in applying this rule, that the relationship of the declarant happens to be the very question at issue in the cause.* So, if proof be offered of the signature of an attesting witness, and the admissibility of this evidence turns on the fact, whether or not the witness has absented himself from the trial by collusion with the opposite party, the judge must decide on the existence of this fact.^ In like manner, if the question be whether a document has been duly executed, or stamped;^ or whether it comes from the right custody;^ or whether sufficient search has been made for it to admit secondary evidence of its contents;* or whether notice to produce it has been duly served; ® or whether, in the event of its being produced under notice, it be the original paper required; '" or whether it is protected ' See 1 Stark. R. 523, n. b. ^ So resolved by all the judges, in two cases cited by Parke, B., in Bartlett v. Smith, 11 M. & W. 486; and in one case cited by Ld. Ellen- borough, in R. V. Hucks, 1 Stark. R. 523. These cases virtually overrule R. v. Woodcock, 1 Lea. 504, where the question was left to the jury by Eyre, C. B. => D. of Beaufort v. Crawshay, 1 Law Rep., C. P. 699; 35 L. J., C. P. 342, «& 1 H. & R. 638, S. C. * Doe V. Davies, 10 Q. B. 314. See Hitchins v. Eardley, 2 Law Rep., P. & D. 248; 40 L. J., Pr. & Mat. 70, S. C. » Egan V. Larkin, 1 Arm., M. & O. 403, per Brady, C. B. « Bartlett v. Smith, 11 M. & W. 483; Dun.sford v. Curlewis, 1 Fo.st. & Fin. 702, per Hill, J. See Stowe v. Querner, 5 Law Rep., Ex. 155; 39 L. J., Ex. 60, S. C. ' Bp. of Meath v. M. of Winchester, 3 Bing. N. C. 198; Doe v. Keeling, 11 Q. B. 889, per Ld. Denman. » 11 M. & W. 486, per Alderson, B. » Harvey v. Mitchell, 2 M. & Rob. 366, per Parke, B. '" Froude v. Hobbs, 1 Fost. & Fin. 612, per Byles, J. ; Boyle v. Wiseman, 11 Ex. R. 360; overruling Jones v. Fort. M. & M. 196. (2902) CHAP. III.] DUTIES OF JUDGE. 37 as being a confidential communication;' or if a witness be objected to on the ground of unripeness or imbecility of mind; — in all these and the like cases the preliminary question of admissibility must, in the first instance, be exclusively decided by the judge, however complicated the circumstances may be, and though it may be necessary to weigh the conflicting testimony of numerous witnesses, in order to arrive at a just conclusion. § 24 So, where evidence is offered of acts done in places other | 22 than the place in dispute, it is for the judge to decide, in the first instance, whether there is such a unity of character in these dif- ferent localities as to render evidence aiSecting the one admissible with reference to the other, and he will be further called upon to pronounce whether the acts relied on amount to evidence of owner- ship.^ Where witnesses were called to prove a general usage in trade, the judge, thinking that their testimony amounted to no more than evidence of opinion, withdrew it from the consideration of the jury, and the court supported his ruling.^ It was then laid down, as a distinct principle, that where the evidence was by law admissible for the determination of the point raised, the judge was bound to lay it before the jury; but whether the evidence was ad- missible or not, was a matter for the decision of the judge alone. In all these cases, however, after the evidence has been finally admitted, its credibility and weight are entirely questions for the jury, who are at liberty to consider all the circumstances of the case, including those already proved before the judge, and to give the evidence such credit only as, upon the whole, they may think it deserves.* The judge merely decides whether there is, prima facie, any reason for presenting it at all to the jury; and his decision on this point, if erroneous, may be reviewed by the court above. ^ § 25. Secondly, it is the duty of the judge to point out to the g 23 ^ Cleave v. Jones, 7 Ex. R. 421. '^ Doe V. Kemp, 7 Bing. 336, per Bosanquet, J. =* Lewis V. Marshall, 7 M. & Gr. 743, 744. * Welstead v. Levy, 1 M. & Rob. 139, per Parke, J.; Doe v. Davies, 10 Q. B. 324, per Ld. Denman ; Ross v. Gould , 3 Greenl. 204. * Cleave v. Jones, 7 Ex. R. 421. (2903) 38 DUTIES OF JUDGE, [PABT I. jury any rule of law, which either renders evidence unnecessary, or gives peculiar weight to any particular species of evidence, or de- fines the manner in which a certain fact must be proved. Thus, he should distinctly explain the nature of any presumptions, which may apply to the point at issue, distinguishing such as are conclu- sive from those which are liable to be rebutted by counter evidence; and again, dividing this latter class into those presump- tions upon which the jury are bound to act, in the absence of conflicting testimony, and those upon which it is expedient, or allowable, to rely. So, if by the common or statute law any docu- ment, when proved, becomes conclusive evidence of the facts stated therein, it is the province of the judge to point out to the jury that the existence of such facts cannot be disputed or denied, and that the only question for their deliberation is, whether or not the document be duly proved. So, if the uncorroborated testimony of a single witness be insufficient by law to establish guilt, as, for instance, in charges of treason or perjury, the judge must acquaint the jury with the nature and extent of this rule; and even where a con%dction founded upon such testimony would be strictly legal, as in the case of an accomplice becoming witness for the Crown, the judge would not properly discharge his duty, if he did not warn the jury against the danger of placing implicit reliance upon statements coming from such a suspicious quarter. Many judges, indeed, and those of the greatest ability, have not confined their observations within these limits, but have boldly given their opinions respecting the matters of fact; and although this mode of proceeding, when adopted, as it sometimes has been, in a supercilious spirit, may arouse the jealous feelings of a jury, and may excite them, in their anxiety to prove their independence, to pronounce an unjust verdict;^ yet it may well be doubted whether, in the great majority of instances, it would not promote the real interests of justice, if the judge were temperately to state to the jury what opinions he had formed respecting the merits of the case, and the mode by which he had ' "Few things incite me more to repel a doctrine than intolerant attempts to force it on my understanding." See Dr. Channing's Work, vol. iii. p. 319. Ld. Bacon, in his advice to Hutton, J., says, " You should be a light to jurors to open their eyes, but not a guide to lead them by their noses." Bac. Works, vol. vii. p. 271, ed. Montagu. (2904) CHAP, in.] DUTIES OF JUDGE. ' ' 39 arrived at his conclusions. The jury would still have the undis- puted power of deciding the question as they thought lit; but they would have the advantage of being advised by a man no more liable than themselves to prejudice or partiality, whose long experience in courts of justice must of necessity have rendered him far more competent than they can be to unravel the tangled threads of conflicting testimony. The too common mode of summing up, — "Gentlemen, if you think so and so, you will find for the plaintiff, if you think otherwise, you will find for the defendant; gentlemen, the question is for you," — though sanctioned by the practice of many able, but somewhat lazy judges, and though possibly in accordance with the strict theory of a trial by jury, is but little calculated to promote the attainment of truth; and in complicated cases before a petty jury, is almost tantamount, if not to a direct denial of justice, at least to a decision of the issue by lot. § 25a. Thirdly, the judge must, at the close of each case, deter- mine whether any evidence has been given on which the jury can properly find the question for the party on whom the onus of proof lies; and if no such evidence exists, he ought to withdraw the question from the consideration of the jury, and direct, either a non-suit to be entered if the onus be on the plaintiff, or a verdict to be found if the onus be on the defendant.^ It is not always easy to act upon this somewhat vague rule, and the matter will not be much simplified by substituting for the language here employed — as some learned judges have sought to do — other indefinite phraseology to convey the same idea. To say that a judge should withdraw the case from the jury, unless there be reasonable evi- dence on which reasonable men could reasonably or fairly find a verdict, leaves the rule pretty much as above stated ;" and in practice, each judge must, and can only, be guided by such good sense and discretion as he can bring to bear upon each trial. Still, 1 Ryder r. Wombwell, 4 Law Rep., Ex. 32; 38 L. J., Ex. 8, S. C; approved of and adopted in Metrop. Ry. Co. v. Jackson, L. R., 3 App. Cas. 193, 207; and in Dubl. W. & W. Ry. Co. v. Slattery, L. R., 3 App. Cas. 1155, per Ld. Hatherley, p. 1171, and per Ld. Blackburn, pp. 1208, 1209. ^ See Dublin W. & W. Ry. Co. v. Slattery, L. R., 3 App. Cas. 1197, 1198, per Ld. Coleridge. (2905) 40 DUTIES OF JUDGE. " [pAET. I. he will probably not often go astray if he determines in every doubtful case to take the opinion of the jury, and to leave the question, as to how far he was justified in thus acting, to be decided thereafter by the coui't. Thus much, however, may be safely laid down for the guidance of the judge, that, whenever there is con- flicting evidence on a question of fact, he must leave the considera- tion of it for the decision of the jury, whatever his own opinion may be respecting its weight.' § 26. Lastly, the judge must explain to the jury what priciples ^ 24 of law are applicable to the point in issue, and in order to enable him to do so correctly, he must distinguish questions of law from questions of fact. This, in ordinary cases, is no difficult task. Thus, for instance, on a charge of larceny, the judge lays down, as a general proposition of law, that all persons who take and remove the personal chattels of another without his consent,, and with a felonious intent, are guilty of that crime; and then, according to the circumstances of the case, he explains, with more or less par- ticularity, what constitues a taking, removing, &c. These, ob- viously, are questions of law, and together form the major premiss of the syllogism. The jury next decide whether the evidence proves that the goods have been taken and removed in such a manner, and with such an intent, as the judge has previously shown will amount to larceny. These are questions of fact, and together form the minor premiss. Lastly comes the conclusion of guilt or innocence, which may either be drawn by the jury applying to the facts which they find, the rules of law as interpreted by the judge; or, in the event of their considering this task too difficult for them, they are at liberty to find the facts specially, but not the mere evi- dence on which the facts are founded,^ leaving the court to apply the law to such facts, and consequently to pronounce the final decision. But simple as this process appears to be, the line between ^ Dublin W. & W. Ey. Co. r. Slattery, L. R., 3 App. Cas. 1155, per Dom. Troc. Ir. See also Metrop. Ry. Co. v. Jackson, L. R., 3 App. Cas. 193, 197; and 47 L. J., C. P., 303, 305, S. C. in Dom. Proc, cited post, ? 37, n.*. 2 Hubbard v. Johnstone, 3 Taunt. 209, per "Wood, B. ; Harwood v. Good- right, 1 Cowp. 91, 92, per Ld. Mansfield; Mires D.Solebay 2 Mod. 244, 245; 1 St. Ev. 511, 512. (2906) CHAP III.] MIXED CASES — PROBABLE CAUSE 41 law and fact has been very indistinctly drawn in a certain class of eases, and in these cases, therefore, the respective duties of the judge and jury are not yet clearly defined. For instance, if the question be whether a certain party had probable cause for doing an act, or whether he has done an act within a reasonable time, or with due diligence, it is difficult to say whether the definition of what constitutes probable cause, reasonable time, or due diligence, be for the judge or the jury, and specious arguments will not be wanting in favour of the claims of either party. On the one hand, it may be said, that these terms are as capable of judicial interpretation as the words conversion, or asportation, which must clearly be ex- plained by the judge ; while, on the other hand, it may be urged, that they seem rather addressed to the practical experience of practical men, than to the legal knowledge of the mere lawyer ; that, being terms of degree, their meaning is subject to indefinite fluctuation, according to the varying circumstances of each parti- cular case, and that consequently they defy all attempts to compress them within exact d ijriori definitions. In truth, they are neither matters of fact, nor matters of law, exclusively, but are rather matters of quality or opinion, which, for want of a more appropriate name, have been generally termed " mixed cases." They form, in logical phrase, the middle term, and are alike common to both the premisses, which are respectively intrusted to the judge and jury, and upon which the ultimate decision must proceed.' § 27. Having said thus much respecting the general nature of § 25 this class of cases, it remains to be seen what decisions have been reported on the subject ; and although some of these will be found to rest rather on arbitrary authority than on any definite principle of law, it is hoped that their collection and partial classification may be of some service, the more especially as precedents have ever been considered in this country as deservedly entitled to respect. § 28. First : It is now clearly established, — albeit the wisdom of i OQ the rule has been stoutly disputed,^ — that the question of probable ^ See, on this difficult subject, 12 Law Mag. 53—74 ; 1 St. Ev. 512—526. "^ Lister v. Ferryman, 4 Law Rep., H. L. 521 ; 39 L. J., Ex. 177, S. C. See Hicks V. Faulkner, 51 L. J., Q. B. 268. (2907) 42 PROBABLE CAUSE. [pAET I. cause must be decided exclusively by the judge, and that the jury can only be permitted to find whether the facts alleged in support of the presence or absence of probability, and the inferences to be drawn therefrom, really exist/ For instance, in an action for a malicious prosecution, the jury, provided the evidence on the sub- ject be conflicting, may be asked whether or not the defendant, at the time when he prosecuted, kneiv of the existence of those cir- cumstances which tend to show probable cause, or believed that they amounted to the offence which he charged ; and if they nega- tive either of these facts, the judge will decide as a point of law, that the defendant had no probable cause for instituting the prose- cution.^ This rule, — ^which is based on the assumption that judges are far more competent than juries to determine the question how far it may have been proper for a person to have instituted a prose- cution,^ — is equally binding, however numerous and complicated the facts and inferences may be ; * for, although in some cases it would doubtless be attended with great difficulty to bring before the jury all the combinations of which numerous facts are susceptible, and to place in a distinct point of view the application of the rule of law, according as all, or some only of the facts and inferences 1 Michell V. Williams, 11 M & W. 205 ; Panton v. Williams, 2 Q. B. 169 ; 1 G. & D. 504, S. C. ; Hailes v. Marks, 30 L. J., Ex. 389 ; 7 H. & N. 56, S. C. ; Sutton V. Johnstone, 1 T. R. 493, 510, 544, 545, 547, 784 ; J Br. P. C. 76, 2nd ed., S. C, in Dom. Proc. ; Mitchell v. Jenkins, 5 B. & Ad. 594—596; Hinton v. Heather, 14 M. & W. 134, per Alderson, B. ; West v. Baxendale, 9 Com. B. 141. ^ Turner v. Ambler, 10 Q. B. 252. The absence, however, of belief must he proved by the plaintiff, and cannot be inferred from the mere fact that the defendant had made use of the charge for an unfair purpose, id. See, also. Broad v. Ham, 5 Bing. N. C. 722 ; Haddrick v. Heslop, 12 Q. B. 274—277 ; Heslopr. Chapman, 23, L. J., Q. B. 49. 3 Fraser v. Hill, 1 Macq. Sc. Cas. H. of L. 398, per Ld. Cranworth. * In Panton *,'. Williams, 2 Q. B. 192, Tindal, C. J., observes, "Upon this bill of exceptions we take the broad question between the parties to be this : whether, in a case in 'which the question of reasonable or probable cause depends, not upon a few simple iiicts, but upon facts which are numerous and complicated, and upon inferences to be drawn therefrom, it is the duty of the judge to inform the jury, that if tliey find the fiicts proved, and the inferences to be warranted by such facts, the same do or do not amount to reasonable or probable cause, so as thereby to leave the question of fact to the jury, and the abstract question of law to the judge. And we are all of opinion that it is the duty of the judge so to do." See Rowlands v. Samuel, 11 Q. B. 41, n. ; Douglas V. Corbett, 6 E. & B. 514. (2908) CHAP III.] REASONABLE BELIEF. 43 from facts are made oat to their satisfactioD, yet the task ir not impracticable ; and it would obviously savour of gross inconsistency to hold that a rule, which is undisputed in a simple case, should not equally apply where the facts were complicated.' For where could the line be drawn, and who should determine what degree of complexity would transfer the burthen of decision from the judge to the jury? The difficulty, too, is more apparent than real, for it rarely happens but that some leading facts exist in each case, w hich present a broad distinction to the view, without having recourse to the less important circumstances ; " and as the judge has a right to act upon all the uncontradicted facts, it is only where some doubt is thrown upon the credibility of the witnesses, or where some con- tradiction occurs, or some inference is attempted to be drawn from some former fact not distinctly sworn to, that he is called upon to submit any question to the jury.^ § 29. Although the rule is as above stated, where in an action § 27 on the case for malicious prosecution the question of probable cause arises, it has been held, both in England and Ireland, that in an action of trespass, the reasonableness of the belief or suspicion, upon which a party acts in causing an arrest or in detaining goods, is a question which the jury may be called upon to decide.* Thus, if a magistrate, on being sued for false imprisonment, were to rely, under not guilty by statute, upon want of notice of action or the like, the question whether he believed, with some colour of reason, and bona fide, that he was acting in pursuance of his lawful authority, so as to entitle him to Ihe protection of the statute, would, in strictness, be for the jury to determine under all the circumstances, if the plaintifi should desire their opinion to be taken on the evidence ; though if, as is commonly the case, these questions were first submitted to the judge on an application for a nonsuit, and the plaintiff did not then desire them to be left to the ^ Pan ton v. Williams, 2 Q. B. 194, 195, per Tindal, C. J., pronouncing the judgment of the Ex. Ch. * Id ^ Michell V. Williams, 11 M. & W. 216, 217, per Alderson, B. * Wedge V. Berkeley, 6 A. & E. G63 ; 1 N. & P. 665, S. C. ; Annett v. Osborne, 2 Jebb & Sy. 376 ; Hazeldine v. Grove, 3 Q. B. 997 ; 3 G. & D. 210, S. C. ; Hughes v. Buckland, 15 M. & W. 346. (2909) 44 REASONABLE TIME. [PARr I. jury, he would be bound by the decision of the judge, if the court should think it warranted by the evidence.' § 30. The question of reasonable time is open to more doubt § 28 than that of probable cause. With respect to some subjects, indeed, which from their frequent recurrence admit of the adoption of precise rules as to what constitutes reasonable time, the courts, for the sake of commercial convenience, have laid down such rules; and in these cases the duty of the jury is clearly confined to the simple task of ascertaining whether the facts proved fall within the rules or not. Thus, notice of dishonour of a bill of exchange must be given within a reasonable time, and this has been held^ by the judges^ to mean, — according as the parties live in the same or in different places, — either that the letter containing notice should be so posted that in the due course of delivery it would arrive on the day following that on which the writer has received intelligence of dishonour ; * or that such letter should be posted before the departure of the mail on the day following the receipt of intelligence ; ^ or if there be no post on that day,® or if it start at an unreasonable hour in the morning, ' then the writer shall have an additional day. If, too, the bill be presented through a banker, one day more is allowed for giving notice of dishonour than if it were presented by the party himself.^ At one time a doubt seems to have been entertained whether, in the event of there being several indorsers to a bill, the holder would have a separate day allowed him for giving notice to each ; but it is now expressly decided that 1 Hazelcline r. Grove, 3 Q. B. 997, 1007 ; 3 G. & D. 210, S. C. See post, ? 38. ^ See, now, 45 & 4G V., c. 61, | 49, subs. 12, which codifies the law as stated in the text. 3 See Hirschfiehl r. Smith, 1 H. & R. 284, 288, per Erie, C. J. * Stocken v. Collin, 7 M. & W. 515 ; Smith v. Mullett, 2 Camp. 208, per Ld. Ellenhorough ; Hilton v. Fairclough, id. 633, per Lawrence, J. ; Rowe v. Tipper, 13 Com. B. 256, per Maule, J. * Williams v. Smith, 2 B. & A. 496. See Shelton v. Braithwaite, 7 M. & W. 436. * Geill V. Jeremy, M. & M. 61, per Ld. Tenterden. ' Hawkes v. Salter, 4 Bing. 715 ; 1 M. & P. 750, S. C. ; Bray v. Hadwen, 5 M. & Sel. 68 ; Wright v. Shawcross, 2 B. & A. 501, n. ^ Alexander v. Burchfield, 7 M. & Gr. 1066, 1067, per Tindal, C. J. ; Haynes V. Birks, 3 B. & P. 599 ; Scott v. Liflford, 9 East, 347 ; 2 Camp. 246, S. C. ; Langdale v. Trimmer, 15 East, 291. See 45 & 46 V., c. 61, ? 49, subs. 13. (2910) CHAP. III.] REASONABLE TIME. 45 he has in general but one day to give notice to all the parties against whom he intends to enforce his remedy, though each of the indorsers in turn has his day/ and though the holder may avail himself of a notice duly given by any other party to the bill.^ Again, the holder of a cheque, or of a bill or note payable on demand, must, in general, present the instrument for payment on or before the day following that on which it was received;^ but in these cases, the term " reasonable time " may sometimes receive a different construction, regard being had to the nature of the instrument, the usage of trade, and the particular facts.* ■ § 31. This last rule applies, not only as between the parties to a ^28 cheque,^ but as between banker and customer, unless circumstances exist from which a contract or duty on the part of the banker to present at an earlier, or to defer presentation to a later period, can be inferred.^ But the rule does not apply to cases where the action is brought by the holder of a banker's cheque against the drawer, unless during the delay the fund has been lost, as by the failure of the banker.' When the rule is applicable, it matters not, so far as the liability of the drawer in concerned, whether the instrument be presented for payment by the party himself or by his banker; and, therefore, when an uncrossed cheque, given to a gentleman on the 10th of March, was paid into his bankers' on the 11th, and was presented by them on the 12th to the bankers on whom it was drawn, and who had stopped payment early in the morning, the court held that the payee could not recover the amount of the cheque from the drawer as the presentment for payment had not been made ^ Eowe V. Tipper 13 Com. B. 249; Dobree v. Eastwood, 3 C. & P. 250. See, however, Gladwell?). Turner, 39 L. J., Ex. 31; 5 Law Rep., Ex. 59, S. C. * Chapman v. Keane, 3 A. & E. 193; 4 N. & M. 607, S. C; Rowe v. Tipper, 13 Com. B. 256, per Jervis, C. J. ^ Rickford v. Ridge, 2 Camp. 539; Boddington v. Schlencker, 4 B. & Ad. 762; Moule v. Brown, 4 Bing. N. C. 266. See Bailey v. Bodenham, 16 Com. B., N. S. 288; 33 L. J., C. P. 252, S. C. ^ 45 & 46 v., c. 61, U 45, subs. 2; 74, subs. 2; and 86, subs. 2. * See Hopkins v. Ware, 4 Law Rep. , Ex. 268. « Hare v. Henty, 30 L. J., C. P. 302; 10 Com. B., N. S. 65, S. C. See Prideaux v. Criddle, 4 Law Rep., Q. B. 455; 38 L. J., Q. B. 232; 10 B. & S. 515, S. C. ' Robinson v. Hawksford, 9 Q. B. 52; Serle v. Norton, 2 M. & Rob. 401, per Ld. Abinger, 404, n. a; Laws v. Rand, 27 L. J., C. P. 76 ; 3 Com. B., N. S. 442, S. C. Here no time less than six years is deemed unreasonable. (2911) 46 REASONABLE UOURS. [PAHT I. witbin a reasonable time, and the bankers at the time of their failure had sufficient funds of the drawer's to pay the cheque.' Had the payee in this case stipulated that his bankers' names should be crossed upon the cheque, or had the drawer discounted his cheque in the country, the result would have been otherwise, for the drawer would then have been considered as agreeing to the arrangement that tha necessary course of presentment through a banker should be observed, and the steps actually taken were clearly in conformity with such course.^ § 32. The judges have also, with respect to the presentment of g 29 bills for payment, taken upon themselves to decide, as a question of law, what constitutes reasonable hours, and have held that if an instrument be payable at a banker's, it must be presented within banking hours ;^ if elsewhere, at any time when the drawer may be expected to be found at his place of residence or business, though it be as late as eight or nine o'clock in the evening.* If, indeed, the banker appoints a person to attend at the office after banking hours for the purpose of returning an answer to a pre- sentment, and such person does return an answer before mid- night, no objection can be taken to the unreasonableness of the hour when the presentment was made;^ and the same rule would seem to prevail if the bill be personally j^^^sented to the acceptor before twelve o'clock at night on the day that it falls due.'' So, a demand or tender of rent on the land must, in order to create or avoid a forfeiture, be made before sunset, this being a rule of convenience adopted by the law to prevent the necessity of one party waiting for the other till midnight. But if the tenant actually meet the lessor, either on or ofP the land, at any time of the last day of payment, and tender the rent, it will be sufficient. ' Alexander?'. Burchfield, 7 M. &Gr. 1061. 2 Id., lOGG, 1067, per Tindal, C. J. See 45 & 46 Y., s. 61, ?? 46— 82; and Hey wood v. Pickering, 9 Law Rep., Q. B. 42S; 43 L. J., Q. B. 145, S. C. 3 Parker v. Gordon, 7 Ea.st, 385; Elford v. Teed, 1 M. & Sel. 28. * AVilkins v. Jadis, 2 B. & Ad. 188; 1 M. & Rob. 41, S. C. ; Jameson v. Swinton, 2 Taunt. 224; Barclay r. Bailey, 2 Camp. 527, per Ld. Ellen- borough. 5 Garnettr. Woodcock, 6M. & Sel. 44; 1 Stark. B. 475, S. C. 6 See 6 M. & Gr. 624—626 per Parke, B. (2912) CHAP. III.] REASONABLE HOURS. 47 provided there was time before midnight to receive and count the money tendered.' § 33. The law as to delivery of goods within reasonable hourb g 29 was much discussed in the case of Startup v. Macdonald.^ There the defendant had agreed to purchase certain oil of the plaintiffs, to be delivered within the last fourteen days of March, and the action was brought for not accepting it according to the contract. The defence was that the oil was tendered on the 31st March at nine at night, which was an unreasonable hour. The jury found by a special verdict that the oil was tendered at half- past eight at night on a Saturday; that there was full time for the plaintiffs to have de- livered, and for the defendant to have examined, weighed, and received the whole before Sunday morning; but that the time of tendering was unreasonably late. Upon this verdict the Court of Common Pleas gave judgment for the defendant; but the judges of the Exchequer Chamber (Lord Denman dissentiente) I'eversed the decision. Mr. Justice Patteson observed, "It may be conceded that the defendant was not bound to be on his premises ready to receive the oil after the usual hours of business; and if he had gone away, and the plaintiffs had afterwards come, and been unable to make a personal tender, they must have suffered for their delay; but as the defendant did wait, and as the tender teas made in time to complete the delivery within the time specified, the unreasonableness and impropriety of the time, whatever those words mean, form no answer to the action for not accepting the oil."^ Mr. Baron Alderson used language to the same effect,* and thus laid down the general rule: — "Wherever, in cases not governed by peculiar customs of trade, the parties oblige them- selves to the performance of duties within a certain number of days, they have until the last minute of the last day to perform their obligation. The only qualification that I am aware of to this rule is, that in acts requiring time in order that they may be ^ Startup V. Macdonald, 6 M. & Gr. 619, 620, per Patteson, J.; 622, per Alderson, B. ; 625, 626, per Parke, B. - 6 M. & Gr. 5913, in Ex. Ch., reversing the judgment of the Court helow, as reported in 2 M. & Gr. 395; and in 2 Scott, N. R. 485. 2 6 M. & Gr. 620. * Id. 621, 622. (2913) 48 REASONABLE NOTICE TO QUIT. [pART I. completely perfcrmcd, the party must, at all events, tender to do the act at such period before the end of the last day, as, if the tender be accepted, will leave him sufficient time to complete bis performance before the end of that day. In the case of a mer- cantile contract, however, the opposite party is not bound to wait for such tender of performance beyond the usual hours of mercantile business, or at any other than the usual place at which the contract ought to bo performed. The party, therefore, who does not make his tender at that usual place, or during those usual hours, runs a great risk of not being able to make it at all. In this case the plaintiffs have had the good fortune to meet with the defendant, and to make a tender to him in sufficient time. And I think, under these circumstance?, that the defendant was bound to accept the goods, and is liable in damages for not accept- ing them." ' § 34. Again, a reasonable notice to quit a yearly tenancy has for § 30 centuries received a legal construction, as meaning a six calendar months' notice,^ to terminate at the expiration of the current year:^ and when the tenant holds different portions of the premises from different days, it has been further decided, that the notice refers to the day of entry on the substantial subject of the holding.* The 1 6 M. & Gr. 622, 623. See also the himinous judgment of Parke, B., id. 623—626. ^ That is, from one quarter day to the next but one following. The exact number of months or days does not signify. Notice on 20th March to quit on 29th September, insufficient. Notice on 28th September to quit on 25th March, sufficient. Morgan v. Davies, L. E., 3 C. P. D. 260. ^ Doe V. Si)ence, 6 East, 123, per Ld. Ellenborough. It is still a moot point in the Superior Courts, whether, in the absence of evidence of a contract or usage, a week's notice to quit is necessary to determine a weekly tenancy. See, and compare, .Tones v. Mills, 10 Com. B., N. S. 788; 31 L. J., C. P. 66, S. C; Huffell V. Armitstead, 7 C. & P. 56, per Parke, B. ; and Towne v. Campbell, 3 Com. B. 921. In the County Courts, however, this question has been settled in the affirmative for the last thirty years. It seems, too, that if the hiring be monthly, a month's notice will be necessary; and if the hiring be quarterly, a quarter's notice will be necessary; Towne v. Campbell, 3 Com. B. 921, per Coltman, J. See also Kemp v. Derrett, 3 Camp. 510, per Ld. Ellenborough; Eight d. Flower v. Darby, 1 T. E. 162, per Ld. Mansfield; Bridges v. Potts, 33 L. J., C. P. 338; 17 Com. B., N. S. 314, S. C. * Doe V. Snowdon, 2 W. Bl. 1224; Doe v. Spence, 6 East, 120; Doe v. Watkins, 7 East, 551 ; Doe v. Ehodes, 11 M. & W. 600. In this last case the (2914) CHAP. III.] KEASONABLE TIME. 49 Agricultural Holdings (England) Act, 1883, has, however, interfered with this time honoured rule; and provided the holding be either agricultural or pastoral, or both, or be wholly or in part cultivated as a market garden,^ a year's notice, " expiring with a year of tenancy," has now become necessary in every contract, whether made before or after the commencement of that Act, unless the landlord and tenant shall have agreed in icriting that this enact- ment shall not apply, in which case a six months' notice shall continue to be sufficient.^ In the case of domestic servants,^ — - which term has been held to include huntsmen,^ and head-gar- dener,* — a reasonable notice to quit is a calendar month's warn- ing f but it must be borne in mind that this rule is inapplicable to farm servants,*^ clerks, travellers, governesses,' housekeepers in large hotels,^ and the like. So, the reasonable period during which a member of Parliament is entitled to freedom from arrest on a ca. sa. has, for at least two hundred years, been fixed at forty days before and after each session, the rule being the same in the case of a dissolution as in that of a prorogation.^ In all these cases, the question being decided by a precise rule of law, is entirely withdrawn from the consideration of the jury. § 35. Again, the reasonable time for which a party charged with ^ 30 an indictable offence may, in England or Ireland, be committed for re- examination is now, — with one exception recognised in England,"* — questions raised, but not decided, was whether, where a tenant held a farm from year to year, — the land from 2 Feb., the house from 1 May, — a notice to quit the whole, given half a year before 2 Feb., was sufficient to entitle the landlord to recover the whole in ejectment, on a demise dated 3 Feb. The Inclination of Ld. Abinger's opinion appears to have been in support of the affimative. M6 & 47 v., c. 61, ? 54. See also 39 & 40 V., c. 63, Ir., as to the cor- responding law of Ireland. M6 & 47 V., c. 61, § 33. 3 Nicoll r. Greaves, 33 L. J., C. P. 259; 17t;om. E., N. S. 27, S. C. * Nowlan v. Ablett, 2 C. M. & E. 54. 5 Nowlan v. Ablett, 2 C. M. & E. 54 ; Fawcett v. Cash, 5 B. & Ad. 904 ; 3 N. & M. 177, S. C. ■ « Lilley v. Elwin, 11 Q. B. 742. ' Todd V. Kerrick, 8 Ex. E. 151. See post, ^ 177. « Lawler v. Linden, L E., 10 C. L. 188. ' Goudy V. Duncombe, 1 Ex. E. 430 ; In re Anglo-French Co-operat. Soc, L. E., 14 Ch. D. 533. ^° This exception prevails when a court of summary jurisdiction is em- powered to deal summarily with an indictable offence, in which case the 4 LAW OF EVID. — V. I. (2915) 50 RE.iSONABLE TIME. [PAET I, limited by statute to eight clear days, where the accused is re- manded by warrant, or, in England, to three clear days, where he is remanded by verbal order ;' and although these rules have not been extended by express enactment to cases in which justices deal summarily with defendants by conviction or order, they would pro- bably be considered by the judges as furnishing a guide, which ought on such occasions to be respected. If, therefore, in any of these cases, the question should arise whether a party had been remanded for a reasonable time, the jury would be called upon, as in the case of probable cause, to ascertain the existence of the facts, and to leave the court to determine, upon those facts, whether the time was reasonable or not.' On two occasions, indeed, in England,^ and on one in Ireland,* the entire question appears to have been submitted to the jury, but the latter of the two English cases rested upon the authority of the former,^ and in the former no objection was taken at Nisi Prius to the summing up of the judge, person charged may be remanded ' ' to the next practicable sitting of a petty sessional court, ' ' though such remand may be for more than eight days. 42 & 43 v., c. 49, § 24, subs. 2. ^ 11 & 12 v., c. 42, § 21, enacts, that "if, from the absence of witnesses, or from any other reasonable cause, it shall Ijocome necessary or advisable to defer the examination, or further examination, of the "nitnesses for any time, it shall be lawful to and for the justice or justices, before whom the accused shall appear or be brought, by his or their warrant, from time to time to remand the party accused for such time as by such justice or justices, in their discretion, shall be deemed reasonable, not exceeding eight clear days, to the common gaol or house of correction, or other prison, lock-up-house, or place of security, in the county, riding, division, liberty, city, borough, or place, for which such justice or justices shall then be acting : or if the remand be for a time not exceeding three clear days, it shall be lawful for such justice or justices verbally to order the constable, or other person in whose custody such party accused may then be, or anj- other constable or person to be named by the said justice or justices in that behalf, to continue or keep such party accused in his custody, and to bring him before the same, or such other justice or justices as shall be there acting, at the time appointed for con- tinuing such examination." See, as to the Irish law, 14 & 15 V., c. 93, | 14, Ir. 2 Davis V. Capper, 10 B. & C. 28 ; 5 M. & R. 53 ; 4 C. & P. 134, S. C. * Davis V. Capper, 10 B. & C. 30, per Gaselee, J. ; Cave v. Mountain, 1 M. & Gr. 2fi0, per Ld. Abineer ; 1 Scott. N. R. 132, S. C. * Gillman v. Connor, 2 .Tebb & Sy. 210. 5 Cave V. Mountain, 1 M. & Gr. 263, per Tindal, C. J., who adds that Ld. Abinger, who tried the cause, was, "under all the circumstances, satisfied with the verdict," and, consequently, the propriety of his leaving the question to the jury could not practically be questioned in the court above. (2916) CHAP. III.] REASONABLE TIME. 51 but on a subsequent motion in Banc its correctness was questioned, and at the second trial the course stated above was distinctly adopted.' So, under the old law, which used to render a sheriff liable to an action for an escape," the question whether the officer was guilty of vinreasonable delay in taking the party arrested to prison, was one for the determination of the judge,^ and the same rule applies when the question is, whether an arrest has been countermanded within a reasonable time,* or whether an executor has had reasonable time to remove the goods from the testator's mansion.^ § 30. On the other hand, it appears to have been held, that the ^ 30 questions, whether a crop has been left on the ground for a reasonable time,'' so as to enable the tithe-owner to compare the tithe set out with the remainder of the produce; whether a copy of a rate has been delivered by an overseer to an inhabitant within such reasonable time as to satisfy the Act,^ which requires it to be given " forthwith " upon demand and tender of payment;* whether the vendor of railway shares has offered to transfer them within a reasonable time;' whether the owner of cattle, which have strayed on land through defect of the proprietor's fences, has removed them within a reasonable time;'" whether goods purchased by sample have been rejected," or goods taken by distress have been sold,'" within a reasonable time; whether a foreign or inland bill of exchange payable at or after sight has been presented,'^— whether 1 Davis V. Capper, 4 C. & P. 134 a, 138; 10 B. & C. 33, 35, 36, S. C. '^ Such an action is no longer maintainable, either in England or in Ireland; 40 & 41 v., c. 21, ? 31 ; 40 & 41 V., c. 49, § 43, Ir. =* Benton v. Sutton, 1 B. & P. 28, per Heath, J. * Scheibel v. Fairbairn, 1 B. & P. 388. Heath, J., there held, that the arrest ought to have been countermanded in the course of the day in which the debt was received. ^ Co. Lit. § 69, and p. 50 b. *= Facey v. Hurdom, 3 B. & C. 213. ■^ 17 G. 2, c. 3, § 2. « Tennant v. Bell, 9 Q. B. 684. " Stewart v. Canty, 8 ]\I. & W. 160. '» Goodwyn v. Chevely, 4 H. & N. 631. " Parker v. Palmer, 4 B. & A. 387. '^ Pitt v. Shew, 4 B. & A. 206. " Muilman v. D'Equino, 2 H. Bl. 504 ; Fry v. Hill, 7 Taunt. 397. See ante, § 30, ad. fin. In determining this question, the jury should be directed (2917) 52 REASONABLE SKILL — DUE DILIGENCE, ETC. [PART. I.' a blank stamped acceptance has been filled np by the holder,'— whether a voyage insured has been commenced or prosecuted," — or whether costs have been taxed, within such time,^ are to be decided by the jury. In attempting to reconcile these conflicting decisions, it may perhaps be urged, that the last-named questions turn upon the ordinary course of business or trade, and consequently relate to matters with which the jury are peculiarly acquainted; but whether this ba a satisfactory solution of the difficulty is a matter on which no opinion is here expressed. § 37. Questions of reasonable skill or care, due diligence, and gross § 31 negligence must, in the great majority of instances, be determined by the jury,* since the judges can rarely have materials which will to take into consideration the interests, not only of the drawer, but of the holder also. Ramchurn Mullick?'. Luckmcechund Radakissen, 9 Moo. P. C. R. 46; Mellish r. Rawdon, 9 Bing. 416. See Chart. Merc. Bk. of India, &c. v. Dickson, 3 Law Rep.. P. C. 574; and Van Diemen's Land Bk. v. Victoria Bk., 40 L. J., P. C. 28. ^ Temple v. Pullen, 8 Ex. R. 389. The question of reasonable time does not arise in the case of a bank acceptance, when the bill is in the hands of a bona fide indorsee lor value without notice. Montague v. Perkins, 22 L. J., C. P. 187. 2 Mount V. Larkins, 8 Bing. 108; 1 M. & Sc. 165, S. C; Phillips v. Irving, 7 M. & Gr. 325. In this last case, the question was left by consent for the decision of the court, who held, "that no certain or fixed time could be said to be a reasonable or unreasonable time for seeking a cargo in a foreign port: but that the time allowed miist vary with the varying circumstances, which may render it more or less difficult to obtain such cargo." Id. 328, 329 per Tindal, C. J. ^ Bui-ton V. Griffiths, 11 M. & AV. 817. In this case there was an expres.s traverse of reasonable time, and the judges above concurred with the finding of the jury. * In the Metropol. Ry. Co. v. Jackson, L. R., 3 App. Cas. 193, 197; and 47 L. J., C. P. 303, 405, S. C, Ld. Cairns, C, in Dom. Proc, thus explained tlie principles applicable to these cases : — "The judge has to say whether any facts have been established by evidence from which negligence viay be reasonably inferred; the jurors have to say whether, from those facts, when submitted to them, negligence ought to he inferred. It i.s, in my opinion, of the greatest importance in the administration of justice that the separate functions should be maintained, and should be maintained distinct. It would be a serious inroad on the province of the jury, if, in a case where there are facts from which negligence may reasonably be inferred, the judge were to withdraw the case from the jury upon the ground that, in his opinion, negli- gence ought not to be inferred; and it would, on the other hand, place in the hands of the jurors a power which might be exercised in the most arbi- trary manner, if they were at liberty to hold that negligence might be (2918) CHAP. III.] REASONABLE SKILL — GROSS NEGLIGENCE, ETC. 53 enable them to decide such questions by rules of law. Thus, if an action be brought against a surgeon for negligence in the treatment of his patient,' or against a gratuitous bailee for gross carelessness in losing the property intrusted to his care,^ what law can possibly define whether such and such conduct amounts to sufficient negli- gence on the part of the defendant to entitle the plaintifp to a verdict? In these and the like cases, therefore, the question has usually been left entirely to the jury, and even when they have found a verdict in opposition to the opinion of the presiding judge, the court has generally refused to grant a new trial.^ In some cases, where the question relates to matters of legal practice, as, for in- stance, if a sheriff be charged with neglect of duty in not executing a writ, or if a solicitor be sued for negligence in conducting an action, the judges would seem to be more competent than a jury to decide whether the facts proved amount to a want of reasonable care; but even in such cases it seems that the province of the judge is merely to inform the jury for what species or degree of negligence the defendant is answerable,* and what duty in the particular case devolved upon him, either by the statute or common law, or the practice of the court; and then, having done this, he will leave the inferred from any state of facts whatever." These sentences read smoothly, but the application of them will sometimes prove to be a tough job. See the case itself, which called forth the Lord Chancellor's remarks. See, also, Bridges v. N. Lond. Sy. Co., 7 Law Rep., H. L. 213; 43 L. J., Q. B. 151, S. C; Robson v. N. East. Ry. Co., 46 L. J., Q. B. 50; L. R., 2 Q. B. D. 85, S. C. in Ct. of App.; Rose v. N. East. Ry. Co., L. R., 2 Ex. D. 248, per Ct. of App. ; 46 L. J., Ex. 374, S. S. ^ 2 A. & E. 261, per Taunton, J. 2 Doorman v. Jenkins, 2 A. & E. 256; 4 N. &. M. 170, S. C. ^ Doorman v. Jenkins, 2 A. & E. 200 — 206, per Cur., commenting on and explaining Shiells v. Blackburne, 1 H. Bl. 158; Moore v. Mourgue, 2 Cowp. 479. * In Godefroy v. Dalton, 6 Bing. 460, the judges decided that an attorney had not been guilty of such negligence as would render him liable to an action. "The cases," said Tindal, C. J., in pronouncing the judgment of the court, "appear to establish in general, that the attorney is liable for the con- sequences of ignorance or non-observance of the rules of practice of this court; for the want of care in the prej^aration of the cause for trial; or of attendance thereon with his witnesses; and for the mismanagement of .so much of the conduct of a cause, as is usually and ordinarily allotted to his department of the profession. Whilst, on the other hand, he is not answer- able for error in judgment upon points of new occurrence, or of nice or doubtful construction, or of such as are usually intrusted to men in a higher branch of the profession of the law." P. 468. (2919) 54 BONA FIDES — MALICE — INTENTION. [PABT I. jury to consider all the circumstances in evidence, and to decide, first, whether the defendant has performed his duty, and next, whether, in case of non- performance, the neglect was of that sort or degree which was venial or culpable in the sense of not sus- taining or sustaining an action.' It may here be added, that the judges are the proper parties to decide whether fines, customs, or services are reasonable,' and also whether deeds contain reasonable covenants or powers.^ § 38. The proper tribunal for deciding questions of bona fides,* § 32 actual knoicledge,^ express malice,^ real intention.^ or reasonable cause, is the jury; but it will presently be seen, in the chapter on Presumptive Evidence, and in other parts of this work, that the law , will sometimes presume the existence of fraud, knowledge, malice, intention, or justification, from the proof of other remote facts; and whenever these presumptions are embodied in the rules of law, the court will either draw the inference without the aid of a jury, or the jury will be bound to follow the directions of the judge. Moreover, for particular purposes the decision of tho>se questions is sometimes entrusted to the judge either by the practice of the court, or by the express language of the Legislature. Thus, in actions againbt magistrates for acts done in the execution of their office, the judge must decide whether notice of action is necessary, and the question of bona fides must consequently be determined by him, and not by the jury.* So when an amendment is sought to be made at Nisi ^ Hunter v. Caldwell, 10 Q. B. 69, 82, per Ld. Denman; Reece r. Rigby, 4 B. & A. 202, per Abbott, C. J. ; Shilcock v. Passman, 7 C. & P. 292, 293, per Alderson, B. 2 Co. Lit. 56 6, 59 6; Wilson v. Hoare, 10 A. & E. 236; Bell t;. Ward ell, Willes, 202. ^ Smith v. Doe d. Jersey, 2 B. & P. 592, per Abbott, C. J. * Wedge V. Berkeley, 6 A. & E. 663; 1 N. & P. 665, S. C; Moore v. Mourgue, 2 Cowp. 480; Gray v. Dinnen, 2 Jebb. & Sy. 265; Coxhead v. Richards, 2 Com. B. 584, per Cresswell, J.; Hazeldine v. Grove, 3 Q. B. 1007; Hughes V. Buckland, 15 M. eS: W. 346; Horn v. Thornborough, 3 Ex. E. 846; 6 Dowl. & L. 651, S. C; Douglas v. Ewing, 6 Ir. Law E., N. S. 395. See ante, I 29. ^ Harratt v. Wise, 9 B. & C. 712. ® As in actions for malicious prosecution or arrest. Mitchell v. Jenkins, 5 B. & Ad. 588; 1 Camp. 207, n. a. ' Doe V. Wilson, 11 East, 56; Powis v. Smith, 5 B. & A. 850; Doe v. Batten, 1 Cowp. 243; Zouch v. Willingale, 1 H. Bl. 312, per Gould and Wilson. Js. ; Cox v. Reid, 13 Q. B. 558. « Kirby v. Simpson, 23 L. J., M. C. 165; Arnold v. Hamel, 9 Ex. R. 404. (2920) CHAP. III.] COSTS IN SUPREME COURT. 55 Prius, it is the duty of the judge to determine, as a matter of fact, from the pleadings and the evidence, what is the real question in controversy between the parties.' Again, under the Act of 30 & 31 v., c. 142, § 5, as embodied in the Supreme Court of Judicature Act, 1873," and amended by 45 & 40 Vict., c. 57, § 4, a suitor in the Supreme Court, who recovers less than 201. in any action founded on contract, or lOl. in any action founded on tort,^ is not entitled to any costs, unless the judge shall certify that there was " sufficient i-eason'" for suing in such court, or unless the court or a judge at chambers shall by rule or order allow such costs. In actions, too, founded on contract, in which the plaintiff recovers, in the Supreme Court, a sum (exclusive of costs) not exceeding 50Z., he is entitled to no more costs than those recognised in County Courts, unless the court or a judge otherwise orders.* § 39. In most other proceedings in the Supreme Court, the costs are now in the court's discretion, the law being embodied in the following rule :- — ^ " Subject to the provisions of the Acts ^ and these Rules, the costs of and incident to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion ot the court or jadge : Provided that nothing herein con- tained shall deprive an executor, administrator, trustee, or mort- gagee, who has not unreasonably instituted or carried on or resisted any proceedings, of any right to costs out of a particular estate or fund, to which he would be entitled according to the rules hitherto acted upon in the Chancery Division: Provided also that, where any action, cause, matter, or issue is tried with a jury, the costs shall folloiu the event, unless the judge by whom such action, cause, matter, or issue is tried, or the court, shall, for good cause, otherwise order. "^ 1 Wilkin V. Reed, 15 Com. B. 192, 198, 205. ^ gg ^ 37 y^ j. qq^ ^ qj ^ All action of detinue is " an action founded on tort" within the meaning of this enactment; Bryant v. Herbert, L. E. 3 C. P. D. 389, per Ct. of App. ; 47 L. J., C. P. 670, S. C. * Rules of Sup. Ct. 1883, Ord. Ixv.. r. 12. » Rules of Sup. Ct. 1883, Ord. Ixv., r. 1. « These are " the Sup. Ct. of Judic. Acts, 1873 to 1879, and 1881." and "the App. Jurisd. Act, 1876." See Ord. Ixxi., r. 1. ' Quaere, Does this Rule extend to the Liverpool Passage Court? See King V. Hawksworth, L. R., 4 Q. B. D. 371 ; and 36 & 37 V., c. 66, § 91. (2921) 56 SUCCESSFUL LITIGANT, WHEN DEPRIVED OF COSTS. [PART I. § 39a. In interpreting the above Rule it seems clear, that when a cause is tried with a jury, the presiding judge may deprive a successful litigant of costs, either on an application being made to him for that purpose, or of his own motion.^ If an application be made to the judge, that step should be taken either during the trial, or within a reasonable time after its termination;" and if the application be addressed to the court, it must — to be successful — be made without undue delay, but the court will have jurisdiction to entertain it, whether a previous application to the judge, who tried the cause, has or has not been made.^ In no case, however, will either the judge or the court deprive the successful litigant of his costs unless for good cause.* With respect to what constitutes " good cause," it has been held, that although the judge, in exer- cising his discretion, must assume the truth of the facts found by the jury, he is not confined to the consideration of the party's conduct in the course of the litigation, but he may consider such of his previous acts as have conduced to the action.^ In the case which called forth the above ruling by the Court of Appeal, the jury had awarded the plaintiff 10/. as damages for a libel, and the judge, notwithstanding, had deprived him of his costs, on the ground that he had by his own incautious conduct, — to use the mildest phrase, — brought upon himself the defamatory attack^ On the other hand, the court has decided that, in an action of collision of ships, in which the defendant had succeeded solely on a plea of compulsory pilotage, he ought not to be deprived of costs in the Exchequer Division, simply because such a result would have followed in the old Court of Admiralty.' The " euen^," which, in the absence of a special order, costs are to "follow," is not a happily chosen phrase, as the attempts to 1 Turner v. Heyland, 48 L. J., C. P. 535; L. rT, Tc! P. D. 432, S. C; Collins D. Welch. L. R., 5 C. P. D. 27; S. C. on App., 49 L. J., C. P. 260; Marsden v. Lane. & York Ry. Co., 50 L. J., Q. B.'318, per Ct; of App. 2 See Kynaston v. Maekinder, 47 L. J., Q. B. 76, per Ct. of App. * See ISivers v. Defries, and Siddons v. Lawrence, 48 L. J., Q. B. 446, per Ct. of App"!: L. R., 4 Ex. D. 176, S. C; Bowey r. Bell, 48 L. J., Q. B. 161; L. R., 4 Q. B. D. 95, S. C; Gen. St. Nav. Co. v. Lond. & Ed. Ship. Co., L. R., 2 Ex. D. 467; 47 L. .L, Ex. 77, S. C. See " Jones V. Carling, L. R., 13 Q. B. D. 262, where held hy Ct. of App., 1st, that the facts must show that it would be more just to disallow than to allow the costs, as for instance, oppression or misconduct on part of the successful litigant; 2nd, That this question was one respecting which an appeal would lie. * See end of Rule. * Harnett i-. Vise, L R., 5 Ex. D. 307, per Ct. of App. ^ Id. ' Gen. St. Nav.Co. v. Lond. & Ed. Ship. Co., L. K, 2 Ex. D. 467; 47 L. J., Ex. 77, S. C. (2922) CHAP. III.] PRIVILEGED C03IMUNICATI0NS. 57 interpret it have given rise to much vexatious controversy.* No doubt it was intended to mean, and does mean, in a general way, the result of all the proceedings incidental to the litigation in question ; and, consequently, the costs which follow it will include the costs of all stages of that litigation, as, for example, the costs of a first trial when a second has been ordered.^ But the difficulty occurs in deciding what is to happen, when a plaintiff has united, as he now may, several independent causes of action, and has suc- ceeded on some of the issues, and failed on the others. In such a case several events have practically been determined, but the rule speaks only of one. Is the plaintiff then entitled to the whole costs of the actions if he has gained a verdict on any one item of his claim, or is the term "event" to be read distributively, in which case the plaintiff will have only the general costs of the cause, and the defendant will get the costs of those on which he succeeds ? After much discussion, the Court of Appeal has at last held, that the rule must be interpreted in accordance with the second alternative.^ § 40. When a question arises as to whether a communication be ^ 33 privileged or not, and the privilege be of a character which is not regarded as absolute on public grounds,* the respective duties of the judge and jury seem to be as follows: first, the jury must determine as a question of fact, whether the communication was made bond fide; and then, if the fact be found in the affirmative, — as it must be if the evidence be not sufficient to raise a probability that the communication was colourably made,^ — the judge must decide, as 1 See Collins v. Welch, 49 L. J., C. P. 261, per Bramwell, L. J.; and Myers V. Defries, 49 L. J., Ex. 2G6. 2 Field V. Gt. North. Ey. Co., L. II., 2 Ex. D. 261 ; 47 L. J., Q. B. 6G2, S. C; Harris V. Petherick, 48 L. J., Q. B. 521, per Ct. of App. ; L. R., 4 Q. B. D.; 611, S. C; Creen v. Wright, L. II., 2 C. P. D. 354 ; 46 L. J., C. P. 427, per Ct. of App., S. C. ^ Myers v. Defries, 49 L. J., Ex. 266, per Lds. Js. ; L. R., 5 Ex. D. 180, S. C; Ellis V. Desilva, 50 L. J., Q. B. 323, per Ct. of App.; L. R., 6 Q. B. D. 521, S. C; Sparrow v. Hill, 50 L. J., Q. B. 410; L. R., 7 Q. B. D. 362, S. C. * As to such privileged commnnications, see Dawkins v. Paulet, 5 Law Rep., Q. B. 94 ; 9 B. & S. 768 ; 39 L. J., Q. B. 53, S. C; and Dawkins v. Ld. Eokeby, 8 Law Rep., Q. B. 255, per Ex. Ch.; 42 L. J., Q. B. 63, S. C. * Taylor v. Hawkins, 16 Q. B. 308 ; Somerville v. Hawkins, 10 Com. B. 583. (2923) 58 UNSOUNDNESS OF IIOKSE — INFRINGEMENT OF PATENTS. [PAET I. a question of law, whether the occasion of the publication was such as to rebut the inference of malice.' If, however, any doubt should exist as to whether or not the defendant had in some respect exceeded the limits of his privilege, and had made comments, which might be regarded as evidence of actual malice, the opinion of the jury must be taken upon the effect of such evidence." § 41. It is still a moot point whether, on an indictment for § 34 perjury, the materiality of the matter in which the false swearing is proved, is a question of fact for the jury, or a question of law for the judge ; but, according to the better opinion, it ought to be regarded in the latter light. ^ It seems, however, that questions respecting permissive occupation ;* the assent of an executor to a bequest;^ the unsoundness of a horse;*' the delivery of a document as an escrow, unless the question turn solely on the construction of writings ;^ the infringement of a patent,* where such infringement does not depend merely on the construction of the specification f the novelty of a design, within the meaning of the Acts relating to copyright of design for articles of manufacture ;'" the existence of a * nuisance, as caused by'erecting a bridge or weir in a navigable stream ;" the definition of the word "street,"'^ except in certain 1 Coxhead v. Eichards, 2 Com. B. 584, 603, per Cresswell, J. ; 600, per Coltman, J.; Stace v. Griffith, 6 Moo. P. C, N. S. 18. 2 Cooke V. Wildes, 5 E. & B. 328. ^ See and compare R. v. Courtney, 7 Cox, 111 ; 5 Ir. Law R., N. S. 434, S. C; R. V. Lavey, 3 C. & Kir. 26; R. v. Dunstan, Ry. & M. 109. * Lessee of Phayre v. Fahy, Hayes & Jon. 128 ; Jones \\ Boland, 2 Jebb & Sy. 289; but see Whiteacre v. Symonds, 10 East, 13. * Mason V. Farnell, 12 M. & W. 674, even though "the question depends upon the careful and somewhat critical comparison of the terms of a deed, with the other circumstances and facts of the case," per Alderson, B., id. 682, pronouncing the judgment of the court. See also Elliott v. Elliott, 9 M. & W. 27, per Ld. Abinger. ^ See per Patteson, J., in Baylis v. Lawrence, 11 A. & E. 926. ' Furness v. Meek, 27 L. J., Ex. 34. See post, U 43, 1834. 8 De la Rue v. Dickenson, 7 E. & B. 738 ; Lister v. Leather, 27 L. J., Q. B. 295; 8 E. & B. 1004, S. 0. « Seed V. Higgins, 8 H. of L. Cas. 550, 561, 565. See post, | 43. " Harrison u Taylor, 29 L. J., Ex. 3. " R. V. Betts, 16 Q. B. 1022 ; R. v. Russell, 6 B. & C. 566 ; R. v. Ward, 4 A. & E. 384. 12 R. V. Fnllford, 1 L. & Cave, 403 ; 9 Cox, 453, S. C. (2924) CHAP. III.] CONDONATION — TENDER — NECESSARIES. 59 cases where the term has been employed in an Act of Parliament;* the seaworthiness of a ship;' the materiality of facts not com- municated in effecting an insurance;^ the competency of a testator in a will cause, and his freedom from undue influence ;* the cruelty of a husband as a ground for judicial separation;'^ and the condonation of a conjugal offence,® are for the jury, though the judge ought to take care that they are not misled by anything that comes out in the evidence.' So, it is the undoubted privilege of the jury to determine whether there has been an acceptance of goods sufficient to satisfy the Statute of Frauds.* So, the question whether a tender be absolute or conditional is usually one for the jury;® the court, however, being mindful to point out that a tender is not invalid in law as being conditional, if it merely implies that the debtor admits no more to be due, but that it must go further, and imply that the creditor, if he consents to take the sum offered, will be required to admit that his entire claim is satisfied.^" The jury, also, in any question relating to the amount of interest payable on a foreign bill of exchange, will determine as facts, first, what rate of interest is usually paid at the respective places where the bill was drawn or indorsed or accepted, and next, whether the plaintiff has sustained any damage requiring the payment of interest at all; but the judge will decide as a pure question of law, whether the case is to be goverened lege loci contractus, or lege loci solutionis}^ § 42. The jury must decide whether articles supplied to an infant I 35 be necessaries.* but their decision is subject to the control of the 1 Robinson v. Local Board of Barton, 52 L. J., Ch. 5; L. R. 21 Ch. D. 621, S. C. See Maude v. Baildon Local Board, L. R., 10 Q. B. D. 394. 2 Clifford V. Hunter, 3 C. & P. 16, per Ld. Tenterden; M. & M. 103, S. C. ^ Rawlings v. Desborough, 2 M. & Rob. 328, per Ld. Denman. * Purdon v. Ld. Longford, I. R., 11 C. L. 267. 5 Tomkins v. Tomkins, 1 Swab. & Trist. 168. « Peacock v. Peacock, 1 Swab. & Trist. 183. ^ Per Ld. Abinger in Mackintosh v. Marshall, 11 M. & "W. 126. * Lilly white v. Devereux, 1.5 M. & W. 291, per Alderson, B., recognising Edan v. Dudfield, 1 Q. B. 302, 307; 4 P. & D. 656, S. C; Clark v. Wright, 11 Ir. Law R., N. S. 402. 8 Eckstein v. Reynolds, 7 A. & E. 80; Marsden v. Goode, 2 C. & Kir. 133. ^^ Bowen v. Owen, 11 Q. B. 130; Bull v. Parker, 2 Dowl., N. S. 345; Henwood v. Oliver, 1 Q. B. 409. " Gibbs V. Fremont, 9 Ex. R. 25. (2925) 60 INFANT — NECESSARIES. [pART. I. judges/ who have laid down, as general rules of law, first, that this question does not, in any degree, depend upon what allowance the infant may have received from his father, and may have mis- applied;" secondly, that the articles must be really useful, and therefore that merely ornamental jewelry,^ or luxurious confec- tionary,* ar'e not- necessaries; and thirdly, that, if useful, they must be such as would be necessary and suitable to the degree and station in life of the infant.^ In a case, where the jury, in opposition to the opinion of the judge, found that the hiring of horses and gigs was necessary for an Oxford undergraduate, he being the younger son of a man of fortune, and keeping a horse of his own, the court set aside the verdict as perverse, and granted a new trial ;'^ and the same course was pursued, where an Irish jury had found that a hunter was "necessary" for a mere boy, who, having bragged at a ball that he was a member of the Surrey Stag Hunt, and worth 600Z. a year, had induced an Irishman to sell him his horse for 150^., had hunted the animal through the season, and had then, "V^hen payment was demanded, set up, through his guardian, what was described by an indignant advocate as "the shabby defence of infancy." ' Perhaps the safest rule that can be laid down on this subject is, that the judge must determine whether the articles are capable of being necessaries, regard being had to the position of the defendant; and if he should decide in the affirmative, the jury will then have to say, whether under the circumstances they were neces- saries or not.* 1 Harrison v. Fane, 1 M. & Gr. 553, per Tindal, C. J. ; Ryder ti. Wombwell, 38 L. J., Ex. 8, per Ex. Ch.; 4 Law Eep., Ex. 32, S. C. 2 Burghart v. Hall, 4 M. & W. 727; Peters v. Fleming, 6 M. & W. 46; but see Barnes v. Toye, L. R., 13 Q. B. D. 410, where held that, on a question of necessaries, infant might prove that at date of sale he was sufficiently supjjlied with other similar goods. ^ Peters v. Fleming, 6 M. & W. 47, 48, per Parke & Alderson, Bs. ; Ryder V. Wombwell, 38 L. J., Ex. 8, per Ex. Ch. ; 4 Law Rep., Ex. 32, S. C. In the latter case, a pair of jeweled solitaires and a silver-gilt goblet were held not to be "necessaries"; but in the former case it was determined that the j ury were entitled to say, whether a watch and gold chain were necessaries for an undergraduate. They found, as is their wont, in the affirmative. * Brooker v. Scott, 11 M. & W. 67; Wharton v. Mackenzie, and Cripps v. Hills. 1 D. & M. 544; 5 Q. B. 606, S. C. s Peters v Fleming, 6 M. & W. 42. ^ Harrison v. Fane, 1 M. & Gr. 550. ' Skrine v. Gordon, I. R. 9 C. L. 479. « Wharton v. Mackenzie, and Cripps v. Hill, 5 Q. B. 606; 1 D. & JM. 544, S. C. ;in which cases jui-ies having decided that wine parties and suppers (2926) CUAP. III.] CONSTRUCTION OF DOCUMENTS. Gl § 43. The construciion of all irritien documents,^-v}h\c\x term it g 36 is presumed necessarily includes Acts of Parli:iment, judicial records, deeds, wills, negotiable instruments, agreements, or letters, — belongs to the court alone, whose duty it is to construe all such instruments, as soon as the true meaning of the tvords ' in which they are couched, and the surrounding circumstances, if any, have been ascertained as facts by the jury; ^ and it is the duty of the jury to take the con- struction from the coiart, either absolutely, if there be no words to be construed as words of art or phrases used in commerce, and no surrounding circumstances to be ascertained;^ or conditionally, when those words or circumstances are necessarily referred to them. Unless this were so, there would be no certainty in the law; for a misconstruction by the court is the proper subject of redi-ess in a court of error; but a misconstruction by the jury cannot in any way be effectually set right.* Thus the court, after obtaining from the jury a mere explanation of technical termsj'^will construe the specification of a patent, though the interpretation of such an instrument, — relat- ing as it does to matters of science and skill, — would seem peculiarly adapted to the practical information of jurors; •* and where a contract were necessaries Cor Oxford undergraduates, the Court of Q. B. granted new trials. In Chappie v. Cooper, 13 M. & W. 252, the court held that the funeral of a husband, who had left no property to be administered, might be regarded as "necessaries" supplied to his infant widow. Legal expenses in preparing a marriage settlement have also been held " necessaries " for an infant bride. Helps V. Clayton, 17 Com. B., N. S. 553. 1 See Ashforth v. Redford, 9 Law Rep., C. P. 20; 43 L. J., C. P. 57, S. C; Alexander v. Vanderzee, 7 Law Rep., C. P. 530. But see Bowes v. Shand, in Dom. Proc. 8 June, 1877, affirming Shand v. Bowes, L. R., 1 Q. B. D. 470; 45 L. J., Q. B. 507, S. C. '' See Tamvaco v. Lucas, 1 B. & S. 185; S. C. in Ex. Ch., 3 B. & S. 89; Lyle 1'. Richards, 35 L. J., Q. B. 214, in Dom. Proc; 1 Law Rep., H. L. 222, S. C. ; D. of Devonshire v. Neill, 2 L. R. Jr. 134, 182, per Palles, C. B. ^ Key r. Cotesworth, 7 Ex. R. 595. In Lang v. Smith, 7 Bing. 284, the court held that the jury were rightly directed to determine, as a question of mercantile usage, whether certain Neapolitan bonds passed by the mere delivery of the coupons, without the production of the certificates. * Per Parke, B., pronouncing the judgment of the court in Neilson v. Harford, 8 M. & W. 823. ^ Hills v. Evans, 31 L. J., Ch. 457. " Neilson v. Harford, 8 M. & W. 806, 818, 819; 2 Webst. Pat. R. 295, 328, S. C; Bovill v. Pimm, 11 Ex. R. 718. These cases virtually overrule Hill V. Thompson, 3 Mer. 630, where Ld. Eldon observed, that the inieUigi- bilifij of the description of a specification was a matter of fact. It is worthy of remark, that in America the sufficiency of the description in a patentee's (2927) 62 CONSTRUCTION OF DOCUMENTS. [PAET I. for the sale of barley was attempted to be proved by letters, one of which offered good barley, and the other accepted the offer, " expect- ing you will give nsfi7W barley, and good weight," the court held, that though the jury might be asked as to the mercantile meaning of the words " good " and " fine," yet, after having found that there was a distinction between them, they could not further decide that the parties did not misunderstand each other, but were bound to take the interpretation of the contract, as a matter of law, from the judge/ So, the question whether the sum mentioned in an agreement to be paid for a breach, is to be treated as a penalty, or as liquidated damages," is one of law to be decided by the judge, upon a con- sideration of the whole instrument;^ and the question whether a letter amounts to a guarantee must be determined by the court alone, provided it contains no words of doubtful trade meaning, and the intrinsic facts are not in controversy/ So it seems clear, — not- withstanding one or two authorities to the contrary,^ — that the court specification is generally left as a question of fact to be determined by the jury, unless the statement be obviously too vague. Wood v. Underbill, 5 How. S. Ct. R. 1, 4. See Bush v. Fox, 5 H. of L. Cas. 707; Booth v. Kennard, 2 H. & N. 84; Hills v. London Gaslight Co., 5 H. & N. 312; 29 L. J., Ex. 409, S. C; and Betts v. Menzies, 1 E. & E. 990, 1020; in which cases it was held that, where in a patent cause the want of novelty appears distinctly from documents, such for instance as a prior patent and specifica- tion, the judge, and not the jury, must notice the identity of the two supposed inventions, and the consequent want of novelty in the second. See, too, Betts V. Menzies, as ultimately decided in the House of Lords, 10 H. of L. Cas. 117; and Seed v. Higgins, 8 H. of L. Cas. 550, 561, 565. But see also the observations of Ld. Westbury, Ch., on Bush v. Fox, and the'law supposed to be there laid down, in Hills v. Evans, 31 L. J., Ch. 461, 402. ^ Hutchison v. Bowker, 5 M. AW. 535. Parke, B., there observed, "The law I take to be this, — that it is the duty of the court to construe all written instruments; if there are peculiar expressions used in it, which have, in jmr- ticular places or trades, a known meaning attached to them, it is for the juri/ to .say what the meaning of those expressions was, but for thfe coui-i to decide what the meaning of the contract was.^^ P. 542. See also Bourne i;. GatlifFe, 3 M. & Or. 643, 680, 690; 3 Scott, N. R. 1, S. C; Griffiths v. Rigby, 1 H. & N. 237; Hills v. London Gaslight Co., 27 L. J., Ex. 60; Kirkland v. Nisbet, 3 Macq. Sc. Cas., H. of L. 766; Montgomery r. INIiddleton, 13 Ir. Law R., N. S. 173. 2 See Wallis v. Smith, L. R. 21 Ch. D. 243; 52 L. J., Ch. 145, S. C. ^ Sainter r. Ferguson, 7 Com. B. 727, per Wilde, C. J. This question was in former times occasionally left to the jury. See Crisdee v. Bolton, 3 C. & P. 240, per Best, C. J. * Bk. of Montreal v. Munster Bk., I. R. 11 C. L. 47. * Lloyd V. Maund, 2 T. R. 760; Linsell v. Bonsor, 2 Bing. N. C. 241. (2928) CHAP. III.] CONSTRUCTION OF LETTERS. 63 must determine, whether a written acknowledgement or a debt/ or of title," is sufficient to take the case out of the statutes of limita- tion ; though, pei'hapsj in a doubtful case, it may be a prudent course for the judge to express his own opinion, and also to take the opinion of the jury f and if the document is connected with other evidence affecting its construction, then the whole must be submitted to the jury together.* § 44. "With respect to the construction of letters, the rule of law ^ 36 appears to be, that, if extrinsic circumstances be not capable of explaining them, then, like other documents, their interpretation is a pure matter of law, in however ambiguous language they may be couched;^ but if they be written in so dubious a manner as to bear different constructions, and if they can be explained by other trans- actions, the jury, who are clearly the judges of the truth or false- hood of such collateral facts, which may vary the sense of the letters themselves, must decide upon the whole evidence.® Thus, where a question arose in Ireland whether the defendant had adopted the acceptance of a bill, it was held that the construction of a letter written by him on the subject, taken in connection with his subse- quent conduct, was entirely for the jury.' So, Avhere a contract has to be made out partly by letters, and partly by parol evidence, the jury must deal with the whole question.^ If a document be lost, and oral evidence be given of its contents, the judge must construe its meaning in the same manner as if it had been produced, but the 1 Morrell r. Frith, 3 M. & W. 402 ; Routledge v. Ramsay, 8 A. & E. 232, per Ld. Denman. 2 Doe V. Edmonds, 6 M. & W. 302, per Parke, B. 3 Bucket V. Church, 9 C. & P. 211, per Parke, B.; Morrell v. Frith, 3 M. & W. 406, per id. * Routledge v. Ramsay, 8 A. & E. 222, per Ld. Denman ; Morrell r. Frith, 3M. &W. 402 ; Moore v. Garwood, 4 Ex. R. 681; Ashpitel v. Sercombe, 5 Ex. R. 163, 164 ; Foster v. Mentor Life Ass. Co., 3 E. & B. 48. ^ Furness v. Meek, 27 L. J., Ex. 34. " Per Buller, J. Mackbeath v. Haldimand, 1 T. R. 182 ; Smith v. Thompson, 8 Com. B. 44. See Lyle v. Richards, 35 L. J., Q. B. 214, in Dom. Proc; 1 Law Rep., H. L. 222, S. C. '' Wilkinson v. Storey, 1 Jebb & Sy. 509. See Brook v. Hook, 6 Law Rep., Ex. 89; 40 L. J., Ex. 50, S. C. 8 Bolckow V. Seymour, 17 Com. B., N. S. 107. (2929) G4 MEANING OF TECHNICAL PHRASES. [PART I. jury may, of course, in such a case be called upon to declare whether they believe the oral testimony.* § 45. The power of the jury to interpret expressions is not con- fined to such as are employed in contracts, or have a peculiar commercial meaning ; but seems to extend to all phrases, capable of being used in a technical sense, which do not require any know- ledge of the law to explain them. Thus, the courts have more than once refused to entertain the question, whether an excavation is a mine," and as such not rateable to the relief of the poor; but having so far laid down a legal principle with reference to the subject, as to decide that the method of working was to be considered, and not the chemical or geological character of the produce,^ they have de- clined to go further, and have left the magistrates in Sessions to apply to the question, as one of fact, the information they possess, and their knowledge of the English language.^ So, it has been held, that the jury must determine what constitutes such a representation of part of a dramatic production, as to subject the person representing it to penalties under the Act of 3 & 4 "W. 4, c. 15.^ But if a word of doubtful import be used in an Act of Parliament, the judge ought to explain its general meaning ; and, therefore, when, on the trial of an issue whether a railway was passing through " a town," within the meaning of the Railway Clauses Consolidation Act, the 1 Berwick v. Horsfall, 27 L. J., C. P. 193; 4 Com. B., N. S. 450, S. C. ^ If any question arises as to whether a mine is a mine within the meaning of the Mines Eegulation Acts, 1872, it "shall be referred to a Secretary of State, whose decision thereon shall be final." 35 & 36 V., c. 76, ^ 70 ; and c. 77, I 39. * See Darvill v. Roper, 3 Drew. 303 ; Bell v. Wilson, 2 Drew. & Sm. 395 ; 35 L. J., Ch. 337, per Lds. Js., S. C; 1 Law Rep., Ch. Ap. 303, S. C; Dow. Duch. of Cleveland r. Meyrick, 37 L. J., Ch. 125, per Malins, V.-C. But see Jones r. Cwmorthen Slate Co., L. R., 4 Ex. D. 97 ; 48 L. J., Ex. 486, S. C; affirmed on App. 49 L. J., Ex. 110; and L. R., 5 Ex. D. 93, S. C. See also Midi. Ry. Co. V. Haunch wood Brick and Tile Co., L. R., 20 Ch. D. 552; 51 L. J., Ch. 778, S. C. * R. V. Sedgeley, 2 B. & Ad. 65 ; R. v. Brettell, 3 B. & Ad. 424 ; R. v. Dunsford, 2 A. & E. 568 ; 4 N. & M. 349, S. C. "The Court of Quarter Sessions are judges of law and fact. The appeal to the Queen's Bench is confined to questions of law. The distinction, therefore, between the respective provinces of the two courts is so far analogous to the distinction under dis- cussion, as to justify the drawing of illustrations from cases of appeal." 12 Law Mag. 64, n. 2. ^ pianch^ v. Braham, 4 Bing. N. C. 19. (2930) CHAP. III.] PROSECUTIONS FOR LIBEL. G5 judge merely told the jury that the word " town " was to be under- stood in its ordinary and popular sense, the court held that this was a misdirection, and granted a new trial in consequence.' So, the jury will not be allowed to examine a record, for the purpose of giving their opinion as to what word has been written above an erasure; for the inspection of a record is within the peculiar pro- vince of the court." § 46. On the rule of law, which intrusts the judge with, th^ §3^. interpretation of written instruments, an exception has IpjB^r^ engrafted in certain cases, when the writing forms the STji,bject, of an indictment or an action, and the guilt or innpe?n(je of. the defendant depends upon the popular meaning of th^, language employed. Thus, on a prosecution for libel, the legislature,— after much acrimonious discussion between the judges on the pi^e hand, and the advocates of popular rights on the other, ^— has expressly determined,* that the question whether the partici^ar publication, 1 Elliott V. South Devon Rail. Co., 2 Ex. R. 725 2 R. V. Hucks, 1 Stark. R. 522, per Ld. ElleDboro,ugh. ^ As to this celehrated dispute, see, in support 9f th^ claims of the judges, R. V. Udall, 1 How. St. Tr. 1289; R. v. Woodtall, 20 id. 913, 918, 920, per Ld. Mansfield; 5 Burr. 2661, S. C; R. v. Dean of- St. Asaph, 21 How. St. Tr. 1033, per Ld. Mansfield: and in support of the rights pf the jury, R. r. Tutchin, 14 id. 1128, per Ld. Holt; R. v. Owen, 18 id. 1223, 1227; R. r. Dean of St. Asaph, 21 id. 922, 971, arguments of R^t. Erskine, and 1040, per Willes, J.; 29 id. 49, per Ld. Ellenborough ; 1 Woodfall's, Junius, 14, et seq., 163, 169-^ 176. As to the proceedings in the I^ouse of Lords on the passing of the Libel Act, see 22 How. St. Tr. 294, 297. * 32 G. 3, c. 60, ^ 1, declares and enacts that, on every trial of an indict- ment or information for a libel, " the jury sworn, to try the issue may give a general verdict of guilty or not guilty upon the whole matter put in issue upon such indictment or information; and shall not be required or directed by the court or judge, befpre Avhom such indictment or information shall be tried, to find the defendant or defendants guilty, merely on the proof of the publication by such defendant or defendants of the paper charged to be a libel, and of the sen.se inscribed to the same in such indictment or informa- tion." § 2 provides, that, "on every such trial, the court or judge, before whom such indictment or information shall be tried, shall,* according to their or his discretion, give their or his opinion and directions to the jury on the * Semble, the word "shall" should here be interpreted as if the word "may" had been used. See per Littledale, J., in Baylis v, Lawrence, 11 A. & E. 925. 5 LAW OF EVID. — V. I. (2931) 66 LIDEL — TUREATEXING LETTERS. [PART I. which is the subject of inquiry, is of a libellous character, and is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule, is one upon which the jury must exercise their judgment and pronounce their opinion, as a question of fact. The judge, indeed, as a matter of advice to them in de- ciding that question, may give his own opinion respecting the nature of the publication, but is not bound to do so as a matter of law.' The statute here noticed is strictly applicable to criminal trials only, but, being a declaratory Act, its provisions have been adopted in civil actions for libel, and, for a series of years, it has been the course for the judge,— in the event of his deciding that the words complained of are reasonably cajKihle of bearing the defamatory meaning ascribed to them by the plaintiff," — first to give a legal definition of the offence, and then to leave the jury to determine whether the writing complained of falls within that definition or not.^ It is not, however, absolutely necessary that the judge should explain what constitutes a libel, but he may leave the whole question without reserve to the jury;* though if they find a verdict against the defendant, either on an indictment or an action, the court will arrest the judgment, if the writing on the face of it is not libellous.^ § 47. On indictments for writing threatening letters,^ the re- I 39 spective duties of the judge and jury are not very clearly defined. In some cases the jury have been permitted, upon examination of the paper, to decide for themselves whether or not it contained a menace.^ In other cases, the question appears to have been ex- clusively determined by the court ;^ while on a few occasions the matter in issue between the King and the defendant or defendants, in like manner as in other criminal cases." § 3 provides, that a jury may find a special verdict; and ^ 4 reserves to defendants a right to move in arrest of judgment. ^ Per Parke, B., in Parmiter i'. Coupland, 6 M. & W, 108. 2 Hunt V. Goodlake, 43 L. J., C. P. 54; Sturtr. Blagg, 10 Q. B. 906, 90R, per Wilde, C. J. ^ Parmiter v. Coupland, 6 M. & W. 107, 108. * Baylis v. Lawrence, 11 A. & E. 920. * Hearne v. Stowell, 12 A. & E. 719; 4 P. (^ D. G96, S. C; Goldstein v. Foss, 6 B. & C. 154; Parmiter v. Coupland, 6 M. & W. 106, per Alderson, B. fi See 24 & 25 V., c. 96, U 44, 46. ' E. V. Gird wood, 1 Lea. 142; 2 East. P. C. 1120, S. C. « R. V. Smith, 1 Den. 510, 512; 2 C. & Kir. 882, 884, S. C; R. v. Pickford, 4 C. & P. 227. (2932) CHAP. Ill ] FOREIGN LAWS. 07 opinions of the jury, and of the judges, have alternately been taken on the point.' § 48. In regard to foreign laics,^ usages and cvistoms, which we § 40 have already seen^ cannot be judicially noticed, but must be proved as facts in each particular case,* the distinction between the functions of the judge and the jury does not yet appear to be very clearly defined. It would seem, however, that while the existence and abstract meaning of the law must, in general, be determined by the jury on the testimony of the skilled witnesses,'' it will be the duty of the court to decide, first, as to the competent knowledge of the witnesses called ;^ next, as to the admissibility of the documents by which they seek to refresh their memory ; and lastly,^ as to the special applicability of the law, when proved, to the particular matter in controversy.* If, indeed, the admissibility or inadmissibility of certain evidence depends on the existence or interpretation of a foreign law, the proof should exclusively be addressed to the court, as in other cases where questions re- specting the admissibility of evidence rests upon disputed facts.' Perhaps, also, as all matters of law are properly referable to the court, and as the object of the proof of foreign law is to enable the court to instruct the jury respecting its bearing on the case in hand, it will always be advisable for the judge to assist the jury in ascertaining what the law really is.'" ^ R. V. Robinson, 2 Lea. 755, 765; R. v. Coatly, 15 Cox, 89, Ir. '^ As to colonial Imcs, see ante, § 9. ^ Ante, ? 5. * Although a point of foreign law may have been proved and acted upon in one court, another court will not rely upon the report of such a case, but will require fresh proof of the law, as a matter of fact, on each particular occasion; M'Cormick r. Garnett, 23 L. J., Ch., 717, per Knight-Bruce, L. J. ; 5 De Gex M. & G. 278, S. C. * R. V. Picton, 30 How. St. Tr. 536—540, 864—870. * Bristow V. Sequeville, 5 Ex. R. 275. The whple of this subject will be discussed, post, U 1423—1425. " See Sussex Peer. Case, 11 CI. & Fin. 114—117; Ld. Nelson v. Ld. Brid- port, 8 Beav. 527; Church v. Hubbart, 2 Cranch, 187, 236—238. « Story, Confl. | 638. 8 Trasher v. Everhart, 3 Gill & John. 234, 242; Story, Confl. ? 638, n. 3; ante, ? 23. '» Story, Confl. § 638, & n. 3; Mostyn v. Fabrigas, 1 Cowp. R. 174, per Ld. Mansfield. (2933) 68 FOREIGN RULES OF EVIDENCE. [pART I. § 49. Before leaving the subject of foreign law, it will be ^ 41 important to notice, that the peculiar rules of evidence adopted in one country, — whether established by the practice of its courts, or enacted by the legislature for the government of those courts, — cannot be permitted to regulate the proceedings of courts in another country, when transactions, which took place in the former country, become the subject of investigation in the latter.* The law of evidence is the lex fori which governs the courts. "Whether a witness is competent or not, — whether a certain matter requires to be proved by writing or not,— whether certain evidence proves a certain fact or not, — these, and the like questions, must be determined, not lege loci contractus, but by the law of the country where the question arises, where the remedy is sought to be enforced, and where the court sits to enforce it." The case of Clark v. Mullick, which was decided before the law was altered by the Evidence Amendment Act, of 1851,^ affords a striking example of this rule. There, the assignees of a bankrupt under an English fiat having brought an action in Calcutta against a debtor of the bankrupt, and the pleas having put in issue the 'bankruptcy and the assignment, it was held that the affirmative of these issues could not be proved by producing copies of the proceedings in the Bankruptcy Court, purporting to bear the seal of that court, and to be signed by the Clerk of Enrolments; for although, by the statutes relating to bankruptcy, such evidence was sufficient in English courts of justice, it was not at that time admissible in India, as the Acts did not extend to that country.* Again, although by the Scotch law, all instruments prepared and witnessed according to the provisions of the Act of 1081, are probative writs, and may be given in evidence without any proof, yet still, if it were required to prove one of these Scotch instru- ments in an English court, its mere production would not suffice, but it would be necessary to call one or other of the attesting 1 Clark V. Mnlliok, .3 Moo. P. C. R. 279, per Ld. Brongham. '^ Bain v. Whitehaven & Furness June. Kail. Co., 3 H. of L. Cas. 19, per Ld. Brougham. 3 14 & 15 v., c. 99, §? 11 & 19. * Clark V. Mullick, 3 Moo. P. C. R. 252, 280. (2934) CHAP. III.] FOREIGN RULES OF EVIDENCE. 69 witnesses.^ The case of Brown v. Thornton" is another illnstra tion of this rule. There, a charter-party had been entered into at Batavia; and, in accordance with the Dutch law which prevails in that colony, the contract had been written in the book of the notary, and a copy, signed and sealed by him and counter- signed by the governor of Java, had been delivered to each of the parties. In the courts of Java, the contract is proved by producing the notary's book; but in all other Dutch courts the copies are received as due evidence of the original. Under these circum- stances, the plaintiff in an English court tendered his copy of the charter- party, as evidence of the contract, but the court held that it was inadmissible, on the ground that English judges could not adopt a rule of evidence from foreign courts. Several other cases could be cited to the same effect;^ and in all, the distinction is recognised between the cause of action, which must be judged of according to the law of the country where it originated, and the mode of proceeding, including of course the rules of evidence, which must be adopted as it happens to exist in the country where the action is brought.* § 49a. Though the lex fori usually governs the laws of evi- dence, a remarkable exception to this doctrine is recognised by all courts- martial; for it is distinctly enacted by the Army Act, 1881,^ first, that " a court-martial under this Act shall ijot, as respects the conduct of its proceedings, or the reception or rejigction of evidence, or as respects any other matter or thing whatsoever, be subject to the provisions of the Indian Evidence Act, 1872, or to any Act, law, or ordinance of any legislature whatsoever, other than ^ Yates V. Thompson, 3 CI. & Fin, 577, 580, etseq., per Ld. Brougham. =* 6 A. & E. 185. ^ Trimbey v. Vignier, 1 Bing. N. C. 151 ; Huber v. Steiner, 2 Bing. N. C. 202; British Linen Co. v. Drummond, 10 B. & C. 903; Appleton v. Ld. Braybrook, 2 Stark R. 6; 6 M. & Sel. 34, S. C; Black :v. Braybrook, 2 Stark. R. 7; 6 M. & Sel, 39, S. C; Don. v. Lippman, 5 CI. & Fin. 1, 13— 17; Leroux v. Brown, 12 Com. B. 801; Finlay v. Finlay, 31 L. J., Pr. & Mat. 149. * Mostyn v. Fabrigas, 1 Smith, L. C. 641. See also Story, Confl. U 556, et seq. & 629—636. M4 & 45 v., c. 58, §| 127 & 128. "^ (2935) 70 RULES OF EVIDENCE ON COURTS-MARTIAL. [pART I. the Parliament of the United Kingdom;" and next, that "the rules of evidence to be adopted in proceedings before courts- martial shall be the same as those which are followed in civil courts in England; and no person shall be required to answer any question or to produce any documents, which he could not be required to answer or produce in similar proceeding before a civil court." (2936) CHAP. IV.] DISPOSITION TO BELIEF INSTINCTIVE. 71 CHAPTEK IV. THE GROUNDS OF BELIEF. § 50.' Wf proceed now to a brief consideration of the General « 43 Nature and Principles of Evidence. No inquiry is here proposed into the origin of human knowledge ; it being assumed, on the authority of approved writers, that all that men know is referable, in a philosophical view, to perception and reflection. But, in fact, the knowledge acquired by an individual through his own per- ception and reflection, is but a small part of what he possesses ; much of what we are content to regard and act upon as knowledge, having been acquired through the perception of others.^ It is not easy to conceive, that tlie Supreme Being, whose wisdom is so conspicuous in all His works, constituted man to believe only upon his own personal experience ; since, in that case, the world could neither be governed nor improved ; and society must remain in the state in which it was left by the first generation of men. On the contrary, during the period of childhood we believe implicity almost all that is told us ; and we thus are furnished with information, which we could not otherwise obtain, but which v is necessary at the time for our present protection, or as the means of future improvement. This disposition 'to confide in the veracity of others, and to believe what they say, may be termed instinctive. At an early period, however, we begin to find that of the things told to us some are not true; and thus our implicit reliance on the testimony of others is weakened ; first, in regard to particular things, in which we have been deceived ; then, in regard to persons, whose fasehoods we have detected ; and, as these instances multiply upon us, we gradually become more and more distrustful of statements made to us, and learn by experience the necessity of testing them by certain rules.^ "Confidence," ^ Gr. Ev. § 7, nearly verbatim. » Id. Part 2, I 3, p. 73. ^ Abercr, on Intell. Pow., Part p. 42. (2937) 72 INSTINCTIVE TENDENCY TO BELIEF. [pART I. exclaimed Lord Chatham, on a memorable occasion, " is a plant of slow growth in an aged bosom ;" and indeed, it may be generally observed, that, as our ability to obtain knowledge by other means increases, our instinctive and indiscriminate reliance on testimony diminishes, by yielding to a more rational belief.' Still, in every 1 *Gamb. Guide, 87; M'Kinnon, Phil, of Ev. 40. This subject is treated more hirgely by Dr. Eeid in his profound Inquiry into the Human Mind, c. 6, § 24, pp. 19G, 197, of his collected Works, in these words: — "The wise and beneficient Author of NatujCv ^yho intended that we should be social creatures, and that we should receive the greatest and most important part of our know- ledge by the information of others, hath, for these purposes, implanted in our nature two principles, that tally with each other. The first of these principles is a propensity to speak truth, and to use the signs of language, so as to convey our real sentiments. This principle has a powerful operation, even in the greatest liars ; for where they lie once they speak truth a hundred times. Truth is always uppermost, and is the natural issue of the mind. It requires no art of training, no inducement or temptation, but only that we yield to a natural impulse. Lying, on the contrary, is doing violence to our nature; and is never practised, even by the worst men, without some temptation. Speaking truth is like using our natural food, which we would do from appetite, although it answered no end ; but lying is like taking physic, which is nauseous to the taste, and which no man takes but for some end, which he cannot otherwise attain. If it should be objected, that men may be influenced by moral or political considerations to speak truth, and therefoi-e, that their doing so is no proof of such an original principle as W'e have mentioned ; I answer, first, that moral or political considerations can have no influence, until we arrive at years of understanding and reflection ; and it is certain from experience, that chil- dren keep to truth invariably, before they are capable of being influenced by such considerations. Secondly, when we are influenced by moral or political considerations, we must be ctonscious of that influence, and capable of perceiving it upon reflection. Now, when I reflect upon my actions most attentively, I am not conscious, that in speaking truth I am influenced on ordinary occasions by any motive moral or political. I find, that truth is always at the door of my lips, and goes forth spontaneouslj-, if not held back. It requires neither good nor bad intention t;> brirtg it forth, but only that I be artless and undc- signing. There may indeed be temptations to falsehood, which would be too strong for the natural principle of veracity, unaided by principles of honour or virtue ; but where there is no such temptation, we speak truth by instinct ; and this instinct is the principle I have been explaining. By this instinct, a real connection is formed between our words and our thoughts, and thereby the former become fit to be signs of the latter, which they could not otherwise be. And although this connection is broken in every instance of lying and equivo- cation, yet these instances being comparatively few, the authority of human testimony is only weakened by them, but not destroyed. Another original * Gr. Ev. § 7, n. verbatim. (2938) CHAP. IV.] INSTINCTIVE TENDENCY TO BELIEF. 73 period of life aod in every state of intellectual culture, man is instinctively more prone to believe than to disbelieve the testimony of others, and this disposition towards credulity may be regarded priuciple, implanted iu us by the Supreme Being, is a disposition to confide in the veracity of others, and to believe what they tell us. This is the counter, part to the former : and as that may be called the principle of veracity, we shall, for want of a proper name, call this the principle of credulity. It is unlimited in children until they meet with instances of deceit and lalsehood; and it contains a very considerable degree of strength through life. If nature had left the mind of the speaker in equilibrio, without any inclination to the side of truth more than to that of falsehood, children would lie as often as they speak truth, until reason was so far ripened, as to suggest the imprudence of lying, or conscience, as to suggest its immorality. And if nature had left the mind of the hearer in equilibrio, without any inclination to the side of belief more than to that of disbelief, we should take no man's word, until we had positive evidence that he spoke truth. His testimony would, in this case, have no more authority than his dreams, which may be true or false: but no man is disposed to believe them, on this account, that they were dreamed. It is evident, that, in the matter of testimony, the balance of human judgment is by nature inclined to the side of belief; and turns to that side of itself, when there is nothing put into the opposite scale. If it was not so, no proposition, that is uttered in discourse would be believed, until it was examined and tried by tea-son: and most men would be unable to find reasons for believing the thou- sandth part of what is told them. Such distrust and incredulity would deprive us cf the greatest benefits of society, and place us in a worse condition than that of savages. Children, on this supposition, would be absolutely incredulous, and therefore absolutely incapable of instruction; those who had little know- ledge of human life, and of the manners and characters of men would be in the next degree incredulous; and the most credulous men would be those of greatest exi^erience, and of the deepest penetration; because, in many icases, they would be able to find good reasons for believing testimony, which the weak and the ignorant could not discover. In a word, if credulity were the effect of reasoning and experience, it must grow up and gather strength, in the same proportion as reason and experience do. But if it is the gift of nature, it will be strongest in childhood, and limited and restrained by experience; and the most superficial view of human life shows, that the last is really the case, and not the first. It is the intention of nature, that we should be carried in arms before we are able to walk upon our legs; and it is likewise the intention of nature, that our belief should be guided by the authority and reason of others, before it can be guided ])y our own reason. The weakness of the infont, and the natural afiection of tlie mother, plainly indicate the former; and the natural credulity of youth and authority of age as plainly indicate the latter. The infant, by proper nursing and care, acquires strength to walk without support. Reason hath likewise her infxncy, when she must be carried in arms; then she leans entirely upon authority, by natural instinct, as it she was conscious of her own weakness; and without this support, she becomes vertiginous. When brought to maturity by proper culture, she begins to feel her own strength, and leans less upon the reason of others; she learns to suspect testimony in some cases, and to disbelieve it in others; and sets bounds (2939) 74 FAITH IX TESTIMONY AS SANCTIONED BY EXPERIENCE. [pART I. as a fundamental principle of our moral nature, implanted in us by the Almighty for the wisest and most beneficent purposes. As such it constitutes the general basis upon which all evidence may be said to rest. § 51.' Subordinate to this paramount and original principle, it § 43 may, in the second place, be observed, that evidence rests upon our faith in human testimony, as sanctioned by experience; that is, upon the generally experienced truth of the statements on oath of men of integrity, having capacity and opportunity for observation? and without apparent influence from passion or interest to pervert the truth. This belief is strengthened by our knowledge of the narrator's reputation for veracity and intelligence, by the absence of conflicting testimony, and by the presence of that which is corrobo- rating and cumulative.^ § 52. It is obvious, that, in the hasty progress of a trial at Nisi § 44 Prius, it is frequently difiicult, and sometimes impossible, to ascertain, with anything like certainty, what characters the wit- nesses respectively deserve for honesty and intelligence, and how far they are actuated by interested, malignant, or other improper motives. On these heads considerable doubts must almost always to that authority to which she was at first entirely subject. But still, to the end of life, she finds a necessity of borrowing light from testimony, where she has none within herself, and of leaning in some degree upon the reason of others, where she is conscious of her own imbecility. And, as in many instances Eeason, even in her maturity, borrows aid from testimony; so in others she mutually gives aid to it^ and strengthens its authority. For, as we find good reason to reject testimony in some cases, so in others we find good reason to rely upon it with perfect security in our most important concerns. The character, the number, and the disinterestedness of witnesses, the impossi- bility of collusion, and the incredibility of their concurring in their testimony without collusion, may give an irresistible strength to testimony, compared to which its native and intrinsic authority is very inconsiderable." ^ Gr. Ev. § 10, nearly verbatim. 2 Archbishop Whately, in his admirable jeu d'esprit, entitled "Historic Doubts relative to Napoleon Buonaparte," has clearly stated the main tests of human veracity. " I suppose," says he, "it will not be denied that the three following are among the most important points to be ascertained, in deciding on the credibility of witnesses; first, whether they have the means of gaining correct information; secondly, whether they have any interest in concealing truth, or propagating falsehood; and, thirdly, whether they agree in their testimony."— P. 14, 6th ed. (2940) CHAP. IV.] DEMEANOUR OF WITNESSES — TESTS OF TRUTH. 75 exist ; although a rigid cross-examination, when skilfully applied,' will certainly throw much light upon the subject ; and a careful attention to the demeanour of the witness will furnish a no less valuable guide. Thus, while simplicity, minuteness, and ease are the natural accompaniments of truth, the language of witnesses coming to impose upon the jury is usually laboured, cautious, and indistinct.^ So, when we find a witness over zealous on behalf of his party; exaggerating circumstances; assuming an air of bluster and defiance f answering without waiting to hear the question ; forgetting facts where he would be open to contradiction; minutely remembering others, which he knows cannot be disputed ;* reluc- tant in giving adverse testimony; replying evasively or flippantly;'^ pretending not to hear the question, for the purpose of gaining time to consider the effect of his answer; affecting indifference ; or, often vowing to God,® and protesting his honesty; we have indi- cations, more or less conclusive, of insincerity and falsehood.^ On the other hand, in the testimony of witnesses of truth there is a calmness and simplicity ; a naturalness of manner ; an unaffected readiness and copiousness of detail, as well in one part of the narrative as another ; and an evident disregard of either the facility or difficulty of vindication or detection.^ § 53. Besides these tests of truth, which are obviously of value § 45 in fixing what amount of credit is due to each individual witness, ^ In the great Tichborne trial of 1871, the cross-examination of Mr. Baigent by Mr. Hawkins should be carefully studied, as being the best modern example of forensic ability in that line. 2 Channing, Ev. of Christ., 3rd vol. of Works, 356. ' "Asseveration blustering in your face Makes contradiction such a hopeless case." CowPEE, Conversation. * "For, when we risk no contradiction, It prompts the tongue to deal in fiction." Gay's Fables, Part I., Fable x. * "All persons who have been accustomed to see witnesses in a court of justice know, that those "who are stating falsehoods are extremelj' apt to give flippant and impertinent answers." Per Mr. Brougham on the Queen's trial ; 1 Ld. Br. Rp. 159. ® " And even when sober truth prevails throughout, They swear it, till affirmance breeds a doubt. ' ' COWPER, Conversation. ^ 1 St. Ev. 547. 8 Greenl. on Test, of Evang. ^ 40. (2941) 76 TESTIMONY OF ENSLAVED PEOPLE — OF WOMEN. [PART I. certain general rules must be borne in mind, as tending to shadow forth, rather than define, the relative merits of particular classes of witnesses. Thus, it has been justly observed, that a " propensity to lying has been always, more or less, a peculiar feature in the character of an enslaved people, — accustomed to oppression of every kind, and to be called upon to render strict account of every trifle done, not according to the rules of justice, but as the caprice of their masters may suggest ; — it is little to be wondered at, if a lie is often resorted to as a supposed refuge from punishment, and that thus an habitual disregard is engendered."' This passage is cited, as accounting in some measure for the lamentable neglect of truth, which is evinced by most of the nations of India, by the subjects of the Czar, and by many of the peasantry in Ireland.^ § 54. Again, as the chief motive for exaggeration springs from ^ 46 an innate vain love of the marvellous,^ and as this love, like all other, is most remarkable in the softer sex,* a prudent man will, in general, do well to weigh with some caution the testimony of female ivitnesses. This care is all the more necessary, in conse- quence of the extensive and dangerous field of falsehood which is opened up by mere exaggeration; for, as truth is made the ground- work of the picture, and fiction lends but light and shade, it often requires more patience and acuteness than most men possess, or are willing to exercise, to distinguish fact from fancy, and to repaint the narrative in its proper colours.^ In short, the intermixture of ' Bp. of Tasmania's Lect. on Christ. Catechism, 519. ^ The Antiquarian loves to trace the Irish blood from a Carthaginian stock. ^ Bp. of Tasmania's Lecture on Christ. Catechism, 522. * The woman of Samaria affords a striking example of this proneness to ex- aggerate. When our Saviour told her she had had five husbands, she went into the city, saying, "Come, see a man, which told me all things that ever I did.'' 4th ch. of St. John, v. 29. ^ Bp. of Tasmania's Lect: on Christ. Catechism, 522. The difficulty of detecting falsehood which has been engrafted on truth has been noticed by Alfred Tennyson, in his charming poem of the " Grandmother :" — ''and the parson . . . said likewise, That a lie which is half a truth is ever the blackest of lies, That a lie which is all a lie may be met and fought with outright, But a lie which is part a truth is a harder mattier to fight. ' ' Mr. Brougham commented on the same subject with great ability on the (2942) CHAP. IV.] TESTI3I0NY OF WOMEN — OF CHILDREN. 77 truth disarms the suspicion of the candid, and sanctions the ready belief of the malevolent.' Having pointed out this proneness to exaggerate as a feminine weakness, it is only just to add, that in other respects, the testimony of women is at least deserving of equal credit to that of men. In fact, they are in some respects far superior witnesses; for first, they are, in general, closer observers of events than men; next, their memories, being less loaded with matters of business, are usually more tenacious; and lastly, they often possess unrivalled powers of simple and unafPected narration." § 55. Sir William Blackstone appears to have thought,^ that q ^j less credit was due to the testimony of a child than to that of an adult; but reason and experience scarcely waiTant this opinion. In childhood, the faculties of observation and memory are usually more active than in after life, while the motives of falsehood are then less numerous and less powerful. The inexperience and artlessness, which, in a great measure, must accompany tender years, render a child incapable of sustaining consistent perjury, while the same causes operate powerfully in preventing his true testimony from being shaken by the adroitness of counsel. Not comprehending the drift of the questions put to him in cross- examination, his only course is to answer them according to the Queen's trial. "If an individual," saidlie, " were to invent a story entirely, — if he were to form it oomplctelj^ of falsehoods, the result would be his inevit- able detection ; but if he build a structure of falsehood on the foundation of a little truth, he may raise a tale which, with a good deal of drilling, may put an honest man's life, or an illustrious Princess' reputation, in jeopardy. ' ' 1 Ld. Br. Sp. 14.7. And, again : " The most efiectual way, because the safest, of laying a plot, is not to swear too hard, is not to swear too much, or to come too directly to the point; but to lay the foundation in existing facts and real cir- cumstances, — to knit the false with the true, — to interlace reality with fiction, — to build the fanciful fabric upon that which exists in nature, — and to escape detection by taking most especial care, as they have done here, never to have two witnesses to the same facts, and also to make the facts as moderate, and as little offensive, as possible." 1 Ld. Br. Sp. 21.5. ' Bp. of Tasmania's Lect. on Christ. Catechism, 522. ^ Take, for instance, the Letters of Madame de Sevigne, or* Lady Mary Wortley Montagu, which can only be rivalled, if at all, by those of the effeminate Ld. Orford. , 3 4 Bl. Com. 214. (2943) 78 TESTIMONY OF FOREIGNERS — OF POLICEJIEN. [pART I. fact. Thus, if be speak falsely, he is almost inevitably detected; but if he be the witness of truth, he avoids that imputation of dishonesty, which sometimes attaches to older witnesses, who, though substantially telling the truth, are apt to throw discredit on their testimony, by a too anxious desire to reconcile every apparent inconsistency. , § 56. The testimony of foreigners and of others, who, living out § 48 of the jurisdiction, are brought from a distance to the place of trial, often requires to be scrutinised with more than common caution; for, as such persons speak before a tribunal, which ordinarily knows no more of them than they care for it, whose threat they have no reason to fear, and whose good opinion they utterly disregard, they are obviously far less likely than witnesses living on the spot to be influenced by the dread of having their falsehoods exposed.* The detection of perjury, in their case, involves but little loss of char- acter, and no real danger of punishment. A dishonest foreigner, too, who has attained a tolerable knowledge of the language, has always this advantage over a native, that he may modestly conceal his proficiency as a linguist, and avail himself of the assistance of an interpreter, which gives him an opportunity of preparing with due caution his answer to any inconvenient question, while the inter- preter, all unheeded, is performing the superfluous part of furnish- ing him with a needless translation." § 57. With respect to policemen, constahles, and others employed ^ 49 in the suppression and detection of crime, their testimony against a prisoner should usually be watched with care; not because they intentionally pervert the truth, but because their professional zeal, fed as it is by an habitual intercourse with the vicious, and by the frequent contemplation of human nature in its most revolting form, almost necessarily leads them to ascribe actions to the Avorst motives, and to give a colouring of guilt to facts and conversations, which are, ^ Per Mr. Brougham on the Queen's trial. 1 Ld. Br. Sp. 126. See id p. 241. "^ Id. 168. See R. v. Burke, 8 Cox, 44, 47, cited post, ^ 1444. (2944) CHAP. IV.] SKILLED WITNESSES — COINCIDENCES IN TESTIMONY. 79 perhaps, in themselves consistent with perfect rectitude.' "That all men are guilty, till they are proved to be innocent," is naturally the creed of the police: but it is a creed which linds no sanction in a court of justice. As a set-ofP to this tendency on the part of the police to regard conduct in the worst point of view, it must in fairness be stated, that, in every other respect, the general mode in which they give their testimony is unimpeachable; and that, except when blinded by prejudice, they may well challenge a comparison with any other body of men in their rank of life, as upright, intel- ligent, and trustworthy witnesses. § 58. Perhaps the testimony which least deserves credit with a § 50 jury is that of skilled tcitnesses. These gentlemen are usually required to speak, not to facts, but to opinions; and when this is the case, it is often quite surprising to see with what facility, and to what an extent, their views can be made to correspond with the wishes or the interests of the parties who call them. They do not, indeed, wilfully misrepresent what they think: but their judgments become so warped by regarding the subject in one point of view, that, even when conscientiously disposed, they are incapable of ex- pressing a candid opinion. Being zealous partisans, their Belief becomes synonymous with Faith as defined by the Apostle,^ and it too often is but "the substance of things hoped for, the evidence of things not seen." To adopt the language of Lord Campbell, "skilled witnesses come with such a bias on their minds to support the cause in which they are embarked, that hardly any weight should be given to their evidence."^ § 59. A third ground of the credibility of evidence is afforded ^ 51 by the exercise of reason upon the effect of coincidences in the tes- timony of independent witnesses. These coincidences, when suffi- ciently numerous, and presented in the shape of undesigned corres- pondency, or incidental allusion, necessarily produce a prodigious effect in enforcing belief; because, if the witnesses had concerted a plot, the coincidences would almost inevitably have been converted ' See post, ^ G8. ^ Ep. to the Hebrews, c. xi., v. 1. ' Tracy Peer. 10 CI. & Fin. 191. See post, ^8. (2945) 80 COINCIDENCES IN TESTIMONY. [pART I. by cross-examination into contradictions,' and if collusion is ex- cluded, and no deception has been practiced on the witnesses, the harmony in their evidence cannot be explained upon any other hypothesis than that the statements severally made are tiue. Each witness taken singly may be notorious for lying; but the chances against their all agreeing by accident in the same lie may be so great, as to render the agreement morally impossible." On this subject it has been profoundly remarked, that "in a number of con- current testimonies, where there has been no previous concert, there is a probability distinct from that which may be termed the sum of the probabilities resulting from the testimonies of the witnesses; a probability which would remain, even though the witnesses were of such a character as to merit no faith at all. This probability arises purely from the concurrence itself. That such a concurrence should spring from chance, is as one to infinite; that is, in other words, morally impossible. If, therefore, concert be exclude^d, there re- mains no cause but the reality of the fact."^ § 60. So, also, Lord Mansfield justly observed on one occasion, g 5] "It is objected that the books [Keble's and Freeman's Reports] are of no authority; but if both the reporters were the worst that ever reported, if substantially they report a case in the same way, it is demonstration of the truth of what they report, or they could not agree."* The word "substantially" here used is highly im- portant, with a view to the question of collusion, since it is scarcely possible that several independent witnesses should tell precisely the same tale, without any variation. Dr. Paley, who has treated this subject with great ability in his Evidences of Christianity, states, ' On this subject Mr. Brougham thus expressed himself on the Queen's trial: — "Why were there never two witnesses to the same fact? Because it is dangerous; because, ■when you are making a plot, you should have one witness to a fact, and another to a confirmation; have some things true, which unim- peachable evidence can prove; other things fabricated, without which the true would be of no avail, — but avoid calling two witnesses to the same thing at the same time, because the cross-examination is extremely likely to make them contradict each other." 1 Ld. Br. Sp. 215. - Aber. on Intell. Pow., Part 2, § 3, p. 91. ^ Campbell's Philos. of Rhetoric, ch. v., b. 1, par. 3, p. 125; Whately's Ehetoric, Part 1, ch. 2, § 4, pp. 58, 59. * R. v. Genge, 1 Covrp. 16. (2946) CHAP. IV.] PKOB ABILITY OF EVIDENCE. 81 that " the usual character of human testimony is substantial truth under circumstantial variety. This is what the daily experience of courts of justice teaches. "When accounts of a transaction come from the mouths of different witnesses, it is seldom that it is not possible to pick out appareht or real inconsistencies between them. These inconsistencies are studiously displayed by an adverse pleader, but oftentimes with little impression upon the minds of the judges. On the contrary, a close and minute agreement induces the suspicion of confederacy and fraud." ' These last observations apply with almost overwhelming force, when the facts deposed to consist of conversations, or of a series of trifling and unimportant events, and the testimony is given after the lapse of a considerable interval of time." § 61.^ Fourthly, in receiving the knowledge of facts from the I 52 testimony of others, men are much influenced by their accordance 7vith facts x>reviously knoivn or believed ; and this constitutes what is termed their probability. Statements, thus probable, are received upon evidence much less cogent than is required for the belief of those which do not accord with previous knowledge; but while such statements are more readily received, and justly relied upon, care should be taken lest all others be unduly distrusted. "While un- bounded credulity is the attribute of weak minds, which seldom think or reason at all, — quo magis nesciunt, eo magis admirantur, — indiscriminate scepticism belongs only to those who, affecting to make their own knowledge and observation the exclusive standard of probability, forget that they are liable to be misled even by their own senses.* Such persons, therefore, if they intend to sustain a truly consistent character, should act like Moliere's Docteur, in " Le Mariage Forc6," who, in answer to Sganarelle's statement that he had come to see him, replied, " Seigneur Sganarelle, changez, 1 Part 3, ch. 1, p. 158. ^ See further on this interesting subject, Greenl. on Test, of Evang. U 34—36. ^ Gr. Ev. ^ 8, in great part. * Abercr. on Intell. Pow., Part 2, ^ 3, p. 74. Channing, on Ev. of Revealed Eelig., 3d vol. of Works, p. 116, observes — "All my senses have sometimes given false reports." 6 LAW OF EVID. — V. I. (2947) 82 ACCORDANCE WITH PREVIOUS KNOWLEDGE. [pART. I. s'il vous plait, cette fa9on de parler. Notre pbilosophe ordonne de ne point enoacer de proposition decisive, de parler de tout avec incertitude, de suspendre toujours son jugement; et par cette raison vous ne pouvez pas dire, je suis venu, mais, il me semble que je suis venu." ' Sceptical philosophers, however, inconsistently enough with their own principles, yet true to the nature of man, continue to receive a large portion of their knowledge upon testimony, de- rived, not from their own experience, but from that of other men; and this, even when it is at variance with much of their own per- sonal observation. Thus they receive with confidence the testimony of the historian in regard to the occurrences of ancient times; that of the naturalist and the traveller, in regard to the natural history and civil condition of other countries; and that of the astronomer, respecting the heavenly bodies; facts which, upon the narrow basis of their own " firm and unalterable experience," on which Mr. Hume so much relies, they would be bound to reject, as wholly unworthy of belief. =^ § 62. Still, it is not the miscalled philosopher alone, who is too ^ 53 ready to lend an academic faith to a narrative of facts, which do not strictly accord with preconceived opinions, mistaken for knowledge. In all ranks and conditions of life, persons of this stamp abound, and the errors, to which their habits of distrust expose them, are at times sufficiently ridiculous. Thus, the king of Siam rejected the testimony of the Dutch "ambassador, that, in his country, water was sometimes congealed into a solid mass; for it was utterly repugnant to his own experience." In like manner, the marvellous but true stories narrated by the Abyssinian traveller Bruce, were long con- sidered by his countrymen as mere fictions; and so late as the year 1825, the evidence given by the great railway engineer, George Stephenson, before a parliamentary committee, was much impaired by his having ventured an opinion, that steam -carriages might pos- sibly travel on railroads twelve miles an hour.* A contemplation of the instances here given, and of others which will readily occur Scene 8. " Abercr. on Intell. Pow., Part 2, § 3, pp. 79, 80. Id. p. 75. Life of George Stephenson, by Samuel Smiles, 1857, ch. 19. (2948) CHAP. IV.] CIRCUMSTANTIAL EVIDENCE. 83 to the reader, naturally suggests two reflections ; first, that, with man's finite knowledge, he should be slow to reject a narrative as incredible, merely because it is beyond, or even contrary to, his own very limited experience ; and next, that progress in knowledge is not confined, in its results, to the simple facts ascertained, but has also an extensive influence in enlarging the understanding for the further reception of truth, and in setting it free from many of the prejudices which influence men, whose minds are limited by a narrow field of observation. Thus, Archimedes, deeply imbued as he was with science, might have believed an account of the inven- tion and wonderful powers of the steam-engine, which unscientific Englishmen of the last century would have rejected as incredible and absurd.^ § 63." A fifth basis of evidence is the known and experienced § 54 connexion subsisting between collateral facts or circumstances, satisfactorily proved, and the fact in controversy. This is merely the legal application, in other terms, of a pi'ocess familiar in natural philosophy, showing the truth of an hypothesis by its coincidence with existing phenomena. The connexion and coincidences in question may be either physical or moral ; and the knowledge of them is derived from the known laws of matter and motion, from animal instincts, and from the physical, intellectual, and moral con- stitution and habits of man.^ Their force, which will be considered hereafter,* depends upon their sufficiency to exclude every other hypo- thesis but the one under consideration. Thus, the possession of goods recently stolen, accompanied with personal proximity in point of time and place, and inability in the party charged, to show how he came by them, would seem naturally, though not necessarily,'' to ^ Abercr. on Intell. Pow., Part 2, § 3, pp. 75, 7G. So Voltaire shrewdly observes : — "La oA le vulgaire rit, le pbilosophe admire ; et 11 rit oil le Aiilgaire ou^Te de grands yeux stupides d'etonnement." Vol. 42, p. 142. '■^ Gr. Ev. ^ 11, verbatim, except the notes. ^ For an amusing example of a fact proved by along chain of circumstantial evidence, see Voltaire's Zadig, ch. 3. * Post, g § 64 — 69. ^ Joseph's cup was found in Benjamin's sack, Gen. c. 44, v. 1 — 17. The amusing story of the Hunchback, in the Arabian Nights, and the no less diverting story of the Baked Head, in Mr. Morier's Hajji Baba, both turn on (2949), 84 CIRCUMSTANTIAL EVIDENCE. [pART I. exclude every other hypothesis, but that of his guilt. But the pos- session of the same goods at another time and place would warrant no such conclusion, as it would leave room for the hypothesis of their having been lawfully purchased in the course of trade. Similar to this, in principle, is the rule of noscitur a sociis, according to which the meaning of certain words in a written instrument is ascertained by the context. § 64.' In considering this subject, it must always be borne in g 55 mind, that in the actual occurrences of human life nothing is incon- sistent. Every event, which actually transpires, has its appropriate relation and j^lace in the vast complication of circumstances of which the afPairs of men consist; it owes its origin to those which have preceded it; it is intimately connected with many others which occur at the same time and place, and often with those cf remote regions; and, in its turia, it gives birth to a thousand others which succeed.^ In all this system of inter-dependence perfect harmony prevails; so that a man Can hardly invent a story, which, if closely compared with all the actual contemporaneous and successive occuxTences, may not be shown to be false. From these causes, minds enlarged by long and mature experience, and close obser- vation of the conduct and affairs of men, may, with a rapidity and certainty approaching to intuition, perceive the elements of truth or falsehood in the face itself of the narrative, without any regard to the narrator. Thus, an experienced judge may instantly dis- cover the falsehood of a witness, whose story an inexperienced jury might be inclined to believe. But though the mind, in these cases, seems to have acquired a new power, it is properly to be referred only to experience and observation. § 65»^ In trials of fact, it will generally be found that the factum o ^g probandum is either directly attested by those who speak from their own actual and personal knowledge of its existence, or it is to be an erroneous presumption of guilt arising from recent possession. See, too, Smollett's Roderick Random, ch. xxi. ^ Gr. Ev. § 12, in great part. ^ 1 St. Ev. 560 ; 3 Channing's Works, 133, 340. * Gr. Ev. I 13, in great part. (2950) CHAP. IV.] DIRECT AND CIRCUMSTANTIAL EVIDENCE. 85 inferred from other facts, satisfactorily proved. In the former case, the proof rests upon the second, third, and fourth grounds of belief before mentioned; that is, it depends partly, upon faith in human testimony, as sanctioned by experience; — which faith will be in- creased or diminished in proportion to the apparent honesty and intelligence of the witnesses, and their opportunities for observa- tion; — partly, upon the exercise of reason on the consistency of the narratives given by different witnesses; — and here the value of the testimony will vaiy, according to the number of the deponents, and the apparent absence or presence of collusion; — and partly, upon the conformity of the testimony with experience. In the latter case, — that is, when the fact in dispute is to be inferred from other facts satisfactorily established, — the proof rests upon the same grounds, with the addition of the experienced connexion between the collateral facts thus proved, and the fact which is in controversy; which connection constitutes the j^/f/t basis of evidence before stated. The facts proved are in both cases directly attested. In the former case, the proof applies immediately to the factum probandum, without any intervening process, and it is therefore called direct or positive testimony. In the latter case, as the proof applies immediately to collateral facts, supposed to have a con- nexion, near or remote, with the fact in controversy, it is termed circumstantial; and sometimes, but not with entire accuracy, pre- sumptive. Thus, if a witness testifies that he saw A. inflict a mortal wound on B., of which he instantly died, this is a case of direct evidence; and, giving to the witness the credit to which men are generally entitled, the crime is satisfactorily proved. If a wit- ness testifies that a deceased person was shot with a pistol, and the wadding is found to be part of a letter addressed to the prisoner, the residue of which is discovered in his pocket, here the facts themselves are directly attested; but the evidence they afford is termed circumstantial; and from these facts, if unexplained by the prisoner, the jury may, or may not, deduce, or infer, or presume his guilt, according as they are satisfied, or not, of the natui-al connexion between similar facts and the guilt of the person thus connected with them. In both cases, the veracity of the witness is presumed, in the absence of proof to the contrary; but in the latter case there is an additional presumption or inference, founded on the (2951) 86 DIRECT AND CIRCUMSTANTIAL EVIDENCE^ [PART. I. known usual connexion between the facts proved, and tbe guilt of the party implicated. This operation of the mind, which is more complex and difficult in the latter case, has caused the evidence afforded by circumstances to be termed presumptive evidence; though, in truth, the operation is similar in both cases. § 66. Much has been said and written respecting the comparative a 57 value of direct and circumstantial evidence; but as the controversy seems to have arisen from a misapprehension of the real nature and object of testimony, and can moreover lead to no practical end, it is not here intended to enter into the lists further than to ob- serve, that one argument urged in favour of circumstantial evidence is palpably erroneous. " Witnesses may lie, but circumstances cannot," ^ has been more than once repeated from the bench, and is now almost received as a judicial axiom. Yet certainly no proposi- tion can be more false or dangerous than this. If "circumstances " mean, — and they can have no other meaning, — those facts which lead to the inference of the fact in issue, they not only can, but constantly do lie; or, in other words, the conclusion deduced from them is often false. Thus, when at Melita the viper fastened on St. Paul's hand, the barbarians said among themselves, " No doubt this man is a murderer;" but when they saw that no harm came to him, "they changed their minds, and said that he was a god."^ Here, both conclusions were alike false. So, in Macbeth, the master j:)oet of nature has described Lenox, Macduff, and the other chieftains as erroneously assuming, first, that the grooms had mur- dered the King, because " their hands and faces were all badged with blood, so were their daggers, which unwiped we found upon their pillows:"^ and next, that "they were suborned" by the king's two sons, who had " stolen away and fled." * It is no answer to say that these are mere instances of hasty and illogical inferences, which display only the ignorance and presumption of the persons by ^ Annesley i\ Ld. Anglesea, 17 How. St. Tr. 1430, per Mountenoy, B. ; R. v. Blandy, 18 How. St. Tr. 1187, per Legge, B. ^ Tlie Acts, xxviii. 3 — 5. So, when Jacob saw Joseph's coat of many colours stained with kid's blood, "he knew it, and said, 'It is my son's coat; an evil beast hath devoured him ; Joseph is without douht rent in pieces.' " Gen. xxvii. 33. 3 ^(.^ j^j^ gp 3 4 ^^i jj^ gp 4^ (2952) CHAP. IV.] DIRECT AND CIRCUMSTANTIAL EVIDENCE. 87 whom they were drawn, and that the " circumstances which cannot lie " are such as necessarily lead to a certain conclusion. Who is to decide on this necessity ? Clearly those who have also to decide on the fact in issue. Throw a case of circumstantial evidence into the form of a syllogism, and it will be found that the major premiss rests solely on the erring experience of the tribunal to whom it is presented. Besides, these very circumstances must be proved, like direct facts, by witnesseses, who are equally capable with others of deceiving ^ or of being deceived. So that in no sense is it possible to say, that a conclusion drawn from circumstantial evidence can amount to absolute certainty, or in other words, that circumstances cannot lie. § 67. Although it is not here proposed to take any part in the a 53 controversy respecting the comparative weight due to direct and circumstantial evidence; still, it may not be without some advan- tage to point out briefly the dangers against which juries should especially guard, when called upon to decide cases supported by each of these species of testimony. For instance, in a case sought to be directly established, the witnesses are usually few, and consequently there is the more reason to apprehend^ conspiracy and fraud; since two or three persons are far more easily found than a larger number, who, from motives of interest or malignity, will combine to aggrandise themselves or to ruin an opponent. Their story, too, being for the most part simple, is readily concocted and remembered, ^ lago's story of the handkerchief, which goaded Othello to madness, will occur to everyone: — " I AGO. Have you not sometimes seen a handkerchief, Spotted with strawberries, in your wife's hand? Othello. I gave hep such a one; 'twas my first gift. Iago. I knew not that; but such a handkerchief, (I am sure it was your wife's,) did I to-day See Cassio wipe his beard with. Othello. If it be that, — Iago. If it be that, or any that was hers, It speaks against her, with the other j)7-oofs. Othello. Oh! that the slave had forty thousand lives — One is too poor, too weak for my revenge! Now do I see His true.^' Othello, Act iii, So. iii. (2953) 88 CIRCUMSTANTIAL EVIDENCE. [pART I. while its very simplicity renders it extremely difficult, on cross- examination, to detect the imposture. It is on this ground that the uncorroborated statements of single witnesses, especially when they testify to atrocioiis crimes, such as rape, &c.,' or are known, like accomplices,^ to be persons of bad character, and to have an interest in the result, have ever been regarded with merited distrust, and are now, in practice, generally deemed insufficient to warrant a conviction. § 68. With respect to cases supported by circumstantial evidence, ^ 59 juries should bear in mind, that, although the number of facts drawn fi'om apparently independent sources renders concerted perjury both highly improbable in itself, and easy of detection if attempted; ^ yet, the witnesses in such cases are more likely to make unintentional misstatements, than those who give direct testimony. The truth of the facts they attest depends frequently on minute and careful observation, and experience teaches the danger of relying implicitly on the evidence. of even the most conscientious witnesses, respecting dates, time, distances, footprints, handwriting, admis- sions, loose conversations, and questions of identity. Yet these are the links in the chain of circumstances, by which guilt is in general sought to be established. The number too of the witnesses, who must all speak the truth, or some link will be wanting, renders additional caution the more necessary. Besides, it must be remem- bered, that, in a case of circumstantial evidence, the facts are collected by degrees. Something occurs to raise a suspicion against a particular party. Constables and police officers are immediately on the alert, and, with professional zeal, ransack every place and paper, and examine into every circumstance which can tend to establish, not his innocence, but his guilt. Presuming him guilty from the first, they are apt to consider his acquittal as a tacit reflection on their discrimination or skill, and, with something like the feeling of a keen sportsman, they determine, if possible, to bag their game. Innocent actions may thus be misinterpreted, — inno- cent words misunderstood; and, as men readily believe what they 1 1 Hale, 635. ^ R. v. Jones, 2 Camp. 132. 3 Greenl. on Test, of Evang. I 40. (2954) CHAP. IV.] CIRCUMSTANTIAL EVIDENCE. 89 anxiously desire,' facts the most harmless may be construed into strong confirmation of preconceived opinions.^ It is not here asserted that this is frequently the case, nor is it intended to disparage the police. The feelings by which they are actuated, are common to counsel, engineers, surveyors,^ medical men, antiquarians, and philosophers ; indeed, to all persons who first assume that a fact or system is true, and then seek for arguments to support and prove its truth. § 69. But, admitting that the facts sworn to are satisfactorily proved, a further, and a highly difficult duty still remains for the jury to perform. They must decide, not whether these facts are consistent with the prisoner's guilt, but whether they are incon- sistent with any other rational conclusion ; for it is only on this last hypothesis that they can safely convict the accused.* ^ This proposition cannot be more strikingly illnstrated, than by referring to the credit that was givan by the whole civilized world to the lying telegram which, in October, 1854, announced the fall of Sebastopol. 2 Ante, § 57. ^ Waters v. Thorn, 22 Beav. 547, 556, 557, per Eomilly, M. R. * R. V. Hodge, 2 Lew. C. C. 227. 60 (2955) 90 PRESUMPTIVE EVIDENCE. [PABT I. CHAPTER V. PRESUMPTIVE EVIDENCE. § 70.' The general head of Presumptive evidence is usually g qi divided into two branches, namely, j^f^sum^ptions of Imv, and pre- sumptions of fact. Presumptions of law consist of those rules, ■which, in certain cases, either forbid or dispense with any ulterior inquiry. They are founded, either upon the first principles of justice, or the laws of nature, or the experienced course of human conduct and affairs, and the connexion usually found to exist between certain things. The general doctrines of presumptive evidence are not, therefore, peculiar to municipal law, but are shared by it in common with other departments of science. Thus, the presumption of a malicious intent to kill from the deliberate use of a deadly weapon, and the presumption of aquatic habits in an animal found with webbed feet, belong to the same philosophy, differing only in the instance, and not in the principle of its application. The one fact being proved or ascertained, the other, its uniform concomitant, is universally and safely pre- sumed. It is this imiformly experienced connexion which leads to its recognition by the law, without other proof; the presump- tion, however, having more or less force, in proportion to the universality of the experience. And this has led to the distribu- tion of presumptions of law into two classes, namely, conclusive and disputable. § 71." Conclusive, or, as they are elsewhere termed, imperative, ? gg or absolute presumptions of law, are rules determining the quan- tity of evidence requisite for the support of any particular averment, which is not permittted to be overcome by any proof that the fact is otherwise. They consist chiefly of those cases 1 Gr. Ev. I 14, verbatim. " Gr. Ev. I 15, verbatim. (2956) CHAP, v.] CONCLUSIVE STATUTABLE PRESUMPTIONS. 91 in which the long experienced connexion, just alluded to, has been found so general and uniform, as to render it expedient for the common good, that this connexion should be taken to be in- separable and universal. They have been adopted by common con- sent, from motives of common policy, for the sake of greater certainty, and the promotion of peace and quiet in the community; and there- fore it is, that all corroborating evidence is dispensed with, and all opposing evidence is forbidden.' § 72. Sometimes this common consent is expressly declared ^ 63 through the medium of the legislature in statutes. Thus, under " The Bankruptcy Act, 1869," the registration of a special resolu- tion of the creditors for a liquidation by arrangement, or of an extraordinary resolution for composition, was, in the absence of fraud, conclusive evidence that such resolutions respectively had been duly passed, and that the Act had been complied with.^ So, under " The Bankruptcy Act, 1883," the approval of the Court, testified by a certificate of the official receiver, is conclusive as to the validity of any composition, or general scheme of arrangement, accepted in pursuance of the Act.^ All the requisitions of " The Public Schools Act, 1868," in respect to any statutes made by the governing body of a school, " shall be deemed to have been duly complied with," so soon as the statutes themselves have been approved by Her Majesty in Council.^ So also, under " The Endowed Schools Act, 1869," the order in council approving a scheme is conclusive evidence of its validity;^ and under "The ^ The presumption of the Roman law is defined to be, " conjectura, ducta ab eo, quod ut plurimum fit. Ea conjectura vel a lege inducitur, vel ajudice. Quse ab ipsa lege inducitur, vel ita comparata, ut probationem contrarii hand admittat; vel ut eadem possit elidi. Friorem doctores prsesumjMonem juris et DE JURE, liosteriorem prscsmnpiionem juris, adpellant. Quaj a Judice indu- citur conjectura, ^^rcYswwjj^/o iiOMixis vocari solet; et semper admittit proba- tionem contrarii, quamvis, si alicujus moment! sit, probandi onere relevet." Hein. ad Pand., Pars iv. ^ 124. Of the former, answering to our conclusive presumption, Mascardus observes, — "Super hac prajsumptione lex firmum sancit jus, et cam pro veritate hahet.''^ 1 de Prob., Qua^st. x. 48. An exception to the conclusiveness of this class of presumptions is allowed by the civil law, when the presumption is met by an admission in judicio. 2 32 & 33 v., c. 71, I 127. 3 46 & 47 v., c. 52, I 18, subs. 9. * 31 & 32 v., 0. 118, I 8, subs. 4. * 32 & 33 V., c. 56, g 47. (2957) 92 CONCLUSIVE STATUTABLE PRESUMPTIONS. [PART I. Valuation Metropolis Act, 1869," " the vahiation list for the time beinof in force shall be deemed to have been duly made." ' The Act, too, of 10 & 17 v., c. 59, contains a remarkable clause, for it enacts, in § 19, that " any draft or order drawn upon a banker payable to order on demand, which shall, when presented for payment, purport to be indorsed by the jierson to ichom the same shall be drawn paya^Zc," — which last words have been held to include the payee's agent, though he may not really be authorised to indorse," — " shall be a sufficient authority to such banker to pay the amount of such draft or order to the bearer thereof; and it shall not be incumbent on such banker^ to prove that such indorsement, or any subsequ^ent indorsement, was made by, or under the direction of, the person to whom the said draft or order was or is made pay- able either by the drawer or any indorser thereof."*. So, under " The Stamp Act, 1870," " a bill of exchange or promissory note purporting to be drawn or made out of the United Kingdom, is, for the puroso of this Act, to be deemed to have been so di'awn or made, although it may in fact have been drawn or made within the United Kingdom." ^ § 73. Thus, too, by the statutes of limitation,'^ where a debt g 64 1 32 & 33 v., c. 67, § 45. 2 Chariest;. Blackwell, L. E., 2 C, P. D. 151, per Ct. of App. ^ This enactment does not protect any other person than a banker who takes a cheque on the faith of a forged indorsement. Ogden v. Benos, 9 Law Eep., C. P. 513; 43 L. J., C. P. 259, S. C. * See 45 & 46 V., c. 61, § 60. See also Hare v. Copland, 13 Ir. Law R., N. S. 426. 5 33 & 34 v., c. 97, ? 52. See 45 & 46 V., c. 61, § 4. 6 21 J. 1, c. 16; 16 & 17 V., c. 113, | 20, Ir. The first Act enacts, in § 3, that ' ' all actions of trespass quare clausum fregit, all actions of trespass, detinue, action sur trover, and replevin for taking away of goods and cattle, all actions of account, and upon the case, other than such accounts as concern the trade of merchandise heiwcen merchant and merchant, their factors or servants all actions of debt grounded upon any lending or contract without specialty, all actions of del)t for arrearages of rent, and all actions of assault, menace, battery, wounding, and imprisonment, or any of them, shall be commenced and sued within the time and limitation hereafter expressed, and not after, (that is to say), the said actions upon the case, other than slander, and the said "actions for account, and the said actions for trespass, debt, detinue, and replevin for goods or cattle, and the said action of trespass quare clausum fregit, within six years next after the cause of such actions or suit, and not (2958) CHAP. V. ] STATUTES OF LIMITATION. 93 has been created by simple contract/ and has not been distinctly recognised within six years as a subsisting obligation, either in some "writing signed by the party chargeable, or his agent, or by part payment,^ no action can be maintained to recover it ; that is, it is conclusively presumed to have been paid. So, all actions on the case, other than slander, actions of trespass to goods or land, and actions of detinue^ or replevin, must be brought within a like period of six years after the cause of action* shall have occrued f and no action can be maintained for an assault or false imprisonment after the lapse of four years f for slander after the lapse of two years ;' or for compensation to the families of per- sons killed by accident, after twelve calendar months from the death of the deceased.^ So, under "The Employers' Liability Act, 1880," compensation for injuries cannot be recovered, unless the action be commenced within six months from the date of the accident, or, in case of death, "within twelve months from the time of death. "° Again, actions against persons for anything done by them under the authority or in pursuance of any local and personal Act, must be brought within two years after the cause of action shall have accrued, or in the case of continuing damage, within one year after the damage shall have ceased.^" So, after ; and the said actions of trespass, of assault, battery, wounding, im- prisonment, or any of tliem, within four years next after the cause of such actions or suit, and not after ; and the said actions upon the case for words, within two years next after the words spoken, and not after. ' ' The exception marked in italics, after perplexing the courts for two centuries, and giving rise to numerous conflicting decisions, has at length been repealed by 19 & 20 v., c. 97, I 9. ^ The St. of Limit. 21 J. 1, c. 16, applies to an action of debt for a penalty under a by-law. Tobacco-pipe JNIakers' Co. v. Loder, 16 Q. B. 765. 2 9 G. 4, c. 14, ? 1 ; 19 & 20 V., c. 97, | 13. 3 See Wilkinson v. Verity, 6 Law Rep., C. P. 206; 40 L. J., C. P. 141, S. C. ; as to when the cause of action will accrue in detinue. * As to when concealed fraud and non-discovery can be pleaded in reply to a defence under the Stat., see Gibbs v. Guild, 51 L. J., Q. B. 228 ; afFd. on App., 51 L. J. Q. B. 313; L. R., 9 Q. B. D. 59, S. C. See, also, Barber v. Houston, 14 L. R. Ir. 273. ^ See ante, p. 87, n. 6. ^ See id. ' See id. 8 9 & 10 v., c. 93, I 3, as amended by 27 & 28 V., c. 95. '43 & 44 v., c. 42, I 4. A notice that injury has been sustained must also be given "within six weeks," though in cases of death, the judge has power to relax the stringency of this last rule. ^"o&eV., c. 97, s. 5, passed 10 Aug., 1842, after reciting, that "divers (2959) 94 STATUTES OF LIMITATION. [PART I. any action, prosecution, or proceeding against any person for any act done in pursuance or intended execution of the Army Act, 1881, or of the Milita Act, 1882, must be commenced within twelve months next after the act, neglect, or default complained of, or, in case of a continuance of damage within twelve months next after the ceasing thereof.' So, all actions and proceedings against persons acting under any of the statutes passed in 1861, to con- solidate the law relating to larceny, malicious injuries, or coin," or under the Naval Prize Act, 1864,^ the Prison Act, 1865,* the Seaman's Clothing Act, 1869,^ the Municipal Corporations Act, 1882,^ tho Public Health Act, 1875,' or the Public Health, Ireland, Act, 1878,^ must be "commenced within six months after the fact committed ;" and no action can " be brought against any justice of the peace, for anything done by him in the execution of his office," unless it be commenced within a like period.' Under some of the Metropolitan Police Acts, the right of action is limited to three months from the date of the injury,'" while four months and two months are the respective limits under " The Contagious Diseases, Animals, Act, 1878,"" and " The Customs Consohdation Act, 1876."'" So, when a judgment has been obtained against a banking copartnership, no execution can issue thereon against any former member of such copartnership, after the expiration of three Acts commonly called public local and personal, or local and personal, Acts, and divers other Acts of a local and personal nature, contain clauses limiting the time within which actions may be brought for anything done in pursuance of the said Acts respectively," enacts, that "the iieriod within which any action may be brought for anything done, under the authority or in pursuance of any such Act or Acts shall be two years, or in case of continued damage, then within one year after such damage shall have ceased. ' ' M4 & 45 v., c. 58, ^ 170, subs. 1 ; 45 & 46 V., c. 49, § 46. 2 24 & 25 v., c. 96, ? 113 ; c. 97, ^1 ; c. 99, | 33. 3 27 & 28 v., c. 25, ? 51. * 28 & 29 V., c. 126, | 50. 5 32 «& 33 v., c. 57, ^6. « 45 & 46 V., c. 50, § 226. 7 38 & 39 v., c. 55, § 264. ^ 4I & 42 V., c. 52, | 263, Ir. » 11 & 12 v., c, 44, § 8; 12 & 13 V., c. 16, § 8, Ir. In Scotland, under "the Summary Procedure Act, 1864," the period is fixed at two months, 27 &28 v., c. 53, ? 35. '" 2 & 3 v., c. 71, ? 53 ; Barnett i'. Cox, 9 Q. B. 617 ; Hazeldine v. Grove, 3 Q. B. 997 ; 3 G. & D. 210, S. C. " 41 & 42 v., c. 74, § 55, subs. 1. 12 39 & 40 v., c. 36, i 272, as amended by 40 V., c. 13, s. 4. (2960) CHAP, v.] STATUTES OP LIMITATION. 95 years next after the person sought to be charged shall have ceased to be a member.' § 74 In like manner, the right of the Sovereign,^ and of the § 65 Duke of Cornwall,^ to institute legal proceedings for the recovery of lands, rents, or minerals, is barred, under several special statutes, by uninterrupted possession for a period of sixty, or in certain cases, of one hundred years. The possession, too, of land, or of rents, for the length of time mentioned in the general » statutes of limitation, under a claim of absolute title and owner- ship, constitutes against all subjects of the Crown a conclusive presumption of a valid grant.* So the payment of a modus, or 1 7 G. 4, c. 46, § 13. See In re North of Engl. Joint Stock Bank Co., ex parte Gouthwaite, 20 L. J., Ch. 188, 192, 193; Barker v. Buttress, 7 Beav. 134. 2 9 G. 3, c. 16; 24 & 25 V., c. 62; 39 & 40 V., c. 37, Ir. » 7 & 8 v., c. 105, II 73, et seq. ; 23 & 24 V., c. 53; 24 & 25 V., c. 62. * This period has been limited differently, at different times; but for many years past, it has been shortened, at successive revisions of the law, both in England and the United States. In 1833 the Act of 3 & 4 W. 4, c. 27, passed; and by ? 2 of that Statute all actions to recover land or rent are barred, after twenty years from the time when the right of action accrued ; unless, at such time, the plaintiff or the party through whom he claims shall have been under some disability, specified in the Act, in which case he is allowed ten years from the ceasing of the disability; provided that in no case shall an action be brought after forty years from the time when the right first accrued, although the period of ten years shall not have expired, ^l 16 & 17. This statutory rule is extended by ^^ 24 & 25, to all claims in equity for the recovery of land; Magdalen College v. Att.-Gen., 26 L. J., Ch. 620; 6 H. of L. Cas. 189, S. C. ; and it also applies to a claim for dower; Marshall v. Smith, 34 L. J., Ch. 189, per Stuart, V.-C. ; to a claim for compensation for equitable waste; D. of Leeds v. Ld. Amherst, 2 Phill. 117; and to the claim of an annuity charged upon land by will, the twenty years in this last case being calculated from the death of the testator; James v. Salter, 3 Bing. N. C. 544. The sections, however, just referred to do not apply to spiritual or eleemosynary cori^orations sole, who are empowered by § 29 to bring actions or suits to recover land or rent within two successive incumbencies and six years, or, in case these periods do not amount to sixty years, then within sixty years next after the right of action shall first have accured. See Ecclesias. Commis, v. Eowe, 49 L. J., Q. B. 771, per Dom. Pr., overruling S. C, 48 L. J., Q. B. 152. §§ 30—33 limit the time within which ad vow- sons can be recovered, while § 40 enacts, that all moneys charged upon land and legacies shall be deemed satisfied at the end of twenty years, unless some interest shall have been paid, or some written acknowledgment shall (2961) 96 TITLE TO LAND. [PABT I. the adverse, and as of right enjoyment of land titbe-free, for the periods specified in the Act of 2 & 3 W. 4, c. 100/ conclusively bars the right of all parties, even the Queen, to recover tithes, unless such payment has been made, or enjoyment had, under an express written consent or agi'eement.^ § 75. So, also, in the completion of any contract of sale of land, I g5 the period of the commencement of title, which a purchaser may require, or, in the language of conveyancers, the root of title, is now have been given in the meanwhile. Under I 28 no mortgagor shall bring a suit to redeem a mortgage but within twenty years from the time when the mortgagee took possession (See Kinsman v. Kouse, L. E., 17 Ch. D. 104; 50 L. J., Ch. 486, S. C), or from the last written acknowledgment of the mortgagor's title. Mortgagees also may bring actions to recover land at any time within twenty years next after the last payment of any part of the principal or interest secured by the mortgage, 7 W. 4, & 1 V., c. 28; Doe r. Eyre, 17 Q. B. 3GG; Doe v. Massey, id. 373; Ford v. Ager, 2 New R. 366, per Ex.; 32 L. J., Ex. 269; 2 H. & C. 279, S. C; pro^^ded that such last payment be itself within twenty years from the date of the mortgage; Hemming v. Blanton, 42 L. J., C. P. 158; and provided that the payment be made by the mortgagor, or by some person bound to make it on his behalf; Harlock v. Ashberry, L. R. 19, Ch. D. 539. See, also, G & 7 V., c. 54, and 7 &. 8 V. , c. 27, which Acts extend to Ireland such of the provisons of 3 & 4 W. 4 c. 27, as were not already in force there, and explain and amend that Act. This i^eriod of twenty years has been adopted in most of the United States. See 4 Kent, Com. 188, n. a. The same period in regard to the title to real property, or, as some construe it, only to the profits of the land, is adopted in the Hindoo law. 1 Macnagh. Elem. of Hindoo L. 201. See, as to the Scotch law, 37 & 38 V., c. 94, §§ 13, 34. Under the " Real Property Limita- tion Act, 1874," 37 & 38 V., c. 57, which came into operation on the 1st January, 1879 (see ? 12), the periods of limitation have been greatly reduced, six, twelve, and thirty years having been substituted for the ten, twenty, and forty years mentioned in the Acts of 1833 and 1837. 1 See Salkeld v. Johnson, 2 Ex. R. 256. In this important case, which was an issue out of Chancery, the Barons decided, — 1st, That the enjoyment of land, producing titheable matters, without payment of tithe for the period prescribed by the Act stated above, if adverse and as of right, created an indefeasible exemption from tithes, Avithout other proof of the legal origin of the exemption; but, secondly, that the non-payment of tithes of a par- ticular thing for such period, in respect of lands for which tithes of other titheable produce had been paid within the statuable period, did not exempt the payment of the tithes of that particular thing. Subsequently, Ld. Cot- tenham, C, while he confirmed the decision of the Ct. of Ex. on the first point, overruled it on the second. See S. C. reported in 1 Hall & T. 329; 1 M. & Gord. 242, S. C. See, also, Fellowes v. Clay, 4 Q. B. 313; 3 G. «& D. 407, S. C. ; and Salkeld v. Johnson, 1 Hare, 196, & 2 Com. B. 749. ^ See Toymbee v. Brown, 3 Ex. E. 117. (2962) CHAP v.] TITLE TO LAND — THE PRESCRIPTION ACT." 97 fixed by statute at forty years, unless there be some stipulation to the contrary in the contract, or some very special circumstance in the case.' Thus, too, by the Prescription Act," the length of time which constitutes the period of legal memory, cr in other words, which affords a legal title, has in respect of incorporeal rights'* been definitely fixed; while by the Act of 3 & 4 W. 4, c. 42,* the time 1 37 & 38 v., c. 78, ? 1. ' 2 2 & 3 W. 4, c. 71,— extended to Ireland by 21 & 22 Y., c. 42,— limits the period of legal memory as follows: — In cases of rights of common or other profits or benefits arising out of lands, except tithes, rent, and services, 2)rimd facie to thirty years, and conclusively to sixty years, unless it shall a^ipear that such rights were enjoj^ed by some consent or agreement expressly given or made by deed or Avriting, § 1; in cases of ways or other easements, watercourses, or the use of water, j)rimd facie to twenty years, and conclusively to forty years, unless it shall be proved, in like manner, by written evidence, that the same were enjoyed by consent of the owner, § 2; and in case of lights, conclusively to twenty years, unless it shall be proved, in like manner, that the same were enjoyed by consent, § 3. See Bewley t'. Atkinson, 49 L. J., Ch. G per Hall, V.-C; afifd. on app. 43 L. J., Ch. 133; Tapling v. Jones, 34 L. J., C. P. 342, in Dom. Troc; 20 Com. B., N. S. 166, S. C. ; Lanfranchi v. Mackenzie, 26 L. J., Ch. 518; 4 Law licp., Eq. 421, S. C. ; Aynsley v. Glover, 44 L. J., Ch. 523. § 4 directs, that the before-mentioned periods shall be deemed those next before some suit cr action respecting the claims, and further defines what shall amount to an interruption. ^ 6 enacts, that no presumption shall be made in support of any claim, upon proof of the enjoyment of the right for any less period than the period mentioned in the Act as applicable to the nature of the claim. § 7 provides for jiarties who are under legal disabilities. As to what evidence of user is necessary under this Act, see Lowe v. Carpenter, 6 Ex. R. 825; Hollins v. Verney, L. E., 11 Q. B. D. 715, per Ct. of App.; 53 L. J., Q. B. 430, S. C. ; and L. R., 13 Q. B. D. 304, per Ct. of App., S. C. •'' A right to the passage of air and light to a garden. Potts v. Smith, 38 L. J., Ch. 38, per Malins. A''.-C. ; or of air to a Avindmill cr house, is not within the meaning of this Act, Webb v. Bird, 13 Com. B., N. S. 841; Bryant v. Lefever, 48 L. J., C- P. 380, per Ct. of App.; L. R., 4 C. P. D. 172, S. C. ; nor is a claim of " a free fishery " in the waters of another proiirie- tor, Shuttleworth v. Le Fleming, 19 Com. B., N. S. 687. * I 3 enacts, that actions of debt for rent upon an indenture of demise, actions of covenant or debt upon any l)ond or other specialty', and actions of debt or scire facias upon recognisance, shall be brought within twenty years after the cause of such actions or suits; actions of debt upon any awr»rd where the submission is not by specialty, or for any fine due in respect of any copyhold estate, or for an escape, or for money levied on any scire facias, Avithin six years after the cause of such actions or suits; and actions for penalties, damages, or sums of money given to the partj^ grieved by any statute now or hereafter to be in force, within two years after the cause of such actions: "Provided that nothing herein contained shall extend to any action given by any statute, where the time for bringing such action is or shall be by any statute specially limited." ?, 4, as amended by 19 & 20 Y., c. 97, ^ 10, 7 LAW OF EVID. — V. I. (2963) 98 SPECIALTIES — ACTIONS FOR PENALTIES. [PART I. witliin which actions of covenant," and debt on specialties," and actions for penalties,'' may be brought, is expressly limited. So, where any real or personal estate, subject to trust for a Roman Catholic charity, has been applied upon some trusts connected with that religion for twenty years, but the original trusts cannot be ascertained by any document, a consistent usage of twenty years is, by statute, rendered conclusive evidence of the trusts on which the property had been settled/ So, under Lord Lyndhurst's Act for regulating suits relating to meeting-houses and other property held for religious purposes by dissenters, the usage for tiventy-five years immediately preceding any such suit, shall be taken as conclusive evidence that the religious doctrines, opinions, or mode of worship, which for that period had been taught or observed in these houses, may be properly taught or observed, provided the contrary is not declared by the instrument declaring the trusts of such houses, either in express terms or by reference to some other document/ § 76. Many statutes also limit the period within which par- | gg ticular offenders may be prosecuted. Of these, the Act of 7 W. 3, c. 3, is the most remarkable, as it enacts, that no person shall be prosecuted for any high treason or misprision within the Act, other than a design or attempt to assassinate the Sovereign, unless the bill of indictment be found within three years after the commission of the offence. "^ So, all suits, indictments, or informations, brought or exhibited, for any offence against the Customs Acts, in any provides for parties under legal disabilities, and § 5 states the effect of an acknowledgment in writing or part payment. See the Irish Act of 16 & 17 v., c. 113 U 20—24; also Alliance Bk. of Sila v. Carey, 49 L. J., C. P. 781. 1 See In re Baker, Collins v. Rhodes, L. R., 20 Ch. D. 230. ■^ The term "specialty" includes all actions on statutes, as, for instance, an action against a shareholder of a company for calls. Cork & Bandon Rail. Co. r. Goode, 13 Com. B. 826; Shepherd v. Hills, 26 L. J., Ex. 6. ^ See, also, as to actions for penalties, 31 El. c. 5, | 5, as limited by 11 & 12 v., c. 43, ^ 36; and Robinson v. Curry, L. R., 7 Q. B. D. 465; 50 L. J., Q. B. 561, per Ct. of App. ; reversing S. C, as reported in L. R., 6 Q. B. D. 21, and 50 L. J., Q. B. 9; and overruling Dyer v. Best, 1 Law Rep., Ex. 152; 25 L. J., Ex. 105; 4 H. & C. 189, S. C. * 23 & 24 V., c. 134, § 5. 5 7 & 8 v., c. 45, § 2. See Att.-Gen. v. Bunce, 6 Law Rep., Eq. 563, 571, 572, per Malins, V.-C. 6 U5&6] extended to Scotland, by 7 A., c. 11. See Fost., C. L. 249. (2964) CHAP, v.] STATUTABLE LIMITATIONS OF PROSECUTIONS. 99 court, or before any justice, must be brought or exhibited within three years next after the date of the offence committed.' So, the prosecution for every offence against the night-poaching Act, must be commenced within twelve calendar months, if punishable upon indictment, or otherwise than upon summary conviction." The commencement of the prosecution here spoken of is not the prefer- ring the indictment, but the laying an information,^ and the obtain- ing a warrant of apprehension ; or at least the issuing a warrant of commitment,* and, therefore, where the prisoner was apprehended and committed within the twelve months, though the indictment was preferred after the expiration of that term, it was held that the prosecution was commenced in time.^ Whether the preferring an indictment which is ignored, would be deemed such a commence- ment of the prosecution as would warrant the conviction of the party upon a subsequent indictment, preferred more than a year after the offence was committed, may admit of more doubt; and the point, though it has been discussed, has never been determined.*^ § 77. Again, every prosedution or indictment for an offence under the English Marriage Act of 1830,^ or under the " Births and Deaths Registration Act, 187<(," ^ must be commenced within three years after the commission of such offence. So, under the Act for marriages in Ireland, and the registering of such marriages, the 1 39 & 40 v., c. 36, ^ 257. '^ 9 G. 4, e. 69, § 4. Now repealed, so far as relates to an offence pnnishable upon summary conviction, by 47 & 48 V. c. 43, ^ 4, andSchecI. 7 & 8 V., c. 29. See E. V. Casbolt, 11 Cox, 385. 3 See R. V. Parker, 33 L. J., M. C. 135; 1 L. &Cave, 459; 9 Cox, 475, S. C. * But see li. v. Hull, 2 Fost. & Fin. 16, per Pollock, C. B. ^ R. V. Brooks, 2 C. & Kir. 402, by all the judges; 1 Den. 217, S. C; R. v. Austin, 1 C. & Kir. 621. « R. V. Kilminster, 7 C. & P. 228. See R. v. Mainwaring, 1 E. B. & E. 474. ^ 6 & 7 W. 4, c. 85, ? 41. Qu. : Whether a prosecution for making a fixlse statement touching the particulars required to be registered on a marriage, must be commenced within three years under 6 & 7 W. 4, c. 86, ^41; R. v. Ld. Dunboyne, 3 C. & Kir. 1. « 37 & 38 v., c. 88, § 46. The same law prevails in Ireland, see 43& 44 V., c. 13, § 36. (2965) § 66A 100 STATUTABLE LIMITATIONS OF PROSECUTIONS. [PART I. limitations of prosecutions are fixed at three years and three months, according as the offences are punishable upon indictment or sum- mary conviction.^ So, also, no prosecution against any person for making a false declaration, in order to procure a marriage out of the district in which the parties dwell, shall take place after the expiration of eighteen calendar months from the solemnization of such marriage.^ So, every suit against a clergyman for trans- gressing the ecclesiastical law, must be commenced within two years after the offence was committed;' and here the "commence- ment of the suit" has been held to mean, — not the issuing of a commission under the Church Discipline Act, or the report of the commissioners, or the filing of articles in the name of the bishop, or even the service of such articles on the accused, — but the actual service upon him of a citation to appear at a certain time and place before a competent tribunal to answer definite charges.* * § 78. Under the "Naval Discipline Act, 18G6," ^ no person, who ^ 66b has not avoided apprehension or fled from justice, shall be tried for any offence, unless the trial take place within three years from the commission of the offence,-or within one year after the offender's return to the United Kingdom, in the event of his having been abroad during such period of three years. So, in pursuance of the . Army Act, 1881, no person shall be tried or punished for any offence triable by court-martial committed more than three years before his trial begins, except mutiny, desertion, or fi-audulent en- listment; and with respect to the two last-named offences, unless, in the cas'e of desertion, that offence has been committed " on active service," the offender is still protected from trial, if he has sub- sequently for three years served in an exemplary manner in any corps of the regular forces.'' But none of these provisions affect the jurisdiction of any civil courts Again, every proceeding against 1 7 & 8 v., c. 81, U 48 & 78, Ir. ; 26 «& 27 V., c. 27 § 16, Ir. 2 3 & 4 v., c. 72, § 4. 3 3 «& 4 v., c. 86, § 20. See Simpson v. Flamank, 1 Law Rep., P. C. 463; 36 L. J., Ec. C, 28, S. C. ^ Denisont'. Ditcher, Dea. &Sw., Ec. E. 334; Ditcher v. Deni.son, 11 Moo. P. C. R. 324; Bp. of Hereford v. T— n, 2 Roberts. Ec. R. 595: 4 IMoo. P. C, N. S. 385, S. C. ^ 29 & 30 v., c. 109, g 54. « 44 & 45 V., c. 58, § 161. 'Id. (2966) CHAP. V, ] STATUTES OF LIMITATION. 101 any person for contravening the Corrupt and Illegal Practices Preven- tion Act, 1883,' or Part 12 of "The Municipal Corporations Act, 1882,"^ must, unless the party absconds, be commenced within one year of the date of the offence, or within three months after the report of the commissioners. So, " in summary proceedings for ofifences and fines under the Municipal Corporations Act, 1882, the informa- tion shall be laid within six months after the commission of the oifence."^ So, the time for instituting summary proceedings under the Merchant Shipping Act, 1851, is limited to six months, unless either of the parties be out of the jurisdiction.* Again, under the Public Health Acts of 1875, for England, and 1878, for Ireland, all complaints or informations must be made or laid within six months from the time when the matter arose f under the Mines Regulation Acts of 1872, the limitation is fixed at three months f and under the Factory and Workshop Act, 1878, it ranges from two to three months according to the nature of the offence.^ Clauses of a similar nature will be found in a vast variety of other statutes, to which it is here considered unnecessary to make particular re- ference.^ § 79. It may admit of a serious doubt, whether all, or indeed ^ G7 the majority, of these statutes of limitation depend on the doctrine of presumption. Some of them do so undoubtedly, but others appear to rest solely on the broad ground of general expedience and justice. Interest reipubliciie ut sit finis litium, is a maxim sanc- tioned by all civilised states: and the legislature, in passing most of these statutes, probably never intended to recognise any legal 1 46 & 47 v., c. 51, § 51. 2 45 & 46 v., c. 50, § 77. This sect, is now repealed by 47 & 48 V., c. 70, g 38, but is substantially re-enacted by ^ 30 of that Act, which is in force till the end of 1886. M5 & 46 V., c. 50, § 219, subs. 1. * 17 & 18 v., c. 104, ? 525 ; Austin v. Olsen, 37 L. J., M. C. 34 ; 3 Law Eep., Q. B. 208 ; and 9 B. & S. 46, S. C. = 38 & 39 v., c. 55, ^ 252 ; 41 & 42 V., c. 52, ^ 250, Jr. 6 35 & 36 v., c. 76, § 63, r. 1 ; and c. 77, ^ 34, r. 1. ^ 41 V., c. 16, g 91. 8 See 11 & 12 v., c. 118, § 3 ; 1 G. 1, st. 2, c. 5, ? 8 ; 33 G. 3, c. 67, § 8 ; 4 G. 4, c. 76, I 21 ; 60 G. 3 «& 1 G. 4, c. 1, § 7 ; 6 A., c. 7, § 3; 23 & 24 V., c. 107, I 32, Ir.; 14 & 15 V., c 93, | 10, r. 4, Jr.; The Merchandise Marks Act, 1862, 25 & 26 v., c. 88, § 18. In Scotland summary complaints must, in general, be instituted "witliin six months from the time when the matter of such complaint arose." 27 & 28 V., c. 53, § 24. See, as to the Police Courts in Edinburgh, 30 & 31 V., c. 58, Sch. § 172. (2967) 102 STATUTES OF LIMITATION. [PAET I. presumption, but the simple object was to check protracted litiga- tion. When a party has boon in undisputed possession of property for a considerable length of time, it is harsh to deprive him of that, which, however obtain, has now ac{piired the character of a vested interest. No presumption of a former grant is necessary to give validity to his title. It rests on the fact of long uninterrupted en- joyment. So, when a person has foregone a claim for many years, there is no need for presuming that he has, in reality, been satis- fied ; it is sufficient to say that his right to recover is lost by his own negligence. Indeed, the statute of James, which has been held not to discharge the debt, but merely to bar the remedy, is strongly confirmatory of these views.' Before leaving this subject, it may be well to notice a celebrated passage from one of Lord Plunket's speeches, relative to the statutes of limitation. " If Time," said his lordship, " destroys the evidence of title, the laws have wisely and humanely made length of possession a substitute for that which has been destroyed. He comes with his scythe in one hand to mow down the muniments of our rights ; but in his other hand the law-giver has placed an hour-glass, by which he metes out incessantly those portions of duration, which render needless the evidence that he has swept away."" § 80.^ In other cases, the common consent by which this class « of legal presumptions is established, is declared through the medium of the judicial tribunals, it being the common Imv of the land; and these decisions o£ the court are respected, equally with the enact- ments of the legislature, as authoritative declarations of an im- perative rule of law, against the operation of which no averment or \ Spears v. Hartly, 3 Esp. 81 ; Higgins v. Scott, 2 B. & Ad. 413. ^ See " Statesmen of the Time of George III.," by Ld. Brougham, 2rd Ser., p. 227, n. The above passage has been variously rendered in different publica- tions. In the case of Malone v. O'Connor, Napier, Ch., cited it as follows : — "Time, with the one hand, mows down the muniments of our titles ; with the other, he metes out the portions of duration which render these muniments no longer necessary." Drury's Cas. in Ch., temp. Napier, 644. This version is probably more accurate than any other, as it was furnished to the Chancellor by one of the counsel in the quare impedit, on the trial of which Ld. Plunket made use of the imagery in his address to the jury. ^ Gr. Ev. I 17, as to Urst six lines. ' (2968) 68 CHAP, v.] CONCLUSIVE PRESUMPTIONS AT COMMON LAW. 103 evidence is received. Thus, for the purpose of determining the legal rights and liabilities of parties, the courts conclusively pre- sume, — what, in a vast number of cases, must of course be contrary to the fact,' — that every sane person, above the age of fourteen, is acquainted with the criminal as well as the civil,' the common^ as well as the statute,* law of the land; and the maxim "ignorantia juris, quod quisque tenetur scire, neminem excusat," is uniformly recognised in this country, as it formerly was in ancient Kome.^ Indeed, this doctrine has been carried so far as to include the case of a foreigner, who was here charged with a crime, which was no offence in his own country.® In like manner,' a sane man of the age of discretion is conclusively presumed to contemplate the natural and probable consequences of his own acts; and therefore the intent to kill is conclusively inferred from the deliberate violent use of a deadly weapon.^ So, on an indictment for cutting with intent to 1 See Martindale v. Falkner, 2 Com. B. 719, 720, per Maule, J. 2 Bilbie v. Lumley, 2 East, 469, 472, per Lcl. Ellenborough. ^ A mistake of the legal effect of a document cannot be set up as a defence ; Powell V. Smith, 41 L. J., Ch. 734, per Ld. Eomilly. * See Stokes v. Salomons, 9 Hare, 79, per Turner, V.-C; The Charlotta, 1 Dods. Adm. 392, per Sir W. Scott; Middleton v. Croft, Str. 1056, per Ld. Hardwicke. s 1 Russ. C. & M. 25; 1 Hale, 42; Ff 22, 6, 9. ® E. V. Esop, 7 C. & P. 456, per Bosanquet & Vaughan, Js. ; Barronet's case, 1 E. & B. 1; Pearce & D. 51, S. C. ^ Gr. Ev. § 18, as to four following lines. 8 1 Russ. C. & M. 515—518; R. v. Dixon, 3 M. & Sel. 15. But if death does not ensue till a year and a day, that is, a full year, after the stroke, it is conclusively presumed that the stroke was not the sole cause of the death, and it is not murder. 4 Bl. Com. 197; Glassf. Ev. 592. The doctrine of presump- tive evidence ^v^as familiar to the jNIosaic Code; even to the letter of the prin- ciple stated in the text. Thus, it is laid down in regard to the manslayer, that "if he smite him with an instrument of iron, so that he die," — or, ''if he smite him with throwing a stone wheretoith he may die, and he die," — or, "if he smite him with a hand weapon of wood wherewith he may die, and he die; he is a murderer." See Numb. XXXV. 16, 17, 18. Here, every instrument of iron is conclusively taken to be a deadly weapon ; and the use of any such weapon raises a conclusive presumption of malice. The same presumption arose from lyinff in ambush, and thence destrojdng another. — Id. v. 20. But, in other cases, the existence of malice was to be proved, as one of the facts in the ca.se; and iu the absence of express malice, the oflence was reduced to the degree of manslaughter, as at the common law. — Id. v. 21, 22, 23. Tliis very reasonable distinction seems to have been unknown to the Gentoo Code, which demands life for life, in all cases, except where the culprit is a Brahmin. " If (2969) 104 CASES "WHERE REAL INTENT MUST BE PROVED. [PART I. do the prosecutor some grievous bodily harm,' the judges have held that the prisoner was rightly convicted, though it appeared that his real intent was to wound another person;" and an intent to defraud a particular party will be conclusively presumed on an indictment for forgery, provided the defrauding of such party would be the natural result of the prisoner's act, if successful.^ The law, in such a case, will not relax the rule, even though it should be proved that the prisoner did not entertain the intention charged/ In like manner, on a charge of arson for setting tire to a mill, an intent to injure or defraud the mill-owners will be conclusively inferred from the wilful act of firing.^ The same doctrine should, it seems, on principle, apply to all other crimes.^ § 81. Several decisions, however, are opposed to the general ^ 69 adoption of this rule, and tend to show that, in respect of those statutory offences, the character of which varies according to the intent with which they are perpetrated, the real intention of the prisoner must be left to the jury to be inferred from the facts proved. Thus, on an indictment for cutting,' where the intent laid in the several counts was to murder, to disable, and to do grievous bodily harm, but the intent found by the jury was to prevent being apprehended, the judges held that a conviction could not be sustained, though the prisoner had inflicted a serious wound.^ So, where a party was charged with inflicting a man deprives another of life, the magistrate shall deprive that person of life." — Halhed's Gentoo Laws, b. xvi. § 1, p. 233. 1 Under the repealed Act of 43 G. 3, c. 58. 2 R. V. Hunt, 1 Moo. C. C. 93; R. v. Fretwell, 1 L. & Cave, 443; 9 Cox, 471, S. C. See, also, R. v. Smith, Pearce & D. 559, 7 Cox, 5 S. C. ; which was an indictment under the repealed Act, 7 W. 4 & 1 V., c. 85, § 3. 3 R. r. Beard, 8 C. & P. 148, per Coleridge, J.; R. v. Hill, id. 27(1, by all the judges; R. v. Cooke, id. 582. * R. V. Sheppard, R. & R. 169; R. v. Mazagora, id. 291; R. v. Geach, 9 C. & P. 499. The prisoner may also be convicted on a count charging the real intent, R. v. Han.son, C. & Marsh. 334, by all the judges. ^ R. V. Farrington, R. & R. 207; R. v. Philp, 1 Moo. C. C. 263. 6 See R. V. Murphy, 13 Cox, 298. ^ Under the repealed Act of 43 G. 3, c. 58. * R. V. Dufiin, R. & R. 365. This case is badly reported, and perhaps the decision turned upon the ground that the attemped apprehension was not lawful. (2970) CHAP, v.] PRESUMPTION OF CRIMINAL INTENT. 105 an injury dangerous to life with intent to murder, Mr. Justice Patteson beld, in one case/ that the jury must be satisfied that the prisoner, at the time he committed the assault, had formed a deliberate intention of murdering his victim; but, in a subsequent case," the same learned judge observed, that the jury might infer such intent from the circumstance that, had death ensued, the crime would have amounted to murder. Again, on an indictment under the Act of 9 G. 4, c. 31,^ charging the prisoner with shooting at the prosecutor with intent to murder him, Mr. Justice Littledale allowed the jury to pronounce a verdict in accordance with the actual intent, which was to kill another person, and the prisoner was consequently acquitted.* The principle of this decision has also been recognised by Barons Parke and Alderson, in a case where the prisoner was charged, under 7 W. 4 & 1 V., c. 85, § 2,^ with causing poison to be taken by the prosecutor with intent to murder him, and it appeared that the prisoner's real intention was to poison another part} § 82. Notwithstanding these decisions, and the high reputation « ^q of the judges by whom they were pronounced, it is submitted that the distinction which they intend to establish is founded on no sound principle, but goes far towards frittering away one of the most valuable presumptions known to the criminal law. It must also be borne in mind, that other judges of great experience in the administration of criminal justice have refused to recognise this distinction.' But whether in these statutory offences the actual intent is to be found by the jury, or the implied intent is to be presumed by the law, it is agreed on all hands to be 1 E. V. Cruse, 8 C. & P. 545. ^ jj „ jones, 9 C. & P. 2G0. ^ Eepealed by 24 & 25 V. , c. 95, and other provisious enacted in 24 & 25 V., c. 100. * E. V. Holt, 7 C. & P. 518. The learned judge observed, in summing up, "If this had been a case of murder, and the prisoner intending to murder one person, had, by mistake, murdered another, he would be equally liable to be found guilty. The question, however, may be different on the construction of this Act of Parliament." * Eepealed by 24 & 25 V., c. 95, and other provisions enacted in 24 & 25 V., c. 100. « E. V. Eyan, 2 M. & Eob. 213. ' E. V. Lewis, 6 C. & P. 161, per Gumey, B. ; E. v. Jarvis, 2 M. & Eob. 40, per id. ; ante, p. 104, notes 2-5. (2971) 106 PRESUMPTION OF INTENT AND MALICE. [pART I. immaterial, whether the intent charged be the principle or sub- ordinate motive which instigated the commission of the crime. Thus, where the jury found that the prisoner had wounded the prosecutor with the view of preventing his lawful apprehension, but that, in order to effect that purpose, he intended to do him some grievous bodily harm, the judges held that the conviction was right on a count charging the latter offence.' The same rule has been recognised where the immediate object of the criminal was to rob the party he wounded, and the wound was inflicted as the means of affecting the robbery.^ § 83. The presumption that a part^ intends the natural con- ^ 71 sequences of his acts, is not confined to criminal matters, but extends equally to his civil responsibilities. Thus, the deliberate publication of calumny, which the publisher knows to be false, or has no reason to believe to be true, raises, in an action for libel,^ a conclusive presumption of malice.* So, if a party makes a re- presentation, which he knows to be false, and injury ensues to another, the law, whatever his real motives may have been, will infer that he has been actuated by a fraudulent or malicious intent.^ So, the wilful neglect of a defendant to plead within the time ap- pointed by law, is taken conclusively against him, as a confession of the plaintiff's right of action.** So, if a person, in the language of the Bankruptcy Act, "unable to pay his debts as they become due from his own money," spontaneously makes a transfer or pay- ment in favour of any creditor, which necessarily has the effect of 1 R. V. Gillow, 1 Moo. C. C. 85. ^ R. V. Bowen, C. & Marsh. 149, per Coleridge, J. 3 See 6 & 7 V., c. 96, I 6. * Haire v. Wilson, 9 B. & C. 643; R. v. Shipley, 4 Doug. 73, 177, per Ashurst, J.; Fisher v. Clement, 10 B. & C. 475, per Lcl. Tenterden; Baylis v. Lawrence, 11 A. & E. 925, per Patteson, J.; Rodwell v. Osgood, 3 Pick. 379. s Tapp V. Lee, 3 B. & P. 371; Foster v. Charles, 6 Bing. 396; 7 Bing. 105; 4 M. & P. 61. 741, S. C. ; Pontifex v. Bignold, 3 M. & Gr. 63. ^ Rules of Sup. Ct., 1883, Ord. xxvii., r. 2, et seq. The principle of this Order evidently belongs to general jurisprudence. So in the Roman law; "Contu- macia eorum, qui jus dicenti non obteniperant, litis damno coercetur. " Dig. lib. 42, t. 1, 1. 53. "Si citatus aliquis non compareat, habetur pro consentione." 3 Masc. de Prob. p. 253, concl. 1159, n. 26. (2972) CHAP, v.] PRESUMPTIONS IN FAVOUR OF JUDICIAL PROCEEDINGS. 107 defeating or delaying bis other creditors, the law conclusively pre- faumes that he made it with that intent; and, provided that he afterwards is adjudged bankrupt on a bankruptcy petition presented within three months from the date of sach act, the transfer or pay- ment will, by the policy of the bankrupt law, be set aside as fraudu- lent, though all fraud in fact may be distinctly negatived.' § 84 Conclusive presumptions are also made in favour of judicial ^ 40 proceedings. Thus, it is an undoubted rule of pleading, that nothing shall be intended to be out of the jurisdiction of a superior court but that which is so expressly alleged; and, consequently, the records in the Courts of Counties Palatine, they being superior courts, need not state the cause of action to have arisen within the jurisdiction.^ In like manner it will be conclusively presumed in favour of all the proceedings of either House of Parliament, that, whenever the contrary does not plainly and expressly appear, the respective Houses have acted within their jurisdiction, and agreeably to the usages of Parliament, and the rules of law and justice; and, therefore, if a warrant be issued by the Speaker of the House of Commons at the instance of the House for the arrest of a witness, that document need not contain any recital of the grounds on which it was founded.^ So, also, it is presumed, with respect to such writs as are actually issued by any Division of the High Court of Justice, that they are duly issued, and in a case in which the court has jurisdiction, unless the contrary appears on the face of them ; and all such writs will of themselves, and without any fm-ther allegation, protect all officers and others in their aid acting under them: and this too, although 1 46 & 47 v., c. 52, ^ 48; and 35 & 36 V., c. 58, § 53, Ir. See Ex parte Craven, 39 L. J., Bkpcy. 33; 10 Law Eep., Eq. 648, S. ,C.; In re Craven, Ex parte Tempest, 40 L. J. Bkpcy. 22; Brown v. Kempton, 19 L. J., C. P. 169; In re Cheesebrough, 12 Law Eep., Bq. 358; 40 L. .T., Bkpcy. 79, S. C; Smith v. Cannan, 2 E. & B. 35; In re Wood, 7 Law Rep., Ch. Ap. 302; Ex parte Bailey, in re Ban-ell, 22 L. J., Bkpcy. 45; Bittlestone v. Cooke, 6 E. & B. 296: Bell v. Simpson, 26 L. .1., Ex. 363; Bills v. Smith, 6 B. & S. 314. See, also, as to the avoidance of voluntary settlements, 46 & 47 V., c. 52, § 47; and 35 & 36 V., c. 58, I 52, Ir. ^ Peacock v. Bell, 1 Wms. Saund. 74, recognised in Gosset v. Howard, 10 Q. B. 453. * Gosset r. Howard, 10 Q. B. 411, 455—459. (2973) lOS PRESU3IPTI0NS IN FAVOUR OF JUDICIAL PROCEEDINGS. [PART I. they be on the face of them irregular, or even void in form." The respect due to the High Court, and the credit deservedly given to it, that it will not. abuse its powers, or issue process except in due course, and in accordance with the authority entrusted to it by the law, furnish alike the reason and the justification for this sojuewhat arbitrary presumption.^ * § 85.^ Again the courts are bound to assume, at least prima § 73 facie, that the unreversed sentence of a foreisrn or colonial court of competent jurisdiction is correct; for otherwise, they would, in effect, be constituting themselves courts of appeal, without power to reverse the judgment.* Judicial acts are also, as a general rule, conclusively presumed to have taken place at the earliest period of the day on which they were done. A judgment, therefore, would be treated as regular, though it were signed several hours after the defendant had died.^ Still, as the doctrine rests on a mere fiction of law, it will not be recognised so as to w^ork injustice in any particular case.*^ Neither will it apply to the issuing of a writ of summons, for if so, a plaintiff could not commence legal proceedings till the day after the cause of action had accrued, and the defendant in the meanwhile might escape out of the jurisdiction.' The records also of a court of justice, and indeed all records, are always presumed to have been correctly made.* No evidence, therefore, will be ad- missible to show that a charter granted by the Crown was made or delivered at another time than when it bears date;** and the day ^ Gosset V. Howard, 10 Q. B. 453, 454, citing Countess of Kutlancl's case, 6 Eej). 54 «; and Parsons v. Loyd, 3 Wils. 341. ^ Id., 45G, 467. The elaborate judgment of the Ex. Ch., as pronounced by Parke, B., in this case, deserves cLise study. ^ Gr. Ev. § 12, as to one or two lines. * Brenan's case, 10 Q. B. 492, 502, per Ld. Denman; Robertson v. Strutli, 5 Q. B. 942, per Patteson, J. ^ Wright V. Mills, 4 H. & N. 488; Edwards i-. E., 9 Ex. R. G28. « Clarke v. Bradlaugh, L. R., 7 Q. B. D. 151; 50 L. J., Q. B. 678, S. C. ^ Id. * Reed v. Jackson, 1 East, 355; Ramsbottom v. Buckhurst, 2 M. & Sel. 567, per Ld. Ellenborough; 1 Inst. 260; R. v. Carlile, 2 B. & Ad. 367— 369, per Ld. Tenterden. " Res judicata pro veritate accipitur." Dig. lib. 50, t. 17, 1. 207. » Ladford v. Gretton, Plowd. 490. (2974) CHAP, v.] PRESUMPTIONS IN FA'"^OUR OF JUDICIAL PROCEEDINGS. 109 specified in a record of conviction "will be conclusive proof of the commission day of the assizes at which the trial took place.' In this last case, however, the party against whom the record is pro- duced, may still show, if necessary, by parol evidence the actual day of the trial ; because, although by fiction of law the whole time of the assizes is considered as one day, the court will judicially notice that this legal day may consist of many natural days, and will not permit justice to be defeated by a mere arbitrary rule.^ Proof of the real day of trial would not, in such a case, contradict the record, but would simply explain it. So if a Nisi Prius record were to contain two counts, or distinct causes of action, and a verdict awarding damages to the plaintiff were entered generally, parol evidence would be admissible to show that the substantial damages were recovered on one count only.^ After verdict, whether in a civil or a criminal case,* it will be presumed that those facts, without proof of which the verdict could not have been found, were proved, though they are not distinctly alleged in the record ; pro- vided it contains terms sufficiently general to comprehend them in reasonable intendment.^ In other words, the verdict will cure any defective statement, though it will not cure the omission of any material averment.*^ So, the notes taken by the judge at Nisi Prius are presumed to be correct, and no party is allowed to raise before the Court in Banc any question respecting the rejection of evidence at the trial, unless it appears from these notes that the evidence was formally tendered.^ 1 See Thomas v. Ansley, 6 Esp. 80 ; R. v. Page, id. 83. MVhitaker v. Wisbey, 21 L. J., C. P. 116; 12 Com. B. 44, S. C; Roe v. Hersey, 3 Wils. 274. 3 Preston v. Peeke, 27 L. J., Q. B. 424 ; 1 E. B. & E. 336, S. C. * R. V. Waters, 1 Den. 356 ; 2 C. & Kir. 868, S. C; R. v. Bowen, 13 Q. B. 790 ; Heymann v. R., 8 Law Rep., Q. B. 102 ; 12 Cox, 383, S. C; R. v. Gold- smith, 12 Cox, 479 ; R. v. Aspinall, 46 L. J., M. C. 145. 5 Jackson v. Pesked, 1 M. & Sel. 237, per Ld. Ellenborough ; Steph. PI. 162—164 ; Spieres v. Parker, 1 T. R. 141 ; Davis v. Black, 1 Q. B. 911, 912, per Ld. Denman, C. J., and Patteson, J.; 1 G. & D. 432, S. C. ; Harris v. Goodwyn, 2 M. & Gr. 405 ; 2 Scott, N. R. 459 ; 9 Dowl. 409, S. C. ; Gokltliorpe V. Hardman, 13 M. & W. 377. See, also, Smith v. Keating, 6 Com. B. 130 ; Kidgill V. Moor, 9 Com. B. 364 ; and Ld. Delamere v. The Queen, 2 Law Rep., H. L. 419 ; 36 L. J., Q. B. 313, in Dom. Proc, S. C. « Bradlaugh v. R., L. R.^ 3 Q. B. D. 607, 622, 625, 634, 637, 642, per Ct. of App.; 48 L. J., M. C. 5, S. C. nom. R. v. Bradlaugh ; and 14 Cox, 68. ' Gibbs V. Pike, 9 M. & W. 351, 360, 361, per Ld. Abinger, and Alderson, B. ; 1 Dowl. N. S. 409, S. C. (2975) 110 PRESUMPTIONS IN FAVOUR OF LEGAL PROCEEDINGS. [PAET I. § 8G. The solemnity of an act done, though not done in court, ^ 73^ will also sometimes raise a conclusive presumption in its favour. Thus, where an award professes to be made de prremissis, the presumption is that the arbitrator intended to dispose finally of all the matters in difference ; and his award will be held final, if by any intendment it can be made so.' A bond, or other specialty, is also presumed to have been made upon good con- sideration, so long as the instrument remains unimpeached." By virtue, too, of a statute of the present reign,^ "every bill of lading in the hands of a consignee or indorsee for valuable consideration, representing goods to have been shipped on board a vessel, shall be conclusive evidence of such shipment as against the master or other person signing the same,* notwithstanding that such goods or some part thereof may not have been so shipped, unless such holder of the bill of lading shall have had actual notice at the time of receiving the same, that the goods had not been in fact taken on board ; provided, that the master or other person so signing may exonerate himself in respect of such misrepresentation, by showing that it was caused without any default on his part, and wholly by the fraud of the shipper, or of the holder, or of some person under whom the holder claims." Again, every conveyance made under the Act for facilitating the sale and transfer of land in Ireland, is, by that statute rendered " for all purposes conclusive evidence" that all previous proceedings leading to such conveyance have been regularly taken f and every declaration of title by the Landed Estates Court is as conclusive upon the rights of all parties as any such deed of conveyance.^ § 86a. Many contracts are now made by one party delivering to the other a document in a common form containing the proposed 1 Harrison v. Creswick, 13 Com. B. 399, 416; Jewell v. Christie, 36 L. J., C. P. 168 ; 2 Law Rep., C. P. 296, S. C. 2 Lowe V. Peers, 4 Burr. 2225; 3 St. Ev. 930; Story, Bills, § 16. See post, I 148. MB & 19 v., c. Ill, ? 3. * See Meyer v. Dresser, 16 Com. B., N. S. 646 ; 33 L. J., C. P. 289, S. C; Jessel V. Bath, 36 L. J., Ex. 149 ; 2 Law Rep., Ex. 267, S. C. ^ 21 & 22 v., c. 72, § 85, Ir. See Power v. Reeves, 10 H. of L. Cas. 645; In re Tottenham's estate, 3 Law Rep., Eq. 528. « 21 & 22 v., c. 72, § 51, Ir. ; Billing v. Welch, I. R., 6 C. L. 88. (2976) CHAP, v.] PRESUMPTIONS IN FAVOUR OF ANCIENT INSTRUMENTS. Ill terms. This form constitutes the ofPer of the party tendering it. If the form is accepted without objection, the acceptor is presumed to have agreed to the terms, and, as a general rule, is bound by the contents, and this too whether he has or not in fact read the docu- ment.' Some exceptions, it is true, have been engrafted on this rule, 1st, where from the nature of the transaction the person accepting the document may reasonably suppose that it contains no special terms; 2nd, where the terms are printed in a mode calculated to mislead; and 3rd, where the terms or conditions are in themselves unreasonable or iri'elevant.^ § 87.^ The law also recognises a conclusive presumption in g 74 favour of the due execution of ancient deeds and tvills. When these instruments are thirty years old, and are unblemished by any alterations, they are said to prove themselves; their bare production is sufficient; the subscribing witnesses being pre- sumed to be dead. This presumption, — so far as the present rule of evidence is concerned, — is not affected by proof that the witnesses are living,* and it seems, even actually in court ;^ nor, in the case of wills, by showing that the testator died within the thirty years.^' But it must appear that the instrument comes from such custody, as, though not strictly proper in point of law, is sufficient to afford a reasonable presumption in favour of its genuineness;^ and that it is otherwise free from just ground of suspicion.** Whether, if the deed be a conveyance of real estate, the party is bound first to show some acts of possession under it, is a point not perfectly clear upon the authorities; but the weight 1 Watkins v. Wymill, L. K., 10 Q. B. D. 178; 52 L. J., Q. B. 121, S. C.^ and cases there cited. ^ Id. ^ Gr. Ev. § 21, in great part. * Doe V. Burdett, 4 A. & E. 19. ^ Per Yates, J., as cited by Ld. Kenyon in Marsh v. Collnett, 2 Esp. 666. 6 Doe V. Wolley, 8 B. & C. 22; 3 C. & P. 702, S. C. In Jackson v. Blan- shan, 3 Johns. 292, it was held by the Sup. Ct. of New York that the thirty years must be computed from the time of the testator's death. ' Doe V. Samples, 8 A. & E. 151; Bp. of Meath. v. M. of Winchester, 3 Bing. N. C. 200, 201, per Tindal, C. J., representing all the judges in Dom. Proc. ; 10 Bligh, 462—464, S. C. 8 Roe V. Rawlings, 7 East, 291. (2977) 112 PRESUMPTIONS AS TO ANCIENT DOCUMENTS — ESTOPPELS. [PAKT I. of opiuion seems to be in the negative, as will hereafter be more fully explained.' It is also questionable whether the rule applies to an instrument bearing the seal of a court or a corporation; '' because, although the witnesses to a private deed, or persons acquainted with a private seal, may be supposed to be dead, or not capable of being accounted for after such a lapse of time, yet the seals of courts and corporations, being of a permanent character, may be proved by persons at any distance of time from the date of the instrument to which they are affixed." ' • § 88. This rule is not confined to deeds and wills, but extends o ^^ equally to letters,^ entries,'^ receipts', spitlement certificates,^ and indeed to all other written documents, and provided that these purport to be thirty years old, and come from the proper custody, the signatures and handwriting need not be proved. In Wynne V. Tyrwhitt the coiirt observed, that the rule was founded " on the great difficulty, nay, impossibility, of proving the handwriting of the party after such a lapse of time." ' § 89.* Estoppels may be ranked in this class of presumptions.' ? ^g A man is estopped, when he has done or permitted some act, which the law will not allow him to gainsay. " The law of estoppel is not so unjust or absurd, as it has been too much the custom to repre- sent." '° Its foundation rests partly on the obligation to speak and act in accordance with truth, by which every honest man is bound, and partly on the policy of the law, which thus seeks to prevent the mischiefs that would inevitably result from uncertainty, con- 1 See IMalcolmson v. O'Dea, 10 H. of L. Cas. 593, & 614—616; cited post, U 665, mQ. 2 Per Ld. Tenterden, C. J., in E. v. Bathwick, 2 B. & Ad. 648. ' Doe V. Beynon, 12 A. & E. 431; 4 P. & D. 193, S. C, recognising Bere v. Ward, 2 Ph. Ev. 204. * Wynne v. Tyrwhitt, 4 B. & A. 376. * Bertie v. Beaumont, 2 Price, 308. « R. V. Ryton, 5 T. R. 259; R. v. Netherthong, 2 M. & Sel. 337. In these cases no proof of the custody was given in evidence, but the court held this to be immaterial. M B. & A. 377. 8 Gr. Ev. I 22, in part. ® By the N. York Civ. Code, § 1792, estoppels are abolished. 1° Per Taunton, J., 2 A. & E. 291. (2978) CHAP, v.] ESTOPPELS BIND PARTIES AND PRIVIES. 113 fusioD, and want of confidence, were men permitted to deny what they had deliberately asserted and received as true. The doctrine of estoppels has, however, been guarded with great strictness; not because the party enforcing it is presumed to be desirous of exclud- ing the truth; — for the more reasonable supposition is that that is true, which the opposite party has already solemnly admitted; — but because the estoppel may exclude the truth. Hence estoppel must be certain to every intent; for no one shall be prevented from setting up the truth, unless it be in plain contradiction to his former allegations and acts." § 90. These last words extend, not only to a man's own allega- „ tions and acts, but also to those of all persons through u'hom he claims , " or, to express the same sentiment in the technical language of the law, estoppels are usually binding upon parties and privies.^ Lord Coke has divided privies into three classes; first, privies in blood, as heirs; secondly, privies by estate, as feoffees, lessees, assignees, &c. ; and thirdly, privies in law, "as the lord by escheat, the tenant by the courtesy, the tenant in dower, the incumbent of a benefice," * husbands suing or defending in right of their wives,^ executors and administrators.^ In all these and like cases, the law, — acting upon the wise principle, qui sentit commodum, sentire debet et onus, — provides, that the privy shall stand in no better position than the party through whom he derives his title: but that, if the latter is not at liberty to con- tradict what he has formerly said or done, the former shall be subject to a like disability.' One exception, however, to this rule is admitted in favour of those privies, who would themselves be aggrieved or defrauded by the condiict of the party through whom they claim. For instance, where a man executed a deed with the- fraudulent intent of defeating the statutes of mortmain, the court ' Bowman v. Taylor, 4 N. & M. 264, and 2 A. & E. 278, 289, per Ld. Denman; Id. 291, per Taunton, J.; Lainson v. Tremere, 1 A. & E. 792; 3 N. & M. 603, S. C. ; Kepp v. Wiggett, 10 Com. B. 53, per Williams, J. ; Pelletreau v. Jackson, 11 Wend. 117; 4 Kent, Com. 261, n. ; Carver f. Jackson,, 4 Pet. 83. ' B. N. P. 233. ^ See post, §§ 787 — 793, as to admissions by privies. * Co. Lit. 352 a. * Outram v. Morewood, 3 East, 346. « E. r. Hebden, And. 389. '^ Taylor v. Needham, 2 Taunt. 278. 8 LAW OF EVID. — V. I. (2979) 114 ESTOPPELS NOT BINDING UNLESS PLEADED. [pART I, held that his heir-at-law was not estopped from questioning the validity of the indenture, since his claim to the lands was founded, not on the deed, but on his title by-descent/ § 91. Estoppels are usually divided into three clases; namely, § 78 those by matter of record, those by deed, and those in pais." The first class will be more conveniently treated, when the admissibility and effect of Judgments," which are the most extensive species of records, come to be discussed; but it may be here observed, that neither a judgment inter partes, nor a deed, will operate conclusively as an estoppel, unless the matter of estoppel appears on the record,* and is met by the pleading which is now substituted for the old demurrer,^ nor unless it has been exjjressly pleaded by way of estoppel, at least where an opportunity of so pleading it has been afforded.® If a party, having such an opportunity, does not avail himself of it, the court will conclusively presume that he has intended to waive all benefit derivable from the estoppel, and will leave the jury to form their own conclusions from the facts presented to them in evidence.^ If, indeed, no opportunity has arisen for pleading the matter of estoppel in bar, it would seem on principle that an estoppel by record or by deed ought to be binding when offered in evidence; 1 Doe V. Lloyd, 5 Bing. N. C. 741. See Smyth v. Wilson, 2 Jebb & Sy. GGO. ^ Co. Lit. 352 a: 2 Smith, L. C. 657. => See post, § 1667, et seq. * See Robinson v. Robinson, L. R. 2 P. D. 75. * Rules of Sup. Ct., 1883, Ord. XXV., rr. 1, 2; Bradley v. Beckett, 7 M. & Gr. 994. « 2 Smith, L. C. 670, 674 & 683. The whole of Mr. Smith's note, from p. 656 to 726, should be carefully perused. It contains an elaborate ex- position of a very difficult branch of the law. See also Trevivan v. Law- rence, 1 Salk. 276; 2 Smith, L. C. 654, S. C. ; Magrath v. Hardy, 4 Bing. N. C. 782. ' Outram v. Morewood, 3 East, 346, 365; Vooght v. Winch, 2 B. & A. 662; Doe V. Huddart, 2 C. M. & R. 316; 5 Tyr. 846, S. C; Doe v. Seaton, 2 C. M. & R. 732, Parke, B.; Nowlan v. Gibson, 12 Jr. Law R. 5, 8—12; Matthew v. Osborne, 13 Com. B. 919; Doe v. Wright, 10 A. & E. 763; 1 P. & D. 673, S. C; Magrath v. Hardy, 4 Bing. N. C. 782; 6 Scott, 627; S. C, as to estoppels by matter of record: — Wilson v. Butler, 4 Bing. N. C. 748; Bowman v. Rostron, 2 A. & E. 295; 4 N. & M. 452, S. C. ; Young t). Kaincock, 7 Com. B. 310; Carpenter v. Buller, 8 M. &. W. 212; Potts v. Nixon, 5 I. R., C. L. 45, as to estoppel by deed: — and Freeman v. Cooke, per Parke, B., 2 Ex. R. 662; 6 Dowl. & L. 189, S. C, as to both kinds of estoppel. (2980) CHAP, v.] NO ESTOPPEL FROM SETTING UP ILLEGALITY. 115 and such is the actual rule in some of the United States/ though in this country the point has not yet been expressly decided.^ § 92. With respect, also, to estoppels in jjais, no doubt can be | 79 entertained, but that they, in general, need not be pleaded in order to make them obligatory; as, for instance, if a man were to repre- sent another as his agent, in order to procure a person to contract with him as such, and this person were so to contract, the contract would bind the principal equally with one made by himself, and no form of pleading could leave such a matter at large, and enable the jury to treat it as no contract.' So, if an indorsee were to sue an acceptor on a bill payable to the order of the drawer, and the de- fendant were to plead that the drawer had no authority to indorse, the plaintiff, though he might reply the estoppel,* would not be forced to do so, but he might by his pleading raise the point of law, that the statement of defence disclosed no legal answer to the action.^ § 93. It seems now clearly settled that a party is not estopped by g 80 his deed from avoiding it by proving that it was executed for a frau- dulent, illegal, or immoral purpose. In one case,^ indeed, where a man, in order to give his brother a colourable qualification to kill game, had conveyed some lands to bim, the court held that the grantor's widow could not avoid this conveyance in an action of eject- ment brought against her by the brother; and, in the subsequent case of Prole V. Wiggins, Sir Nicholas Tindal observed that this decision rested on the fact that "the defence set up was inconsistent with the deed.'" The case, however, can scarcely be supported by this circumstance, for in an action of ejectment by the grantee of an annuity, to recover premises on which it was secured, the grantor was allowed to show that the premises were of less value than the ' See Howard v. Mitchell, 14 Mass. 241; Adams v. Barnes, 17 Mass. 365. "^ R. V. Blakemore, 2 Den. 410. See R. v. Haughton, 1 E. & B. 512; Ld. Fevereham v. Emerson, 11 Ex. R. 385; and R. v. Hutehins, L. R. 5 Q. B. D. 353; 49 L. J., M. C. 64, S. C. This last case was reversed on another point by the Court of App. L. R. 6 Q. B. D. 300; 50 L. J., M. C. 35, S. C. 2 Freeman v. Cooke, 2 Ex. R. 662; 5 Dowl. & L. 189, S. C, per Parke, B. * Sanderson v. Collman, 4 M. & Gr. 209. * Hallifax r. Lyle, 3 Ex. R. 446; 6 Dowl. & L. 424, S. C. « Doe V. Roberts, 2 B. «& A. 367. See also Phillpotts v. Phillpotts, 10 Com. B. 85. ' 3 Bing. N. C. 235. (2981) 116 ESTOPPEL BY DEED — ILLEGAL COVENANTS. [PABT I. annuity, and, consequently, that the deed required enrolment, although he had expressly covenanted in the deed that the premises were of greater value.' So, also, where a bond has been given, or a covenant made, for an illegal consideration, the obligor or cove- nantor is not debarred from avoiding the instrument by pleading and proving the illegality;^ and this too, though a legal, but untrue, consideration is stated on the face of the deed.^ Indeed, the better opinion seems to be, that where both parties to an in- denture either know, or have the means of knowing, that it was executed for an immoral purpose, or in contravention of a statute, or of public policy, neither of them will be estopped from proving those facts which render the instrument void ab initio;* for although a party will thus, in certain cases, be enabled to take advantage of his own wrong,^ yet this evil is of a trifling nature in comparison with the flagrant evasion of the laAv, that would result from the adoption of an opposite rule.® It seems scarcely necessary to add that a party is not estopped by his deed, if he executed it while, from duress, infancy, or other cause, he was incapable of making a ^ Doe V. Ford, 3 A. & E. 649. In this case a question was raised whether a covenant, under any circumstances, is such a declaration as to estop a party from afterwards disputing the fact covenanted for, but the point was left undecided. In America a party may, in some cases, be estopped by a covenant. Tims a covenant of warranty estops the grantor from setting up an after-acquired title against the grantee, for it is a perpetually operating covenant; Terrett v. Taylor, 9 Cranch, 43; Jackson v. Matsdorf, 11 Johns. 97; Jackson v. Wright, 14 Johns. 193;. M' Williams v. Nisby, 2 Serg. & R. 515; Somes v. Skinner, 3 Pick. 52; but he is not estopped by a covenant, that he is seised in fee and has good right to convey; Allen v. Say ward, 5 Greenl. 227; for any seisin in fact, though by wrong, is sufficient to satisfy this covenent, its import being merely this, that he has the seisin in fact, at the time of conveyance, and thereby is qualified to transfer the estate to the grantee. 2 Prole V. Wiggins, 3 Bing. N. C. 230; 3 Scott, 607, S. C; Collins v. Blantern, 2 Wils. 341; 1 Smith, L. C. 310, S. C; Gas Light & Coke Co. V. Turner. 5 Bing. N. C. 666; affd. in Ex. Ch., 6 Bing. N. C. 324; Stratford & Moreton R. Co. v. Stratton, 2 B. & Ad. 518; Hill i'. Manch. Waterw. Co., id. 552, 553; Benyon v. Nettleford, 3 M. & Gord. 94; Horton v. Westm. Improve. Comrs., 7 Ex. R. 780. 3 Paxton V. Popham, 9 East, 419. * Id. ^ Doe V. Ford, 3 A. & E. 654, per Ld. Denman; Doe v. Ho wells, 2 B. & Ad. 747. « Benyon v. Nettlefold, 20 L. J., Ch. 186, 187; 3 M. & Gord. 102, S. C. See Mallalieu v. Hodgson, 16 Q. B. 689; Bowes v. Foster, 2 H. & N. 779; Taylor v. Bowers, 46 L. J., Q. B. 39. (2982) CHAP, v.] PERSONS ACTING IN DIFFERENT CAPACITIES. 117 valid contract, or if he was deceived by the fraudulent misrepresen- tations or acts of other parties.' § 94 At one time it was thoughj;, that trustees acting for the ^ 81 benefit of the public would not be estopped from disputing the validity of their deeds, because, if they were, the innocent parties, on whose behalf they were acting, might be seriously injured.^ This doctrine, however, is now distinctly confined to those cases in which the trustees for the public have, in their dealings with another party, violated a public statute, the contents of which are presumed to be known to such party. Therefore, where a bridge Act authorised commissioners to mortgage the tolls, and enacted that the mortgagees should have no preference by reason of priority, the court held that, in an action of ejectment brought by a mort- gagee of the tolls against the commissioners, the defendants were estopped from setting up the fact of an earlier mortgage to defeat the legal estate of the lessor of the plaintifP. In this case, no pre- sumption could be made as to the mortgagee's knowledge of the fact that a previous mortgage had been made ; and the judges con- sidered that there was no authority for holding, that trustee for a public purpose were in any peculiar state of protection on such a point. ^ § 95. Though an estoppel may bind a person acting in one « g2 capacity, it does not necessarily follow that it will have a similar effect, when such party is sustaining a totally different character.* Thus, where an executor de son tort verbally agreed with the land- lord of the intestate to deliver up the premises demised, and after- wards took out letters of administration, he was held not concluded from bringing an action of ejectment against the landlord, who had 1 Hayne v. Maltby, 3 T. R. 438. 2 Fairtitle v. Gilbert, 2 T. R. 169 ; Doe v. Hares, 4 B. & Ad. 440, per Littledale, J. «Doe V. Home, 3 Q. B. 757, 766, 767; R- i'. White, 4 Q. B. Ill, 112; Horton v. Westm. Improv. Comrs., 7 Ex. R. 780. * 2 Smith, L. C. 667 ; Robinson's case, 5 Rep. 32 b ; Com. Di. Estoppel, C; 2 Co. Lit. 365 h; Smyth v. Wilson, 2 Jebb & Sy. 660 ; Leggott v. Gt. N. Ry. Co., L. R., 1 Q. B. D. 599; 45 L. J., Q. B. 557, S. C. See Bennett tJ. Gamgee, 46 L. J., Ex. 33 ; S. C. aff. on app. id. 204. (2983) 118 ESTOPPEL BY DEED — MERE DESCRIPTION. [PABT I. actually obtained possession under the agreement.' But if "an heir apparent, having only the hope of succession, conveys, during the life of his ancestor, an estate, which afterwards descends upon him, although nothing passes at that time, yet, when the inheri- tance descends upon him, he is estopped to say that he had no interest at the time of the grant."^ The distinction between these two cases appears to be this, that in the former, the party not estopped was acting for the benefit of others ; in the latter, the party estopped was sui juris. § 96. In regard to estoppels by deed, a party is not prevented ^ §3 from disputing the correctness of that which is not an essential averment, but is mere description; such for instance, as the date of the deed ; the quantity of land ; its nature, whether arable or meadow ; and the like ; for these statements are but incidental and collateral to the principal matter, and may be supposed not to have received the deliberate attention of the parti es/* It seems, however, that in this country, if a deed of conveyance distinctly states in the operative part that the consideration money has been received, and the estoppel is properly pleaded,* the fact of payment, and the amount paid, are conclusively presumed ;" although a receipt indorsed upon the deed will not in itself amount to an estoppel.'* In America,' though the party is estopped from denying the conveyance, and that it was for a valuable consideration, the weight of authority is in favour of treating the statement in the deed as only prima facie • » Doe V. Glenn, 1 A. & E. 49 ; 3 N. & M. 837, S. C. See, also, Middleton's case, 5 Rep. 21 ; Metters v. Brown, 32 L. J., Ex. 138 ; 1 H. & C. 686, S. C; Lyons v. Mulderry, Hayes, R. 530 ; Kirwan v. Gorman, 9 Ir. Eq. R. 154 ; Johnson v. Warwick, 25 L. J., C. P. 102. ^ Hayne v. Maltby, 3 T. R. 441, per Ld. Kenyon. 3 Com. Di. Estoppel, A. 2 ; Yelv. 227, by Metcalfe, n. 1 ; Doddington's case, 2 Co. 33 ; Shipworth v. Green, 8 Mod. 311 ; 1 Str. 610, S. C. * Potts V. Nixon, I. R., 5 C. L. 45. ^ Shelly r. AVright, Willes, 9 ; Cossens v. Cossens, id. 25 ; Rowntree v. Jacob, 2 Taunt. 141, in which last case there were highly suspicious circum- stances tending to show that the consideration money had not in fact been paid ; Baker v. Dewey, 1 B. & C. 704 ; Lampon v. Corke, 5 B. & A. 606 ; Hill V. Manch. Waterw. Co., 2 B. & Ad. 544. See Smith r. Battams, 26 L. J., Ex. 332 ; also Gresley r. Mousley, 3 De Gex, V. & J. 433. « Lampon v. Corke, 5 B. & A. 611, per Holroyd, J., 612, per Best, J.; Straton v. Rastall, 2 T. R. 366. ^ Gr. Ev. g 26, n., almost verbatim. (2984) CHAP, v.] ESTOPPELS — RECITALS IN DEEDS. 119 evidence of the amount paid, in an action of covenant by the grantee to recover back the consideration, or in an action by the grantor, to recover the price which is yet unpaid.' § 97. The question how far parties are bound by recitals^ in x §4 deeds has of late years been much discussed ; and the doctrine of Lord Coke, that " a recital doth not conclude, because it is no direct afi&rmation,"^ has been expressly overruled. The law on this subject has been ably expounded by Baron Parke, in Carpenter v. Buller.* " If a distinct statement of a particular fact is made in the recital of a bond, or other instrument under seal, and a contract is made with reference to that recital, it is unquestionably true, that, as between the parties to that instrument, and in an action upon it, it is not competent for the party boxind^ to deny the re- cital, notwithstanding what Lord Coke says on the matter of recital in Coke Littleton, 352 b ; and a recital in instruments not under seal may be such as to be conclusive to the same extent. A strong instance as to a recital in a deed, is found in the case of Lain son v. Tremere,® where, in a bond to secure the payment of rent under a lease stated, it was recited that the lease was at a rent of 170Z., and the defendant was estopped from pleading that it was 140/. only, and that such amount had been paid. So, where other particular facts are mentioned in a condition to a bond, as that the obligor and his wife should appear, the obligor cannot plead that he appeared himself, and deny that he is married, in an action on the bond.' All ^ The principal cases will be found refeiTed to in the early editions of this Work. ^ As to the effect of recitals in a deed which has been tendered for execution but not executed, see Bulley v. Bulley, 44 L. J., Ch. 79. 2 Co. Lit. 352 6. * 8 M. & W. 212. As to other cases where a recital has been held con- clusive, see Bowman v. Taylor, 2 A. & E. 278 ; Hills v. Laming, 9 Ex. R. 256 ; Lainson v. Tremere, 1 A. & E. 792 ; 3 N. & M. 603, S. C ; E. v. Stamper, 1 Q. B. 123 ; Hill v. Manch. Waterw. Co., 2 B. & Ad. 544 ; Pargeter v. Harris, 7 Q. B. 708. See, also, Bayley v. Bradley, 5 Com. B. 396 ; Young v. Raincock, 7 Com. B. 310 ; Horton v. Westm. Improve. Comrs., 7 Ex. R. 780 ; and Hungerford v. Beecher, 5 Ir. Eq. R., N. S. 417. But see Lindsays. E. of Wick- low, I. R. 7 Eq. 192. * Even though she be a married woman, Semble per Ld. J. James, in Jones V. Frost, in re Fiddey, 7 Law Rep., Ch. App. 773. M A. & E. 792 ; 3 N. &M. 603, S. C. See Brooke v. Haymes, 6 Law Rep., Eq. 25 ' 1 Roll. Abr. 873, c. 25, (2985) 120 WHEN RECITALS OPERATE AS ESTOPPELS. [p^KT I, the instances given in Com. Dig., Estoppel, A. 2, under the bead of ' Estoppel by Matter of Writing ' (except one which relates to a release), are cases of estoppel in actions on the instrument in which the admissions are contained. By his contract in the instrument itself a party is assuredly bound, and must fulfil it. But there is no authority to show that a party to the instrument would be es- topped, in an action by the other party, not founded on the deed, and ivholly collateral to it,' to dispute the facts so admitted, though the recitals would certainly be evidence ; for instance, in another suit, though between the same parties, where a question should arise whether the plaintiff held at a rent of 170Z. in the one case, or was married in the other case, it could not be held that the recitals in the bond were conclusive evidence of these facts. Still less could it be so held, if the matter alleged in the instrument were wholly immaterial to the contract therein contained ; as, for instance, suppose an indenture or bond to contain an unnecessary description of one of the parties as assignee of a bankrupt, overseer of the poor, or as filling any other character, it could not be contended that such statement would be conclusive on the other party, in any other pro- ceeding between them." § 98. From this passage it would appear that, to make a recital g 35 operate as an estoppel, there must be, first, a distinct statement^ of some material particular* fact ; secondly, a contract made with reference to such statement ; * and, thirdly, either an action directly 1 See S.-East. Ey. Co. v. Warton, 31 L. J., Ex. 515. 2 See Kepp y. Wiggett, 10 Com. B. 35. ^ In Carpenter v. Buller, 8 M. & W. 213, the court were strongly inclined to think that, in a deed relating to an adit, a recital that certain neighbour- ing lands, through which the adit did not pass, belonged to A. B., was an immaterial matter, which a party to the deed was not estopped from denying. The point, however, was not directly decided, as the admission was held in- conclusive on other grounds. * As to the distinction between generality and particularity, see Com. Dig., Estoppel, A. 2, and notes to Rainsford v. Smyth, Dyer, 196 a. ^ In Stronghill v. Buck, 14 Q. B. 787, the court thus stated the law : — "Where a recital is intended to be a statement, Avhich all the parties to the deed have mutually agreed to admit as true, it is an estoppel upon all. But where it is intended to be the statement of one party only, the estoppel is confined to that party, and the intention is to be gathered from construing (2986) CHAP, v.] ESTOPPELS MUST BE RECIPROCAL. 121 founded on the instrument containing the recital, or one which is brought to enforce the rights arising out of such instrument.' In the event of these requisites being satisfied, it would further seem, that the doctrine may, in some cases, be extended to in- struments not under seal. In all cases of estoppel by recital, the matter recited requires no proof; since the recital is not offered as secondary, but as primary evidence, which cannot be contro- verted, and which forms a muniment of title. This rule, however, only applies to so much of a deed as is actually recited ; and there- fore if it becomes necessary to rely on any other part of such deed, it must be produced and proved in the regular way." § 99 Returning from the limited question of recitals to the § 86 general doctrine of estoppels, it is important to bear in mind this rule : that every estoppel must he reciprocal ; that is, it must bind both parties, since a stranger can neither take advantage of an estoppel, nor be bound by it.^ Thus, where a party, possessed of chambers in Lincoln's Inn, which he held as tenant-at-will under the benchers, recited in a deed, by which he conveyed his interest to A., that he was seised of these chambers for life, and subsequently surrendered them to the benchers, who admitted B. as tenant, the court held that B., in defending an action of eject- ment brought against him by A., was not estopped from denying that the surrenderor was seised for life.* So, where a tenant took certain lands from the assignees of a bankrupt, by a deed in which they were described as freehold, he was held not estopped, as against the bankrupt's wife, who claimed dower, from proving that they were in fact leasehold.^ So, a conviction on an indict- ment for obstructing a public highway cannot be pleaded as an estoppel, in an action brought by the party convicted against a the instrument. " See, also, Young t^. Raincock, 7 Com. B. 310; Blackball v. Gibson, 2 L. R., Ir. 49. 1 Wiles V. Woodward, 5 Ex. R. 557, 563; Carter v. Carter, 27 L. J., Cb. 74, 84, 85, per Wood, V.-C; Eraser r. Pendlebury, 13 L. J., C. P. 1. * Gillett V. Abbott, 7 A. & E. 783; 3 N. & P. 24, S. C. ' Co. Lit. 352 a. * Doe t'. Errington, 6 Bing. N. C. 79. * Gaunt V. Wainman, 3 Bing. N. C. 69. (2987) 122 ESTOPPELS BY DEED ESTOPPELS IN PAIS. [PAKT I. third person for using the way.' Again, the grantee, or lessee of a deed-poll, is not, in general, estopped from gainsaying any- thing mentioned in the deed; for it is the deed of the grantor or lessor only; yet if such grantee or lessee claim title under the deed, he is hereby estopped to deny the title of the grantor." An exception to this rule requiring reciprocity in estoppels would perhaps be recognised in the case of deeds-poll, because in these instruments one party only is intended to be bound, and as he has executed a deed with the same solemnities as an indenture, no valid reason can be urged why the doctrine of estoppel should not apply to him.'' § 100. A further rule with respect to estoppels by deed is this, | 87 that a deed which can take effect by interest shall not be construed to take effect by estoppel.* Thus, if a lessor has any interest in the demised premises, even though it be for a less period than he pro- fesses to grant, the lease shall not work by estoppel, but shall enure to the extent of the lessor's interest, and no further.'^ But if a person, having no title whatever, makes a lease by indenture, this will estop the parties to the deed from alleging the lessor's want of title during the continuance of the lease; and if the lessor subse- quently pui'chases the land, or otherwise obtains an interest in it, the lease, which was originally a lease by estoppel, will be converted into a lease in interest, and the heir or assignee of the lessor will be bound thereby, as well as the lessee and his assignees.*^ § 101. The most ordinary instance of estoppel by matter in pais,'' § 88 is the well-established rule, that a tenant, during his possession of 1 Petrie v. Nuttall, 11 Ex. R. .569. 2 Co. Lit. 363 h; Goddard's case, 4 Co. 44. =* 2 Smith, L. C. 660; Bac. Ab., tit. Leases, O. * Doe V. Barton, 11 A. & E. 311, per Patteson, J. ^ Id. in argument; Co. Lit. 45 a. 47 ft; Doe v. Seaton, 2 C. M. & R. 730 per Parke, B. ; Walton v. Waterhouse, 3 Wms. Saund. 417 a, et seq. 8 Webb V. Austin, 7 M. & Gr. 701 ; Sturgeon v. Wingfield, 15 M. & W. 224. ' As to "judicial admissions," and " admissions acted upon," which some- times are classed among estoppels in pais, see post, §^ 772, 783, 820, et seq., 839, et seq. (2988) CHAP, v.] ESTOPPEL IN PAIS — LANDLORD AND TENANT. 123 premises, shall not deny that the landlord, under whom he has entered, or from whom he has taken a renewal of his holding,' and to whom he has paid rent, had title at the time of his admission.^ Thus, whether the landlord brings ejectment, or an action for rent or for use and occupation against his tenant, the defendant can neither set up the superior title of a third person,^ nor show that the landlord has no title; as, for instance, if the plaintiff be an incumbent, by giving evidence of a simoniacal presentation,* or, if he be a devisee, by proving that the devisor was incapable of making a will.^ In this last case, indeed, the evidence might be admis- sible as part of the tenant's case, if he could show that the party claiming as devisee had been guilty of fraud in making the will, and in falsely representing it to him as a valid one;^ but, excepting in the instance of a clear case of fraud being established, the only course which a tenant can pursue, who wishes to dispute the title of the landlord under whom he entered, is to yield up the premises, and then bring an action to recover them.^ So strict is this rule, that, even should a landlord, while proving his own case, in an action against the tenant for use and occupation, disclose the fact that ho himself had only an equitable or a joint estate in the premises, the tenant cannot avail himself of that circumstance as a defence to the action.* Neither can a lessee, who has once accepted a lease and paid rent under it, dispute the lessor's title, though the deed itself admits upon its face some infirmity in that title.* And where a tenant has held premises under a corporation aggregate, and paid rent, he cannot object to their suing him for use and occupation, on the ground that a corporation cannot demise except by deed, and ' Doe V. Wiggins, 4 Q. B. 367. ^ Doe V. Pegge, 1 T. R. 760, n., per Ld. Mansfield; Doe v. Barton, 11 A. & E. 307, 312; 3 P. & D. 194, S. C. See Att.-Gen. v. Stephens, 1 Kay & J. 744—747, per Wood, V.-C; 6 De Gex, M. & G. Ill, S. C. =* Doe V. Pegge, 1 T. R. 760, n., per Ld. Mansfield. * Cooke V. Loxley, 5 T. R. 4. ^ Doe v. Wiggins, 4 Q. B. 367. ® Per Ld. Denman, in Id. 375. ^ Per Coleridge, J., in Id. .377; Doe v. Lady Smythe, 4 M. & Sel. 348. See Rules of Sup. Ct. 1883, Ord. XVIIL, R. 2; App. C. sect. VII. 8 Dolby t)..Iles, 11 A. & E. 335. ^ Duke V. Ashby, 7 H. & N. 600; Morton v. Woods, 3 Law Rep. Q. B. 658; 37 L. J., Q. B. 242, S. C. ; 4 Law Rep., Q. B. 293, S. C, in Ex. Ch.;'& 9 B. & S. 632. (2989) 124 ESTOPPEL IN PAIS — LANDLORD AND TENANT. [PABT I. that he has occupied without deed.' This rule, too, is applicable in an action of trespass, as well as in an action to recover land;' and it is binding, not only on the tenant himself, but on all who claim in any way through him.^ Thus, where a lessee gave up possession of the premises 1o a party claiming them by a title adverse to that of the lessor, and prior to the lease, that party was held to be estopped, as the lessee would have been, from disputing the landlord's, title.* The principle of this rule extends also to the case of a person coming in by permission as a mere lodger, a servant, or other licensee.^ § 102. But though a tenant cannot deny that the person by whom he was let into possession had title at the commencement of the tenancy, he may show that he had no title at a previous time. Thus, where in ejectment the defendant claimed under a conveyance from a certain company, bearing date 1824, he was allowed to dispute the title of the company to convey the same premises to the lessor of the plaintiff in ISIS.*^ So, where a lessee had been let into possession in 1S26 under a demise from a tenant for life, and after the death of the tenant for life an ejectment was brought against him by the reversioner, on the ground that the lease was void, the court, while they admitted that the interests of the tenant for life and of the reversioner were so far identical, as to preclude the lessee from showing adverse title in another at > May. of Stafford r. Till, 4 Bing. 75; 12 Moore, 260, S. C; Dean and Ch. of Rochester i: Pierce, 1 Camp. 466; recognised in Fishmongers' Co. r. Robertson, 5 M. & Gr. 194. See Eccles. Commis. v. Merral, 4 Law Rep., Ex. 162; 38 L. J., Ex. 93, S. C; also post, § 984. 2 Delaney r. Fox, 26 L. J., C. P. 248; 2 Com. B., N. S. 769, S. C. ; qualify- ing a dictum of Pollock, C. B., in "SVatson r. Lane, 25 L. J., Ex. 102. See, also, Ward v. Ryan, I. R. 10 C. L. 17. per Ex. C. * Lond. & N.-West. Ry. Co. r. West, 2 Law. Rep., C. P. 553; 36 L. J.. C. P. 245, S. C. * Doe r. Mills, 2 A. & E. 17; Doe v. Lady Smythe, 4 M. & S. 347; Taylor r. Keedham, 2 Taunt. 278. * Doe r. Baytup, 3 A. & E. 188. In this case a woman asked leave to get vegetables in the garden, and having obtained the keys for this purpose, fraudulently took possession of the house and set up a title. The court held that she could not defend an ejectment, but must deliver up the premises before she contested the title. See, also, Doe v. Birchmore, 9. A. & E. 662. 6 Doe V. Powell, 1 A. & E. 531. (2990) CHAP, v.] ESTOPPEL IN PAIS — LANDLORD AND TENANT. 125 the date of the lease, allowed him to prove that, before the year 1826, the legal estate was outstanding in a third party, and that, consequently, the reversioner, who claimed in common with the tenant for life under a settlement of a much earlier date, had no legal title to the premises.' Again, a tenant may prove that, since the commencement of the tenancy, the title of his lessor has expired or been defeated." Thus, he may prove that his landlord was a tenant pour autre vie, and that the cestui que vie is dead; or that he was a tenant from year to year, and that the superior landlord had given him a notice to quit, or that he was a mere tenant at will, and that the will had been determined.^ So, also, the tenant may show, that the person who let him in was a mortgagor in possession, who, not being treated as a trespasser, had title to confer on him the legal possession ; and he may then further prove that this party has subsequently been treated as a trespasser, whereby both the mortgagor's title, as well as his own rightful possession under him, have been determined.* In short, he may rely on any fact, which either amounts to an eviction by title paramount,^ or shows that the title of his landlord has expired.** ' Doe r. Langdon, 12 Q. B. 712; Doe v. ^Tiitroe, D. & R., N. P. C. 1. ''Doe 1!. Barton, 11 A. & E. 312, per Ld. Denman; Hopcraft t;. Keys, 9 Bing. 613. See Bayley r. Bradley, 5 Com. B. 396; Watson v. Lane, 11 Ex. R. 769; Langford v. Selmes, 3 Kay & J. 220; Howe i-. Scarrott, 4 H. & N. 723; Lond. & X.-West. Ry. Co. v. West, 36 L. J., C. P. 245; 2 Law Rep., C. P. 553, S. C. 3 Doe r. Barton, 11 A. & E. 314. * Id. p. 315. It is now determined that a mortgagee, by simply giving notice to the tenant to pay rent to him, does not treat the mortgagor as a trespasser; Hickman r. Machin, 4 H. & N. 716; but a notice, to have such an effect, must either be coupled with an attornment, or be followed by actual payment of rent, to the mortgagee. See id.; also Wilton v. Dunn, 17 Q. B. 294; Turner r. Cameron's Coalbrook St. Coal Co., 5 Ex. R. 932; Litchfield v. Ready, id. 939; Trent v. Hunt, 9 Ex. R. 22, 23. * Gouldsworth v. Knights, 11 M. & W. 344. * Downs V. Cooper, 2 Q. B. 256. In that case, A. demised premises to B. , and during the term C. claimed the property. The matter was referred, and the arbitrator awarded in C. 's favour. A. thereupon delivered up the title deeds to C, and permitted him to tell B. to pay the rent in future to him, C. This B. did, but A. afterwards distrained for the same rent. On replevin, avowry, and plea in bar stating the above facts, held that A. 's title had expired; that his conduct was an admission of that fact, and that B. was not estopped from alleging it; and per Ld. Denman, that A., having induced B. to pay rent to C, was estopped from setting up his relation of landlord (2991) 126 WHAT CONSTITUTES A LETTING INTO POSSESSION. [PART I. § 103. As to what constitutes a letting into possession, some ^ 90 doubts exists. In one case, where a party was in possession of premises without leave obtained from any one, and a person came to him and said, "You have no right to the premises," upon which he acquiesced, and took a lease from this person, the court held that the relation of landlord and tenant was sufficiently created to debar the one from disputing the title of the other.' But in a subsequent case, where a tenant, being already in possession of premises under a demise from a termor, had at the expiration of the termor's right, when his own title also expired, entered into a parol agreement with another party to hold the premises under him; but it appeared that he had done so in ignorance of the real facts of the case, and under the supposition that this party was entitled to the premises; it was held that the agreement was not equivalent to the first letting into possession." This question may, in certain cases, become highly important, because neither a parol agreement by a tenant to hold premises of a party, by whom he was not let into possession,^ nor an attornment,* nor an actual payment of rent to such party, even under a distress,^ will in themselves operate as estoppels; but the tenant may still show that he has acted in ignor- ance, or under a misapprehension of the real circumstances,® or, in against B. See Doe v. Watson, 2 Stark. R. 230; Doe i'. Seaton, 2 C. M. & R. 728; Claridge v. Mackenzie, 4 M. & Gr. 152; Mountnoy v. Collier, 22 L. J., Q. B. 124; 1 E. & B. 630, S. C. ; Emery v. Burnett, 27 L. J., C. P. 216; Delmege v. Mullins, I. R. 9 C. L. 209, per Ex. Ch. 1 Doe V. Mills, 2 A. & E. 20, per Patteson, J. See also Dolby v. lies, 11 A. & E. 335. '' Claridge v. Mackenzie, 4 M. & Gr. 143; 4 Scott, N. R. 726, S. C. "The witness speaks of a new agreement having been entered into between the plaintiff and the defendant, that the former should continue in possession as tenant to the latter; but there was no neir possession given by the defendant; she was in no way prejudiced; she could not have turned the plaintiff out of possession; and before their agreement, if she had brought her ejectment, the plaintiff might have shown that she had no title, and that the title was in some one else. It is not like the ease of a person letting another into posses- sion of vacant premises; it is in fact a remaining in possession of premises, which had been formerly occupied by the tenant." Per Tindal, C. J., 4 M. & Gr. 1.52. '^ Id. * Doe v. Brown, 7 A. & E. 447. ^ Knight V. Cox, 18 Com. B. 645, S. C, nom. Cox v. Knight, 25 L. J., C. P. 314. ^Gregory v. Doidge, 3 Bing. 474; 11 Moore, 394, S. C. ; Gravenor v. Wood- house, 1 Bing. 38; 7 Moore, 289, S. C. ; Rogers v. Pitcher, 6 Taunt. 202; 1 (2992) CHAP, v.] CONCLUSIVE PRESUMPTIONS — INFANTS. 127 the case of payment of rent, that some other party was entitled to receive it.^ § 104.^ Conclusive presumptions of law are also made with re- § 91 spect to infants.^ Thus, an infant under the age of seven years is conclusively presumed to be incapable of committing any felony, or, indeed, any indictable offence,* for want of discretion ; ^ and under fourteen a male infant is presumed incapable, on the ground of impotency, of committing a rape as a principal in the first degree,*' or even of committing an assault with intent to perpetrate that crime.' So, a female under the age of twelve years is presumed incapable of consenting to sexual intercourse,^ and under the age of thirteen her consent to any act of indecency cannot be set up as a defence to a charge of assault." An infant under the age of twenty- Marsh. 541, S. C. ; Doe v. Barton, 11 A. & E. 313 ; 3 F. & 1). 194, S. C. ; Hall V. Butler, 10 A. & E. 20G, per Patteson, J. 1 Cooper V. Blandj^, 1 Bing., N. C. 49, 50 ; Doe v. Francis, 2 M. & Rob. 57 ; in which case payment of rent being the only evidence of tenancy, Patteson, J., allowed the defendant to show, that the lessor of the plaintiff had acted as the agent of third parties. See Hitchings v. Thompson, 5 Ex. R. 50, ex- plained by lA. Cran worth, C, in Att.-Gen. v. Stephens, 6 De Gex, M. & G. 141. '^ Gr. Ev. § 28, in part. ^ In all civil questions where the rights of parents depend on the birth of a living child, the Scotch law conclusively presumes that the child was not born alive, if it was not heard to cry. 1 Dickson, Ev. 180. * 42 & 43 v., c. 49, § 10, .subs. 5, * 4 Bl. Com. 23 ; 1 Hale, 27. If an infant under seven is given into custody on a charge of felony, an action for false imprisonment will lie ; Marsh v. Lowder, 2 New R. 280, per C. P. ; S. C, nom. Marsh v. Loader, 14 Com.. B., N. S. 535. 6 1 Hale, 630 ; 1 Russ. C. & M. 676. This presumption is not affected by 24 & 25 v., c. 100, § 4y ; R- v- Groombridge, 7 C. & P. 582, per Gaselee, J., and Ld. Abinger ; and it applies to the ofTence of carnally abusing a girl under twelve years of age ; R. v. Jordan, 9 C. & P. 118, per Williams, J. But if the boy have a mischievous discretion, he maybe a principal in the second degree, 1 Hale, 630. The patient may be convicted of an unnatural crime, though the agent be under fourteen ; R. v. Allen, 1 Den. 364 ; 2 C. & Kir. 169, S. C. ^ R. V. Eldershaw, 3 C. & P. 396, per Vaughan, B. ; R. v. Philips, 8 C. & P. 736, per Patteson, J. 8 38 & 39 v., c. 94, ? 3; 24 & 25 V., c. 100, § 52. See R. v. Beale, 10 Cox, 157; 1 Law Rep., C. C. 10, S. C. Between the ages of twelve and thirteen the consent of the girl only reduces the man's crime from felony to misdemeanor, 38 & 39 V., c. 94, ? 4. 9 43 & 44 v., c. 45, g 2; R. v. Roadley, 14 Cox, 463 ; 49 L. J., M. C. 88, (2993) 128 PRESUMPTION — INFANTS. [PART I. one years is presumed to be so far incapable of managing his own affairs, that he cannot, in general,' alien his land, or execute a deed,^ or state an account, or bind himself by any contract,* unless it be for necessaries ; * or be subjected to a receiving order being made against him under the Bankruptcy laws ; '' neither since the first of January, 1838, has he had any power to make a will, whether it purports to dispose of real or of personal estate ; " though, before that date, boys of fourteen years, and gii-ls of twelve, might have disposed of personalty by will, provided they were proved to have been of sufficient discretion.' S. C. If this case ever was sound law, it is no longer so, in consequence of the above enactment. 1 See 18 & 19 v., c. 43, and 23 «& 24 V., c. 83, Ir., which Acts enable male infants, who are at least twenty years old, and female infants, who are at least seventeen years old, to make, with the approbation of the Chancery Division, binding settlements of their real and personal estate on marriage. Infimts may also be members of friendly societies, 38 & 39 V., c. 60, ? 15, subs. 8. 2 See Martin v. Gale, L. R. 4 Ch. D. 428, where held by Jessel, M. R., that a deed by an infant charging his reversionary interest to secure the repay- ment of money advanced to him for necessaries, was voidal)le and could not be enforced. 3 The Act of 37 & 38 V., c. G2, which was passed on 7th August, 1874, enacts, in § 1, that " all contracts, whether by specialty or by simple contract, henceforth entered into by infants for the repayment of money lent or to be lent, or for goods supplied or to be supplied, other than contracts for neces- saries, and all accounts stated with infants, shall be absolutely void ; Pro- vided that this enactment shall not invalidate any contract into which an infant may, by any existing or future statute, or by the rules of common law or equity, enter, except such as now by law are voidable." As to how far an infant can act as a trustee, or exercise a power, see King v. Bellord, 1 Hem. & M. 343, and authorities there cited ; also In re Arnit's Trusts, I. R., 5 Eq. 352 ; In re D'Angibau, 49 L. J., Ch. 182, per Jessel, M. R. ; S. C. on App., 49 L. J., Ch. 756 ; and L. R., 15 Ch. D. 228. * 1 Bl. Com. 465, 466 ; Co. Lit. 78 6. As to what are necessaries, see ante, § 42. As to how far infant shareholders are liable to actions for calls, see Newry & Ennisk. Ry. Co. v. Combe, 5 Rail. Cas. 633 ; 3 Ex. R. 565, S. C. ; Leeds & Thirsk Ry. Co. v. Fearnley. 5 Rail. Cas. 644 ; 4 Ex. R. 26, S. C. ; Cork & Bandon Ry. Co. v. Cazenove, 10 Q. B. 935 ; N. West. Ry. Co. v. McMichael, 5 Ex. R. 114 ; Birkenhead, Lane. & Chesh. June. Ry. Co. v. Pilcher, id. 121. An infant lessee, though not liable on the contract of tenancy, is answerable for the rent during his occupation of the premises, Blake v. Concannon, I. R., 4 C. L. 323. But see Lempriere v. Lange, L. R., 12 Ch. D. 675, per Jessel, M. R. * Re Jones, ex p. Jones, 50 L. J., Ch. 673. per Ct. of App. ; L. R. 18 Ch. D. 109, S. C. 6 7 W. 4 & 1 v., c. 26, U 7, 34. ' 1 Will, on Ex. 14—16. (2994) CHAP, v.] CHILD-BEARING AGE — LEGITIMACY. 129 § 105. With respect to the period of life, at which the possibility § 91a of having issue, without miracvilous agency,* becomes in women extinct, no rigid presumption has been fixed by the law; but courts of equity, in directing the distribution of trust funds, have been in the habit of assuming that females, after arriving at the age of fifty three, are in general past child-bearing.* § 106. Again, the law in certain cases recognises a conclusive g 92 presumption in favour of legitimacy.^ Thus, where the husband and wife have cohabited together, and no impotency is proved, the issue is conclusively presumed to be legitimate, though the wife is shown to have been, at the same time, guilty of infidelity;* and even where the parents are living separate, a strong presumption of legitimacy still arises, which can only be rebutted, either by proving a divorce a mensa et thoro, or, since the 11th of January, 1858, a judicial separation, or by cogent and almost irresistible proof of non-access in a sexual sense.^ The fact that a woman is living in notorious adultery, though of course it amounts to very strong evidence, is not, in itself, quite sufiicient to repel this pre- sumption.^ But where the parents have been either divorced a * See Gen., ch. xvii., vv. 15 — 19; ch. xviii., vv. 9 — 15, aud ch. xxi., vv. 1—7. ^ Haynes V. Haynes, 35 L. .7., Ch. 303, per Kindersley, V.-C, and cases, there cited in the note. See, also, re Widdow's Trusts, 11 Law Rep., Eq. 408, per Malins, V.-C; 40 L. J., Ch. 380, S. C; and re Millner's Estate, 14 Law Rep., Eq. 245; 42 L. J., Ch. 44, S. C. In this last case a woman was presumed to be barren at the age of forty-nine years and nine months, as she had been married for twenty-si.x years, and had never had a child. But in Croxton v. May, L. R., 9 Ch. D. 388, the Court of Appeal refused to regard a woman as past child-bearing, though her age was fifty-four and a half years, and she had had no child, having been married three years. Sed qu., and see' Davidson v. Kimpton, L. R., 18 Ch. D. 213. ^ See ante, I 16. * Cope V. Cope, 1 M. & Rob. 269, 276; 5 C. & P. 604, S. C; Morris v. Davies, 3 C. & P. 215, 427; 5 CI. & Fin. 163, S. C; Wright v. Holdgate, 3 C. & Kir. 158; Legge v. Edmonds, 25 L. J., Ch. 125; Banbury Peer., in Appendix, n. E. to Le Marchant's Gardner's Peer., Selw. N. P. 748 — 750; and I Sim. &St. 153, S. C; R. v. Luffe, 8 Ea.st, 193. As to the Mahomedan, Law on this subject, see Ashrufood Dowlah Ahmed v. Hyder Hossein Khan, II Moo. Ind. App. C. 94. * Id.; Saye and Sele Peer., 1 H. of L. Cas, 507; Hargrave v Hargrave, 9 Beav. 552; Plowes v. Bossey, 2 Drew. & Sm. 145; 31 L. J., Ch. 681, S. C. per Kindersley, V.-C; Atchley v. Sprigg, 33 L. J., Cb. 345, per id. « R. V. Mansfield, 1 Q. B. 444, 450, 451 ; 1 G. & D. 7, S. C In this case 9 LAW OF EVID. — V. 1. (2995) 130 SPOLIATION OF PAPERS — RUNNING BLOCKADE. [pART I. mensu et thoro, or judicially separated, their children born during the separation are prima facie illegitimate.' § 107.^ Conclusive presumptions are not unknown to the Imv of ^ 93 nations. Thus, if a neutral vessel be found carrying despatches of the enemy between different parts of the enemy's dominions, their effect is presumed to be hostile,^ at least if they have been fraudu- lently concealed. The spoliation of papers by the captured party has been regarded, in all the States of Continental Europe, as conclusive proof of guilt; but in England and America such an act is open to explanation, unless the cause otherwise labours under grave suspicion, or the surrounding circumstances establish a case of bad faith or of gross prevarication.* Still, though our law, in its lenity, does not found on the mere spoliation of papers an absolute presumption of guilt, it only stops short of that result; for a case that escapes with such a brand upon it, is saved, as it were, from the fire.^ Again, the maritime law recognizes a pre- sumption all but conclusive against any vessel, which has been captured while entering a blockaded port; and the only mode by which the owner can protect the ship from being condemned as lawful prize, is by establishing a justification on the ground of imperative necessity.*^ When a ship, too, is condemned for breach of blockade, the cargo almost inevitably follows the same fate; for the law conclusively presumes that the owners of the cargo were privy to the intention of violating the blockade, unless they can prove that, at the time when the shipment was made, they could not have known that the blockade had been imposed,' § 108.^ In these cases of conclusive presumption, the rule of law ? g^ merely attaches itself to the circumstances when proved ; it is not Ld. Denman questions the authority of Cope v. Cope, as reported in 5 C. & P. 604. See Hawes v. Draeger, L. E., 23 Ch. D. 173, per Kay, J.; 52 L. J., Ch. 449, S. C. 1 St. George v. St. Margaret, 1 Salk. 123. ^ Gr. Ev. § 31, in part. 3 The Atalanta, 6 Rob. Adm. 440, 454. * The Pizarro, 2 Wheat. 227, 241, 242, n. e; The Hunter, 1 Dods. Adm. 180. See post, §116. * The Hunter, 1 Dods. Adm. 486, 487, per Sir W. Scott. 6 Baltazzi v. Ryder, 12 Moo. P. C. R. 168. ' Id. ^ Gr. Ev. § 32, almost verbatim. (2996) CHAP, v.] DISPUTABLE PRESUMPTIONS. 131 deduced from them. It is not a rule of inference from testimony, but a rule of protection, as expedient, and for the general good. It does not, for example, assume that all landlords have good titles ; but that it will be a public inconvenience to suffer tenants to dispute them. Neither does it assume that all averments and recitals iu deeds and records are true ; but that it will be mischie- vous if parties are permitted to deny them. It does not assume that all simple contract debts, of six years' standing, are paid, nor that every man quietly occupying land twenty years as his own, has a valid title by grant ; but it deems it expedient that claims opposed by such evidence as the lapse of those periods affords, should not be countenanced ; and it considers that society is more benefited by a refusal to entertain such claims, than by suftering them to be made good by proof. In fine, it does not assume the impossibility of things which are possible ; on the contrary, it is founded, not only on the possibility of their existence, but on their occasional occurrence ; and it is against the mischiefs of their occurrence that it interposes its protecting prohibition.' § 109.^ The second class of presumptions of law, — answering to § 95 the prcesumptiones juris of the Roman law, which may always be overcome by opposing proof,'' — consists of those termed difiputable presumptions. These, as well as the former, are the result of the general experience of a connexion between certain facts or things, the one being usually found to be the companion, or the effect, of the other. The connexion, however, in this class is not so inti- mate, or so uniform, as to be conclusively presumed to exist in every case ; yet it is so general, that the law itself, without the aid of a jury, infers tbe one fact from the proved existence of the other, in the absence of all opposing evidence. In this mode the law, — even in the absence of any corresponding allegation in the plead- ing,* — defines the nature and amount of the evidence which is siaffi- cient to establish a prima facie case, and to throw the burden of proof on the other party ; and if no opposing evidence is off'ered, ^ See 6 Law Mag. 348, 355, 356. ^ Gr. Ev. I 33, in great part. 3 Hein. ad Panel. P. iv. ? 124. * Rules of Sup. Ct., 1883, Ord. xix., r. 25, cited post, I 368, n. (2997) 132 PRESITMPTIONS OF LAW AND OF FACT. [PABT I. the jury are bound to find in favour of the presumption. A contrary verdict might be set aside as being against evidence. § 110.' The rules in this class of presumptions, as in the g 96 former, have been adopted by common consent, from motives of public policy, and for the promotion of the general good ; yet not, as in the former class, forbidding all further evidence, but only dis- pensing vpith it till some proof is given on the other side to rebut the presumption raised. Thus, as men do not generally violate the penal code, the law presumes every man innocent; but some men do transgi-ess it : and therefore evidence is received to repel this presumption. § 111. Such being the nature of disputable presumption of law, ^ 97 it is obvious that, theoretically, they differ from mere presumptions of fact in three important particulars. In the first place, the judge is bound to explain to the jury whatever legal presumptions arise from the facts proved;^ next, the jury are bound to give full weight to the presumptions so explained ; and lastly, the court alone, without the intervention of the jury, may draw the proper legal inferences, whenever the requisite facts are developed in the plead- ings.^ In practice, however, the distinction between the two species of presumptions is by no means well defined, and the line of demar- cation, even when visible at all, is often overlooked.* A presump- tion which is regarded by some judges as one of law, is treated by others as one of fact ; nay, the same judges place the same pre- sumption at different times in different classes, as if for the purpose of illustrating "the blessings," which one of their body has declared that "we enjoy, in rules capable of flexible interpretation."^ The following remarks, which principally apply to disputable presump- tions of law, will be found occasionally to extend, from motives of convenience, to cogent presumptions of fact. § 112. One of the most important legal presumptions is that of ? 97a ^ Gr. Ev. ^ 34, almost verbatim. ^ Ante, ? 25. ' Best, Ev. 404, 405. * Best, Ev. 424. * Per Talfourd, J. See Letters of the Judges to the Chancellor on the Crim. Law Bills of 1853, p. 37. (2998) CHAP, v.] PRESUMPTION OF INNOCENCE. 133 innocence. This presumption, which, in legal phraseology, " gives the benefit of a doubt to the accused," is so cogent, that it cannot be repelled by any evidence short of what is sufficient to establish the fact of criminality with moral certainty.' In mere civil dis- putes, when no violation of the law is in question, and no legal presumption operates in favour of either party, the preponderance of probability, due regard being had to the burthen of proof, may constitute sufficient ground for a verdict ; ^ but to affix on any person the stigma of crime requires a higher degree of assurance ; and juries will not be justified in taking such a step, except on evidence which excludes from their minds all reasonable doubt.* It has sometimes been asserted with more or less precision, that the presumption in question is confined to the criminal courts, being there specially adopted in favour of life and liberty, and as a safeguard against error in convictions which are not open to revision.* But this would seem to be a mistake. The argu- ments just cited are admirable reasons for urging juries to exercise more than ordinary caution in the investigation of grave offences, but the presumption itself appears to rest on a broader basis. The right which every man has to his character, the value of that cha- racter to himself and his family, and the evil consequences that would result to society if charges of guilt were lightly entertained, or readily established in courts of justice: — these are the real con- siderations which have led to the adoption of the rule that all imputations of crime must be strictly proved. The rule, then, is recognised alike by all tribunals, whether civil or criminal, and is equally effective in all proceedings, whether the question of guilt be directly or incidentally raised.^ For example, if an action be brought against an insurance company to recover a loss by fire, and the defendants plead that the plaintiff wilfully burnt down the ^ St. Ev. 817, 865, 4th ed. ; 1 Gr. Ev. ? 13 a ; E. v. White, 4 Fost. & Fin. 383, per Martin, B. 2 St. Ev. 818, 4th ed. ; 1 Gr. Ev. ? 13 a ; Best, Ev. 120 ; Cooper v. Slade, 6 H. of L. Cas. 772, per Willes, J. 5 St. Ev. 817, 865, 4th ed. ; Best, Ev. 120. * Magee v. Mark, 11 Ir. Law R., N. S. 449, 463, per Pigot, C. B. ; Best, Ev. 120 ; 1 Gr. Ev. ? 13 a. 6 Best, Ev. 447. (2999) 134 PRESUMPTION OF INNOCENCE. [PABT I. premises, the jury, before they find a verdict against the plaintiff must be satisfied that the crime imputed to him was proved by as clear evidence as would justify a conviction for arson.' So, the offence of forgery or bigamy must be established by the same strict evidence, whether the question arises in a penal court on a prosecu- tion for any such crime, or in a civil court on a plea of justification to a libel. "^ § 113.^ So strong is the presumption of innocence, that even g 93 where guilt can be established only by proving a negative, that negative must, in most cases to which no special statute is appli- cable,* be proved, though the general rule of law devolves the burthen of proof on the party holding the affirmative. Thus, where the plaintiff complained that the defendant, who had chartered his ship, had put on board an article highly inflammable and dangerous, ivithout giving notice of its nature to the master in charge, whereby the vessel was burnt, he was held bound to prove this negative averment.^ § 114.® Questions of nicety occasionallly arise where the pre- ? 99 sumption of innocence is met by some counter presumption.^ Thus, where a woman, twelve months after her husband (a soldier on foreign service) was last heard of, married a second husband, by whom she had children, it was held that the Court of Quarter Ses- sions, upon a question respecting the settlement of these children, 1 Thurtell v. Beaumont, 1 Bing. 339 ; 8 Moore, 612, S. C. ^ Chalmers v. Shackell, 6 C. & P. 475, per Tindal, C. J. ; Willmett v. Harmer, 8 C. & P. 695, per Ld. Denman. See, also, Neeley v. Lock, 8 C. & P. 532, per Tindal, C.J. ; Magee v. Mark, 11 Ir. Law R., N. S. 449, per Fitz- gerald, B. 3 Gr. Ev. ? 35, in part. * See post, ? 372. 5 Williams r. E. Ind. Co., 3 East, 193; B. N. P. 298. So of allegations that a party had not taken the Sacrament, R. v. Hawkins, 10 East, 211 ; aflfd. in Dom. Proc. 2 Dow, 124 ; or had not complied with the Act of uniformity, &c., Powell V. Milburn, 3 "SVils. 355, 3G6 ; or that goods were not legally imported, Sissons v. Dixon, 5 B. & C. 758 ; or that a theatre was not duly licensed, Rodwell v. Redge, 1 C. & P. 220. See post, § 371. « Gr. Ev. I 35, in part. ^ See Middleton v. Barned, 4 Ex. R. 241 ; R. v. Bjomsen, 1 L. & Cave, 545 ; 10 Cox, 74 ; 34 L. J., M. C. 180, S. C. (3000) CHAP, v.] PRESUMPTION OF GUILT. 135 was justified in presuming that the first husband was dead at the time of the second marriage, though, had it not been for the pre- sumption of innocence, that of the continuance of life would have prevailed.' So, on a trial for bigamy, where a woman had married again only four years after she had separated from her first husband, the court held that the lata could not presume the continuance of the first husband's life, but that it was a question of fact for the jury whether he was alive or dead at the date of the second marriage.^ But, in another case, where the point in issue was the derivative settlement of a man's second wife, and a letter was proved to have been written by the first wife from Van Diemen's Land, bearing date only twenty-five days prior to the second marriage, the court confirmed the order of the Sessions, which rested on the presump- tion that the husband had been guilty of bigamy.^ So, where a cabman was indicted for manslaughter by driving his cab over a woman, the fact that the woman had been killed by the accident was in itself regarded by the court as prima facie evidence of negli- gence, sufficient to rebut the presumption of innocence, and to shift on to the driver the burthen of proving that he had exercised due care in the management of his horse.* § 115. An exception to this rule respecting the presumption of ^ loo innocence, is admitted in some cases of agency; the principle of law being, both in criminal and civil cases, that a person is liable for what is done under his presumed authority.^ Thus, on an indictment against a contract baker for selling unwholesome bread, where it appeared that the defendant allowed his foreman to use 1 E. V. Twyning, 2 B. & A. 386. See E. v. Jones, 52 L. J., M. C. 96; 15 Cox, 284, S. C. « E. V. Lumley, 1 Law Eep., C. C. 196; 38 L. J., M. C. 86; 11 Cox, 274, S. C; E. V. Willshire, L. E., 6 Q. B. D. 366; 50 L. J., M. C. 57; and 14 Cox, 541, S. C. See further, E. v. Jones, 11 Cox, 358; and see, as to the pre- sumption of life, I? 198—203, post. * E. V. Harborne, 2 A. & E. 540; E. v. Mansfield, 1 Q. B. 449. See, also, Lapsley v. Grierson, 1 H. of L. Cas. 498; and the Breadalbane case, 1 Law Eep., H. L., Sc. 182, cited post, ? 172. * E. V. Cavendish, I. E., 8 C. L. 178. 5 See post, §1 905, 906. See, also. Cooper v. Slade, 6 H. of L. Cas. 746, 793, 794, per Ld. Wensleydale. (3001) 136 PRESUMPTION OF GUILT. [PAET I. alum, though not in such quantities as to render the bread un- wholesome, Lord Ellenborough held that he might legally be convicted, on proof that the servant had introduced alum into the bread to a deleterious extent.' So, for the purposes of the Pawnbrokers' Act, 1872, " anything done or omitted by the servant, apprentice, or agent of a pawnbroker, in the course of or in relation to the business," shall be deemed to be done or omitted by the pawnbroker.^ So, the directors of a gas company were held criminally answerable, on an indictment for a nuisance, for an act done by the superintendent and engineer, under a general autho- rity to manage the works, though they were personally ignorant of the particular plan adopted, and though such plan was a departure from the original and understood method, wnich the directors had no reason to suppose was discontinued.* In like manner,* where a libel is sold in a bookseller's shop by his servant in the ordinary course of his employment, this is evidence of a guilty publication by the master; though, in general, an authority to commit a breach of the law is not to be presumed. This exception is founded upon public policy, lest irresponsible persons should be put forward, and the principal and real offender shall escape. But such evidence is not conclusive against the master, who may still prove, under the plea of not guilty, that the publication was in fact made " without his authority, consent, or knowledge," and that there was "no want of care or caution on his part." ^ The 1 R. V. Dixon, 4 Camp. 12; 3 M. & S. 11, S. C. See Att.-Gen. v. Riddle, 2 C. & J. 493; 2 Tyr. 523, S. C. ; and Searle v. Reynolds, 7 B. & S, 704. 2 35 & 36 v., 93, ? 8. ^ E. V. Medley, 6 C & P. 292. Ld. Denman, in summing np, observed: " It is said that the directors were ignorant of what had been done. In my judgment that makes no difference; provided you think that they gave authority to the superintendent to conduct the works, they will be answer- able. It seems to be both common sense and law, that if persons for their own advantage employ servants to conduct works, they must be answerable for what is done by those servants," 299. See R. ?\ Stephens, 1 Law Rep., Q. B. 702; 35 L. J., Q. B. 251; 10 Cox, 340; 7 B. & S. 710, S. C. ; Mullins V. Collins, 9 Law Rep., Q. B. 292; and Betts v. Vitre, 3 Law Rep., Ch. Ap. 442, per Lord Chelmsford, Ch. But see also, Dickinson v. Fletcher, 43 L. J., M. C. 25; 9 Law Rep., C. P. 1, S. C; Somerset v. Hart, 53 L. J., M. C. 77. * Gr. Ev. § 36, in part. * 6 & 7 v., c. 96, ^ 7. As to the law before the stat., see 1 Russ. C. & M. 251; R. V. Gutch, M. & M. 433; Harding v. Greening, 8 Taunt. 42; R. v. Alman, 5 Burr. 2686. (3002) [chap. v. suppressing or destroying evidence, 137 same law is applied to the publishers of newspapers/ and to the owners of alkali works. ^ § 116.' The presumption of innocence may be overthrown, and § loi a presumption of guilt be raised, by the misconduct of the party in suppressing or destroying evidence, which he ought to produce, or to which the other party is entitled.* Thus, the spoliation of papers, material to show the neutral character of a vessel, fur- nishes a strong presumption, in odium spoliatoris, against the ship's neutrality.^ So, if any person on board a vessel, which is being chased ,by an officer of the preventive service, shall throw overboard, stave, or destroy any part of the lading, the vessel shall be forfeited, because the conduct of such person raises an almost irresistible presumption that the freight so made away with was legally liable to seizure." So, the concealment on board a vessel of any goods, which are liable to duty, justifies the inference that the owner intended to defraud the customs, and the goods will con- sequently be forfeited.' A similar presumption is raised against a party, who, having obtained possession of papers from a witness, after the service of a subpoena duces tecum upon the latter for their production, withholds them at the trial. ^ The general rule is omnia prcesumuntur contra spoliatorem.^ His conduct is attributed 1 1 Euss. C. & M. 251; R. v. Walter, 3 Esp. 21; 6 & 7 V., c. 96, | 7; R. V. Holbrook, L. R., 3Q. B. D. 60; L. R., 4 Q. B. D. 42, S. C, on 2nd trial; 14 Cox, 185, S. C. ; R. v. Ramsay, 15 Cox, 231. M4 & 45 v., c. 37, ? 25. ^ Gr. Ev. § 37, in great part. * A remarkable instance of such presumption of guilt was formerly fur- nished by the Act of 21 J. 1, c. 27; according to which statute, if the mother of an illegitimate child endeavoured privately, either by drowning, or secret burying, or by any other way,_ to conceal its death, she was presumed to have murdered it, unless she could prove by one witness at the least that the child was born dead. This Act was probably copied from a similar edict of H. 2 of France, cited by Domat. But this unreasonable and barbarous rule is now rescinded both in England and America. See, as to the present English law, 24 & 25 V., c. 100, § 60. * The Hunter, 1 Dods. Adm. 480; The Pizarro, 2 Wheat. 227; 1 Kent, Com. 157; ante, ^ 107. « See 39 & 40 V., c. 36, ^ 180. ' See 39 & 40 V., c. 36, § 177. « Leeds v. Cook, 4 Esp. 256. ^ 2 Poth. Obi. 292; Dalston v. Coatsworth, 1 P. Wms. 731; Cowper v. Ld. Cowper, 2 P. Wms. 720, 748—752; R. v. Arundel, Hob. 109, explained in 2 P. Wms. 748, 749; D. of Newcastle v. Kinderley, 8 Ves. 363, 375; Gray v. Haig. 20 Beav. 219; Annesley v. E. of Anglesea, 17 How, St. Tr. 1430. (3003) 138 FABRICATION AND NON-PRODUCTION OF EVIDENCE, [PART I. to his supposed knowledge that the truth would have operated against him. Thus, also, where the finder of a lost jewel would not produce it, the jury, under the direction of the judge, presumed against him, that it was of the highest value of its kind.' But if the defendant has been guilty of no fraud or improper conduct, and the only evidence against him is the delivery to him of the plain- tilT's goods, of unknown quality, the presumption is that they were goods of the cheapest quality.^ § 117.^ The mere fabrication of evidence does not furnish of j j^02 itself any presumption of law against the innocence of the party, but is a matter to be dealt with by the jury. Innocent persons, under the influence of ten'or from the danger of their situation, have been sometimes led to the simulation of exculpatory facts; of which several instances are stated in the books.* Again, the exercise by a client of his undoubted right to prevent his solicitor from disclosing confidential communications, can form no jvist ground for adverse presumption against him.^ Neither has the mere non- production of deeds or papers, upon notice, any other legal effect in general, than to admit the other party to prove their contents by parol,*^ and, as against the party refusing to produce them, to raise a prima facie presumption that they have been properly stamped.' It cannot, however, be denied, but that such conduct, in the absence of all excuse, is calculated to produce in the minds of the jury a very prejudicial effect against any person having recourse to it;^ and if such person be charged with fraud or other misconduct, and the production of his papers would establish his guilt or innocence, the jury will be amply justified in presuming See, also, Sir S. Romilly's argument in Ld. Melville's case, 29 How. St. Tr. 1194, 1195; Anon., 1 Ld. Ray. 731. In Baker v. Ray, 2 Russ. 73, the Ld. Ch. thought that this rule had in some cases been pressed a little too far. 1 Armory v. Delamirie, 1 Str. 505; 1 Smith, L. C. 301, S. C. ^ Clunnes v. Pezzey, 1 Camp. 8. ^ Gr. Ev. | 37, as to first six line.?. * See 3 Inst. 232; Wills, Cir. Ev. 154. 5 Wentworth v. Lloyd, 33 L. J., Ch. 688, per Ld. Chelmsford, in Dom. Proc. ; 10 H. of L. Cas. 589, S. C. ^ Cooper v. Gibbons, 3 Camp. 363. ^ Crisp V. Anderson, 1 Stark. R. 35. See ? 148, post. * See Roe v. Harvey, 4 Burr. 2484, per Ld. Mansfield ; Bate v. Kinsey, 1 C. M. & R. 41, per Ld. Lyndhurst; Sutton v. Devonport, 27 L. J., C. P. 54; Edmonds v. Foster, 45 L. J., C. P. 41. (3004) CHAP, v.] UNLAWFUL INTENT WHEN PRESUMED. 139 him guilty from the unexplained fact of their non-production.' On the same principle, jurors will do well to regard with suspicion the conduct of any party, who, having it in his power to produce cogent evidence in support of his case, is content to offer testimony of a weaker and less satisfactory character.^ § 118.' Though the general presumption of law is, as we have x io3 seen, in favour of innocence, yet, as men seldom do unlawful acts with innocent intentions, the law presumes that every act, which in itself is unlawful, has been wrongfully intended, till the contrary appears.* Thus, on a charge of murder, malice is presumed from the fact of killing, unaccompanied by circumstances of extenuation ; and the burthen of disproving the malice is thrown upon the accused.^ So, if an unauthorised party, with the view of raising money, has put the name of another person to a bill, a felonious ihtent will be pre- sumed, unless the accused had reasonable grounds for believing that he was authorised to act as he did, and in fact acted on that belief.® The same presumption arises in civil actions, where the act com- plained of is unlawful. Thus, in actions of slander, though it should appear that the defendant was not actuated by ill-will against the plaintiff, malice m law will be inferred from the fact of inten- tional publication, unless the defendant can show that his language was excusable as a privileged communication, in which case the plaintiff must establish actual malice,' and in order to do so, must, either by extrinsic or by intrinsic evidence,* prove facts which are » Clifton V. U. S., 4 Howard, S. Ct. R. 242. 2 See N. York Civ. Code, I 1852, art. 6 & 7. ^ Gr. Ev. ?i 34, as to first seven lines. * Ld. Mansfield has, in clear language, pointed out the distinction between those cases, where a criminal intent must be proved, and those where it will be presumed: — "Where an act, in itself indifferent, if done with a particular intent becomes criminal, there the intent must be proved and found ; but Avhere the act is in itself unlmcful, the proof of justification or excuse lies on the defen- dant; and in failure thereof, the law implies a criminal intent." R. v. Wood- fall, 5 Burr. 2667. See also R. v. Harvey, 2 B. & C. 257 ; R. v. Wallace, 3 Ir. Law R., N. S. 38 ; and R. v. Creevey, 1 M. & Sel. 273. * Post., C. L. 255. «'R. v. Beard, 8 C. & P. 143, 148, 149, per Coleridge, J, ^ Clark V. Molyneux, 14 Cox, 10, per Ct. of App. ; 47 L. J., Q. B. 230; and L. R., 3 Q. B. D. 237, S. C. « Cooke V. Wildes, 5 E. & B. 328. (3005) 140 UNLAWFUL INTENT WHEN NOT PRESUMED. [PART I. inconsistent with bona fides.' This distinction rests upon the ground that, when words are proved to have been spoken on a justifiable occasion, the law raises an antagonistic presumption, that the speaker was actuated by proper motives.^ So, in other actions for damages founded on wrongs, as for a malicious arrest, a malicious prosecution, and the like, the fact that the defendant has had recourse to legal proceedings rai.es a prima facie inference in his favour, ' Toogood V. Spyring, 1 C. M. & R. 181, 193 ; 4 Tyr. 582, S. C; Whitfield r. South East. Rail. Co., 27 L. J., Q. B. 229 ; 1 E. B. & E. 115, S. C; Coxhead V. Richards, 2 Com. B. 569; Spill v. Maule, 4 Law Rep., Ex. 232; Wright t). Woodgate, 2 C. M. & R. 573 ; Tyr. & Gr. 12, S. C. ; Taylor v. Hawkins, 16 Q. B. 308 ; Gilpin v. Fowler, 9 Ex. R. 615 ; Somerville v. Hawkins, 10 Com. B. 583; Harris v. Thompson, 13 Com. B. 333; R. v. Wallace, 3 Ir. Law R., N. S. 38 ; Bromage v. Prosser, 4 B. & C. 247 ; 6 D. & R. 296, S. C. In this last case, which was an action for words spoken of the plaintiffs in their busi- ness as bankers, the law of implied or legal malice, as distinguished from malice in fact, was clearly expounded by Bayley J., in the following terms : — "Malice, in the common acceptation, means ill-will against a person ; but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse. If I give a perfect stranger a blow likely to produce death, I do it of malice, because I do it intentionally, and without just cause or excuse. If I maim cattle, without knowing whose they are ; if I poison a fishery, without knowing the owner, I do it ot malice, because it is a wrongful act, and done intentionally. * * If I traduce a man, whether I know him or not, and whether I intend to do him an injury or not, I apprehend the law considers it as done of malice, because it is wrongful and intentional. It equally works an injury, whether I mean to produce an injury or not, and if I had no legal excuse for the slander, why is he not to have a remedy against me for the injury it produces? And I apprehend the law recognises the distinction between these two descriptions of malice, malice in fact, and malice in law, in actions of slander. In an ordinary action for words, it is sufficient to charge that the defendant spoke them falsely; it is not necessary to state that they were spoken maliciously. This is so laid down in Sty. 392, and was adjudged upon error in Mercer v. Sparkes, Owen, 51 ; Noy, 35. The objection there was, that the words were not charged to have been spoken maliciously, but the court answered, that the words were themselves malicious and slanderous, and, therefore, the judgment was affirmed. But in actions for such slander as is prima facie excusable on account of the cause of speaking or ^vriting it, as in the case of servants' characters, confidential advice, or communications to persons who ask it, or have a right to expect it, malice in fiict must be proved by the plaintiff, and in Edmondson r. Stevenson, B. N. P. 8, Ld. Mansfield takes the distinction between these and ordinary actions of slander." In an action for an alleged libel contained in an answer to inquiries respecting the character of a servant, the jury may find express malice from the simple fact, that the answer complained of was untrue to the defendant's knowledge ; Fountain v. Boodle, 3 Q. B. 5. 2 Note b to Hodgson v. Scarlett, 1 B. & A. 245, 246 ; approved of by Alderson, B., in Gibbs v. Pike, 9 M. & W. 358. (3006) CHAP, v.] BOUNDARIES — RIPARIAN OWNERSHIP. 141 which the plaintiff is bound to rebut by proving the absence of all reasonable and probable cause,' and the presence of an actual malicious intent.^ § 119. Some presumptions with respect to the ownership of § 104 property may conveniently here be noticed. And first, as to the boundaries of property.'' Where two counties or parishes are separated by a non-tidal* river, the mid- stream is the presumptive boundary between them.^ Again, the owner of a several fishery, when the terms of the grant are unknown, is presumed to be the owner of the soil.^ The law, too, presumes that the soil of un- navigable rivers, usque ad medium filum aquae, together with the right of fishing,— but not the right of abridging the width, or interfering with the course, of the stream,'— belongs to the owner of the adjacent land;^ while, in navigable rivers and arms of the sea, the soil prima facie is vested in the Crown, and the fishery prima facie is public.® These presumptions as to riparian ownership in streams, do not apply to great non-tidal inland lakes, whether 1 Abrath v. North East. Ry. Co., 15 Cox, ;554, S. C. ; 52 L. J., Q. B. 620; and L. R., 11 Q. B. D. 440, per Ct. of App., overruling S. C. 52 L. J., Q. B. 352; and L. R., 11 Q. B. D. 79. 2 Mitchell V. Jenkins, 5 B. & Ad. 588; Porter v. Weston, 5 Bing. N. C. 715; Johnstone v. Sutton, 1 T. R. 545. The jury may, but are not bound, to infer malice in fact from the want of probable cause. Id. ' As to boundaries of counties, &c., in Ireland, see 35 & 36 V., c. 48, ?§ 2, 3, 4, cited post, § 1771. * Bridgwater Trust v. Bootle-cum-Linacre, 2 Law Rep., Q. B. 4; 36 L. J., Q. B. 41; and 7 B. & S. 348, S. C. ^ R. V. Landulph, 1 M. & Rob. 393, per Patteson, J.; M'Cannon v. Sinclair, 2 E. & E. 53; R. v. Strand Board of Works, 4 B. & S. 526; 33 L. J., M. C. 33, S. C. « D. of Somerset v. Fogwell, 5 B. & C. 875; 1 D. & R. 747, S. C. ; Holford V. Bailey, 8 Q. B. 1000; 13 Q. B. 427, S. C. in error; Marshall v. The Ulles- water St. Navig. Co., 32 L. J., Q. B. 139; 3 B. & S. 732, S. C. But see some very able observations, contra, made by Cockburn, C. J., in S. C, 32 L. J., Q. B. 144, 145; and 3 B. & S. 747—749; also, Bloomfield v. Wharton, I. R. 8 C. L. 68, cited in next note but one. ' Bickett V. Morris, 1 Law Rep., H. L., Sc. 47. ^Carter v. Murcot, 4 Burr. 2163; Wishart v. Wyllie, 1 Macq. Sc. Cas., H. of L. 389; Lord v. Commiss. for City of Sydney, 12 Moo. P. C. R. 473; Crossley v. Lightowler, 3 Law Rep., Eq. 279; 2 Law Rep., Ch. App. 478; and 36 L. J., Ch. 584, S. C; Dwyer v. Rich,I. R. 6 C. L. 144. ® Carter v. Murcot, 4 Burr. 2163; Malcomson v. O'Dea, 10 H. of L. Cas. 593. (3007) 142 PRESUMPTIONS RESPECTING BOUNDARIES. [pART I. they be navigable or not;' but somewhat similar presumptions are recognised in respect of land lying on the sea shore; for that which is covered by the ordinary high water, — or to speak more accurately, by the medium high tide between the spring and the neap," — is presumed prima facie to be the property of the Crown, though by grant or prescription it may belong to the lord of the manor, or to any other subject;^ while, on the other hand, that part of the shore which is overflowed only at spring tide, is presumed to be vested in the proprietor of the adjoining lands/ So, land between high and low water mark, though forming a part of the body of the adjoining county,^ is prima facie presumed to be extra -parochial;^ and this presumption applies to an estuary or arm of the sea,' and also to the shore of a tidal river, as well as to the main sea-shore/ Again, waste land on the sides, and the soil to the middle, of a highway, are, in the absence of evidence to the contrary, presumed to belong to the owner of the adjoining inclosed land, whether he be a freeholder, leaseholder, or copyholder." This rule, being founded on a supposition that the proprietor of the adjoining land, at some former period, gave up to the public for passage all the land between his inclosute and the middle of the road,'" is liable to be rebutted by showing that the road has never ^ Bloomfield v. Wharton, I. R., 8 C. L. 68; Bristow v. Corinican, 3 App. Cas. 641, 6G7, perH. L. (I.). 2 Att.-Gen. v. Chambers, 23 L. J., Ch. 662; 4 De Gex, M. & G. 206, S. C. 2 Blundell v. Catterall, 5 B. & A. 293, 298, per Holroyd, J. ; and 304, per Bayley, J.; Lopez v. Andrew, 3 M. & R, 329 «; Calmady v. Rowe, 6 Com. B. 861, 878, 879. See post, U 130, 131. * Lowe V. Govett, 3 B. & Ad. 863. * Embleton v. Brown, 3 E. & E. 234. 6R. V. Musson, 27 L. J., M. C. 100; 8 E. & B. 900, S. C; Waterloo Bridge Co. v. Cull, 28 L. J., Q. B. 75, per Ld. Campbell. ' Ipswich Dock Commiss. v. St. Peter, Ipswich, 7 B. & S. 310. ^ Bridgwater Trust v. Bootle-cum-Linacre, 2 Law Rep., Q. B. 4; 36 L J., Q. B. 41; and 7 B. & S. 348, S. C. » Doe V. Pearsey, 7 B. & C. 304; 9 D. & R. 908, S. C; Steel v. Prickett, 2 Stark. R. 463, per Abbott, C. J.; Cooke v. Green, 11 Price, 7.36; Scoones V. Morrell, 1 Beav. 251; M. of Salisbury v. Gt. North. Rail. Co., 5 Com. B., N. S. 174; Simpson v. Dendy, 8 Com. B., N. S. 433; Berridge v. Ward, 30 L. J., C. P. 218; 10 Com. B., N. S. 400, S. C; R. v. Strand Board of Works, 33 L. J., M. C. 33; 4 B. & S. 526, S. C. See Gery v. Redman, L. R. 1 Q. B. D. 161; 45 L. J., Q. B. 267, S. C. '0 Doe V. Pearsey, 7 B. & C. 306, per Bayley, J. (3008) CHAP, v.] RIGHT OF OWNERS OF ADJOINING LANDS. 143 in fact been dedicated to the public at all," or that it was originally dedicated by some other party ; " and the presumption may also be repelled by proof that the lord of the manor, or even that a stranger, has exercised acts of ownership, either over the spot in dispute, or over other waste land in immediate connexion with it.^ The pre- sumption just referred to as prevailing in the case of a public high- way, will also be recognised in the case of a private occupation road running between two properties ; and, in the absence of all evidence of acts of ownership, the soil of the road will be deemed to belong to the owners of the adjoining lands in equal moieties ; that is, each owner will be presumed to be the proprietor of the soil usque ad medium filum vise/ The mere fact that the owner of a field has a private right of way over a lane leading only to that field, affords no presumption that the soil of the lane is vested in him.'^ As to roads set out under the first general Inclosure Act, " the herbage and grass arising therefrom " are conclusively presumed to belong to the proprietors of the adjoining lands ; *^ and as to those made under the later Act of William the Fourth, the commissioners are directed to award " the grass and herbage growing and renewing upon " them to such persons as in their judgment are best entitled to the same.^ But both Acts are silent respecting the ownership of the soil, and it seems that as to that, no legal presumption can arise in favour of the proprietors of the neighbouring allotments.* § 120. Where fields belonging to different owners are separated x 105 by a hedge and ditch, the hedge prima facie belongs to the owner of the field in which the ditch is not ; but if there are two ditches, one ^ Leigh V. Jack, 49 L. J., Ex. 220, per Ct. of App.; L. E., 5 Ex. D. 264, S. C. ^ Headlam v. Headley, Holt, N. P. R. 463, per Bayley, J. 3 Doe V. Kemp, 2 Bing. N. C. 102 ; 2 Scott, 9, S. C. ; Grose v. West, 7 Taunt. 39; Anon., Loflft, 358; Doe v. Kemp, 7 Bing. 332; 5 M. & P. 173, S. C. ; Doe v. Hampson, 4 Com. B. 267 ; Beckett v. Corp. of Leeds, 7 Law Rep., Ch. Ap. 421. * Holmes v. Bellingham, 29 L. J., C. P. 132 ; 7 Com. B., N. S. 329, S. C. * Smith V. Howden. 2 New R. 30 ; 14 C. B., N. S. 398, S. C. « 41 G. 3, c. 109, UL ' 6 & 7 W. 4, c. 115, ? 29. « R. V. Hatfield, 4 A. & E. 164, per Ld. Denman ; R. v. Edmonton, 1 M. & Rob. 32, per Ld. Tenterden. (3009) 144 ADJOINING OWNERS — SURFACE OWNERS. [PAET I. on each side, the ownership of the hedge must depend upon evidence of acts of ownership.' The common user of a wall separating lands or houses which belong to different proprietors, is prima facie evidence that the wall, and the land on which it stands, belong to them in equal moieties as tenants in common.^ But this presump- tion may be rebutted by showing that the wall in fact stands on land, parts of which were separately contributed by each proprietor.^ Where a tree grows on the boundary of two fields, so that the roots extend into the soil of each, the property in the tree is presumed to belong to the owner of that land in which it was first sown or planted.* In the work of Mr. Callis on Sewers,^ a distinction is drawn between a bank and a wall ; the former, being made of earth taken from the adjacent soil, is presumed to belong to the party whose land adjoins thereto ; the latter, being built of materials brought from a distance, is prima facie the property of the person who is bound to repair it. This distinction has been recognised in one case by the Court. ° § 121. When the surface of land and the subjacent minerals are ^ loe vested in different owners without any deeds' appearing to regulate their respective rights, the law presumes that the owner of the surface has a right to the support of the minerals.* So, when a ^ Guy V. West, 2 Sel. N. P. 1296, per Bayley, J. In Franca, boundary hedges and the trees in them are declared to be common property, "mitoyens," except in certain cases ; Code Civ., Art. 670, 673. 2 Cubitt V. Porter, 8 B. & C. 257 ; 2 M. & E. 267, S. C. ; Wiltshire v. Sidford, 1 M. & R. 404 ; 8 B. & C. 259 n., S. C. ; Watson v. Gray, L. R., 14 Ch. D. 192, per Fry, J. ; 49 L. J., Ch. 243, S. C. ' Matts V. Hawkins, 5 Taunt. 20 ; Murly v. M'Dermott, 8 A. &E. 138 ; 3 N. & P. 256, S. C. * Holder v. Coates, M. & M. 112, per Littledale, J. ; Masters v. Pollie, 2 Roll. R. 141 ; contra, Waterman v. Soper, 1 Ld. Ray. 737; Anon., 2 Roll. R. 255. 5 P. 74, 4th Ed. « D. of Newcastle v. Clark, 8 Taunt. 627, 628, per Park, J. ' Where such deeds exist, see Aspden v. Seddon, 44 L. J., Ch. 359, per Lds. Js. ; 10 Law Rep,, Ch. Ap. 394, S. C. ; Davis v. Treharne, 50 L. J., Ch. 665 per Dom. Proc. « Humphries v. Brogden, 12 Q. B. 739, 746 ; Smart i'. Morton, 5 E. & B. 30 ; Harris v. Ryding, 5 M. & W. 60 ; Roberts v. Haines, 25 L. J., Q. B, 353 ; 6 E. & B. 643, S. C. ; aff. in Ex. Ch., Haines v. Roberts, 7 E. & B. 625 ; Rowbotham v. Wilson, 6 E. «& B. 593 ; 27 L. J., Q. B. 61, and 8 E. & B. 123, S. C. in Ex. Ch. : 8 H. of L. Cas. 348, and 30 L. J., Q. B. 49, S. C, in (3010) CHAP, v.] PROPKIETORS OF FLATS — LATERAL SUPPORT. 145 house is divided into diflFerent flats, the proprietor of the upper story has a presumptive legal right, without any express grant, or enjoyment for any given time, to the support of the lower story, and the owner of the lower story is also entitled to the protection afforded by the upper rooms as a roof or covering for his dwelling.' On a similar principle it has long been held that, when two adjoin- ing closes, or, it may be, two ancient buildings,^ belong respectively to different persons, the owner of the one has a limited right ^ to the lateral supjjort of the other;* and although this doctrine does not extend to a case where, by the erection of modern buildings, an additional weight has been put upon the land,^ yet the law will presume the grant of an easement entitling the grantor to have his house supported by the soil of his neighbour's property, if the house has been built for more than twenty years,® and the ease- Dom. Proc. ; Caledonian Ry. Co. v. Sprot, 2 Macq. Sc. Cas. H. of L. 449. ' See Elliot v. The N.-East Ry. Co., .32 L. J., Ch. 402, per Dom. Proc; 10 H. of L. Cas. 333, S. C; Brown v. Robi^ns, 4 H. & N. 186; Fletchers. Gt. W. Ry. | Co., 4 H. & N. 242; 29 L. J., Ex. 253, S. C. in Ex. Ch.; Gt. W. Ry. Co. i r. Bennett, 36 L. J., Q. B. 133, per Dom. Proc.; 2 Law Rep., H. L. 27, S. C; Pountney v. Clayton, L. R., 11 Q. B. D. 820, per Ct. of App. ; Jeffries v. Williams, 5 Ex. R. 792; Rogers v. Taylor, 2 H. & N. 828; 27 L. J., Ex. 173, S. C; Eaclon v. Jeffcock, 7 Law Rep., Ex. 379; 42 L. J., Ex. 36, S. C; Hext V. Gill, 7 Law Rep., Ch. Ap. 699; Dugdale v. Robertson, 3 Kay & J. , 695; Bonomi r. Backhouse, 27 L. J., Q. B. 378; 1 E. B. & E. 622, 654, S. C, : in which last case it was held, that this right was an ordinary right of pro- perty incidental to all land, and was not a right founded on any presumption of a grant or an easement. See S. C. in Dom. Proc, nom. Backhouse v. Bonomi, 9 H. of L. Cas. 503. Also, Wakefield v. D. of Buccleuch^ 4 Law Rep.. Eq. 013, per ]\Ialins, V.-C, in a very elaborate judgment; 36 L. J., Ch. 763, S. C; also, May. of Birmingham v. Allen, 46 L. J., Ch. 673, per Ct. of App.; L. R., 6 Ch. D. 284, S. C.; Lamb v. Walker, L. R., 3 Q. B. D. 389; 47 L. J.. Q. B. 451, S. C; Dixon r. White, L. R., 8 App. Cas. 833, per Dom. , Pr. (Sc). See, also, Mitchell v. Darley Main Coll. Co., .53 L. J., Q. B. 470, ' where Lamb v. Walker, cited above, was overruled by Court of App., which held that every fresh subsidence in a worked-out mine gave rise to a fresh cause of action. ' Humphries v. Brogden, 12 Q. B. 747, 756, 757; Caledonian Ry. Co. v. Sprot, 2 Macq. Sc. Cas., H. of L. 449. '' Lemaitre v. Davis, L. R., 19 Ch. D. 281, per Hall, V.'-C; 51 L. J., Ch. ; 17.3, S. C. 3 See Smith v. Thackeray, 1 Law Rep., C. P. 564; 1 H. & R. 615, S. C; and Siddons v. Sliort, L. R., 2 C. P. D. 572; 46 L. J., C. P. 795, S. C. * 2 Roll. Abr. 564, Trespass, I., pi. 1, cited in 12 Q. B. 743. ^ Murchie v. Black, 34 L. J., C. P. 337. « Wyatt V. Harrison, 3 B. & Ad. 871; Hide v. Thornborough, 2 C. & Kir. 250; Partridge v. Scott, 3 M. & W. 220, all of which cases are commented on in Humphries v. Brogden, 12 Q. B. 748 — 750. See Hunt v. Peake, 1 V. .Tohns. 705; Jeffi-ies v. Williams, 5 Ex. R. 792; Rogers v. Taylor, 2 H. & N. 828; 27 L. J., Ex. 173, S. C. 10 LAW OF EVID. — V. I. (3011) , 146 LATERAL SUPPORT WASTE LANDS. [PART I. ment has been enjoyed peaceably, openly, and without any attempt at deception or concealment.' So, where a landowner has built two or more houses adjoining each other, so as to require mutual sup- port, or mutual drainage, and has afterwards parted with his inte- rest in the several houses to different persons, the law will, in general," presume either a grant or reservation, that will entitle each owner to have his house supported by,'' or drained through,* the adjoining buildings. "Where, however, a dock and a wharf had belonged to the same owner, and the bowsprits of vessels in the dock had for many years projected over a part of the wharf, the court held, that, in a subsequent grant of the wharf, the law would not imply, in favour of the vendor, a reservation of the right for the bowsprits to project over the wharf as before.^ § 122. The law also pi'esumes prima, facie that the lord of a § 107 manor is entitled to all waste lands within the manor; and there- fore it is not essentially necessary that he should show acts of ownership upon them.* So, the lord, — who, by virtue of his owner- ship of the soil, is entitled to take gravel, marl, loam, or subsoil in the waste either for his private use or for sale, so long as he does not infringe on the rights of the commoners, — will be presumed, in exercising this limited right, not to have exceeded his limited powers, unless the tenants can adduce some evidence to the con- ' Dalton V. Angus, L. 11., 6 App. Cas. 740, per Dom. Proc. ; 50 L. J., Q. B. 689. S. C; aflf. S. C, L. E., 4 Q. B. D. 162, per Ct. of App.; and 48 L. J., Q. B. 225; and overruling Angus v. Dalton, L. R., 3 Q. B. D. 85; and 47 L. J., Q. B. 163. See also Bell v. Love, L. E., 10 Q. B. D. 547; S. C. aflfd. in Dom. Proc, 53 L. J., Ch. 257, nom. Love v. Bell; and L. E. 9 App. Cas. 286. 2 See Murchie v. Black, 34 L. J., C. P. 337. » Eichards v. Eose, 9 Ex. E. 218. See Solomon v. Vintners' Co., 4 H. & N. 585, and Kempston v. Butler, 12 Jr. Law E., N. S. 516. * Pyer v. Carter, 26 L. J., Ex. 258; 1 H. & N. 916, S. C; Hall v. Lund, 32 L. J., Ex. 113. The authority of Pyer v. Carter has been denied by Ld. Westbury, Ch., in Suffield v. Brown, 3 New E. 343, 344; 33 L. J., Ch. 259, 260; 4 De Gex, J. & S. 185, S. C. See Pearson v. Spencer, 3 B. & S. 761; Wheeldon r. Burrows, L. E., 12 Ch. D. 31, per Ct. of App.; 48 L. J., Ch. 853, S. C; Polden v. Bastard, 4 B. & S. 258; 35 L. J., Q. B. 92, S. C. in Ex. Ch.; and 1 Law Eep., Q. B. 156, S. C. ; Watts v. Kelson, 40 L. J., Ch. 126; 6 Law Eep., Ch. Ap. 166, S. C. 5 Suffield V. Brown, 3 New E. .340; 33 L. J., Ch. 249; 4 De Gex, J. & S. 185, S. C.,per Ld. Westbury, Ch., reversing a decision of Eomilly, M. E., 2 New E. 378. « Doe V. Williams, 7 C. & P. 332, per Coleridge, J. (3012J CHAP, v.] PRESUMPTION ARISING FROM POSSESSION. 147 trary.' This rule is the more deserving of notice, because the pre- sumption is against the lord in the case of approvement, apparently on the ground that, as he has made a grant over the whole waste, his right to inclose any portion of it must be conditional on his establishing that sufficient waste is left for the tenants to enjoy their rights of common." It is now clearly established,^ — though the point was formerly much doubted, ' — that when a tenant encroaches upon the waste contiguous to his farm and incloses it, he is to be presumed, in the absence of acts proving a contrary intention, to have thus acted for the benefit of his landlord.* This presumption will be recognised even though the lands inclosed be the property of a stranger;^ but it will doubtless be much strengthened, if the landlord of the farm be also the lord of the waste. "^ § 123. As men generally own the property they possess, proof § 108 of loossessioii is presumptive proof of oivnershipj This presump- tion is recognised in the Factors' Acts,^ in the Irish, Scotch, and English Acts relating to injuries done by dogs to sheep,** in the Pawnbrokers' Act, 1872, so far as relates to the holders of pawn- 1 Hall;;. Byron, L. R., 4 Ch. D. 667, G80, per Hall, V.-C; 46 L. J., Ch. 297, S. C. 2 Id. ; Arlett t;. Ellis, 7 B. &, C. 346, 370, per Bayley, J.; Lascelles r. Ld. Onslow, 46 L. J., Q. B., 343, per Lush, J.; L. E., 2 Q. B. D. 433, 450, S. C. ^ Doei;. Mulliner, 1 Esp. 460, per Ld. Kenyon; Doe v. Davies, id. 461. * Doe V. Jones, 15 M. & W. 580; Andrews v. Hailes, 2 E. & B. 349; Kings- mill V. Millard, 11 Ex. R. 313; Ld. Lisburne v. Davies, 1 Law Rep., C. P. 259; 1 H. & R. 172. S. C; 35 L. J., C. V. 193, S. C; Doe v. Massey, 17 Q. B. 373; Doer. Williams, 7 C. & P. 332; Doer. Miirrell, 8 C. & P. 134, per Ld. Abinger; Doer. Rees, 6 C. & P. 610, per Parke, B.; Doer. Tidbury, 14 Com. B. 304; Whitmore v. Humphries, 7 Law Rep., C. P. 1; 41 L. J., C. P. 43, S. C; Att.-Gen. v. Tomline, L. R., 5 Ch. D. 750; 46 L. J., Ch. 654, S. C; and S. C. on App., L. R., 15 Ch. D. 150. ^ Cases cited in last note. ^ Bryan v. Winwood, 1 Taunt. 208. ' Webb V. Fox, 7 T. R. 397, per L. Kenyon. 8 6 G. 4, c. 94; 5 & 6 v., c. 39, ?^ 1; 40 & 41 V., c. 39. See Heyman v. Flewker, 13 Com. B., N. S. 519; Baines v. Swainson, 4 B. & S. 270; Fuentes v. Montis, 4 Law Rep., C. P. 93, per Ex. Ch. ; 38 L . J., C. P. 95, S. C; Vickers v. Hertz, 2 Law Rep., H. L. Sc. 113; Johnson v. Credit Lyonnais Co., L. R., 3 C. P. D. 32, per Ct. of App.; 47 L. J., C. P. 241, S. C. * 25 & 26 v., c. 59, § 2, Ir., enacts, that "the occupier of any house or pre- mises where any dog was kept, or permitted to live or remain, at the time of such injury complained of, shall be deemed to be the owner of such dog, unless the contrary be proved." See, also, 28 & 29 V., c. 50, I 7, Ir.; 26 &. 27 V., c. 100, I 2, Sc. ; and 28 & 29 V., c. 60, I 2. (3013) 148 PRESU3IPTI0N ARISING FROJI POSSESSION. [PAET I. tickets/ and also in most of the statutes which authorise the compulsory sale of lands for particular purposes; as, for instance, in the Lands* Clauses Consolidation Act." At common law, too, it may be illustrated by a great variety of cases. Thus, in an action on a policy of insurance effected on a ship and her cargo, the plaintiff may rely on the mere fact of possession, without the aid of any documentary proof or title deeds, unless such further proof be rendered necessary by the opposite party adducing some contrary evidence.^ This rule applies both to real and personal property, and, in the former case, raises a presumption of a seisin in fee.^ In actions of trespass to real property, the presumption arising from the simple fact of possession amounts, as against a mere wrong- doer, to conclusive evidence;^ and if an action be brought for an injury done to the reversion of an estate, proof of the receipt of renf^ by the plaintiff will, unless the sum annually received be so small as to raise a presumption that it is a mere quit rent,' be sufficient evidence of his title to the reversion as against all the world, except the real owner and persons claiming under him. ^ So, also, in actions against wrong-doers for injuries to personal chattels, proof of possession, when coupled with evidence that the plaintiff has some special property in such chattels, has long been held to constitute a complete title.^ Therefore, an undischarged bankrupt may probably still, as under the old law,*" sue in trover a wi'ong- 1 35 & 36 v., c. 93, § 25. '^ 8 & 9 V., c. 18, § 79. » Kobertson v. French, 4 East, 130, 137; Sutton v. Buck, 2 Taunt. 302. So, proof that the plaintiff ha.s ordered and paid for stores for the ship, is prima facie evidence of his ownership, so as to enable him to sustain an action on a policy against the underwriter; Thomas v. Foyle, 5 Esp. 88, per Ld. Ellen- borough. * Doe V. Coulthred, 7 A. & E. 239, per Ld. Denman; Jayne v. Price, 5 Taunt. 326; Doe v. Penfold, 8 C. & P. 537, per Patteson, J. See Metters v. Brown, 32 L. .T., Ex. 138; 1 H. & C. 686, S. C; as to how this presumption can be rebutted. * Elliott V. Kemp, 7 M. & W. 312, per Parke, B. ^ See, also, 23 & 24 V., c. 154, ? 24, Ir., which makes the receipt of rent, under certain circumstances, for a certain period, prima facie evidence of a landlord's derivative title. ■' Doe u. Johnson, Gow, R. 173, per Holroyd, J., recognised in Reynolds v. Reynolds, 12 Ir. Eq. R. 172, 181. 8 Daintry v. Brocklehurst, 3 Ex. R. 207. 9 Elliott V. Kemp, 7 M. & W. 312, per Parke, B. 1" Webb V. Fox, 7 T. R. 391 ; Diayton v. Dale, 2 B. & C. 293; 3 D. & R. 534, S. C. ; Fyson v. Chambers, 9 M. & V/. 460. (3014) CHAP v.] PRESUMPTION ARISING FROM POSSESSION. 149 doer who has taken goods out of his custody ; for although the trustee may take possession of his after acquired property, yet if he allows the bankrupt to treat such property as his own, no third person can cover his own default by setting up a title, upon which the trustee himself does not think fit to insist. So, possession of a ship under a transfer from the rightful owner, which is void for non-compJiance with the register Acts, constitutes a sufficient title in the plaintiff to support an action of trover against a stranger, for converting a part of the ship which was wrecked.' So, even a general bailment will suffice, without being made for any special purpose, but only for the benefit of the rightful owner." In Ireland, too, a mere naked possession will entitle a party to maintain trover as against a wrong-doer,^ and the same doctrine has been acted upon in the English Courts.* § 124. Many cases also show, that an apparent stranger to a ^ io9 document may be so far connected with it by the fact of producing it, as to make it ample prima facie evidence for a jury in support of his claim.* Thus, the production by a plaintiff of an I O U signed by the defendant, though not addressed to any one by name, is, in general,*^ abundant evidence, not indeed of money lent, of which it furnishes no proof whatever,^ but of an account stated between the parties.* So, if a letter be given in evidence with the direction torn off, the jury will do well to presume, prima facie, ihat it was addressed to the party who produces it.* 1 Sutton V. Buck, 2 Taunt. 302. 2 Per Chambre, J., id. 309. ^ Fitzpatrick v. Dunphy, 1 Ir. Law Rep., N. S. 366, per Ex. * Jeffries v. Gt. West. Eail. Co., 5 E. & B. 802. This case resolves a doubt raised by Parke, B., in Fyson v. Chambers, 9 M. & W. 467. See, also, Armory V. Delamirie, 1 Str. 503 ; 1 Smith, L. C. 301, S. C. ; Sutton v. Buck, 2 Taunt. 309, per Lawrence, J. ^ Fesenmayer v. Adcock, 16 M. & W. 449, per Pollock, C. B. * But it will not furnish evidence of an account stated, if the defendant can show that, in fact, it was not given in acknowledgment of a debt due. Lemere v. Elliott, 30 L. J., Ex. 350 ; 6 H. & N. 656, S. C. ' Fesenmayer v. Adcock, 16 M. & W. 449, questioning Douglas v. Holme, 12 A. & E. 641. « Id.; Curtis v. Rickards, 1 M. & Gr. 46 ; Croker v. Walsh, 2 Ir. Law R., N. S. 552. See Wilson v. Wilson, 14 Com. B. 616, 626. » Curtis V. Rickards, 1 M. & Gr. 47, per Tindal, C. J. (3015) 150 PKESUMPTION ARISING FROJI POSSESSION. [pART I. § 125. la actions for the recovery of land, though it is an § no inflexible rule that the plaintiff raiist solely rely on the strength of his own legal title, yet proof of a prior possession, however short, will be prima facie evidence of title as against a wroug-doer.' Thus, where a party received a key of a room from the lessor of the plaintiff, and held the premises for about a year, when the defendant broke in at night and took forcible possession, Lord Tenterden held that the plaintiff' was not entitled to recover.^ In another case of eject- ment, where the lessor of the plaintiff proved that he had formerly held the premises for twenty -three years, and during that time had received and increased the rent, the court held that the defendant could not rebut the presumption of a seisin in fee arising from these unequivocal acts of ownership, by showing that he himself had sub- sequently been in possession for a period less than twenty years, for presumption being thus met by presumption, the defendant was bound to establish, if he could, a title of a higher description.^ In some cases it will be presumed, that the fee-simple of the land carries with it the right to the minerals ;* but this presumption is not universal, since in mining districts the right to the minerals and the fee-simple of the soil are frequently in diff'erent persons; and it may at all times be rebutted by showing, either an absence of enjoyment of the minerals by the owner of the soil, or an actual user of the minerals by a stranger.^ The law also presumes prima facie, that the tenant of the surface is tenant of the siibjacent strata, but this presumption, like the last, is liable to be defeated, by proof that the surface and the subsoil have been dissevered in title, and have become separate tenements.^ ^ Asher v. ^Hiitelock, 35 L. J., Q. B. 17 ; 1 Law Eep., Q. B. 1, S. C. 2 Doe V Dyeball, 3 C. «& P. 610 ; M. & M. 346, S. C. See Doe v. Barnard, 13 Q. B. 945. 3 Doe V. Cooke, 7 Bing. 346 ; 5 M. & P. 181, S. C. See, also, Breast v. Lever, 7 M. «& W. 593. * But see the Transfer of Land Act, 1862, 25 & 26 V., c. 53, | 9, and the Land Transfer Act, 1875, 38 & 39 V., c. 87, I 18, both of which statutes, for purposes of registration of title, recognise an opposite presumption, unless, in the description of the land, mines or minerals be expressly mentioned. ^ Kowe V. Grenfel, Ry. & M. 396, per Ld. Tenterden; Rowe v. Brenton, 8 B. & C. 737 ; Hodgkinson v. Fletcher, 3 Doug. 31. « Keyse v. Powell, 2 E. & B. 132 ; Smith v. Lloyd, 9 Ex. 562, 574, per Parke, B. (3016) CHAP, v.] LONG UNINTERRUPTED POSSESSION. 151 § 126, The presumption of title arising from possession will be § in obviously much strengthened by proof of uninterrupted enjoyment for a considerable time. In many cases, as before observed/ the legislature has fixed what periods of undisturbed possession will suiSce to confer an absolute title; and in these cases, when the party by his pleading shows that he relies upon the statutory limi- tation, no lapse of time but that of the full period fixed by Act of Parliament will justify a presumption in support of the claim. ^ But if, instead of depending upon the statute-law, the party rests his case, as he may do, upon common-law presumption, or a lost grant, the fact of enjoyment for a less period than the statutory number of years, when coupled with other circumstances, will warrant a jury in finding a verdict in his favour.'* § 127. In other cases, to which the statutes of limitation do not I 112 extend, the same principles of presumptive evidence apply, though they are necessarily open to a more vague interpretation. For in- stance, though a plaintiflP seeking to. recover land is bound, as we have just seen,^ to establish his own title, he will not be required to prove strictly every successive link in it, provided that the property has been long in his possession. When, therefore, a mat) claimed under a feoffment, and proved that he had had uninterrupted enjoyment of the premises for twenty years, the court and jury presumed, in his favour, that the necessary formalities of the old livery of seisin had been complied with.^ But presumptions of this nature will not now be raised, where the land has been held for a less period than twelve years,*" nor will they, where the acts of the parties, or the other facts in the case, lead to a different inference.^ ^ Ante, § 74. 2 See 2 & 3 W. 4, c. 71, § G; 2 & 3 W. 4, c. 100, ? 8, Eldridge v. Knott, 1 Cowp. 214; Lowe v. Carpenter, 6 Ex. R. 825. •^ See Bright v. Walker, 1 C. M. & R. 222, 223, per Parke, B. ; LcI. Stam- ford r. Dunbar, 13 M. & W. 822, 827; Lowe v. Carpenter, 6 Ex. R. 830, 831, per Parke, B. ; Hanmer v. Chance, 4 De Gex, J. & S. 626, 631, per Ld. West- bury. * Ante, I 125. ^ Rees V. Lloyd, Wightw. 123; Doe v. Cleveland, 9 B. & C. 864; 4 M. & R. 666, S. C, Doe v. Davies, 2 M. & W. 503; Doe v. Gardiner, 12 Com. B. 319. * 37 & 38 v., c. 57, I 12; and see cases in last note. ' Doe V. Gardiner, 12 Com. B. 319. (3017) 152 REGULARITY PRESUMED FROM LAPSE OF TIME. [PART I. Again, without any direct proof of the passing of a bye-law, or the loss of it, the court will infer its existence from a usage of long standing; for where rights have been exercised in a particular manner for many years without interruption, it is only reasonable to presume that they have had a legal origin.' § 128. The maxim, "ex diuturnitatetemporis omnia prsesumuntur « jj3 rite et solemniter esse acta;" is of great value, and has been applied to a variety of cases. Under certain circumstances tbis presump- tion assumes a conclusive character. One instance has already been furnished" in the case of ancient documents, the due execu- tion of which will be presumed on their mere production. The American courts recognise other applications of the rule. Thus, after^ the lapse of twenty years, they conclusively presume, in favour of every judicial tribunal which has acted within its juris- diction, that all persons interested in its proceedings have had due notice.* So, it has been held in the United States, that where an authority is given by law to executors, guardians, and other officers, to make sales of lands upon being duly licensed by the courts, and they are required to advertise the sales in a particular manner, and to observe other formalities, the lapse of sufficient time, which in most cases is fixed at thirty years, raises a conclusive presump- tion that all the legal formalities of the sale were observed.^ The licence to sell, and the official character of the vendor, being prov- able by record or judicial registration, must in general be so proved; and the deed must also be proved in the usual manner; it is only the intermediate proceedings that are presumed. Probatis extremis prcesumuntur media. ^ R. V. Powell, 3 E. & B. 377; May. of Hull v. Horner, 1 Cowp. 110, per Ld. Mansfield. See Johnson v. Barnes, 8 Law Rep., C. P. 527, per Ex. Ch. 2 Ante, ^ 87. * Gr. Ev. IH9 & 20, in great part. * Brown v. Wood, 17 JNIass. 68. ' See Pejep.scot Prop's v. Ransom, 14 Mass. 145; Blossom v. Cannon, id. 177; Colman v. Anderson, 10 Mass. 105; Williams v. Eyton, 27 L. J., Ex. 176; 2 H. & N. 771, S. C; 4 H. & N. 357, S. C, in Ex. Ch. In some cases, an interval of twenty years has been held sufficient. See Society, &c., v. Wheeler, 1 New Hamp. R. 310. (3018) CHAP, v.] REGULARITY PRESUMED FROM LAPSE OF TIME. 153 § 129. In the Act which was passed in 1874, to facilitate the transfer of land,' the legislature has incorporated the maxim in question in one of the leading rules, which are henceforth to regu- late the practice of conveyancers and the rights of vendors and pur- chasers. For § 2 enacts, in substance, that in the completion of any contract of sale of land, and subject to any stipulation to the contrary in the contract, all recitals, statements, and descriptions of facts, matters and parties, contained in deeds, instruments. Acts of Parliament or statutory declarations, twenty years old at the date of the Contract, shall,- — unless proved to be inaccurate, — be sufficient evidence of the truth of the same.^ § 130. One of the most important applications of the presump- ^ 114 tion under review, is to cases where the rights of the Crown are concerned. Here,'' — though lapse of time does not of itself furnish a conclusive legal bar to the title of the Sovereign, agreeably to the mischievous maxim nullum tempus occurritregi, — yet, if the adverse claim could have had a legal commencement, juries are instructed "" or advised to presume such commencement, after many years of uninterrupted possession. Accordingly, royal grants, charters, and even Acts of Parliament, have not infrequently been thus found by the jury, after long continued peaceable enjoyment, accompanied by the usual acts of ownership.* So, the long enjoyment of port duties, tolls, customary dues, fees, or the like will, if the nature of the case admits of it,^ be held to warrant the presumption of any 1 37 & 38 v., c. 78, ? 2 ; Bolton v. London School Board, L. R., 7 Ch. D. 768 ; 47 L. J., Ch. 461, S. C. 2 See Re Marsh & Ld. Granville, L. R., 24 Ch. D. 11, per Fry, J. ^ Gr. Ev. I 45, In part, as to nine lines. * R. v: Brown, cited 1 Cowp. 110; May. of Hull v. Horner, id. 102; Eld- ridge V. Knott, id. 215 ; Lopez v. Andrew, 3 M. & R. 329 a ; Delurue v. Church, 2 L. J., Ch. 113 ; O'Neill v. Allen, 9 Ir. Law R., N. S. 132, 141, per Pigot, C. B. ; Doe d. Devine v. Wilson, 10 Moo., P. C. L. 527 ; Little v. Wing- field, 11 Ir. Law R., N. S. 63 ; Roe v. Ireland, 11 East, 280 ; Goodtitle v. Bald- . win, id. 488 ; Att.-Gen. v. Ewelme Hospital, 17 Beav. 366 ; Mather v. Trinity Church, 3 Serg. & R. 509. * See Gann v. Free Fishers of Wliitstable, 20 Com. B., N. S. 1, in Dom. Proc. ; 11 H. of L. Cas. 192, S. C. ; overruling S. C. in C. P. and Ex. Ch., Free Fishers of Wliitstable v. Gann, and Gann v. Johnson, 11 Com. B., N. S. 387, and 13 Com. B., N. S. 859; Bryant v. Foot, 2 Law Rep., Q. B. 161 ; 7 B. & S. 725, S. C; and in Ex. Ch., S. C. 3 Law Rep., Q. B. 497; 37 L. J., (3019) 154 TITLE PRESUMED FROM LONG ENJOYMENT. [PABT I. fact necessary to make them legal : ' and if distinct evidence of any- such payments be given as far back as living memory goes, the jury, unless evidence to the contrary be shown, will be quite justi- fied in presuming, or, rather, will be directed to presume, that such payments were immemorial, or at least were referable to a legal origin.^ So, a series of acts of ownership exercised on the seashore by the adjoining pi'oprietor, will afford abundant evidence for a jury to presume that the Crown formerly granted the soil to one of his ancestors;^ and a similar inference may be drawn from the produc- tion of a royal grant conveying the right of wreck/ § 131. Again, notwithstanding the rule which provides that, in ^ 114 order to constitute a valid dedication to the public of a highway, the owner of the soil must intend to dedicate,^ the uninterrupted user of a road by the public for forty or fifty years has been held amply sufficient to justify a presumption in favour of the original animus dedicandi, although there was ground for supposing that the soil of the highway was vested in the Crown.'' Even a qualified or partial dedication of a way may be presumed in like manner from continuous use ; and in a case in which, as far back as living memory went, the public had enjoyed a right of way across an arable field, and the owner had ploughed up the field including the Q. B. 217, and 9 B. & S. 444; Lawrence v. Hitch, 3 Law Rep., Q. B. 521, in Ex. Ch.; 37 L. J., Q. B. 209; and 9 B. & S. 467, S. C. See, also, Mills v. May. of Colchester, 36 L. J., C. P. 216; 2 Law Rep., C. P. 476, S. C. ; and Free Fishers of Whitstable r. Foreman, 2 Law Rep., C. P. 688, 716, 717; 37 L. J., C. P. 305, S. C. in Ex. Ch.; and S. C. in Dom. Proc. nom. Foreman v. Free Fishers of Whitstable, 38 L. J., C. P. 345. ^ May. of Exeter v. Warren, 5 Q. B. 801, per Ld. Denman. 2 Malcomson v. O'Dea, 10 H. of L. Cas. 593; Mills v. May. of Colchester, 36 L. J., C. P. 213; D. of Beaufort v. Smith, 19 L. J., Ex. 106; per Parke, B. ; 4 Ex. R. 471, S. C; Pelham v. Pickersgill, 1 T. R. 667, per Ashhurst, J. ; Shep- hard v. Payne, 3 New R. 580, per Ex. Ch. * Calmady v. Rowe, 6 Com. B. 861 ; D. of Beaufort v. May. of Swansea, 3 Ex. R. 413; Le Strange v. Rowe, 4 Fost. & Fin. 1048, per Erie, C. J.; Healy V. Thorne, I. R., 4 C. L. 495. See ante, ^ 119. * Hale de Jure Mar. 25, recognised in Calmady v. Rowe, 6 Com. B. 891. 5 Poole V. Huskinson, 11 M. & W. 827. « R. V. East Mark, 11 Q. B. 877; R. v. Petrie, 24 L. J., Q. B. 167; 4 E. & B. 737, S. C; Turner v. Walsh, L. R., 6 App. Cas. 636. See Greenwich Board of Works V. Maudslay 5 Law Rep., Q. B. 397; 39 L. J., Q. B. 205, S. C; Powers V. Bathurst, 49 L. J., Ch. 294, per Fry, J. (3020) CHAP. V. ] TITLE PRESUMED FROM LONG ENJOYMENT. 155 path, it was presumed, first, that the original dedication of the way was subject to the right of ploughing it up in due course of farm- ing,' and next, that although it had for a time become impassable in consequence of such ploughing, the public had no right of deviating from it.^ So,^ after evidence of nearly forty years' posses- sion of a tract of land, and proof of a prior order of council for its survey, and of an actual survey, an American jury has been in- structed to presume that a patent had been duly issued.* In regard, however, to Crown and public grants, a longer period is generally deemed necessary, to justify this presumption, than in the case of grants from private persons. § 132. The principles upon which, in cases of incorporeal here- ^ 114a ditaments, grants may be presumed, as between private persons, from mere uninterrupted user and enjoyment, have been much discussed in Ireland; and it seems now to be finally settled, first, that juries in such cases should not be required to find as a fact that a deed of grant has been actually executed, but that, without believing any grant to have been made, they may often, under the instruction of the court, presume its existence for the simple pur- pose of quieting possession,^ — and next, that this presumption may be sometimes raided even against a reversioner, provided it can be either directly proved, or reasonably inferred, that he has had full knowledge of his opponent's actual enjoyment of the right in 1 Mercer v. Woodgate, 10 B. & S. 833; 39 L. J., M. C. 21, S. C. ; Arnold V. Blaker, 40 L. J., Q. B. 185, per Ex. Ch. "^ Arnold v. Holbrook, 8 Law Rep., Q. B. 9G; 42 L. J., Q. B. 81, S. C. ^ Gr. Ev. § 45, in part. * Jackson v. M'Call, 10 Johns. 377: "Si probet possessionem excedentem memoriam hominum, liabet vim tituli et privilegii, etiam a Principe. Et ha^c est diiferentia inter possessionem xxx vel xl annorum, et non memorabilis- temporis; quia j^er illam acquiritur non directum, sed utile dominium; per istam autem directum." 1 Masc. de Prob., p. 239; concl. 199, n. 11, 12. * Deeble r. Linehan, 12 Ir. Law R., N. S. 1, per Ex. Ch., following the dicta of Ld. Mansfield in Eldridge v. Knott, 1 Cowp. 214, and of Ld, Wens- leydale in Bright v. Walker, 1 C. M. & R. 217, and in Magdalen Coll. v. Att.-Gen., 3 .Tur., N. S. 675, cor. Dom. Proc, and overruling a dictum of Bayley, B., in Day v. Williams, 2 C. & J. 461; Little v. Wingfield, 11 Ir. Law R., N. S. Q-i, per Ex. Ch. (3021) 15G PRESUMPTION OF CONVEYANCE OF LEGAL TITLE. [PAKT I. question, and has tacitly assented thereto.' But still the presump- tion of a grant can only arise, when the person against whom the right is claimed might have interrupted or prevented the user relied on;" and, therefore, the grant of a right to the uninterrupted passage of air to a windmill from over the soil of a neighbour', can- not be presumed from an uninterrupted use of the mill for forty years.* § 133.* Juries are also sometimes advised, in more or less foi;- ^ 115 cible terms, to presume conveyances of corporeal hereditaments between private individuals, in favour of the party who has proved a right to the beneficial ownership, and whose undisturbed posses- sion, being consistent with the existence of the conveyance required to be presumed, affords reasonable ground for belief that the legal title has in fact been conveyed.^ This presumption is made, in order to prevent an apparently just title from being defeated by mere formal matter;"^ but, to adopt the language of Chief Justice Tindal,' "no case can be put in which any presumption has been made, except when a title has been shown by the party who calls for the presumption, good in substance, but wanting some collateral matter necessary to make it complete in point of form. In such case, where the possession is shown to have been consistent with the existence of the fact directed to be presumed, and in such case only, has it ever been allowed." § 134. Subject to these observations, the presumption in favour § 116 of a conveyance will, in general, be allowed to prevail, whenever it ^ Deeble v. Linehan, 12 Ir. Law R., N. S. 1, per Ex. Ch. ; Winterbottom V. Ld. Derby, 2 Law Rep., Ex. 316. ^ Chasemore v. Richards, 7 H. of L. Cas. 349. 3 Webb V. Bird, 13 Com. B., N. S. 841, per Ex. Ch. ; Brj-ant v. Lefever, 48 L. J., C. P. 380, per Ct. of App.; L. R., 4 C. P. D. 172, S. C. * Gr. Ev. H6; in part. s Doe V. Cooke, 6 Bing. 180, per Tindal, C. J. See Doe v. Millett, 11 Q. B. 1036, and cases there cited. 6 Doe V. Cooke, 6 Bing. 180, per Tindal, C. J. ; Doe v. Sybourn, 7 T. R. 3, per Ld. Kenyon. ^ Doe V. Cooke, 6 Bing. 179. But see Little v. Wingfield, 11 Jr. Law R., N. S. 63, 73, 103, where the passage cited above is called in question as I laying down the law too narrowly. (3022) CHAP v.] PRESUMPTION OF CONVEYANCE OF LEGAL TITLE. 157 was the declared duty of trustees to convey to the beneficial owner at a specified time, as upon his attainment of the age of majority, or on the death of a cestui que vie, or after the payment of debts, legacies, portions, or the like ; for in such cases it is reasonable to presume that the trustees have performed their duty, and done what a court of equity would compel them to do.' A like presumption will probably arise where the duty to convey, though not expressly declared, may constructively be gathered from the object of the trust ; as, for instance, where an estate is vested in trustees for a temporary purpose, which has been attained, and no further in- tention is declared, or can reasonably be inferred, requiring the legal estate to remain outstanding.^ § 135. It has been asserted, and probably with correctness, that g 117 this presumption will never be made against the owner of the in- heritance, with the single exception of those cases where he has attempted to defeat the solemn acts of himself, or of those through whom he claims. Thus, if a mortgagor attempt to set up an out- standing fee as against a mortgagee for years, or the appointee of a devisee in fee dispute the former right of the devisor to grant a lease of the premises in question, on the ground that the legal estate was, at the time of the grant, outstanding in a trustee, the jury, in cases where the estoppel is not pleaded, may still presume a conveyance; for, in the first case,^ the presumption will be .made in favour of the honesty of the mortgagor at the time of the mortgage, though against his interest at the time of the trial ; and in the second,* it will equally prevail, in order to give validity and effect to the grant of the devisor, which would otherwise be void. 1 England v. Slade, 4 T. R. 682 ; Doe v. Sybourn, 7 T. R. 2 ; 2 Esp. 496, S. C. ; Wilson v. Allen, 1 Jac. & W. 611, 620, per Sir T. Plumer ; Emery v. Grocock, 6 Madd. 54, per Sir J. Leach. In England v. Slade, a conveyance from the trustees was presumed, though only three years had elapsed from the time when they ought to have conveyed. '^ Hillary v. Waller, 12 Ves. 239, 252, per Sir W. Grant ; Doe v. Lloyd, Pea. Ev. App. 41, per Lawrence, J. These cases tend to establish a doctrine somewhat more favourable to presumption, than that stated in the text, but they have not met with general approbation from the profession. See 2 Sug. V. & P. 196; Math., Pres. Ev. 215—217. 3 Per Abbott, C. J., in Doe v. Hilder, 2 B. & A. 790 ; Cottrell v. Hughes. 15 Com. B. 532. * Bartlett v. Dowues, 3 B. & C. 616, 622, per Abbott, C. J. (3023) 158 OUTSTANDING TERMS' ACT. [PAKT I. § 136. Questions respecting this bead of presumptions frequently g 113 arose in. former times, when juries used to be called upon to pre- sume the sm-render of outstanding satisfied terms ;^ but by an excellent Act," which was passed in the year 1845, these questions were finally settled. The Act, — after reciting that "the assignment of satisfied terms has been found to be attended with great difficulty, delay, and expense, and to operate, in many cases, to the prejudice of the persons justly entitled to the lands to which they relate," — enacts, that " every satisfied term of years, which either by express declaration or by construction of laiv,^ shall, upon the 31st day of December, 1845, be attendant upon the inheritance or reversion of any land, shall on that day absolutely cease and determine as to the land, upon the inheritance or reversion whereof such term shall be attendant as aforesaid, except that every such term of years which shall be so attendant as aforesaid by express declaration, although thereby made to cease and determine, shall afford to every person the same protection against every incumbrance, charge, estate, right, action, suit, claim, and depiand, as it would have afforded to him if it had continued to subsist, but had not been assigned or dealt with, after the said 31st day of December, 1845, and shall, for the purpose of such protection, be considered in every court of law and of equity to be a subsisting term." § 2 enacts, that "every term of years now subsisting or hereafter to be created, becoming satisfied after the said 31st of December, 1845, and which by express declaration or construction of law, shall after that day be- come attendant upon the inheritance or reversion of any lands, shall, immediately upon the same becoming so attendant, abso- lutely cease and determine as to the land, upon the inheritance or reversion whereof such term shall become attendant as aforesaid."* 1 See Garrard v. Tuck, 8 Com. B. 231 ; Doe v. Langdon, 12 Q. B. 711. 2 8 & 9 v., c. 112. The rough draft of §§ 1 & 2 of this Act was drawn by Mr. Davidson, and settled by Mr. Christie. The subject was afterwards submitted to the Law Amend. Society, who sanctioned the proposed amend- ment ; and the Bill was then drawn in its present form by one of the ablest members of that body, and became the law of the land under the auspices of Ld. Brougham. " See Doe v. Price, 16 M. & W. 603 ; Doe v. Moulsdale, id. 689 ; Doe v. Jones, 13 Q. B. 774 ; Cottrell v. Hughes, 15 Com. B. 532 ; Plant v. Taylor, 7 H. & N. 211. * ^ 3 enacts, that ' ' in the construction and for the purposes of this Act, (3024) CHAP, v.] PKESUMPTION OF SURRENDER OF LEASE. 159 § 137. Notwithstaading this Act, it is perfectly clear that no g 119 presumption can be allowed in favour of the surrender of a term which is still unsatisfied,^ or the continuance of which is found in a special verdict, or admitted in a special case;" for, whatever in- dividual hardship may result from the rule of law that a plaintiff seeking to recover land must rely on the strength of his own legal title, it is obviously absurd to permit any inference to be drawn, which is directly opposed, either to the ascertained fact, or to all reasonable belief.^ § 138. A jury may also, under certain circumstances, presume ^ 120 the surrender of a lease by operation of law ; for, although the pro- duction by the lessor of a cancelled lease will not warrant the pre- sumption of such a surrender as will satisfy the Statute of Frauds;* yet, when that fact was coupled with proof that a new lease had been granted to another party, who, like the former lessee, was a mere trustee for the same cestuis que trust, and it farther appeared, that when leases were renewed from time to time, the usage was to send in the old lease to be cancelled in the lessor's office, the jury were allowed to infer, that the second lease was granted with the assent of the former tenant, and then the court held'^ that this was as valid a surrender of the first interest by operation of law, as if the former tenancy had been determined in writing.® So, the unexplained payment of an abated rent for thirty years by a tenant of premises, which were shown to have been leased to another party for an un- expired term, has been treated in Ireland as evidence from which a jury might presume the surrender of the original lease, and the unless there be something in the subject or context reijugnant to such con- struction, the word ' lands ' shall extend to all freehold tenements and here- ditaments, -whether corporeal or incorjioreal, and to all such customary land as "will pass by deed, or deed and admittance, and not by surrender, or any undi- vided part or share thereof respectively." ^ Doe V. Staple. 2 T. R. 684, where the lessor of the plaintiff was heir-at-law, and only claimed the premises subject to the charge. 2 Goodtitle v. Jones, 7 T. R. 47; Roe v. Reade, 8 id. 118. * See per Bayley, J., in R. v. Upton Gray, 10 B. & C. 812. * Doe V. Thomas, 9 B. & C. 299; 4 M. & R. 218, S. C; Roe v. Abp. of York, 6 East, 86. * See Thomas v. Cook, 2 Stark. R. 408; 2 B. & A. 119, S. C. « Walker v. Richardson, 1 M. & W. 882. See post, H 1009, 1010. (3025) 160 UNINTERRUPTED USER — STALE DEMANDS. [PART I. creation of a new tenancy from year to year, at the abated rent, in favour of the present occupier.' § 139. The same principle has been applied to a variety of other § 121 matters. For example, where ejectment was brought to recover a messuage, which had been demised for a long term of years, — the lease containing a covenant by the lessee that the house should not be used as a shop without the written consent of the lessor, and a proviso for re-entry on the breach of such covenant, — the court held that, on proof of the uninterrupted user of the premises as a beer- shop for twenty years, the jury ought to be directed to presume that a license in writing had been duly given.^ So, after the lapse of sixty years, the court, in the absence of any direct evidence, has presumed that executors, who wer3 proved to have renounced, had also disclaimed an estate in a chattel real, which had been be- queathed to them by the testator.^ Indeed, it may be stated as a general proposition,* that stale demands ought always to be regarded in courts of justice with jealous suspicion,^ and that long acqui- escence in any adverse claim of right is good ground, on which a jury may presume that the claim had a legal commencement;^ since it is contrary to general experience for one man long to con- tinue to pay money to another, or to perform any onerous duty, or to submit to any inconvenient claim, unless in pursuance of some contract, or other legal obligation' 1 Lefroy v. Walsh, 1 Ir. Law R., N. S. 311. See, also, Terinent, v. Neil, I. R., 5 C. L. 418, per Ex. Cli. ; In re Renew. Leaseh. Conv. Act, Ex parte Ray- mond, I. R. 8 Eq. 231. " Gibson v. Doey, 27 L. J., Ex. 37; S. C. nom. Gibson v. Doeg, 2 H. & N. 615. ' M'Kenna v. Eager, I. R., 9 C. L. 79. * Gr. Ev. § 47, in great part. ^ Sibbering v. Ld. Balcarras, 3 De Gex & Sm. 735. See H., falsely called C. V. C, 31 L. J., Pr. & Mat. 103; T. v. D., falsely called D., 1 Law Rep., P. & D. 127. So, the non-user of a patent for a series of years raises a strong pre- sumption of its practical inutility; Re Allan's Patent, 1 Law Rep., P. C. 507; 4 Moo. P. C, N. S. 413, S. C; Re Bakewell's Patent, 15 Moo. P. C. 385; Re Hughes' Patent, 48 L. J., P. C. 20. « See Re Birch, 17 Beav. 358. ' See Castleden v. Castleden, 9 H. of L. Cas. 186; 4 Macq. Sc. Cas. H. of L. 159, S. C; Ogilvie c. Currie, 37 L. J., Ch. 541, per Ld. Cairns, Ch. (3026) ^''^^^2^'^;^Ca,,U^^^2^^^^^^<^ — CHAP, v.] RECENT POSSESSION OF STOLEN PROPERTY, 161 § 140. The possession of stolen property recently after the com- g 122 mission of a theft, is prima facie evidence that the possessor was either the thief, or the receiver, according to the other circumstances of the case ; ' and this presumption, when unexplained," either by direct evidence, or by the character and habits of the possessor, or otherwise, is usually regarded by the jury as conclusive.^ The question as to what amounts to recent possession, varies according as the stolen article is or is not calculated to pass readily from hand to hand. Thus, where two ends of woollen cloth in an unfinished state, consistinsf of about twenty yards each, were found in the possession of the prisoner two months after they had been stolen, Mr. Justice Patteson held that the prisoner should explain how he came by the property.* But, where the only evidence against a prisoner was, that certain tools had been traced to his possession three months after their loss, Mr. Justice Parke directed an ac- quittal ; ^ and Mr. Justice Maule pursued a similar course on an indictment for horse stealing, where it appeared that the horse was not discovered in the custody of the accused until after six months from the date of the robbery." So, where goods, lost sixteen months before, were found in the prisoner's house, and no other evidence was adduced against him, he was not called upon for his defence.' Indeed, the finding of stolen property in the /202fse of the accused, provided there were other inmates capable of committing the larceny, will of itself be insufficient to prove his possession, however recently the theft may have been effected ; ^ though, if 1 R. V. Langmead, 1 L. & Cave, 427; 9 Cox, 464, S. C. ^ R. V. Exall, 4 Fost. & Fin. 922, per Pollock, C. B. 5 2 East, P. C. 656; R. v. , 2 C. & P. 459; the State i-. Adams, 1 Hayw. 463; Wills, Cir. Ev. 53. " Furtum prsesumitur commissum ab illo, penes quem res furata inveuta fuerit, adeo nt si non docuerit a quo rem habuerit, juste, ex ilia inventione, poterit subjici tormentis. " 2 Masc. de Prob., concl. 834; Menocli. de Prajs. lib. 5, pises, 31. See ante, § 63. * R. V. Partridge, 7 C. & P. 551. 5 R. V. Adams, 3 C. & P. 600. See R. v. Cocldn, 2 Lew. C. C. 235, where two sacks were found in the prisoner's possession twenty days after they had been missed; and Coleridge, J., left the question to the jury, observing, that "stolen property usually passes through many hands." See the observations of the Reporter on this presumption, id. « R. V. Cooper, 3 C. & Kir. 318; R. v. Harris, 8 Cox, 333, per Channel!, B. ' R. V. , 2 C. & P. 459, per Bayley, J. * 2 St. Ev. 614, n. g. See Ex parte Ransley, 3 D. & R. 572. In that case, 11 LAW OF EVID. — V. I. (3027) 162 RECENT POSSESSION OF STOLEN PROPERTY. [PART I. coupled with proof of other suspicious circumstances, it may fully warrant the prisoner's conviction, even though the property be not found in his house until after his apprehension/ § 141. This presumption, which in all cases is one of fact rather than of law, is occasionally so strong as to render unnecessary any direct proof of what is called the corpus delicti. Thus, to borrow an apt illustration from Mr. Justice Maule, if a man were to go into the London Docks quite sober, and shortly afterwards were found very drunk, staggering out of one of the cellars, in which above a million gallons of wine are stowed, "I think," says the learned judge, — and most persons will probably agree with him, — "that this would be reasonable evidence that the man had stolen some of the wine in the cellar, though no proof were given that any parti- cular vat had been broached, and that any wine had actually been missed." ^ § 142.^ The presumption under discussion is not confined to ^ 123 cases of theft, but applies to all crimes, even the most penal. Thus, on an indictment for arson, proof that property, which was in the house at the time it was burnt, was soon afterwards found in the possession of the prisoner, has been held to raise a probable presumption that he was present and concerned in the offence.* A like inference has been raised in the case of mui-der accom- the bare finding of smngglerl spirits in the defendant's house, during his absence from home, was held insufiScient to support a conviction under 11 G. 1, c. 30, 'i 16 (now repealed by 30 & 31 V., c. 59), for knowingly harbouring and concealing three gallons of foreign Geneva, &c. Abbott, C. J. , observed, " The mere naked fact of the spirits being found in the defendant's house dur- ing his absence cannot be considered as conclusive evidence of knowledge to support a conviction on this statute. There is abundant ground for suspicion, but we cannot say that it is a clear and satisfactory ground to convict." See also R. V. Hale, 2 Cowp. 728. 1 E. V. Watson, 2 Stark. R. 139, per Ld. Ellenborough & Abbott, J. 2 R. V. Barton, Pearce & D. 284. See, also, R. v. Mockford, 11 Cox, 16. In R. V. Williams, 11 Co.x, 684, Montague Smith, J., is reported to have laid down the law in a very different spirit; but that case surely cannot be relied upon. ^ Gr. Ev. § 34. * R. V. Rickman, 2 East, P. C. 1035. (3028) CHAP, v.] PRESUMPTION OMNIA RITE ESSE ACTA. 163 panied by robbery,' in the case of burglary,^ and in the case of the possession of a quantity of counterfeit money." § 143. One of the most important presumptions known to the ? 124 law is that which is usually embodied in the maxim ^^ omnia prcesumuutur rite esse actay This presumption, — which in prin- ciple is nearly allied to that of innocence, — is, as we have seen,* in some instances conclusive, but in the great majority of cases to which it applies, it is only available, donee probetur in con- trarium.'^ The application of this presumption to acts of an official or judicial character will be best illustrated by referring to one or two decisions.*' For instance, it has been held, that, where successive decisions are inconsistent with a general order of the coui't, reversal of that order ought to be presumed.^ So, on an indictment for perjury in an answer to a bill in Chancery under the old practice, proof of the signatures of the defendant, and of the Master in Chancery before whom the answer purported to have been sworn, has been held sufficient evidence that the defendant was regularly sworn to the truth of its contents, though the clerk, who proved the handwriting of the Master, had no recollection of ad- ministering the oath, and admitted that the jurat was not written by himself.* So, where a town was proved to be in the military occupation of an enemy, and proclamations, purporting to be signed by the general in command, were posted on its walls, this was held to be evidence whence a jury might infer that the placards had been printed and posted by the authority of the commander.^ § 144. Again, on an indictment for bigamy, proof of the ^ ^^ , 1 Wills, Cir. Ev. 61. 2 See R. V. Gould, 9 C. & P. 364; R. v. Exall, 4 Post. & Fin. 922. ^ R. V. Fuller, R. & R. 308; R. v. Jarvis, 25 L. J., M. C. 30; Pearce & D. 552, S. C. * Ante, |§ 84—88. ^ See R. I'. Bjornsen, 1 L. & Cave, 545; 10 Cox, 74; 34 L. J., M. C. 180, S. C. ® See, also, Lee v. Johnstone, 1 Law Rep., H. L. Sc. 426. ' Bohun v. Delessert; 2 Coop. 21, per Ld. Eldon; Man n. Ricketts, id. 8, 21, per Ld. Lyndhurst. ** R. V. Benson, 2 Camp. 508, per Ld. Ellenborough. See, also, Cheney v. Courtois, 13 Com. B., N. S. 634. » Bruce v. Nicolopulo, 11 Ex. li. 129. (3029) 164 PRESUMPTION OMNIA BITE ESSE ACTA. [PART. I, solemnisation of tlio lirst marriage iu a "Wesleyan chapel in the presence of the registrar, and of the entry of such marriage in his book, has been held to raise a prima facie presumption that the chapel was duly registered;' and in another similar prosecution, where the marriage was shown by a witness present at it to have been solemnised in a parish church by the curate of the parish, it was deemed unnecessary to prove either the registration of the marriage, or the fact of any licence having been granted, or of any banns having been published.^ So, the constant performance of divine service from an early period in a chapel, raises a prima facie presumption that it has been duly consecrated.^ § 144a. a recent decision in Ireland has carried this presumption to its extreme limit. In that cas9 a shopkeej^er, prior to the passing of the Weights and Measures Act, 1878,* was prosecuted for using weights which were light when compared with the county standard, but no proof was furnished that the county standard had been com- pared with the imperial standard within the last five years, although such comparison was expressly required by statute. The court, however, held that this evidence was unnecessary, the prima facie presumption being that the officials in charge of the local standards had performed their duty, and that, consequently, the comparison had been properly made.^ § 145. Again, a party being detained for debt in the gaol of the sheriff of Devonshire, a writ of ca. sa. at the suit of the sheriff was directed to the coroner of the county, and was lodged with the keeper of the gaol. < On motion to discharge this party out of custody on the ground of irregularity in the proceedings, it did not appear from the affidavits that the writ was ever in J R. V. MainAvaiin.;, 26 L. J., M. C. 10; 7 Cox, 192; Dear. & Bell, 132, S. C; Hichel r. Lambert, 15 Com. B., N. S. 781; 33 L. J., C. P. 137, S. C; K. V. CVadock, 3 Post. & Fin. 837, per Willes, J., and Pollock, C. B. 2 R. V. Allison, R. & R. 109. See Limerick v. Limerick, 32 L. J., Pr. & Mat. 22; 4 Swab. & Trist. 252, S. C. ^ Rugg V. Kingsmill, 1 Law Rep., Adm. & Ece. 343; R. v. Cresswell, 45 L. J., M. C. 77; 13 Cox, 12(5; and L. R. 1 Q. B. D. 446, S. C. ♦ 41 & 42 v., c. 49. 6 Hill V. Hennigan, I. R., 11 C. L. 522. (3030) CHAP, v.] OFFICIAL AND JUDICIAL ACTS. 165 the coroner's hands, but in a return which the gaolor had made to a writ of habeas corpus previoiTsly issued, the ca. sa. was set out, together with a certificate by the coroner, that this was a true copy of the writ. Upon these facts the court gave such credit to the regularity of the proceedings, as to presume that the writ had in due course come to the gaolor thrdugh the coroner.' So, where a parish certificate purported to be granted by A, the only churchwarden, and B, the only overseer of the parish, the court, after a lapse of sixty years, during which time the appellant parish had submitted to the certificate, presumed in its favour that, by custom, there was only one churchwarden in the parish, and that two overseers had been originally appointed, but that one of them was dead, and his vacancy not filled up at the date of the certificate.' A like presumption was made in favour of a parish indenture of apprenticeship, which was signed only by one churchwarden and one overseer.^ So, where a parish deed of apprenticeship had been allowed by the justices pursuant to the statute,* the court, in the absence of evidence to the contrary, presumed that notice had been duly given to the officers of the parish, where the apprentice was to serve f and where a similar indenture, certified by the allowance of the justices, contained a recital of the order of binding, it was held that no evidence of such order, beyond the indenture itself, was necessary.*' So, where the deed of apprenticeship, executed thirty years before, and under which the apprentice had regularly served his time, was proved to be lost, and it further appeared that the parish, in which the pauper was settled under this indenture, had relieved him for the last twelve years, the court considered that the Sessions had acted rightly in presuming that the deed was properly stamped, though 1 Bastard v. Trutcli, 3 A, & E. 451; 5 N. & M. 109; 4 Dowl. 6, S. C. 2 E. V. Catesby, 2 B. & C. 814; see. also, R. v. Whitchurch 7 B. & C. 573. From R. v. Upton Gray, 10 B. & C. 807, it appears that this presumption is rather one of fact than of hnv. ^ R. V. Hinckley, 12 East, 361; R. v. Stainforth, 11 Q. B. 66. * 56 G. 3, c. 139, U 1, 2; 3. & 4 AV. 4, c. 63, ^ 1. * R. r. Whiston, 4 A. & E. 607; 6 N. & M. 65, S. C. ; R. v. Whitney, 5 A. & E. 191; 6N. &M. 552, S. C. « R. V. Stainforth 11 Q. B. 66. See, also, R. v. St. Mary Magdalen, 2 E. & B. 809; R. v. Broadhempston, 28 L. J., M. C. 18; 1 E. & E. 154, S. C. (3031) 166 SUMMARY CONVICTIONS — JURISDICTION. [PART L the stamp officers proved that it did not appear in their office, that any such indenture had been stamped during the last thirty-one years.' § 146. In like manner every reasonable intendment will be ? 12.1 made in support of an order of justices, provided it appear on the face of the order that the justices had j^irisdiction;" but this rule does not extend to convictions, which combining, as they do summary power with penal consequences, are watched with peculiar vigilance by the superior courts, and are construed with at least as great strictness as indictments.'* Still, even with respect to convictions, if the aidhority of the magistrate can be distinctly collected from the facts stated on the record, the court will not be asiwie in discovering irregularities in the proceedings; and the safest rule which can be laid down on the subject is, in the words of Lord Ellenborough, that the court " can intend nothing in favour of convictions, and tcill intend nothing against them." * § 147. Neither does this presumption apply so as in any event I 126 to give jurisdiction to inferior courts, or to magistrates, or others, acting judicially under a special statutory power; but in all such cases, every circumstance required by the statute to give juris- diction must appear on the face of the proceedings, either by direct averment, or by reasonable intendment.^ There is no ' R. V. Long Buckby, 7 East, 45. In this case, as also in that of R. v. Cates- by, 2 B. & C. 814, tlie judgment of the court partly rested on the presumption of validity arising from long acquiescence. See ante, ?§ 126 — 131, 139. ^ R. V. Morris, 4 T. R. 552, per Ld. Kenyon; Ormerod v. Chadwick, 16 M. & AV. 367; lei. v. Preston, 12 Q. B. 816, 825, 826; R. v. Stainforth, 11 Q. B. 66. ^ R. t;. Morris 4 T. R. 552; R. i'. Baines, 2 Ld. Ray. 1265, 1269; Fletcher t;. Calthrop, 6. Q. B. 880, 891; R. v. Little, 1 Burr. 613, per Ld. Mansfield; R. v. C'orden, 4 id. 2381, 'where the court observed that "a tight hand ought to be liolden over these summary convictions;" R. v. Pain, 7 D. & R. 678, per Abbott, C. J.; R. V. Daman, 2 B. & A. 378. * R. V. Hazell, 13 East, 141. See Paley on Conv. 74—77. ^ R. V. All Saints, Southampton, 7 B. & C. 790, per Holroyd, J.; Gosset v. Howard, 10 Q. B. 452, 453; R. v. Helling, 1 Str. 8, per Pratt, C. J.; R. v. Tot- ness, 11 Q. B. 80; R. v. Hulcott, 6 T. R. 583. (3032) CHAP, v.] OFFICIAL AND JUDICIAL ACTS. 167 distinction, in this respect, between convictions, commitments,' inquisitions, warrants to arrest, examinations, or orders ;" and whether the order be made by the Lord Chancellor, under the special Act, or by a justice of the peace, the facts which gave the authority must be stated.'* But though the High Court of Justice, in the exercise of its superintending power, will intend nothing in favour of inferior jurisdictions, it will intend nothing against them, but will decide according to the very language employed in the order or other judicial document.* On motions for a prohibition, the judges of that court have more than once emphatically rejected any intendment that the Ecclesiastical Courts would outstep their duty, or act in any way inconsistently with the law f and on the same principle they have refused to anticipate the decision of the master on a question of costs, as they cannot presume that he will decide erroneously.® § 147a. In a few cases the presumption under discussion has, by some caprice of the law or of the lawyers, been ignored, though its recognition would have been productive of much public ad- vantage. For example, if a highway rate has been duly entered in a rate-book the non-legal mind might imagine that the production of the official book would furnish at least prima facie evidence, not only of the allowance of the rate by the justices, but also of its publication in accordance with the law. Yet this is not the case ; and the fact that the rate has been duly published must still be proved by independent evidence.^ With poor-rates the law is ^ But a warrant of commitment which purpoi'ts to be founded on a pre- ceding conviction will he good, though it does not state that the evidence was given on oath, or in the presence of the prisoner, Ex parte Bailey, & Ex. parte Collier, 23 L. J., M. C. 161 ; 3 E. & B. 607, S. C. ^ Day V. King, 5 A. & E. 359, per Williams, J. ; Brook v. Jenney, 2 Q. B. 273, per id. ; Johnson v. Eeid, 6 M. & W. 124 ; Gossett v. Howard, 10 Q. B. 453. ^ Christie v. Unwin, 11 A. & E. 379, per Coleridge, J. * E. V. Helling, 1 Str. 8, per Pratt, C. J. ; Christie v. Unwin, 11 A. & E. 379, per Coleridge, J. ; In re Clarke 2 Q. B. 630, per Ld. Denman. 5 Chesterton v. Farlar, 7 A. & Ei 713 ; Hall v. Maule, id. 721 ; Hallack v. U. of Cambridge, 1 Q. B. 593, 614, 615. « Head v. Baldry, 8 A. & E. 605. ' Bird V. Adcock, 47 L. J., M. C. 123. (3033) 1G8 SOLEMN ACTS OF PRIVATE PERSONS. [PAKT I. different ; for the Legislature in favour of those imposts has specially enacted, that " the production of the book purporting to contain a poor-rate, with the allowance of the rate by the justices, shall, if the rate is made in the form prescribed by law, be prima facie evidence of the due making and publication of such rate."^ § 148. This presumption has, in many instances, been recog- ^ lo-; nised in support of the solemn acts of even x^rlvate persons, but a reference to a few of the more modern cases will, it is hoped, be sufficient to illustrate its operation in connexion with such acts. Thus, although in the case of contracts not under seal, a con- sideration must in general be averred and proved, yet hills of exchange and promissory notes enjoy the privilege of being presumed, prima facie, to be founded on a valuable considera- tion.^ The law raises this presumption in favour of these instruments, partly, because it is important to preserve their negotiability intact, and partly because the existence of a valid consideration may reasonably be inferred from the solemnity of the instruments themselves, and the deliberate mode in which they are executed.^ So, if secondary evidence is tendered to prove the contents of an instrument, which is either lost, or retained by the opposite party after notice to produce it, the court will presume that the original was duly stamped, unless some evidence to the contrary, as, for example, that it was unstamped when last seen,* can be given. ^ So, under the Act of 1877 to facili- tate leases and sales of settled estates, the execution of a lease by the lessor furnishes sufficient presumptive evidence that the coun- terpart has been duly executed by the lessee.® So, where lands 1 "The Poor-Eate Assessment and Collection Act, 18G9," 32 & 33 V., c. 41, i 18. 2 45 & 46 v., c. 61, ? 30. Collins v. Martin, 1 B. & P. 651 ; Holliday v. Atkinson, 5 B. & C. 501 ; Story, Bills, II 16, 178. See ante, ? 86. ^ Story, Bills, §? 16, 178. * Marine Investment Co. v. Haviside, 5 Law Eep., H. L. 624 ; 42 L. J., Ch. 173, per Dom. Proc. S. C. ^ Hart V. Hart, 1 Hare, 1, per Wigram, V.-C; Crowther v. Solomons, 6 Com. B. 758 ; Pooley v. Goodwin, 4 A. & E. 94 ; Crisp v. Anderson, 1 Stark. E. 35 ; E. V. Long Buckby, 7 East, 45 ; Closmadeuc v. Carrel, 18 Com. B. 36. See Arbon v. Fussell, 1 New E. 31, per Ex.; Connor v. Cronin, 7 Ir. Law E, 480; Herbert v. Eae, 13 Ir. Eq. E., N. S. 25, per Smith, M. E.; 33 & 34 V., C.46, ?58, Ir. ' « 40 & 41 V., c. 18, §48. (3034) CHAP, y.] PRESUMPTIONS RESPECTING EXECUTION OF DEEDS. 169 originally leasehold have been dealt with as freehold for a long period by persons in possession, a presumption will be raised, as between parties claiming under such persons, that the reversion has been got in.' So, in the absence of all proof, as to which of two deeds of even date was first executed, the court will presume in favour of that order of priority, which will best support the clear intent of the parties." So, where an act has been done by a joint stock company, to the legality of which certain formalties are requisite, and the circumstances are such that acquiescence may be imputed to the shareholders, a compliance with the necessary formalities will, as against the company, be presumed.^ § 149. In like manner, where the attestation of a deed has been in the usual form,* and the signature of the party has been proved, the jury have more than once been advised to presume a due sealing and delivery, and that, too, in cases where the attesting witness has denied all recollection of any other form having been gone through beyond the mere signing.^ Neither is it necessary, in order to constitute a valid sealing, that an impression should be made with wax or with a wafer, but an impression made in ink with a wooden block will suffice ; ^ and even though no impression appear on the parchment or paper, still, if the instrument be a 1 Holmes v. Mil ward, 47 L. J., Ch. 522, per Fry, J. 2 Taylor v. Horde, 1 Burr.- 107. See R. v. Asliburton, 8 Q. B. 87G ; Gart- sidei'. Silkstoue, &c., Co., L. R. 21 Ch. D. 762, per Fry, J.; 51 L. J., Ch. 828, S. C. 3 Re the British Prov. Life & Fire Ass. Soc, 32 L. J., Ch. 326; 1 De Gex, J. & S. 488, S. C, nom. Grady's case; Lane's Case, 1 De Gex, J. & S. 504, 513, l)er Ld. Westbury, C. * As to presumption in favour of a will having a due attestation clause, see post, 1 1056. '" Fasset t'. Brown, Pea. R. 23; Grellier v. Neale, id. 146, per Ld. Kenyon; Talbot f. Hodgson 7 Taunt. 251; Hall v. Bainbridge, 12 Q. B. 699; Burling V. Paterson, 9 C. «& P. 570, per Patteson, J.; Davidson v. Cooper, 11 M. & W. 784, per Ld. Abinger. See also, Doe r. Lew'is, 7 C. & P. 574; Doe v. Burdett, 4 A. & E. 1; 9 A. & E. 936; 6 M. & Gr. 386; 10 CI. & Fin. 340, S. C; Newton v. Ricketts, 8 H. of L. Cas. 262; and Burnham v. Bennett, 1 De Gex &.Sm. 513. This presumption, though formerly treated as one of law, is now properly considered as one of fact, and the cj[uestion is in all cases left to the jury. « R. V. St. Paul's, Covent Garden, 7 Q. B. 232. (3035) I 128. 170 PRESUMPTIONS RESPECTING EXECUTION OF DEEDS. [PART I. deed, and on proper stamps, and be stated in the attestation to have been duly sealed and delivered, it will, in the absence of evidence to the contrary, and especially if it be an ancient instru- ment,' be presumed to have been sealed." Moreover, when a deed is executed by a corporate body, the common seal need not be affixed, but the corporation may, if they think fit, adopt any jjrivate sealiov the occasion, and the jury may presume that the use of the adopted seal was a corporate act, if the instrument purport to be executed by the head and the subordinate members of the corporation "under their seal." ^ The presumption in favour of the due execution of instruments was carried to a great length in the case of Cherry v. Heming.* That w^as an action of covenant brought by the assignor against the assignees of certain letters- patent to recover the consideration money for the assignment, and one of the defendants named Heming pleaded non est factum. At the trial Heming produced the deed, which was signed and exe- cuted by all the parties to it except himself; but although a seal had been placed for him in the usual way, his signature was not attached, neither was there any attesting witness to his execution. As, however, he had acted under the deed, and recognised it as a valid instrument, the jury presumed, with the approbation of the court, that he had duly executed it. § 150. Again, in the absence of evidence to the contrary the ? 128a law presumes that a man knows the contents of any deed which he executes.^ But although the courts are in general bound to presume prima facie in favour of deeds, which appear to have been duly executed, an exception to this rule is recognised, where sales are sought to be set aside by the creditors of the vendor, as fraudulent within the Stat. 13 El. c. 5. This excellent Act, — made perpetual by 26 & 27 V., c. 125, — enacts in substance, that 1 Crawford & Lindsay Peer., 2 H. of L. Cas. 534, 543, 550—552. ^ In re Sandilands, 6 Law Kep., C. P. 411; Sug. Pow. 232, cited by Ld. Den- man in R. V. St. Paul's, Covent Garden, 7 Q. B. 238. ^ Jones V. Gal way Town Commiss., 11 Ir. Law K. 435. * 19 L. J., Ex. 63; 4 Ex. R. 633, S. C. ^ Cooper, in re, Cooper v. Cooper, L. R. 20 Ch. D. 611, 629, per Jessel, M. R. (3036) CHAP, v.] DEEDS FKADULENT UNDER 13 EL. C. 5. 171 all conveyances of lands or chatties, which are not made for a valuable consideration and bonfi tide/ shall be void as against any person, including the Crown," whose claims on the original owner of the property shall be thereby delayed or disturbed.^ When- ever* therefore, any transaction is sought to be invalidated by virtue of this Act, it becomes necessary for the vendor to establish the justice of his title, and to show affirmatively, not only that the deed under which he claims was duly executed, but that it was made in perfect good faith, and also for a valuable, as contra- distinguished from a mere good, consideration/ In determining the question of bona tides, the jury will take into consideration all the circumstances connected with the transfer, always bearing in mind, that, if the conveyance is absolute, that is, if it passes to the vendee an immediate right of possession, the fact of 'the vendor being allowed to continue as the apparent owner of the property, must naturally raise a very strong presumption of fraud. ^ If, indeed, the conveyance or bill of sale is by way of mortgage, and the mortgagee is not to take possessiou till a default in payment of the mortgage money, then, as the nature of the ti'ansaction does not call for any change of possession, the absence of such change will not of itself furnish any evidence of collusion.'^ § 150a. So far as bills of sale of personal chattels are concerned it will seldom be necessary to cal] in aid the Statute of Elizabeth; 1 See In re Ridler, Ridler v. Ridler, L. R., 22 Ch. D. 74, per Ct. of App. ; 52 L. J., Ch. 343, S. C. 2 Shaw V. Bran, 1 Stark. R. 319; Morewood v. Wilkes, 6 C. & P. 144; Perkins v. Bradley, 1 Hare, 219. See Whitaker v. Wisbey, 12 Com. B. 44. 2 See Freeman v. Pope, 9 Law Rep., Eq. 206; 39 L. J., Ch. 148, S. C. ; 5 Law Rep., Ch. Ap. 538, and 39 L. J., Ch. 689, S. C; Crossley v. El worthy, 12 Law Rep., Eq. 158; Cornish v. Clark, 14 Law Rep., Eq. 184; per Ld. Romilly; 42 L. J., Ch. 14, S. C; Kent v. Riley, 14 Law Rep., Eq. 190, per Ld. Romilly; Golden v. Gillam, 51 L. J., Ch. 154; L. R. 20 Ch. D. 389, S. C. ; aflf. on app.; 51 L. J., Ch. 503; Russell, ex parte, re Butterworth, 51 L. J., Ch. 521, x^er Ct. of App. * Twyne's case, 3 Coke, 80; 1 Smith; L. C. 1, S. C. ^ Martindale v. Booth, 3 B. & Ad. 498; 1 Smith, L. C. 11, 12; Lindon v. Sharp, 6 M. & Gr. 898, per Tindal, C. J. « Martindale v. Booth, 3 B. & Ad. 498; 1 Smith, L. C. 13, 14. (3037) 172 PRESUMPTIONS RESPECTING DEEDS OF GIFT. [PART I. for under " The Bills of Sale Act, 1882," these instruments are now rendered void unless they set forth the consideration for which they were given.' § 151. In deciding upon the validity or invalidity of deeds, the ^ 129 courts now act upon more enlightened principles than used to be recognised at common law; and whenever it is shown to them that any person by donation derives a benefit under a deed to the pre- judice of another person," — and the more especially so, if any confidential or fiduciary relation subsists between the parties, — they so far presume against the validity of the instrument, as to require some proof, varying in amount according to circumstances, of the absence of anything approaching to imposition, over reaching, undue influence, or unconscionable advantage.^ For example, if a deed of gift, or other disposition of property, except a will,* be made in favour of a solicitor by a client,^ of a medical attendant by a patient,*^ of a parson by one of his congregation,' of a "spiritual medium" by one of his dupes,* of a trustee by a beneficiary," of an executor by a legatee,'" of a gaardian by a ward, of a parent by a 1 45 & 46 v., c. 43, § 8; 42 & 43 V., c. 50, | 8, Ir. As to what is a suffi- cient comiiliance with this rule, see EX parte Firth, re Cowburn, L. K., 19 Ch. D. 419; 51 L. J., Ch. 473, S. C; Hamlyn v. Betteley, L. R., 5 C. P. D. 327; 49 L. J., C. P. 465, S. C; Hamilton v. Chaine, 50 L. J., Q. B. 456, per Ct. of App.; L. R. 7 Q. B. D. 1, 319, S. C; Ex parte Rolfe, re Spindler, L. R., 19 Ch. D. 98; 51 L. J., Ch. 88, nom. Re Spindler, ex parte Rolfe, per Ct. of App. 2 Cooke V. LaniGtte, 15 Beav. 234, per Romilly, M. R. See Coutts v. Acworth, 38 L. J., Ch. 694; 8 Law Rep., Eq. 558, S. C. 2 1 Story, Eq. Jur. U 308—323. See Baker v. Bradley, 25 L. J., Ch. 7. * Parfitt V. Lawless, 41 L. J., Pr. & Mat. 68; 2 Law Rep., P. & D. 462, S. C. See Ashwell v. Lomi, 2 Law Rep., P. & D. 477. 5 Gresley v. Mousley, 28 L. J., Ch. 620; 1 Giff. 450, S. C; 4 De Gex & J. 78, S. C; O'Brien v. Lewis, 32 L. J., Ch. 569, 4 Giff. 221, S. C; Gardener V. Ennor, 35 Beav. 549; M'Pherson r. Watt, L. R., 3 App. Cas. 254, in Dom. Proc, Sc. « Mitchell V. Homfray, 50 L. J., Q. B. 460. per Ct. of App.; L. R. 8 Q. B. D. 587, S. C. ; Dent v. Bennett, 4 Myl. & Cr. 569. ' Nottidge V. Prince, 2 Giff. 246; Huguenin v. Baseley, 14 Ves. 273. » Lyon V. Home, 37 L. J., Ch. 674, per Giflard, V.-C; 6 Law Rep., Eq. 655, S. C. 9 Luft V. Lord, 34 Beav. 220. ^" Gray v. Warner, 42 L. J., Ch. 556, per Wickens, V.-C. (3038) CHAP, v.] PKESUMPTIONS RESPECTING DEEDS OF GIFT. 173 child/ of a husband by a wife, of an agent by a principal," or of a shrewd man of business by an infirm ignorant old worn an, ^ the court will regard the matter with jealous suspicion, and will either set aside the instrument as conclusively void,* or will throw upon the person benefited the burthen of establishing beyond all reasonable doubt the perfect fairness and honesty of the entire transaction.^ § 152. A grotesque attempt has been made in Ireland to extend ^ 12!) this salutary doctrine to a case, which assuredly its framers never contemplated. A woman, while living in adultery with a married man, had in the ardour of her affection assigned some of her property to secure a debt which was owing by her paramour. When her passion cooled, her generosity seemed to have cooled also; and after the lapse of a short period she had the hardihood to apply to the Court of Chancery to set aside her assignment on the ground of landue influence. Her prayer was of course rejected, the court holding that the doctrine on which she relied for relief was only applicable when some lawful relation had been contracted between the parties.* § 153. The old Court of Chancery was wont to look with . ^^„ peculiar, if not with discreet, favour on heirs apparent and other 1 Wright V. Yanclerplank, 2 Kay <*c J. 1; 25 L. J., Ch. 753; 8 De Gex, M. & G. 133, S. C; Bainbrigge v. Browne, L. R., 18 Ch. D. 188, per Fry, J.; Hartopp V. Hartopp, 21 Beav. 259; Dimsdale v. Dimsdale, 25 L. J., Ch. 806; Bury v. Oppenheim, 26 Beav. 594; Davies v. Davies, 2 New R. 384, per Stuart. V.-C; 4 Giff. 417, S. C; Potts v. Surr, 34 Beav. 543; Turner r. Collins, 7 Law Rep., Ch. Ap. 329. ^ King V. Anderson, I. R. 8 Eq. 147. => Baker v. Monk, 33 Beav. 419; 4 De Gex, J. & S. 388, S. C, by Lds. Js.; Summers v. Griffiths, 35 Beav. 27; Slator v. Nolan, I. R. 11 Eq. 367. * Tomson v. Judge, 3 Drew. 306. This was the case of a deed of gift by a client to his solicitor. ^ 1 Story, Eq. Jur. U 308—323; Hunter v. Atkins, 3 Myl. & K. 113; Nedby v. Nedby, 21 L. J., Ch. 446; Hoghton v. Hoghton, 15 Beav. 278; Grosvenor i\ Sherratt, 28 Beav. 659; Savery v. King, 5 H. of L. Cas. 627, 655, 656; Espey v. Lake, 10 Hare, 260; Billage i'. Southee, 9 Hare, 534. See Priee v. Price, 1 De Gex, M. & G. 308; Toker v. Toker, 31 Beav. 629; 3 De Gex, J. & S. 487, S. C; Phillips v. Mullings, 7 Law Rep., Ch. Ap. 244; King V. Anderson, I. R. 8 Eq. 625, per Ct. of App., reversing S. C. id. 150. See Taylor v. Johnston, 51 L. J., Ch. 879. " Hargreave v. Everard, 6 Ir. Eq. R., N. S. 278. (3039) 174 PRESUMPTIONS IN DEALING WITH REVERSIONS. [PART. I. expectant heirs, when they entered into negotiations which related to their expectancies.' Every person, therefore, who dealt with an expectant heir for his reversion was, in equity at least, prima facie presnrued to be a knave; and if the transaction were subsequently disputed, the burthen of proof would lie upon him to establish its entire fairness.^ The soundness of this doctrine was at length questioned by some of our prominent lawyers,^ and at their instance an Act was passed in December, 1807, which enacts, that "no purchase made bona fide, and without fraud or unfair dealing, of any reversionary interest in real or personal estate, shall hereafter be opened or set avside merely on the ground of under- value." * It will be noted that this enactment is carefully limited to purchases " made bona fide and without fraud or unfair dealing," and it not only leaves untouched the law which governs unconscionable bargains, but it allows under- value to be still regarded by the court as a material element in cases where fraud is charged.^ § 154. Another important presumption recognised in equity is, ^ 129b that a tenant for life, or other person having a partial interest in settled estates, who pays off an incumbrance upon them, intends, prima facie, to keep alive the charge against the inheritance for his own benefit. "^ This presumption, however, has, on technical ^ Bromley r. Smith, 26 Beav. 644, 66.5; Ld. Portmore v. Taylor, 4 Sim. 182; Davies v. D. of Marlborough, 2 Swanst. 108; Sharp i-. Leach, 31 Beav.. 491; Croft v. Graham. 2 De Gex, J. & S. 155; Perfect v. Lane, 3 De Gex, F. & J. 369; Benyon v. Fitch, 35 Beav. 570. ^ See cases cited in last note. ^ See Webster v. Cook, 2 Law Rep., Ch. Ap. 542, per Ld. Chelmsford, C. ; 36 L. J., Ch. 753, S. C. * 31 v., c. 4, § 1. See Miller v. Cook, 10 Law Eep., Eq. 641 ; 40 L. J., Ch. 11, S. C; Tyler v. Yates, 11 Law Rep., Eq. 265; 6 Law Rep., Ch. Ap. 665; & 40 L. J., Ch. 768, S. C, per Ld. Hatherley, C. ; Jndd r. Green, 45 L. J., Ch. 108. ^ Ld. Aylesford v. Jlorris, 8 Law Rep., Ch. Ap. 490, per Ld. Selborne, C. ; 42 L. J., Ch. 546, 548, S. C. ; Beynon v. Cook, 10 Law Rep., Ch. Ap. 389. See, also, Nevill v. Snelling, 49 L. J., Ch. 777, per Denman, J.; L. R., 15 Ch. D. 679, S. C; O'Rorke v. Bolingbroke, L. R., 2 App. Cas. 814, per Dom Proc, Ir. See, too, Gen., Ch. xxv. vv. 29—34. ^ Morley v. Morley, and Harland v. Morley, 25 L. J. Ch. 1 ; 5 De Gex, M. & G. 610, S. C. See post, § 176a. (3040) CHAP, v.] PAYING OFF INCUMBRANCES CHARITABLE GRANTS. 175 rather than substantial grounds, been held inapplicable to a case where a tenant for life had paid off the bond debts of the settlor.^ Neither does it extend to the case of a charge bearing interest, where, — the rents and profits of the estate having been insufficient to meet the interest, — the tenant for life has paid the balance of it out of his own pocket, without having warned the remainderman of his intention to charge the excess of his payments on the inheritance. Here equity recognises a counter-presumption, and conclusively infers, as against the personal representatives of the tenant for life, either that the rents and profits were sufficient to keep down the interest, or that the tenant for life meant to waive his right to bring any charge upon the inheritance for the deficiency.^ § 155. In dealing with charitable institutions, and in inter- § i29c preting charitable grants, the courts also recognise certain definite presumptions. Thus, if the charity were founded to support a religious establishment, or to promote religious education, and the intentions of the founder be not clearly expressed, the prima facie presumption is, first, that he intended to support an establishment belonging to some particular form of religion, or to promote the teaching of certain particular doctrine ; next, that the form of religion or doctrine contemplated was that which he himself had professed ; and lastly, if no evidence be adduced of his enter- taining peculiar religious views, that the established religion of the country was the one meant to be supported. If, however, the charity were founded for purposes of mere secular education, or if it were one of a purely eleemosynary character, the court, in the absence of any expressed intention to the contrary, will presume that the instruction in the one case was intended to be open at least to all denominations of Christians, and that the bounty in the other might be shared by all persons in distress, whatever erroneous opinions on the subject of worship they might chance to entertain.^ 1 Id. See Roddam v. Morley, 25 L. J., Ch. 329 ; 26 L. J., Ch. 438, S. C. ^ Ld. Kensington (;. Bouverie, 7 H. of L. Cas. 557. ^ Att.-Gan. v. Calvert, 23 Beav. 248, per Romilly, M. R., in an elaborate judgment. (3041) 176 JOINT TENANCY — VOLUNTARY SETTLEMENTS. [PART I, § 156. All courts noAv hold, — contrary to what was once considered to be the law, — that an estate for life without impeachment of waste does not confer upon the tenant for life any legal right to commit " equitable wasfe,^' unless an intention to confer such right expressly appears in the instrument creating the estate.' § 157. The presumptions, or, rather, the rules of construction recognised in equity with respect to joint tenancy are sufficiently singular. Thus, if two persons jointly advance money on mort- gage, a mere tenancy in common will be created, though the property be conveyed to them as joint tenants, because in this case the law presumes that men will not willingly speculate with money which they lend." But, on the other hand, if two person, jointly advance money as purchasers, and the sums paid by each be equal, a joint-tenancy will be established, because here it is supposed that men will readily gamble as to survivorship with respect to property which they buy.^ The reasoning, which draws a distinction between these two cases, has been denounced by an able judge as "not very comprehensible;"* and, indeed, it savours of the legal subtlety of a bygone age. Still, the law on this point seems to be settled, though the courts have so far yielded to common sense as to hold, that, if two persons make a purchase, and one of them advances more of the purchase money than the other, there shall be no survivorship, notwithstanding that the words "equally to be divided" be omitted from the deed.^ § 158. As voluntary settlements are usually mere matters of bounty, ordinary prudence suggests that the settlor should reserve to himself the right of making fresh arrangements ; and this doctrine has, of late years, been so far recognised by Courts of Equity that, although they will not prima facie presume the existence of some mistake, if such a settlement is found not to contain a power of revocation, they will certainly take that circum- 1 36 & 37 v., c. 66, § 25, subs. 3 ; 40 & 41 V., c. 57, § 28, subs. 3, Ir. ■^ Petty V. Styward, 1 Eq. Cas. Ab. 290. 3 Rigden v. Vallier, 2 Ves. Sen. 252 ; 3 Atk. 731, S. C. * Harrison v. Barton, 30 L. J., Ch. 215, per Wood, V.-C. 5 Rigden v. Vallier, 2 Ves. Sen. 252 ; 3 Atk. 731, S. C. (3042) CHAP, v.] APPORTIONMENT OF RENTS EXECUTION OF WILLS. 177 stance into account, and consider it as entitled to some weight, in deciding on the validity of the instrument.' All parties, therefore, who rely upon an irrevocable voluntary settlement, ought to be prepared to prove, that the settlor was properly advised when he executed it, that he thoroughly understood the efPect of omitting the power, and that he intended to omit it.^ § 159. In the absence of any express stipulation to the con- g 129e trary the law, since the 1st of August, 1870, has presumed, that " all rents, annuities," — which term includes salaries and pensions,^ — " dividends,* and other periodical payments, in the nature of income, whether reserved or made payable under an instrument in writing or otherwise," accrue from day to day, like interest on money lent, and are apportionable in respect of time accordingly.^ The statute, which has introduced this salutary change in the law, extends to all Avills, though executed before its passing, provided that they have come into operation since that date. In a case, therefore, where a testator made his will in 1869, and died in December, 1870, the court held that the rents of his devised real estate, which were accruing due at the time of his death, must be apportioned between the devisee and the parties interested in the personal residue.® § 160. With respect to the execution, alteration, revocation, and I 130 1 Hall V. Hall, 42 L. J., Ch. 444; 8 Law Rep., Ch. Ap. 430, S. C, overruling the decree of Wickens, V.-C, 14 Law Rep., Eq. 365; Phillips v. Mullings, 7 Law Rep., Ch. Ap. 244. See, also, Welman v. Welman, L. R., 15 Ch. D. 570, per Malins, V.-C. '' Id. 3 Treacy v. Corcoran, L R., 8 C. L. 40; 33 & 34 V., c. .35, I 5. * See In re Griffith, Carr v. Griffith, L. R., 12 Ch. D. 655, per Jessel, M. R. 5 33 & 34 v., c. 35, U 2, 7." See, also, 4 & 5 W. 4, c. 22; and 23 & 24 V., c. 154, ? 49, Ir. See Jones v. Ogle, 41 L. J., Ch. 633, per Ld. Romilly; 8 Law Rep., Ch. Ap. 192, S. C. ; and 42 L. J., Ch. 335, per Ld. Selborne. See, also, Capron v. Capron, 17 Law Rep., Eq. 288; 43 L. J., Ch. 677, S. C; Re Cline's Estate, 18 Law Rep., Eq. 213; Pollock v. Pollock, 18 Law Rep., Eq. 329; 44 L. J., Ch. 168, S. C; Hasluck v. Pedley, 44 L. J., Ch. 143; 19 Law Rep., Eq. 271, S. C; Daly v. Att.-Gen., I. R., 8 Eq. 595; Re Cox's Trusts, 47 L. J., Ch. 735, per Hall, V.-C; L. R., 9 Ch. D. 159, S. C; Swansea Bk. v. Thomas, 48 L. J., Ex. 344; L. R., 4 Ex. D. 94, S. C. 6 Constable v. Constable, L. R., 11 Ch. D. 681, per Fry, J.; 48 L. J., Ch. 621, S. C. See Lawrence v. Lawrence, L. R. , 26 Ch. D. 795 where held by Pearson, J., that the new law extended to a case, where the testator had died before the passing of the Act, but the tenant for life had died after that date. 12 LAW OF EVID. — V. I. (3043) 178 PRESOIPTIONS RESPECTING EXECUTION OF WILLS. [PABT I. construction of icills, the courts recognise several presumptions, which it will be expedient to mention in this place.' First, it is a general rule that, on proof of the signature of the deceased, he wall be presumed to have known and approved of the contents and effect of the instrument he has signed;' such knowledge and approval being essential to the validity of the will.^ This pre- sumption, however, is liable to be rebutted by showing the exist- ence of any suspicious circumstances:* and therefore, if the testator, from want of education, or from bodily infirmity, was unable to read," or if his capacity at the time of executing the instrument is a matter of doubt ;*^ or if the party who is materially benefited by the will has prepared it, or conducted its execution, or has been in a position calculated to exercise undue influence;' or if the instrument itself is not consonant to the testator's natural affections and moral duties;^ — a more rigid investigation will be enforced, and probate will in general not be granted, unless the court be satisfied by additional evidence, that the paper pro- ' For other presumptions respecting wills made prior to 1st Jan., 1838, see the former editions of this Work, H 131 — 134. 2 Billinghuri^t r. Tickers, 1 Phillim. E. 191; Fawcett r. Jones, 3 Phillim. R. 476; Guardhouse v. Blackburn, 1 Law Rep., P. & D. 109; 35 L. J., Pr. & Mat. 116, S.C; Wheeler v. Alderson, 3 Hagg. Ec. R. 587; Browning v. Budd, 6 Moo. P. C. R. 430. 3 Hastilowr. Stobie, 35 L. J., Pr. & Mat. 18; 1 Law Rep., P. & D. 64, S. C, per Wilde, J. 0.,'overrulling a dictum of Cresswell, J. O., in Middlehurst v. Johnson. 30 L. J., Pr. & Mat. 14. See Cleare v. Cleare, 1 Law Rep., P. & D. 655; 38 L. J., Pr. & Mat. 81, S. C. * Von Stentz r. Comyn, 12 Ir. Eq. R. 622, 642-^645, per Brady, Ch. ^ Barton r. Robins, 3 Phillim. R. 455, n. 6; In re Duane, 31L. J., Pr. & Mat. 173; 2 Swab. & Trist. 590, S. C; In re Wray, I. R., 10 Eq. 266; but see Long- champ V. Fish, 2 N. R. 415. 6 1 Phillim. R. 193; Ingram v. Wyatt, 1 Hagg. Ec. R. 384; Dodge v. Meech, id. 620; Dufaur v. Croft, 3 Moo. P. C. R. 147. ■ Mitchell V. Thomas, 6 Moo. P. C. R. 137; Scouler r. Plowright, 10 Moo. P. C. R. 440, 444—446; Raworth r. Marriott, 1 Myl. & K. 643; Greville ?'. Tylee, 7 Moo. P. C. R. 320; Paske v. Ollat. 2 Phillim. R. 324; Zacharias v. Collis, 3 id. 202; Wheeler v. Alderson, 3 Hagg. Ec. R. 587; Billinghurst v. Vickers, 1 Phillim. R. 187; Fulton v. Andrew, 7 Law Rep., H. L. 461, per Ld. Cairns, Ch.; 44 L. J., Pr. & Mat. 23, S. C; Burling v. Loveland, 2 Curt. 226, 227; Chambers v. Wood, 2 Ec. & Mar. Cas. 485, per Ld. Cottenham; Paine v. Hall, 18 Ves. 475; O'Connel v. Butler, Milw. Ec. Ir. R. 102, 103; Gore v. Gahagan, id. 220. « See Prinsep & E. India Co. v. Dyce Sombre, 10 Moo. P. C. R. 285. (3044) CHAP, v.] PRESUMPTIONS RESPECTING EXECUTION OF WILLS. 179 pounded does really express the true will of the deceased.' In cases of extraordinary suspicion, it will of course be highly expe- dieint to prove, either that instructions were given by the deceased corresponding with the actual provisions of the will, or that the instrument was, at the time of execution, read to or by the testator, or that he had expressed some subsequent knowledge and approval of its dispositions; but this precise species of evidence is not absolutely required, and it will be sufficient if, by any means of proof, a knowledge and approval of the contents of the will can be brouarht home to the deceased.^ § 161. Secondly, where proof can be furnished that, prior to § 131 the execution of a will by a competent testator, it was either read over to him, or otherwise brought specially to his notice, the Probate Division of the High Court, in the absence of fraud, will not only infer, prima facie, that he approved of the contents, but will recognise a conclusive presumption to that effect. No matter what evidence may be forthcoming to establish a case of obvious error, and to show that some passage has crept into the instrument by the sheer mistake of the draughtsman, the judge will turn a deaf ear to all such testimony, and, rejoicing in the safe inflexibi- lity of a Procrustean rule, will perpetrate the grossest injustice under the protection of law.^ On a recent occasion it Avas sought to apply this unjust doctrine to a case, where the jury had found as facts, not only that a word had been introduced into the will by a blunder, but that the clauses in which it appeared had never been brought to the notice of the testator in any way. The court, how- ever, under these circumstances, very wisely refused to be carried any further down the facile descent, and directed that the obnoxious 1 Browning ?;. Budd, 6 Moo. P. C. E. 430; Fulton v. Andrew, 7 Law Eep., H. L. 448; 44 L. J., Pr. & Mat. 17, S. C. '' Barry v. Eutlin, 1 Curt. 638—641 ; 2 Moo. P. C. R. 482—485, S. C. ; Mitchell V. Thomas, 6 Moo. P. C. R. 137. See further on this subject, 1 Will, on Ex. 97, 311, 312; and Atter v. Atkinson, 1 Law Rep., P. & D. 665. ^ Guardhouse v. Blackburn, 1 Law Rep., P. & D. 109, per Ld. Penzance; 35 L. J., Pr. & Mat. 116, S. C. ; Harter v. Harter, 42 L. J., Pr. & Mat. 1, per Sir J. Hannen; 3 Law Rep., P. & D. 11, S. C. Sed qu., for the judicial reasoning in these cases is not so logical as might fairly be expected. See In re Oswald, 43 L. J., Pr. & Mat 24; 3 Law Rep., P. & D. 162, S. C. (3045) 180 PRESUMPTIONS RESPECTING ALTERATIONS IN WILLS. [PABT I. expression should be struck out. of the instrument wherever it occurred.' § 162. Thirdly, when several sheets of paper, constituting a ? 132 connected disposal of property, are found together, the last only- being duly signed and attested as a will, the court in the absence of direct proof, and even in spite of partial inconsistencies in some of the provisions, will presume that each of the sheets so found formed a part of the will at the time of its execution." § 163. Fourthly, in favour of attestations to wills the presump- 9, 133 tion of law is, that if the testator might have seen, he did see, the witnesses subscribe their names ;^ and the fact of his having been in the same room with them is prima facie evidence of their attestation in his presence, as an attestation not made in the same room is prima facie not made in his presence.* § 164. Fifthly, in the absence of any evidence to the contrary, ^ 134 the law presumes that all alterations, interlineations, or erasures, which may appear on the face of a will, were made after its execution,^ and even after the ^execution of any codicils thereto,^ and consequently the Probate Division of the High Court will, in a case of unexplained alteration or interlineation,' or erasure, grant probate of the will in its original form.^ This presumption, how- ' jVIorrell v. Morrell, L. R., 7 Pr. D. 68; 51 L. J., Pr. & Mat. 49, S. C. ^ Marsh v. Marsh, 1 Swab. & Trist. 528; Gregory v. Queen's Proctor, 4 Ec, •& Mar. Cas. 620; Eees v. Kees, 3 Law Eep., P. & D. 84. See, also, In re Cattrall, 3 Swab. & Trist. 419. =* Todd V. Ld. Winchelsea, 2 C. & P. 488; ]M. & M. 12, S. C, per Abbott. C. J. ; Doe v. Manifold, 1 M. & Sel. 294. See post, | 1054. * Neil V. Neil, 1 Leigh, R. 6, 10—21. 5 Simmonds v. Rudall, 1 Sim. N. S. 115, 136, 1.37; Doe v. Catomore, 16 Q. P.. 745; Doe v. Palmer, 17 Q. B. 747; In re Stone James, 1 Swal). & Trist. 238; Williams v. Ashton, 1 Johns. & Hem. 115. ^ Lushington v. Onslow, 6 Ec. & Mar. Cas. 183, 188, per Sir IT. Fust. See also Christmas v. Whinyates, 32 L. J., Pr. & Mat. 73; 3 Swab. & Trist. 81, S. C. ' In re White, 30 L. J., Pr. & Mat. 55. But see in re Cadge, 37 L. J., Pr. & Mat. 15. 1 Law Rep., P. & D. 543, S. C. ^ Gann v. Gregory, 22 L. J., Ch. 1059, per Stuart V.-C; Cooper r. Bockett, 4 Moo. P. C. R. 419; 4 Ec. & Mar. Cas. 685, S. C; Greville v. Tylee, 7 Moo. (3046) CHAP, v.] PRESUMPTIONS RESPECTING REVOCATION OF WILLS. 181 ever, — which is contrary to that which prevails with respect to i deeds/ resolutions, and other official documents,^ — may be rebutted i by slight affirmative evidence,^ and it will not apply to the filling up of blanks; and therefore, where a testator gave instructions that his will should be prepared with blanks for the amount of the legacies, and the will was found after his death regularly executed, with the amounts filled up in his own handwriting, the court pre- sumed, in the absence of all evidence on the subject, that the blanks were filled up before the will was signed, for otherwise the execytion would have been a mere idle ceremony.* § 165. Sixthhj, if a will, traced to the possession of the testator, I 1-^5 and last seen in his custody, be not forthcoming on his death, the law, under ordinary circumstances, presumes that it has been destroyed by himself, animo cancellandi; and this presumption, which is obviously founded on good sense, must prevail, unless there be sufficient evidence to rebut it.^ The declarations of the testator, however, whether written or oral, and whether made before or at or after ^ the execution of the instrument, furnish, in cases P. C. K. .320, 328; In re Hardy, 30 L. J., Pr. & Mat. 142. See Rules for Reg. ofCt. ofProb. iu nou-coutentious business, Nos. 8, 9, 10. ' Simmonds v. Rudall, 1 Sim. N. S. 115, 136, 137; Doe v. Catomore, IG Q. B. 745; 20 L. J., Q. B. 728, S. C. 2 Steevens's Hospital v. Dyas, 15 Ir. Eq. R., X. S. 405, 420. ^ See Dench v. Dench, 46 L. J., P. D. & A. 13; L. R., 2 P. D. 60, S, C; In re Duflfy, I. R., 5 Eq. 506; and In re Sykes,-42 L. J., Pr. & Mat. 17; 3 Law Rep., P. & D. 26, S. C; Moore v. Moore, I. R., G Eq. 166. The pre- sumption, moreover, lias been altogether set at naught in the case of a will made by an officer in actual military service. In re Farquharson r. Tweedale, 44 L. J., Pr. & Mat. 35. Sed qu. * Birch V. Birch, 6 Ec. & Mar. Cas. 581, per Sir H. Fust; Greville v. Tylee, 7 Moo. P. C. R. 327. ^ Sugden v. Ld. St. Leonards, 45 L. J., P. D. & A. 1; S. C. id. 49, in Ct. of App.; L. R., 1 P. D. 154, S. C; Welch v. Phillips, 1 Moo. P. C. R. 299, 302, per Parke, B.; Finch v. Finch, 36 L. J., Pr. & Mat. 78; 1 Law Rep., P. & D. 371, S. C; Johnson v. Lyford, 37 L. J., Pr. & Mat. Qo; 1 Law Rep., P. & D. 546, S. C; Podmore v. Whatton, 3 Swab. & Trist. 449; 33 L. J., Pr. & ]Mat. 143, S. C; Dickinson v. Stidolph, 11 Com. B., N. S. 341, 357; Brown r. Brown, 27 L. J., Q. B. 173; 8 E. & B. 876, S. C; In re Brown, 27 L. J., Pr. & Mat. 20; 1 Swab. & Trist. 32, S. C. ; Wood v. Wood, 1 Law Rep., P. & D. 309; Cutto V. Gilbert, 9 Moo P. C. R. 143, per Dr. Lushington. « Sugden v. Ld. St. Leonards, L. R., 1 P. D. 154; 45 L. J., P. D. & A. 1 & 49, S. C; overruling Quick v. Quick, 33 L. J., Pr. & Mat. 146; 2 Swab. & Trist. 442, S. C. (3047) 182 PRESUMPTIONS RESPECTING WILLS. [PAET. I. of this nature, cogent proof of his intentions.* In the event, too, of the testator having become insane after the will was made, the burthen of proving that it was destroyed by him while he was of sound mind will lie upon the party who sets up the revocation.^ Again, the finding of the will among the testator's papers, in which the signature has been cut out, raises a presumption that the mutilation was effected intentionally by the testator himself; and in such a case the will cannot be regarded as revived, though the signature has been again attached by gum to its original place, and the document, when discovered, was in that condition.^ The revo- cation of a will by the testator was at one time considered to raise a prima facie, though by no means a conclusive, presumption that the testator intended to revoke every codicil to it,* but this pre- sumption no longer prevails; and a codicil, however dependent it may be on the will, can now only be revoked in one of the methods prescribed by the Wills Act.'^ § 166. Seventhly, in the absence of any distinct intimation to ? 135 the contrary, the law presumes that every testator considers his estate sufficient to answer the purposes to which he has devoted it by his will; and consequently, in the event of any deficiency ari. ing in the assets, all annuities and legacies will, prima facie, be held to abate rateably. No doubt, this rule, like most others in the law, is open to certain exceptions; but in all cases the onus lies upon those who claim priority to furnish conclusive proof, by referring to the language employed, that the testator intended that the bequests should not stand on an equal footing.** Again, ' Whiteley v. King, 17 Com. B., N. S. 756; Keen v. Keen, 42 L. J., Pr. & Mat. Gl; 3 Law Rep., P. &. Tt. 105, S. C; Sugden v. Ld. St. Leonards, L. R., 1 P. D. L54; 45 L. J., P. D. & A. 1 & 49, S. C. See, al.so, Saundens v. Saun- ders, 6 Ec. & Mar. Cas. 518; Williams v. Jones, 7 id. 106; Patten v. Poulton, 1 Swab. & Trist. 55; Eckersley v. Piatt, 1 Law Rep., P. & D. 281. ^ Sprigge V. Sprigge, 38 L. J., Pr. & Mat. 4; 1 Law Rep., P. & D. 608, S. C. 3 Bell f. Folliergill, 2 Law Rep., P. & D. 148. * Grimwood v. Cozens, 2 Swab. & Trist. 364; In re Dutton, 32 L. J., Pr. & Mat. 137; 3 Swab. & Trist. 66, S. C; Medlycott v. Assheton, 2 Add. 229; Clogstown V. Walcot, 5 Ec. & Mar. Cas. 523. But see, In re Ellice, 33 L. J., Pr. & Mat. 27; Black v. Jobling, 1 Law Rep., P. & D. 685; 38 L. J., Pr. & Mat. 74, S. C. ^ Re Turner, 2 Law Rep., P. & D. 403, per Ld. Penzance. ^ Miller r. Huddlestone, 3 M. «& Gord. 513, 523, 524, per Ld. Truro; Brown (3048) CHAP, v.] BEQUEST OF ANNUITY — LEGACY TO EXECUTORS. 183 property specifically bequeathed or devised is prima facie pre- sumed to have been intended by the testator to pass to the legatee or devisee in its entirety ; and this presumption will not be rebutted by a codicil, charging certain pecuniary legacies on all the testator's estates, both real and personal.' If, too, an annuity be bequeathed by will for an indefinite period, the law will pre- sume, in the first instance, that it was intended to be given for the life of the annuitant ; but this presumption is liable to be rebutted by proof, that the testator has used words which indicate an inten- tion that the annuity should be granted, either in perpetuity, or for a fixed number of years. ^ § 167. When a legacy is bequeathed to a person, who is also § issa named in the will as an executor, the law presumes, prima facie, that it was given to him in that character ; and consequently, if he declines to accept the office, he must relinquish all claim to the legacy, unless he can show from the language employed that the bequest was made to him independently of his character of execu- tor, and solely as a token of personal regard." When, under the terms of a will, the consent of executors or trustees is rendered necessary to the validity of any act, the law presumes, in the absence of any express direction on the subject, that this dis- cretionary power should be exercised by those only who undertake the duties of the office.* An executor who has renounced, or a V. Brown, 1 Keen, 275, 277; Thwaites v. Foreman, 1 Coll. 409, 414 ; Ld* Dunboyne v. Brander, 18 Beav. 313. '■ Conrou v. Conron, 7 H. of L. Cas. 168 ; Campbell v. M'Conaghey, I. E., 6 Eq, 20. 2 Yates V. Maddan, 3 M. & Gord. 532 ; Lett v. Randall, 2 Sm. & Giff. 83 ; 2 DeGex, F. & J. 388, S. C. ; Stokes v. Heron, 12 CI. & Fin. 161 ; Potter v. Baker, 13 Beav. 273 ; Blewitt v. Roberts, Cr. & Ph. 274 ; Hill v. Potts, 31 L. J., Ch. 380, per Wood, V.-C. ; S. C. nom. Hill v. Ratley, 2 Johns. & Hem. 634 ; Sullivan v. Galbraith, I. R., 4 Eq. 582. ' Stackpole v. Howell, 13 Ves. 421 ; In re Reeve's Trusts, L. R., 4 Ch. D. 841, per Jessel, M. R. , Harrison v. Rowley, 4 Ves. 216 ; Reed v. Devaynes, 2 Cox, Ch. R. 285 ; 3 Br. C. C. 95, S C. ; Dix v. Reed, 1 Sim. & St. 239 ; Piggott v. Green, 6 Sim. 72 ; Jewis v. Lawrence, 8 Law Rep., Eq. 345 ; In re Banbury's Trust's, I. R., 10 Eq. 408 ; In re Reeve's Trusts, 46 L. J., Ch. 412, per Jessel, M. R. ; L. R., 4 Ch. D. 841, S. C. * White V. M'Dermott, I. R., 7 C. L. 1. (3049) 184 EMBLEMENTS — MEANING OF " CHILDREN." [PART I. trustee who has disclaimed, has obviously no right to interfere in the matter ; and even without any formal renunciation or disclaimer an executor or trustee, who simply declines to accept the office or to act in the trusts, will thereby relieve the parties interested from the responsibility of obtaining his consent.' When executors are appointed by will, and the residuary estate is undisposed of, the law presumes, in the absence of evidence of an intention to the contrary, that the executors are trustees for the next of kin ; " but if there be no next of kin, as where the testator is illegitimate, the presumption then is, that the executors may retain the property for their own use instead of its becoming forfeited to the Crown. ^ On the subject of emblements, which is the old technical term, " ein- blacence de blet,^^ for the profits of the growing crop, — the courts recognise a very capricious presumption ; * for although the per- sonal representatives of a man dying seised in fee of land are entitled to the emblements in preference to the heir, the law presuiT'es, in the event of a devise of the land, that the testator intended them to pass to the devisee.^ This presumption may of course be rebutted by a specific bequest of the growing crops, or " farming stock," ^ to another party ; but the title of the devisee to them will not, it seems, be ousted by a mere disposition of all the testator's personal estate.' § 168. When the word "children" is used in a will, the law presumes, prima facie, — as it does when the same word is employed in the Statute of Distributions,* — that the term is limited to such children as are legitimate according to the law of England ; and so strong is this presumption that it will be regarded as conclusive, unless there be something in the will itself to show clearly an in- 1 White r. M'Dermott, I. K., 7 C. L. 1. ^ jl G. 4 & 1 W. 4, c. 40. 3 In re Knowles, 49 L. J., Ch. 625, per Malins, V.-C. * West V. IVIoore, 8 East, 343, per Ld. Ellenborough. 5 Cooper r. Woolfitt, 26 L. J., Ex. 310. « Evans v. Williamson, 50 L. J., Ch. 197, per Jessel, M. R. : L. R.. 17 Ch. D. 696, S. C. ' Cooper V. Woolfitt, 26 L. J., Ex. 310. « 22 & 23 Car. 2, c. 10 ; In re Goodman's Trusts, L. R., 14 Ch. D. 619, per Jessel, M. R. ; 49 L. J., Ch. 805, S. C. But this case has been reversed by Cotton and .Tames, Ld. Js., in Ct. of Ap., diss. Lush, L. J., 50 L. J., Ch. 425 ; L. R., 17 Ch. D. 226, S. C. Therefore qu. (3050) CHAP, v.] MEANING OF TERMS USED IN WILLS. 185 tention on the part of the testator to provide for natural children,* In this last event, such a child, though en ventre sa mere at the date of the will, has been held to be included in the term." Again, the word "cousins," when used in a will, has been interpreted to mean first cousins only; "first cousins" have prima facie been defined as cousins germau or persons having the same grandfathers; and " second cousins " have been held to mean persons having the same great-grandfathers.'* Neither of these last two terms will, in the absence of an evident intention,* be construed as including the children or grandchildren of first cousins, who are commonly called first cousins once or twice removed.^ So, when a testator uses the word "family" he will be presumed, prima facie, to mean the children, if any, of the person whose family is spoken of, and there must be a special context to give the word a difPerent meaning.*^ So, also, the word " moneys," when used in a testa- mentary instrument, will, in the absence of anything in the instru- ment to indicate a different intention,^ be confined to ready money actually in hand;^ and the word "furniture " — unless under special circumstances" — will not include tenant's fixtures.'" Neither will the term "debentures" include "debenture stock."" Again, the term "unmarried " will, unless otherwise explained by the context, be held to mean " without ever having been married,"'^ 1 Doriu V. Dorin, 7 Law Eep., H. L. 568; 45 L. J., Ch. 652, S. C, per Dom. Proc; Ellis v. Honstoun, L. E., 10 Ch. D., 236; Boyes v. Bedale, 1 Hem. & M. 798; Megson?j. Hindle, L. R., 15 Ch. D. 198, per.Ct. of App. See Laker v. Horclern, L. E., 1 Ch. D. 644. '' Crook V. Hill, L. R., 3 Ch. D. 773, per Hall, V.-C. 3 Ee Parker, Bentham v. Wilson, L. E., 15 Ch. D. 528, per Jessel, M. R.; S. C. affd. on app., L. E., 17 Ch. D. 262; and 50 L. J., Ch. 639. * Ee Bonner, Tucker v. Good, L. E., 19 Ch. D. 201, per Chitty, J., 51 L. J., Ch. 83, S. C. * Ee Parker, Bentham v. Wilson, L. E., 15 Ch. D. 528, per Jessel, M. E.; S. C. affd. on app. L. E., 17 Ch. D. 262; and 50 L. J., Ch. 639. « Pigg V. Clarke, 45 L. J., Ch. 849, per Jessel, M. E. ^ See Ee Cadogan, Cadogan v. Palagi, L. E., 25 Ch. D. 154; 53 L. J., Ch. 207, S. C. « Langdale v. Whitfield, 4 Kay & J. 426, 432, per Wood, V.-C; Williams v. Williams, L. E., 8 Ch. D., 789, 793, per Baggallay, L. J.; 47 L. J., Ch. 857, 858, S. C. » Paton V. Sheppard, 10. Sim. 186. '° Finney v. Grice, L. E., 10 Ch. D. 13, per Jessel, M. E. " Lane, in re, L. E., 14 Ch. D. 856. 1'^ Dalrymple v. Hall, L. E., 16 Ch. D. 715; 50 L. J., Ch. 302, S. C. (3051) 186 PRESUMPTIONS RESPECTING DATE OF DOCUMENTS. [PART I. § 109. It may be laid down as a general prima facie presump- | 137 tion, that all documents were made on the day they bear date.^ This presumption prevails, whether the document be a modern or ancient deed," a bill of exchange or promissory note,^ an account,* or even a letter;^ and, that, too, whether it be written by a party to the suit or not.'^ The rule, however, has been very reluctantly recognised, at least by some distinguished judges,' and it is certainly subject to two exceptions} The first is, where, in order to prove a petitioning creditor's debt, an instrument is put in signed by the bankrupt, which bears date before the act of banki'uptcy. In these cases, as the efiect of a proceeding in bankruptcy is retrospective," and its object is to invalidate all transactions which have taken place between the act of bank- ruptcy and the time when the adjudication takes effect; and as, moreover, it is the interest of the petitioning creditor to support the adjudication, the court has felt a reasonable jealousy of a collusion between him and the bankrupt, and has, accordingly, required that some independent proof of the existence of the instrument, previous to the act of bankruptcy, should be given in evidence, beyond the mere date apparent on its face.'" The second exception is, where, in petitions for damages on the ground 1 Malpas V. Clements, 19 L. J., Q. B. 435; Fotez v. Glossop, 2 Ex. R. 191; Morgan v. Whitmore, 6 Ex. R. 716. 2 Anderson v. Weston, 6 Bing. N. C. 300, 301 ; Davies v. Lowndes, 7 Scott, N. S. 214; 6 M. & Gr. 527, 528, S. C; Doe v. Stillwell, 8 A. & B. 645; Smith v. Battens, 1 M. & Rob. 341. 3 45&4G V.,0. Gl, ? 3; Anderson v. Weston, 6 Bing. N. C. 296; 8 Scott, 583, S. C. ; Smith v. Battens, 1 M. & Rob. 341. * Sinclair v. Baggaley, 4 M: & W. 312. ^ Potez V. Glossop, 2 Ex. R. 191; Lewis v. Simpson, and Angell v. Wor.sley, id. 196, n.; Hunt v. Massey, 5 B. & Ad. 902; Goodtitle t'.Millburn, 2 M. & W. 853. •5 Potez r. Glossop, 2 Ex. R. 191 ; Anderson v. Weston, 6 Bing. N. C. 301, per Bosanquet, J. ' Potez V. Glossop, 2 Ex. R. 191. See, also, Butler v. Mountgarret, 7 H. of L. Cas. 646, 647, per Ld. Wensleydale. " See also, re Adamson, L. R., 3 P. & D. 253. 9 46 & 47 v., c. .52, I 43. '" Anderson v. Weston, 6 Bing. N. C. 301, 302, per Bosanquet, J.; Sinclair v. Baggaley, 4 M. &. W. 318, per Ld. Abinger; Hoare r. Coryton, 4 Taunt. 560; Wright V. Lainson, 2 M. & W. 739, 743. These cases overrule Taylor v. Kin- lock, 1 Stark. R. 175. (3052) CHAP, v.] DATE OF DOCUMENTS — ACTING IN OFFICES. 187 of adultery,' letters are ptit in evidence to show the terms on which Ihe husband and wife were living before the seduction ; and here, in order to avoid the obvious danger of collusion, it has been deemed necessary that some independent proof should be given that the letters were written at the time they bear date.^ It may be questionable whether the courts would not now recognise a third exception to the rule in those cases, where indorsements made by a deceased obligee on a bond, acknowledging the receipt of interest, are tendered in evidence by his assignee, with the view of defeating a plea of the Statute of Limitations, set up by the obligor.^ § 170. Subject to the above exceptions, the rule in question is § 138 founded on common reason ; for in the very great nJajority of cases, documents are actually written on the day they bear date. The doctrine, however, must not be pushed too far ; and in applying it to bills of exchange, it must be borne in mind that the date of the bill, though prima facie evidence of the day when it was drawn, is no proof that it was accepted at the same time. The most that the law will presume is that a bill was accepted before its maturity, and within a reasonable time after it was drawn ; and it recognises that presumption, because in all ordinary transactions such a course of business would be pursued.* § 171. The fact that a person has acted in an official capacity | 139 is also presumptive evidence of his due appointment to the office, because it cannot be supposed that any man would venture to intrvide himself into a public situation which he was not autho- rised to fill. This rule has been expressly adopted by the legis- 1 See 20 & 21 V., c. 85, ^ 33. '^ Trelawnej' v. Coleman, 2 Stark. R. 193, per Holroyd, J. ; Houliston v. Smyth, 2 C. & P. 24, per Best, C. J. * See this question discussed, post, ^l 690 — 696. * Roberts v. Bethell, 12 Com. B. 778, questioning Israel v. Argent, and Blyth v. Archbold, cited in Pears. Chit. PI. 330, n. h. See 45 & 46 V., c. 61. I 13. (3053) 188 PRESUMPTIONS FROM ACTING IN PUBLIC OFFICES. [PART I. lecture in the statutes relating to the excise' and customs,^ and at common law it has been held applicable to lords of the treasury,' masters in chancery, though exercising special powers,^ deputy county court judges,^ commissioners for taking affidavits," surro- gates,' sheriffs,*^ under- sherifls,'^ justices of the peace,'" constables," though appointed by commissioners under a local public Act,'^ trustees under a turnpike Act,'^ churchwardens,'* overseers,'^ vestry- clerks,'" trustees empowered to raise church-rates under a local Act," weigh-masters of market towns,'^ attested soldiers engaged in ^ 7 & 8 G. 4, c. 53, ^ 17, enacts, that ", if upon the trial of any indictment, information, action, suit, or prosecution whatsoever, or in any other legal or judicial proceeding, any question shall be made, or any doubt or dispute shall arise, touching or concerning the keeping of any office of excise, or whether any person is or was a commissioner or assistant commissioner of excise, or a collector or other officer of excise, or commissioned or appointed to act as such, evidence of the actual keeping of such office of excise, or that such I'terson is, or at the time in question was, reputed to be such commissioner or assistant commissioner, or such collector or other officer, or does or did then act as such commissioner or assistant commissioner, or as such collector or other officer so commissioned and ai^pointed (as the case may require), shall in every such case be admitted and deemed and taken to be respectively sufficient and legal proof of such lacts respectively, without producing or proving the parti- cular commission, appointment or other authority, whereby such' person is or was commissioned or appointed to be such commissioner or assistant commis- sioner, or such collector or other officer as aforesaid, unless by other evidence the contrary be made to apjiear ; any law, custom, or usage to the contrary therefore notwithstanding. ' ' ^ 39 & 40 Y., c. 36, § 261, enacts, that "if upon any trial a question shall arise whether any person is an officer of the army, navy, or marines, or coasts guard duly employed for the prevention of smuggling, or an officer of cuHtoms or excise, his own evidence thereof, or other evidence of his having acted as such, shall be deemed sufficient, without production of his commission or deputation. ^ R. r. Jones, 2 Camp. 131, per Ld. Ellenborough. * Marshall v. Lamb, 5 Q. B. 115. 5 R. V. Roberts, 14 Cox, 101, by Ct. of Crim. App. 6 R. V. Howard, 1 M. & Rob. 187, per Patteson, J.; R. v. Newton, 1 C. & Kir. 480. ^ R. v. Verelst, 3 Camp. 432, per Ld. Ellenborough. * Bunbury v. Matthews, 1 C. &. Kir. 382, per Parke, B. 9 Doe V. Brawn, 5 B. . Bainbrigge, id. 164, n. a ; Robinson v. Ander- son, 20 Beav. 98 ; 7 De Gex, M. & G. 239, S. C. ; Collins v. Jackson, 31 Beav. 645 ; Story, Part., I 24. But see, contra. Peacock v. Peacock, 2 Camp. 45, ^er Ld. Ellenborough ; and Tompson v. Williamson, 7 Bligh, 432. « Gould V. Gould, 6 Wend. 263. ^ Inst. lib. 3, tit. 26, ^ ; Dig-, lib. 17, tit. 2, § 29. (3069) 204 PRESUMPTIONS RESPECTING PARTNERS. [PAKT I. Wensleydale has even held at Nisi Prius, that, in the absence of all evidence on the subject, partners must be presumed to be interested in equal proportions in the partnership stocks § 185. Again, every member in an ordinary heading copartnership is presumed in law to be intrusted with a general authority to enter into contracts on behalf of the firm for the usual purposes of the business, and, consequently, to be empowered to borrow money, and to contract or pay debts, on account of the partnership, and to make, draw, indorse, and accept negotiable securities in the firm's name.^ Similar powers, hwvever, are not presumed to exist in the case of mining copartnership ; and it is now determined that one of several co-adventurers in a mine has no authority, as such, to nego- tiate any bill on behalf of his fellows,^ or to pledge the credit of the general body for money borrowed for the purposes of the concern.* Still less have the members of a firm, which is not established for trading purposes, as, for example, a firm of solicitors, any implied authority to bind each other by drawing or indorsing bills of exchange, or making promissory notes or even post dated cheques.^ Neither in an ordinary partnership has one member of the firm power to bind the others by contracts out of the apparent mode of the partnership dealings, merely because they are reasonable acts towards affecting the partnership purposes;'^ and, therefore, where a partner signed a guarantee in the name of the firm for the pur- pose of giving effect to a transaction within the scope of the part- nership dealings, the court, in the absence of proof of any usage, and of any recognition by the other partners, refused to infer that he was authorised to act in this manner, and held that the firm was ' Farrar v. Beswick, 1 M. & Rob. 527. 2 Jenkins li. Morris. 16 INI. & W. 877, 880; Ex parte Dariington, &c., Bank Co., re Riches & INIarshall's Trust Deed, 4 De Gex, J. e% S. 581 ; Story, Part, {?/, 102, 124, 125 ; Bk. of Australasia v. BreiUat, 6 Moo. P. C. R. 152, 193, 194. See Maclae v. Sutherland, 3 E. & B. 1. « Dickinson v. Valpy, 10 B. & C. 128 ; 5 M. & R. 126, S. C. * Ricketts v. Bennett, 4 Com. B. 686 ; Burmester i'. Norris, 6 Ex. R. 796. Se#, In re German Mining Co., 22 L. J., Ch. 926; and post, | 1185, ad fin. * Foster v. Mackreth, 2 Law R., Ex. 163; 36 L. J., Ex. 94, S. C; Hedley V. Bainbridge, 3 Q. B. 316 ; 11 L. J., Q. B. 293, S. C. * See Bishop v. Countess of Jersey, 2 Drew. 143. (3070) CHAP, v.] PRESUMPTIONS RESPECTING AGENTS — CARRIERS. 205 not bound by the guarantee.' Had any evidence been given of the adoption of the act by the other partners, the result would, of course, have been different." § 18G. With respect to the law of agency, it may be noted, that ^ I49i5 when the seller deals with an agent resident in this country, and acting for a foreign principal, the ordinary presumption is that he does not contract with the foreigner, but that he simply trusts the party with whom he actually makes the bargain.^ This rule, how- ever, is by no means what Mr. Justice Story represents it to be, — " a presumption so strong, as almost to amount to a conclusive pre- sumption of law;"* but it is at best a mere presumption of fact, liable to be rebutted by any evidence, whether extrinsic or intrinsic, which tends to show that credit was really intended to be given to the foreign principal.^ § 187. One or two presumptions may here be mentioned, which ? 150 attach to particular trades, and which, though apparently harsh, are in reality founded on just principles of public policy.*^ For instance, if goods intrusted^ to a common carrier he lost or damaged, the law will conclusively presume that the carrier has been guilty of negligence, unless he can show that the loss or damage was occa- sioned by what is technically called " the act of God," or by the Queen's enemies.^ So, the loss or damage of luggage, while under ^ Brettle v. Williams, 4 Ex. R. 623; overruling Ex parte Gardom, 1.5 Ves. 286. See, also, Hasleham v. Young, 5 Q. B. 833; Duncan v. Lo-wndes, 3 Camp. 478. One partner has no implied authority to bind another by submission to arbitration, Hatton v. Royle, 27 L. J., Ex. 468. 2 Sandilands r. Marsh, 2 B. & A. 673. See Maclae v. Sutherland, 3 E. & B. 1. 3 Heald v. Kenworthy, 10 Ex. R. 743, per Parke, B. * Story, Agen., | 290. ^ Green v. Kopke, 18 Com. B. 549; Mahoney v. Kekule, 14 Com. B. 390. 6 Best, Ev. 528—530. ' This rule does not extend to a passenger's luggage placed in the same car- riage with him on a railway; and if such luggage be lost or injured the Com- pany will only be liable for the damage on proof of the negligence of their ser- vants; Bergheim v. Gt. East. Ry. Co., 47 L. J., C. P. 318, per Ct. of App. ; L. R., 3 C. P. D. 221, S. C. » Ross V. Hill, 2 Com. B. 890, per Tindal, C. J.; Coggs v. Bernard, 2 Ld. Ray. 918, per Ld. Holt; 1 Smith, L. C. 171, S. C. See post, § 1172. The Scotch law on this subject is now embodied in § 17 of 19 & 20 V., c. 60, (3071) 206 PRESUMPTIONS RESPECTING INNKEEPERS — NEGLIGENCE. [PABT I. the custody of a stage-coachman, a cabman, or even a gratuitous bailee, will raise a prima facie inference of want of care, which, in the absence of evidence to the contrary, will render the bailee liable to an action.' So, when chattels, not exceeding in value the sum of thirty pounds,^ have been deposited by a guest'' in a public inn, — which term would seem to include an hotel, a tavern, and a coffee-house,* — and have there been lost or injured, the prima facie presumption is that the loss or injury was occasioned by the negli- gence, or, at least, through the defect, of the innkeeper or his ser- vants:^ but on proof that it was caused by the negligence of the which enacts, that ' ' all carriers for hire of goods within Scotland shall be lialDle to make good to the owner of such goods all losses arising from accidental iire, while such goods are in the custody or possession of such carriers." 1 Ross II. Hill, 2 Com. B. 877; Harris r. Costar, 1 C. & P. 637; Coggs V. Bernard, 2 Ld. Ray. 909. See Gt. North. Ry. Co. v Sheppard, 8 Ex. R. 30. ^ The common law liability of innkeepers has been restricted by the Act of 26 & 27 v., c. 41, which enacts, in ^ 1, that no innkeeper shall be liable to make good to any guest any loss or injury to property brought to his inn "not being a horse or other live animal, or any gear appertaining thereto, or any carriage," to a greater amount than thirty pounds, except 1, where such prop- erty "shall have been stolen, lost, or injured through the wilful act, default, or neglect of such innkeeper, or any servant in his employ;" 2, where such property "shall have been deposited expressly for safe custody with such inn- keeper." See Moss v. Russell, 30th Oct., 1884, per Ct. of App. The Act then contains a proviso that the innkeeper may require, as a condition of his liabil- ity, that the property shall be deposited in a box, or other receptacle, fastened and sealed by the depositor. §^ 2 & 3 respectively enact, that no innkeeper shall be entitled to the benefit of this Act, who refuses to receive for safe cus- tody any property of his guests, or who omits to exhibit "in a conspicuous part of the hall or entrance to his inn " a printed copy of the first section of the Act. See, as to this last point. Spice v. Bacon, per Ct. of App., 46 L. J., Ex. 713; L. R., 2 Ex. D. 463, S. C. •^ The depositor must be a guest. See as to what constitutes a guest, Strauss V. County Hotel Co., 53 L. J., Q. B. 25; L. R., 12 Q. B. D. 27, S. C. * Thompson v. Lacy, 3 B. & A. 283; Turrill v. Crawley, 13 Q. B. 197. H of 26 &27 v., c. 41, interprets the word "inn" as meaning " iany hotel, inn, tavern, public-house, or other place ot refreshment, the keeper of which is now by law responsible for the goods and property of his guests." See Doe v. Laming, 4 Camp. 76; and R. v. Rymer, L. R., 2 Q. B. D. 1.36; 13 Cox, 378, S. C. A boarding-house or lodging-house keeper has no duty imposed upon him by law to take'care of the lodgers' goods, Holder v. Soulby, 29 L. J., C. P. 246; 8 Com. B., N. S. 254, S. C; Dansey v. Richardson, 3 E. & B. 144. s Dawson r. Chamney, 5 Q. B. 164; Morgan r. Ravey, 6 H. & N. 265; 30 L. J., Ex. 131, S. C; Richmond r. Smith, 9 B. & C. 9; Burgess v. Clements, 4 M. & Sel. 306; Armistead v. Wilde, 17 Q. B. 261; Calye's case, 8 Rep. 32 a; 1 Smith, L. C. 102, S. C. ; Day v. Bather, 2 H. & C. 14. (3072) CHAP, v.] PRESUMPTIONS RESPECTING NEGLIGENCE — ACCIDENTS. 207 guest, the landlord's responsibility will cease.' The salaried manager of an hotel belonging to a company, will not be regarded as an "inn- keeper" within the scope of this rule, though the hotel licence may have been granted to himself personally.^ § 188. While discussing the subject of negligence, it deserves ? 150a notice that the judges will occasionally permit, or even advise juries to infer negligence from the mere hapj^ening of an accident. For example, this course has been piirsued where the injury complained of was caused, either by a collision between two railway trains belonging to the same company,^ or by a railway carriage having, during the journey, unaccountably left the rails.* So, where a man was hurt by a barrel of flour falling on him out of a warehouse window while he was walking in the street below, the court held that it was unnecessary for him, in suing the warehouseman for negligence, to prove what actually occasioned the fall of the barrel.^ The accident was one which, in the ordinary course of thiiigs, did not happen to those who used proper care in the management of their business, and therefore it afforded, in itself, reasonable evidence of negligence, in the absence of any explanation by the defendant.® On the other hand, in a case whei-e it appeared that a ladder, inside a private house, had, from some unexplained cause, fallen against an upper window, and broken it, and the glass in falling had damaged the eye of a person who was passing by the house at the time, it was held that the proof of these facts alone was insufficient to fix negli- gence on the owner of the house.' 1 Armistead ?;. Wilde, 17 Q. B. 261; Cashill v. Wright, 6 E. & B. 891; Morgan v. Ravey, 2 Post. & Fin. 283; Filipowski v. Merry weather, id., 285; Oppenheim v. White Lion Hotel Co., 40 L. J., C. P. 231; 6 Law Rep., C. P. 515, S. C; Spice v. Bacon, per Ct. of App., 46 L. J., Ex. 713; L. R., 2 Ex. D. 463, S. C. ^ Dixon V. Birch, 42 L. J., Ex. 135. ^ Skinner v. Lond. & Brigh. Ry. Co., 5 Ex. R. 787. * Flannery v. Waterf. & L. Ry. Co., I. R., 11 C. L. 30. ^ Byrne v. Boadle, 2 H. ct C. 722; 33 L. J., Ex. 13 S. C. ; Scott r. Lond. Dock C, 34 L. J., Ex. 220; 3 H. & C. 596, S. C. ; Kearney v. Lond. & Brigh. Ry. Co., 5 Law Rep., Q. B. 411; 39 L. J., Q. B. 200, S. C. ; 6 Law Rep., Q. B. 759, & 40 L. J., Q. B. 285, S. C. in Ex. Ch. « Id. ■ Higgs V. Maynard, 1 H. & R. 581; Welfare v. Lond. & Brigh. Ry. Co., 38 L. J., Q. B. 241; 4 Law Rep., Q. B. 693, S. C. See Moflfatt v. Bateman, 3 Law Rep., P. C, 115. (3073) 20S PRESUMPTIONS RESPECTING INNOCENCE OF INFANTS. [PART I. § ISO. Other disputable presumptions arise in respect of infants. Thus, during the interval between seven years and fourteen, infants are prima facie presumed to be unacquainted with guilt, and there- fore cannot be convicted, unless the jury shall be satisfied from the evidence, that, at the time when the offence was committed, they had a guilty knowledge that they were doing wrong.' This rule, though perhaps originally adopted in favorem vit?e with respect to capital ofifences only," has for many years past been expressly held appli- cable to all felonies;^ and there seems no reason why, on principle, it should not also be extended to misdemeanors, with the exception, perhaps, of those cases where an infant occupier of lands, charged with the repair of a bridge or road, might be held liable to an indict- ment for non-repair.* The test of juvenile exemption propounded by Lord Hale, is whether the accused was capable of discerning "between good and evil;'"^ words sufficiently indefinite, since they may apply either to legal responsibility or to moral guilt i*^ and many children of tender years, though perfectly well aware that it is wrong to take what does not belong them, and who are conse- quently, according to this test, fit subjects for punishment, may yet be only partially acquainted with the sinful nature of theft, and be wholly ignorant that it is a crime against the law of the land. It seems, therefore, to be a law savouring of harshness which permits a child, under such circumstances, to suffer the same punishment as it inflicts upon a grown person. Indeed, the loose and unsatis- factory manner in which this merciful presumption of infantine innocence has — at least in former years — been practically rebutted, cannot be more clearly exposed than by refei'ring to a statistical return of juvenile delinquents, published in the present reign, by which it appears that, out of 297 children under the age of fifteen, committed in the metropolis alone during a single year, 238 were actually con- victed; and of these no fewer than 36 were sentenced to transporta- 1 Russ. C. & M. 1—5 "^ 1 Hale, c. 3. 3 R. V. Owen, 4 C. & P. 236. * R. V. Sutton, 3 A. & E. 597, 612. 5 1 Hale, 27. ® See 30 Law Mag. 24, and article on M'Naiigliten's trial in Leg. Obs. for May 27, 1843, as to the dangerous and unphilo.sophical nature of this test. (3C74) CHAP, v.] PRESUMPTIONS RESPECTING MARRIED W(»IEN. 209 tion.' If in all these cases malitia supplevit setatem, no one will dispute but that malice has had much to supply. § 190. With respect to married women, also, the law recognises 9 jr.T certain presumptions. Thus, if a wife commit a felony," other than treason or homicide,^ or, perhaps, highway robbery,* in company with her husband, the law presumes that she acted under his coercion, and consequently without any guilty intent, unless the fact of non-coercion be distinctly proved. This presumption appears, on some occasions, to have been considered conclusive, and is still practically regarded in no very different light, especially when the crime is of a flagrant character: ^ but the better opinion seems to be, that in every case, the presumption may now be rebutted by positive proof that the woman acted as a free agent ; ^ and in one case that was much discussed,' the Irish judges appear to have con- sidered that such positive proof was not required, but that the 1 Porter's Statist. Tables, part 14, pp. 149, 151, 152, 153. In 1844, 1596 children, under the age of fifteen, were committed for trial in England and Wales. Porter '6 Progress of Nation, p. 65G. '^ Some doubt exists as to the crimes exempted from this presumption. "Thus Ld. Hale, in one part of his Pleas of the Crown, vol. i. pp. 45, 47, asserts that the presumption is recognised in all cases excepting treason and murder ; but in later passages, id. 434, 516, he excludes from its operation manslaughter also, and cites as his authority a passage from Dalton, in which manslaughter is not mentioned, Dalt. c. 104, p. 267 ; new ed. c. 157, p. 503. Mr. Serjt. Hawkins makes the exceptions consist of treason, murder, and robbery, 1 Hawk. c. 1, p. 4 ; while Mr. Justice Blackstone, in the first vol. of hisComm. mentions only treason and murder, c. 15 ; and in the 4th vol., c. 2, excepts also crimes that are mala in se, and prohibited by the law of nature, as murder and the like. * * "We would gladly see the exception extended to all capital felonies, if not to all crimes punishable with transportation, and thus abolish a rule of law, which Avas originally founded on doctrines that. no longer prevail, and which every married man knows is often diametrically opposed to the fact." — 30 Law Mag. pp. 9, 11. 3 See E. V. Manning, 2 C. & Kir. 887, 903. * In R. r. Stapleton, Jebb, C. C. 93, the majority of the judges appeared to think that this presumption did not apply to cases of highway robbery. Neither does it apply to a case of felonious wounding with intent to dis- figure, or to do grievous bodily harm, R. v. Smith, Dear. & Bell, 553 ; 8 Cox, 27 S. C. But see R. v. Torpey, 12 Cox, 45. * 1 Hale, 45 ; R. v. Archer, 1 Moo. C. C. 143. See R. v. Torpey, 12 Cox, 45. * See 7 Rep. of Cri. Law Com. p. 21 ; 30 Law Mag. pp. 9 — 12 ; R. v. Hughes, 2 Lew. C. C. 229; 1 Russ. C. & M. 22, S. C; R. v. Pollard, 8 C. & P. 553, per Tindal, C. J., and Vaughan, J., in a case of arson where the husband was bed- ridden. See also R. v. Smith, Ir. Cir. R. 459. ' R. V. Stapleton, Jebb, C. C. 93. 14 LAW OF EVID. — v. I. (3075) 210 COERCION OF MARRIED WOMEN. [PART 1. question was always one to be determined by the jury on the evidence submitted to them. It seems that a married woman can- not be convicted under any circumstances as a receiver of stolen goods, when the property has been taken by her husband, and given to her byhim ; ' nor — prior to the 1st of January, 1883," — could she have been convicted of stealing her husband's goods, though she might have committed adultery and have absconded with her paramour, taking the goods with her.^ This last rule, however, has now been happily abrogated by the "Married Women's Property Act, 1882." ' § 191. Whether the doctrine of coercion extends to any misde- | 152 meanors may admit of some doubt, but the better opinion seems to be, that, provided the misdemeanor be of a serious nature, as, for instance, the uttering of base coin,^ the wife will be protected in like manner as in cases of felony, although it has been distinctly held that the protection does not extend to assaults and batteries,* or to the offence of keeping a brothel.' Indeed, it is probable that in all inferior misdemeanors, this presumption,— if admitted at all, — would be held liable to be defeated by far less stringent evidence of the wife's active co-operation than would suffice in cases of felony.^ § 192. If an action be brought against a husband for goods « J53 supplied to his family or his wife, on the order of the latter, the jury will do w^ell to infer, in the absence of evidence to the con- trary, that the wife gave the order as the husband's agent, provided she were living v^ith him at the time, and the articles w^ere neither 1 R. V. Brooks, Pearce & D. 184. See R. v. Wardroper, Bell, C. C. 249 ; 8 Cox, 284, S. C. ^ When the Married Women's Property Act, |1882, came into operation, 45 & 46 v., c. 75, | 25. * R. V. Kenny, 46 L. J., M. C. 156 ; 13 Cox, 397 ; and L. R., 2 Q. B. D. 307, S. C. * 45 & 46 v., c. 75, U 12, 16 ; R. r. Brittleton, per Ct. of Crim. App., L. R., 12 Q. B. D. 266. 53 L. J., M. C. 83, S. C. ; and 15 Cox, 431. ^ R. I'. Conolly, 2 Lew. C. C. 229, per Bayley, J. ; R. v. Price, 8 C. & P. 19 ; Anon., Ir. Cir. R. 374. « R. v. Cruse, 8 C. & P. 541 ; 2 Moo. C. C. 53, S. C. ; R. v. Ingram, 1 Salk. 384. ' R. V. Williams, 10 Mod. 63 ; 4 Bl. Com. 29. » R. V. Cruse, 8 C. & P. 541 ; 2 Moo. C. C. 53, S. C. (3076) CHAP, v.] PRESUMPTIVE AGENCY OF MARRIED WOMEN. 211 excessive in quantity, improvident in quality, nor extravagant in price ' But this presumption may always be rebutted by proof that the husband, while supplying his wife with an adequate allowance, has expressly forbidden her to pledge his credit even for necessaries; and that, too, though the tradesman may have had no knowledge whatever of the husband's prohibition.^ If the debt has been incurred by the wife while living separate from her hnsband, the doctrine of presumptive agency will depend on the cause of separa- tion. If the wife has been turned out of doors or deserted by the husband, or if she has left him because his misconduct was such as to render it impossible for her to remain under his roof,' she has by law an implied authority to pledge his credit for necessaries,* whether supplied to herself or to her infant child,^ unless by an adequate*^ allow^nce from her husband, or by the terms of her settlement, or perhaps by her own exertions, she be in a position to provide for her maintenance.' On the other hand, a wife who leaves her husband without his consent, and without justifiable cause, has no authority whatever to bind him by her contracts ; * and where the husband and wife have parted by mutual consent, and ' Lane v. Ironmonger, 13 M. & W. 368, recognising Freestone v. Butcher, 9 C. &. P. 637, per Ld. Abinger; Atkins v. Curwood, 7 C. & P. 757; Johnston V. Sumner, 3 H. & N. 261 ; Morgan v. Chetwynd, 4 Fost. & Fin. 451, per Cockhurn, C. J.; Waitman v. Wakefield, 1 Camp. 120; Manby v. Scott, 2 Smith, L. C. 419—422, in n. See Reneaux v. Teakle, 8 Ex. R. 680; Philip- son V. Hayter, 40 L. J., C. P. 14; 6 Law Rep., C. P. 38, S. C. nom. Philipson V. Hayter; Moylan r. Nolan, 17 Ir. Law R., N. S. 427; Reid t;. Teacle, 13 Com. B. 627; Ruddock v. Marsh, 1 H. & N. 601; Jewsbury v. Newbold, 26 L. J., Ex. 247 ; and post, U 770, 771, 842. 2 Debenham v. Mellon, 50 L. J., Q. B. 155 per Dom. Proc; L. R., 6 AT)p. Cas. 24, S. C. ; L. R., 5 Q. B. D. 394, per Ct. of App.; 49 L. J., Q. B. 497, S. C; Jolly V. Rees, 33 L. J., C. P. 177.; 15 Com. B., N. S. 628, S. C; Ryan V. Nolan, I. R., 3 C. L. 319.; Jetley v. Hill, 1 Cab. & El. 239 per Pollock, B. ^ Bazeley v. Forder, 3 Law Rep., Q. B. 562, per Blackburn, J.; 9 B. & S- 602, S. C, and 37 L. J., Q. B. 240, S. C. nom. Ba.seley v. Forder. * Wilson V. Ford, 3 Law Rep., Ex. 63; 37 L. J., Ex. 60, S. C. As to bow far this doctrine applies to cases where the wife has retained a solicitor to act for her in divorce or other legal proceedings against her husband, see Ottawayr. Hamilton 47 L. J. Q. B., 725, per Ct. of App.; Mecredy r. Taylor, I. R., 7 C. L. 256 Shepherd v. Mackoul, 3 Camp. 326; Brown v. Ackroyd, 5 E. & B. 819; Grindell v Godmond, 5 A. & £. 755. 5 Bazeley v. Forder, 3 Law Rep., Q. B. 559; 9 B. & S. 599, S. C; and 37 L. J., Q. B., 237, S. C. nom. Baseley v. Forder. 6 Baker v. Sampson, 14 Com. B., N. S. 383. ^ Johnston v. Sumner, 3 H. & N. 261. ^ Id. (3077) 212 PRESUMPTIVE AGENJY OF MARRIED WOMEN. [PAET I. the wife has afterwards incurred a debt for articles suitable to her degree, the creditor, before he can recover from the husband, must affirmately show either an express authority from him. or at least such circumstances as will justify the jury in implying an authority; for instance, that the wife has been left without adequate means of support, or that an allowance promised to her by the husband had not been paid.' It may here be noticed that the authority of a wife to pledge her husband's credit is no greater when he is a lunatic than when he is sane.^ § 193. Though a wife may often have an implied authority from g issaj her husband to procure goods on credit, an English court of law would never, under the old system, presume that she was his agent for the purpose of horroiving money; and even though she were turned out of doors without any misconduct on her part, and without any means of livelihood, her husband could not be held liable at law for money lent to her, notwithstanding she might have expended the whole of it in procuring the actual necessaries of life.^ As this doctrine savoured rather of the common law than of common sense, it found no countenance in courts of equity; and a creditor who had been nonsuited on the above ground by a learned justice or baron, might still have obtained his rights, — though tardily, — at the hands of a vice-chancellor.* A more reputable state of the law at present prevails, and the judges, — rejecting the distinction between accredit- ing a wife to supply herself with necessaries, and accrediting a *' neighbour" to supply a wife with money for the same purpose, — ■ must henceforth adopt the rules of equity as their guide in this matter.^ ' Johnston v. Sumner, 3 H. & N. 2G1 ; Biffin v. Bignell, 7 H. & N. 877 ; Eastland v. Burehell, L. R., 3 Q. B. D. 432 ; 47 L. J., Q. B. 500, S. C. See Manby v. Scott, 2 Smith, L. C. 422—430. • 2 Richarrts.)n v. Du Bois, 5 Law Rep., Q. B. 51 ; 39 L. J., Q. B. 69; and 10 B. & S. 830, S. C. See Drew v. Nunn, L. R., 4 Q. B. D. 661, per Ct. of App. 3 Knox V. Bushell, 3 Com. B., N. S. 334. * .Tenner v. Morris, 30 L. J., Ch. 361 ; 2 De Gex, F. & J. 45, S. C. See Davidson v. Wood, 2 Ncav R. 15, per Wood, V.-C; S. C. cor. Lds. Js., 1 De Gex, J. &. S. 465, nom. In re Wood's estate. * This was the old law in Ireland, Johnson v. Manning, 12 Ir. Law R., N. S. 148. (3078) CHAP, v.] PRESUMPTIONS AS TO IMPOTENCE — SENIORITY. 213 § 194. In suits for nullity of marriage on the ground of incurable § 153b impotence, the Matrimonial Court has of old time adopted for its guidance a somewhat fantastic rule; for where the marriage has not been consummated, and no visible defect is proved to exist in either party,' impotence is presumed after, but not before, the expiration of three years of ineffectual cohabitation.^ This rule, however, only applies where the impotence is left to be presumed from continual non-consummation; for the court will never call in its aid, and still less rely on its twilight guidance, when other evidence on the subject can be obtained.^ § 195. The presumptions with respect to parent and child are « J54 not very important. The law so far recognises the superiority of age over youth, that if a parent and a child both bear the same Christian and surname, and this name occur in an instru- ment without any addition of "senior" or "junior," it will be presumed, in the absence of evidence to the contrary, that the parent was intended.* Thus, if a legacy be left, or a note be made payable, to John Holland, and there be two of that name, father and son, the law will, prima facie, presume that the father is respectively the legatee or payee; but this presumption may readily be rebutted, as for instance, in the case of the will, by proving that the testator did not know the father,^ or in the case of the note, by showing that the son had had it in his possession, or had indorsed it, or had given instructions to bring an action upon it.^ The mere moral obligation of a parent to maintain his child affords no legal inference of a promise to pay a debt con- tracted by him even for necessaries.^ ^ See D., falsely called F. & F., 34 L. J., Pr. & Matt. 66; B., falsely called B. V. B., I. E. 9 Eq. 551. ^M., falsely called H. v. H., 33 L. J., Pr. & Mat. 159; 3 Swab. & Trist. 517, S. C. ; Lewis, falsely called Hay ward v. Hay ward, 35 L. J., Pr. & Mat. 105, in Dom. Proc. =* F., falsely called D. v. D., 4 Swab. & Trist. 86. * Stebbing v. Spicer, 8 Com. B. 827 ; Lepiot v. Browne, 1 Salk. 7 ; Sweet- ing V. Fowler, 1 Stark. R. 106 ; Jarmain v. Hooper, 6 M. & Gr. 827. * Lepiot V. Browne, 1 Salk. 7. « Stebbing v. Spicer, 8 Com. B. 827 ; Sweeting v. Fowler, 1 Stark. R. 106. ^ Shelton v. Springett, 11 Com. B. 452 ; recognising Mortimore v. Wright, (3079) 214 PRESUMPTIONS IN FAVOUR OF IMMUTABILITY. [PART I. § 196.^ Other presumptions are founded on the experienced g 148 continuance, or immutability, for a longer or shorter period, of human affairs.^ When, therefore, the existence of a person, or personal relation, or a state of things, is once established by jDroof, the law presumes that the person, relation, or state of things continues to exist as before, till the contrary is shown, or till a different presumption is rais3d, from the nature of the sub- ject in question.^ Thus, where a jury found that a certain custom existed up to the year 1689, the court held, that, in the absence of all evidence of its abolition, this was in legal effect a verdict finding that the custom still subsisted at the time of the trial in 1840/ So, in settlement cases, the court will presume that a son, though long since arrrived at manhood, has continued unemancipated, as in the days of his infancy, unless there be some evidence to rebut this presumption, as, for instance, if proof be given that he has separated from his family/ So, in the absence of evidence to the contrary, the settlement of a pauper,*^ or the appointment of a party to an official situation, will,^ at least for a reasonable time, be presumed to remain in force. So, a partner- ship, agency, tenancy,^ or other similar relation, once shown to exist, is presumed to continue, till it is proved to have been dis- solved; and, therefore, where a partnership was admitted to have been in existence in 1816, it was, in the absence of all evidence to the contrary, presumed to be still continuing in 1838.' So, when 6 INI. & W. 482, and overruling Baker v. Keene, 2 Stark. R. 501 ; Blackburn V. Mackey, 1 C. & P. 1 ; Law v. Wilkin, 6 A. & E. 718 ; 1 N. & P. 697, S. C. See Bazeley v. Forder, 3 Law Rep., Q. B. 559 ; 9 B. & S. 599, S. C, 37 L. J., Q. B. 2.37, S. C. nom. Baseley v. Forder. ' Gr. Ev. ? 41, as to first seven lines. ^ 6 Com. B. 630. 3 See Price v. Price, 16 M. & W. 232, 240—242, overruling Mercer v. Cheese, 4 M. & Gr. 804. See, also, The Gananogue, Lush. Adm. R. 448. * Scales V. Key, 11 A. & E. 819. ^ R. V. Lilleshall, 7 Q. B. 158, explaining R. v. Oulton, 5 B. & Ad. 958 ; 3 N. & M. 62, S. C. « R. V. Tanner, 1 Esp. 306, per Ashhurst, J. ' R. V. Budd, 5 Esp. 230, per Ld. Ellenborough. ** See Pickett v. Packham, 4 Law Rep. Ch. Ap. 190. " Clark V. Alexander, 8 Scott, N. R. 161. See, also, Aldenson v. Clay, 1 Stark. R. 405 ; Blandy v. De Burgh, 6 Com. B. 623, 630 ; and Parsons v. Hay ward, 31 L. J., Ch. 666. So, by the Hindoo law, a family once joint is presumed to retain that status, unless evidence can be given to show that it has become divided, Mussumat Cheetha v- Baboo Miheen Lall, 11 Moo. Ind. App. C. 369, 380. (3080) CHAP v.] PRESUMPTIONS IN FAVOUR OF IMMUTABILITY. 215 a business is carried on by partners after the expiration of the term limited by the articles, the law prima facia presumes, that such of the provisions of those articles, as are not inconsistent with a partnership at will, still continue to apply ; however difficult it may be, in some cases, to determine what provisions fall within this category.' So, if a man were on several occasions to authorise his mistress to order goods from a tradesman on his credit, the jury would be amply justified in finding him liable for articles supplied after the termination of the connexion, in the absence of any proof that the tradesman had received notice of such termination.^ § 197. So, if a debt be shown to have once existed, its continuance ^ 155 will be presumed, in the absence of proof of payment, or some other discharge.^ So, where a tenant holds over after the expira- tion of the term, he impliedly holds subject to all the covenants in the lease which are applicable to his new situation ; * and this presumption still prevails, though the rent has been advanced,^ and though the original lessor has assigned his interest to a third party, or, being a clergyman, has resigned his living, and a fresh incumbent has succeeded him.^ The opinions,' also, of individuals, once entertained and expressed, and their state of mind, once proved to exist, are, — in startling opposition to the practical experience of mankind, at least in this the ninetieth century, — presumed to remain unchanged, till the contrary appears. Thus, all the members of a Christian community being presumed to entertain the common faith, no man is supposed to disbelieve the 1 Cox V. Willoughby; L. R., 13 Ch. D. 863, per Fry, J.; 49 L. J., Ch. 237, S. C. ; Clark v. Leach, 32 L. J., Ch. 290 ; 32 Beav. 14, S. C. ; 1 De Gex, J. & S. 409, S. C. See Woods v. Lamb, 35 L. J., Ch. 309, per Wood, V. C. 2 Ryan v. Sams, 12 Q. B. 460. ^ Jackson v. Irvin, 2 Camp. 50, per Ld. Ellenborough. * Torriano v. Young, 6 C. & P. 8 ; Thomas v. Packer, 1 H. & N. 6G9 ; 23 & 24 v., c. 154, ? 5, Ir. But see Oakley r. Monck, 34 L. J., Ex. 137; 3 H. & C. 706, S. C; 35 L. J., Ex. 87, S. C. in Ex. Ch.; 1 Law R., Ex. 159; and 4 H. & C. 251, S. C. ^ Digby V. Atkinson, 4 Camp. 275, per Ld. Ellenborough ; explained in Johnson v. St. Peter, Hereford, 4 A. & E. 525, 55^6. « Button V. Warren, 1 M. & W. 466. See Thetford v. Tyler, 8 &. B. 95, 100, 101. "• Gr. Ev. § 42. (3081) 216 PRESUMPTIONS AS TO CONTINUANCE OF LIFE. [PAET I. existence and moral government of God till it is shown from his own declarations.' In like manner, every man is presumed to be of sane mind, till the contrary is shown f but if any derangement or imbecility is proved or admitted at any particular period, it is presumed to continue, till disproved,^ unless, it be obviously of a partial or temporary character/ § 198. So, where a person is once shown to have been living, ^ 156 the law, in the absence of proof that he has not been heard of within the last seven years, will in general presume that he is still alive :^ unless after a lapse of time considerably exceeding the ordinary duration of human life. In the civil law the legal pre- sumption of life ceases at the expiration of one hundred years from the date of the birth,^ and the same rule appears to have been adopted in Scotland," but in England, no definite period has been conclusively fixed, during which the presumption is allowed to * The State v. Stinson, 7 Law Keporter, 383. '^ Dyce, Sombre v. Troup, Deaue, Ec. R. 38, per Sir J. Dodson. In Sutton V. Sadler, 26 L. J., C. P. 284 ; 3 Com. B., N. S. 87, S. C, the court held that this presumption was one of fact, which ought not to influence the jury in a case of conflicting evidence. See, also, Anderson v. Gill, 3 Macq., Sc. Cas. H. of L. 197, per Ld. AVensleydale ; Crowninshield v. Crowninshield, 2 Gray, 524. =* Att.-Gen. v. Parnther, 3 Br. C. C. 443 ; Grimani v. Draper, 6 Ec. & Mar. Cas. 421, 422, 441, per Sir H. Fust; Johnson v. Blane, id. 457, 461, per id.; Dyce Sombre v. Troup, Deane, Ec. R. 49, 50, per Sir J. Dodson ; Prinsep & East India Co. v. Dyce Sombre, 10 Moo. P. C. R. 232, 244—247 ; Nicholas & Freeman v. Binns, 1 Swab. & Trist. 243, per Sir C. Cresswell ; Hassard v. Smith, I. R. 6 Eq. 429 ; Blake v. Johnson, Milw. Ec. Ir. R. 164—166 ; Smith V. Tebbitt, 1 Law Rep., P. & D. 398, 434. * Walcot V. Alleyn, Milw. Ec. Ir. R. 69 ; Legeyt v. Obrien, id. 334—337 ; Airey v. Hill, 2 Add. 209 ; Wliite v. WiLson, 13 Ves. 87 ; Hall v. Warren, 9 Ves. 605, 611, ^ See, however, R. v. Lumley, 1 Law Rep., C. C. 196 ; 38 L. J. M. C. 86; 11 Cox, 274, S. C, cited ante, I 114. * Vivere etiam usque ad centum annos quilibet pra;sumitur, nisi probetur mortuns. Corpus Juris Glos.satum, tom. 2, p. 718, n. 5 ; 1 Masc. de Prob. concl. 103, n. 5 ; Campegius Tract, de Test. reg. 350. ' Morison, Presump. xvi., Carstairs v. Stewart, 1731 ; Hubb., Ev. of Sue. 168. Mr. Dickson in his most valuable work on the Law of Evid. in Scot- land, states that, "a precise limit to this presumption has not been fixed.'' 1 vol., p. 183. For other foreign laws on the same subject, see Hubb., Ev. of Sue. 758, 759. (3082) CHAP, v.] PRESUMPTIONS AS TO CONTINUANCE OF LIFE. 217 prevail. In several old cases, where feoffments for terms varying from ninety-nine to eighty years had been made to particular tenants, the possibility of their surviving the expiration of the terms was neglected in determining the nature of the remainders ;^ and the book of a tithe-collector, written seventy- four years before, has been admitted in evidence, without proof that any inquiries had been made for the writer.^ Nay, in one case a receiver's account was allowed to be read after the lapse of fifty-four years only, though no proof was tendered respecting the writer's death. ^ § 199. On the other hand, where a term was for sixty years, the ? 156 court took into consideration the possibility of the termor living after its expiration ;* and the deposition of a witness taken sixty years before the trial has been rejected, no search having been made for the deponent, and no account being given of him.^ In an action of ejectment, where the lessor of the plaintiff, to prove his title, put in a settlement 130 years old, by which it appeared that the party through whom he claimed had four elder brothers, the jury were allowed to presume, not only that these persons were dead, but, in the absence of all evidence to the contrary, that they had died un- married and without issue.*^ This case would probably be considered ' Weale v. Lower, Pollex. G7, per Ld. Hale ; Napper v. Sanders, Hutt. 119 ; Ld. Derby's case, Lit. R. 370. ■•^ Jones V. Waller, 1 Price, 229. See, also, Doe v. Davies, 10 Q. B. 314, 324, 325. ^ Doe v. Michael, 17 Q. B. 276. * Beverley v. Beverley, 2 Vern. 131 ; Doe v. Andrevs^s, 15 Q. B. 756. * Benson v. Olive, 2 Str. 920 ; Manby v. Curtis, 1 Price, 225. « Doe V. Deakin, 3 C. & P. 402 ; 8 B. & C. 22, S. C, nom. Doe v. Wolley. There Bayley, J., in stating that the jury had properly made this presump- tion, relied on the general rule, that things must be presumed to remain in the same state in which they were proved to have once been, unless there is some evidence of a subsequent alteration, 3 C. & P. 403 ; but it is submitted that the rule was in this case strained somewhat beyond its legitimate extent ; for if presumptions are founded, as they should be, on the exj^erienced course of events, it was surely more probable that one out of four brothers should marry and have children, than that they should all die unmarried. In Doe v. Griffin, 15 East, 293, where a similar question arose, evidence negativing the marriage of the party, who was presumed to have died without issue, was given ; and in Richards v. Richards, id. 294, n. a, where the lessor of the plaintiff claimed as heir by descent, and proved the death of his elder brothers, the court held that he must further show that they died without issue, since in ejectment no presumption could be admitted against the (3083) 218 PRESUMPTIONS AS TO CONTINUANCE OF LIFE. [pART I. at the present day as carrying the law of presumptions somewhat beyond its legitimate bounds, but this much is clear, that, whenever it becomes necessary to prove the exhaustion of remote branches of a family, the jury may safely be advised to act on very slight evidence, such, for example, as unanswered advertisements or ineffectual inquiries.' § 200. Although the presumption of life will continue for a § 137 period exceeding half a century, if no proof be given either that the party, whose death is relied upon, has not been heard of by those persons who would naturally have heard of him had he been alive, or, at least, that search has been ineffectually made to find him," — this presumption will be bounded within far shorter limits, if evidence be furnished of his continuous unexplained absence from home, and of the non-receipt of intelligence concerning him. In such case,^ after the lapse of seven years, the presumption of life ceases, and the burthen of proof is devolved on the party denying the death.* This period was inserted in the old statute of Charles II. concerning leases for lives,'* and it has since been adopted, by analogy, in other cases.^ It is also recognised in the various person in possession. See, In re Webb's estate, Ir. R. , 5 Eq. 235 ; Mullaly V. Walsh, I. R. 6 C. L. 314. 1 Greaves v. Greenwood, 46 L. J., Ex. 252, per Ct. of App.; L. R., 2 Ex. D. 289, S. C. 2 j)og ^ Andrews, 15 Q. B. 756. =* Gr. Ev. I 41, in part. * Hopewell v. De Pinna, 2 Camp. 113 ; Rust v. Baker, 8 Sim. 443 ; Loring V. Steineman, 1 Mete. 204. See Bowden v. Henderson, 2 Sm. & Gifl'. 360, ■where it was held, that the presumption of death after seven years' absence does not arise, if the iirobability of the exile sending intelligence home be rebutted by circumstances. See also M'Mahon v. M'Elroy, I. R., 5 Eq. 1 ; Prudential Ass. Co. v. Edmonds, L. R. , 2 Apii. Cas. 487, per Dom. Proc. » 19 C. 2, c. 6, § 2. See also 6 A., c. 18, which is entitled, "An Act for the more effectual discovery of the death of persons pretended to be alive, to the prejudice of those who claim estates after their deaths." ^ Doe V. Jesson, 6 East, 85; Doe v. Deakin, 4 B. &, A. 433; King v. Paddock, 18 Johns. 141. In Scotland the law on this subject will be found embodied in "The Presumption of Life Limitation (Scotland) Act, 1881," 44 & 45 V., c. 47. See especially ^ 8. In America it is not necessary that the party be proved to be absent from the United States; it is sufficient if it appears that he has been absent for seven years from the particular State of his residence, without having been heard of, Newman v. Jenkins, 10 Pick. 515 ; Innis v. Campbell, 1 Rawle, .373 ; SpuiT v. Trimble, 1 A. K. Marsh. 271 ; Wambough V. Shenk, 1 Penningt. 1G7 ; Woods r. Woods, 2 Bay, 476. In the N. York (3084) CHAP, v.] PRESUMPTIONS AS TO CONTINUANCE OF LIFE. 219 Acts relating to bigamy ;' and if, on an indictment for that crime, it appear that the prisoner and his first wife had lived apart for seven years before he married again, mere proof that the first wife was alive at the time of the second marriage will not warrant a conviction, but some affirmative evidence must be given to show that the accused was aware of this fact." But although a person, who has not been heard of for seven years, is presumed to be dead, the law raises no presumption as to the time of his death ; and therefore, if any one has to establish the precise period during those seven years, at which such person died, he must do so by evidence, and can neither rely, on the one hand, upon the pre- sumption of death, nor on the other, upon the presumption of the continuance of life.^ Civ. Code, the presumption is tlius briefly expressed : — " That a persou uot heard fi'om in seven years is dead ; " § 1780, art. 26. As to cases where the presumption of life conflicts with that of innocence, see | 114, ante. M J. 1, c. 11, § 2 ; 9 G. 4, c. 31, § 22 ; 24 & 25 V., c. 100, ? 57. '^ R. V. Curgenwen, 35 L. J., M. C. 58; 10 Cox, 152, S. C. ; 1 Law Rep., C. C. 1, S. C. See R. v. Jones, 52 L. J., M. C. 96 ; 15 Cox, 284, S. C. ^ Phene's Trusts, re, 5 Law Rep., Ch. Ap. 139; 39 L. J., Ch. 316, S. C. ; Lewes's Trusts, re, 11 Law Rep., Eq. 236 ; 6 Law Rep., Ch. Ap. 356, and 40 L. J., Ch. 602, S. C. ; Corbishley's Trusts, re, 49 L. J., Ch. 266 ; L. R., 14 Ch. D. 846, S. C. ; Hickman v. Upsall, 20 Law Rep., Eq. 136 ; 46 L. J., Ch. 245, S. C. on App. ; Lambe v. Orton, 29 L. J., Ch. 286 ; Pennefather v. Penne- father, I. R. 6 Eq. 171 ; Thomas v. Thomas, 2 Drew. & Sm. 298 ; In re Benham's Trusts, 37 L. J., Ch. 265, jjer Rolt, L. J., reversing decision by Malins, V.-C, as reported in 36 L. J., Ch. 502 ; 4 Law Rep. Eq. 416, S. C. ; In re Peck. 29 L. J., Pr. & Mat. 95 ; In re Nichols, 41 L. J., Pr. & Mat. 88 ; Dunn V. Snowden, 32 L. J., Ch. 104 ; 2 Drew. & Sm. 201, S. C. ; Doe v. Nepean, 5 B. & Ad. 86; 2 N. & M. 219, S. C. ; Nepean v. Doe d. Knight, 2 M. & W. 894, in Ex. Ch. ; 2 Smith, L. C. 476, 492, 577, S. C. In that case Ld. Denman, in pronouncing the judgment of the court, observes — " It is true the doctrine will often practically limit the time for bringing the action of ejectment in such cases [viz., where the plaintiff" claims as grantee in reversion of an estate] ; and circumstances may be supposed, as of a lease for seven years, commencing on the death of A., or of a promissory note payable two months after A.'s death, and many other cases which might be put, in which it would be difficult to carry into eftect certain contracts, or to have remedies for the breach of them, if the parties interested, instead of making inquries respecting the person on whose life so much depended, chose to wait for the legal presumption. Such inconveniences may no doubt arise, but they do not warrant us in laying down a rule, that the party shall be presumed to have died on the last day of the seven years, Avhich would manifestly be contrary to the fact in almost all instances." — 2 M. & W. 913, 914. (3085) 220 PRESUMPTIONS AS TO CONTINUANCE OF LIFE. [pART I. § 201, Where it appeared that a brig had sailed from Demerara g 158 for England in December, 1828, had touched at Dominica on the 24th of that month, and had never afterwards been heard of, Vice- Chancellor Knight Bruce, after a lapse of seven years, pre- sumed that the vessel and her crew were lost before the 2Dth of January, 1829, evidence being given that the average length of a voyage from Dominica to England was under two months, and that the West Indian latitudes were subject to hurricanes, which were so much more prevalent between the first of August and the 10th of January, that premiums for insurance during that time were double what they were at other periods of the year.' Sj, upon an issue of the life or death of a party, the jury may find the fact of death from the lapse of a shorter period than seven years, if other circumstances concur ; as, if the party, when last heard of, was aged, or infirm, or ill,^ or had since been exposed to extraordinary peril, such as a storm and probable shipwreck.' But the presumption of the common law, independent of the finding of a jury, does not attach to the mere lapse of time short of seven years/ § 202.^ When two persons, and especially when two relatives, » 159 have x>eris]ied in the same calamity, such as a wreck, a battle, or a conflagration, it often becomes important, with a view of deter- mining the right of succession to estates, to ascertain who was the survivor. Direct proof, however, can seldom be procured in these cases, and, consequently, in the Roman law, and in several other codes, recourse is had to artificial presumptions, whenever the particular circumstances connected with the deaths are wholly 1 Sillick V. Booth, 1 Y. & C, Ch. R. 117. See Ommaney v. Stilwell, 23 Beav. 328.' 2 E. V. Harhorne, 2 A. & E. 544, per Ld. Denman ; 4 N. & M. 344, S. C. ; Beasney's Trust, re, 38 L. J., Ch. 159 ; 7 Law Kep., Eq. 498, S. C. 3 Watson V. King, 1 Stark. R. 121 ; 4 Camp. 272, S. C. ; Patterson v. Black, cited 2 Park. Ins. 919, 920. In the case of a missing ship, bound from Manilla to London, on which the underwriters had voluntarily paid the amount insured, the death of those on board was presumed by the Pre- rogative Court, after the absence of only two years, and administration was granted accordingly ; In re Hutton, 1 Curt. 595. * See further on this subject, Hubb. Ev. of Sue. 1G7, et seq., 758, 759. * Gr. Ev. l 29, in part (3086) CHAP, v.] PRESUMPTIONS AS TO SURVIVORSHIP. 221 unknown. These presumptions are based on the probabilities of survivorship resulting from strength, age, and sex. In the case of a father and son perishing together in the same shipwreck or battle, the Roman law presumes that the son died first, if he was under the age of puberty ; but if be was above that age, that he was the survivor ; upon the principle, that in the former case, the elder is generally the more robust, and in the latter, the younger.' The French code has regard to the ages of fifteen and sixty ; presuming that of those under the former age, the eldest survived ; and that of those above the latter age, the youngest survived. If one of these parties were under the age of fifteen, and the other above the age of sixty, the former is presumed to have survived. If both parties were between those ages, but of different sexes, the male is presumed to have survived, unless he were more than a year younger than the female: but if they were of the same sex, the presumption is in favour of the survivorship of the younger, as opening the succession in the order of nature." The same rules were in force in the territory of Orleans, at the time of its cession to the United States, and have since been incorporated into the Code of Louisiana.'^ They have also, with some modifications, been adopted into the State of New York.* § 203. In cases of this nature the law of England recognises^ no ^ leo ' Dig. lib. 34, tit. 5 ; De rebus dubiis, lib. 9, ^ 1, 3 ; Id. i. 1(3, 22, 23 ; Menoch. de Praes. lib. 1, Qiisest. x. n. 8, 9. This rule, however, was subject to some exceptions for the benefit of mothers, patrons, and beneficiaries. ^ Code Civil, U '720, 721, 722 ; Duranton, Cours de Droit Franyais, torn. 6, pp. 32, 42, 43, 48, 67, 69 ; Rogron, Code Civil, Expli. 411, 412 ; Toullier, Droit Civil Frangais. tom. 4, pp. 70, 72, 73. » Civ. Code of Louis, art. 930—933 ; Dig. of Civ. L. of Orleans, art 60—63. * N. York Civ. Code, § 1780, tit. 3. ^ R. V. Dr. Hay, 1 W. Bl. 640. This case, better known as General Stan- wix's case, was compromised upon the recommendation of Ld. Mansfield, who said he knew of no legal principle on which he could decide it. See 2 Phillim. R. 268, n. ; Fearne's Posth. Works, 38 ; Doe v. Neopean, 5 B. & Ad 91, 92 ; Underwood v. Wing, 19 Beav. 459, per Romilly, M. R. ; aflf. on appeal by Ld. Cran worth, C, assisted by Wightman, J., and Martin, B., 4 De Gex, M. & G. 1 ; Mason v. Mason, 1 Meriv. 308. See Durrant v. Friend, 5 De Gex & Sm. 343 ; Barnett v. Tugwell, 31 Beav. 232. For the cases decided in the old Eccles. Courts, see Wright r. Netherwood, 2 Salk. 593, n. a. by Evans ; more fully reported under the name of Wright v. Sarmuda, 2 Phillim. R. (3087) OQ9 PRESUMPTIONS AS TO SURVIVORSHIP. [PAKT I. presumption, either of survivorship, or of contemporaneous death ; * bat, in the total absence of all evidence respecting the particular circumstances of the calamity, the matter will be treated as one in- capable of being determined." On one occasion, indeed, Yice-Chan- cellor Knight-Bruce appears to have expressed an opinion, that a presumption of priority of death might be raised from the com- parative age, strength, and skill of the parties ; and, in accordance with this view, where two brothers perished by shipwreck, the cir- cumstances being wholly unknown, but it appeared that the one was twenty-eight years of age, and the master of the ship, while the other was under age, and acted as second mate, it was presumed that the elder, as the stronger and more experienced sailor, survived the younger.^ This case, however, cannot be relied upon as an authority, since it is opposed to a long current of decisions. It remains only to observe, that if any circumstances connected with the death of either party can be proved, the whole question of sur- vivorship may be dealt with as one of fact, and the comparative strength, or skill, or energy, of the two sufferers may then very fairly be taken into account. § 204. A rule has been adopted in insurance law, that if a g j^l vessel has sailed, and no tidings of her have been received within a reasonable time, she shall be presumed to have foundered at 266—277, n. c. ; Taylor v. Diplock, id. 261, 278, 280 ; Selwyn's case, 3 Hagg, Ec. E. 748 ; In the goods of IMurray, 1 Curt. 596. In the brief note of Colvin V. Proc. Gen. 1 Hagg. Ec. E. 92, where the hu.sband, wife, and infant (if any) perished together, the court seems to have held, that the prima facie presump- tion of law was that the husband survived; but the question was not ml^ch discussed ; and in Satterthwaite r. Powell, 1 Curt. 705, where a husband and wife perished in the same wreck, the court would not presume that he survived, and consequently refused to grant to his representative tlie administration of property vested in the wife. The subject of presumed survivorsliip is fully treated in 4 Burge, Com. on Col. & For. L., 11—29; and in Hubb. Ev. of Sue. 186, et seq., and 759—764. See also 2 Kent, Com. 435, 436, 4th ed., n. h. ^ By the Mahometan law of India, when relatives thus perish together, "it is to be presumed that they all died at the .same moment ; and the property of each shall pass to his living heirs, without any portion of it vesting in his companions in misfortune." See Baillie's Moohummudan Law of Inherit. 172. - Wing V. Angrave, 8 H. of L. Cas. 183 ; 30 L. J., Ch. 65, S. C. 3 Sillick V. Booth, 1 Y. & C, Ch. R. 117, 126. (3088) CHAP, v.] PRESUMPTIONS ADOPTED IN INSURANCE LAW. 223 • €ea.* By "tidings" are meant, not mere rumours, but some actual intelligence received from persons capable of giving an authentic account;' and, it seems, that in an action on a policy from an English to a foreign port, the presumption of loss will sufficiently arise, from proof that the ship was not heard of in this country after she sailed, without calling witnesses from the port of destination to show that she never arrived there.^ Neither the law of England, nor the usage of merchants, has fixed any definite period after which the assured may demand payment for his loss, in case no intelligence is received respecting the vessel insured; but a practice has prevailed among insurers of deeming a vessel lost, provided she shall not- have been heard of within six months after her departure for any port in Europe, or within twelve months if bound for a greater distance.* § 205. Another presumption connected with the law of in- § i62 Burance is this, that if a ship, shortly after sailing, shall, without visible or adequate cause, become leaky, or otherwise incapable of performing the voyage insured, she shall be deemed to have ' Green r. Brown, 2 Str. 1199; Newby v. Reed, cited 1 Park, Ins. 148; Koster v. Reed, 6 B. & C. 19; 9 D. & R. 2, S. C. But in order to recover on a policy, there must be some evidence, that when the ship left the port of outfit, she was bound upon the voyage insured, Cohen v. Hinkley, 2 Camp. 51, per Ld. Ellenborough; Coster v. Innes, Ry. & M. 333, per Abbott, C. J. ^ Koster v. Reed, 6 B. & C. 22, per Baj^ley, J. In that case a Avitness stated that a few days after the vessel sailed, he heard that she had foundered, but that the crew were saved ; Held not sufiicient to rebut the presumption of loss which arose from the ship never having arrived at her port of destination, and that the plaintiif was neither bound to call any of the crew, nor to show that he was unable to do so. ^ Twemlow v. Oswin, 2 Camp. 85, per Sir J. Mansfield, C. J. * 1 Park, Ins. 149. In Spain and France, the time after which insurance losses may be demanded, is fixed by express regulation. By the ordinances of the former, if a ship insured on going to. or coming from, the Indies, is not heard of within a year and a half after her departure from the port of outfit, she is deemed lost, 2 Magens, 33; by those of the latter, if the assured receives no news of his ship, he may, at the expiration of a year for common voyages, reckoning from the day of the departure, and after two years for those of a greater distance, make his session to the underwriters, and demand payment, without being obliged to produce any certificate of the loss, Ordon- nance de la Marine, liv. 3, t. G, des Assur. Art. 58; 1 Park, Ins. 149. (3089) 224 PRESUMPTIONS ADOPTED IN MARITOIE LAW. [PAKT I. been unseaworthy at the commencement of the risk.' This pre- sumption, however, is not really a proposition of law, capable of shifting the burthen of proof fi'om the insurer to the shipowner, but it is simply an inference of fact which may be drawn by the intelligence of the jiiry," and which at no time is of so binding a nature, as to induce the court to grant a third trial, when two special juries have already concurred in finding an adverse verdict.' § 206. The Admirality Division of the High Court recognises § ig2a certain presumptions, which ought to be borne in mind, as they have the effect of technically shifting the burthen of proof. Thus, in cases of collision, if one of the vessels be shown to have been at anchor, the fact so far raises a presumption in her favour, as to impose on the other vessel the necessity of making out her defence.* So, if a ship be proved to have been in stays at the time of the col- lision, she is presumed to have been unable to avoid it; and the burthen of proof rests on the opposite side to establish, either that the vessel was impi-operly put in stays,— -whatever that means, — or that the damage was occasioned by the stress of weather, or by other unavoidable accident.^ Again, in the case of a collision between two ships, the "person in charge,"— or, in other words, the master, — - of each ship is bound to render assistance to the other vessel, and to stay by her for that purpose; and if he fail to do so, the collision shall, in the absence of proof to the contrary, be deemed to have been caused by his wrongful act.*^ So, the infringement of any regulation for preventing collisions at sea,^ which is made under the Merchant" Shipping Act Amendment Act,* 1862, raises a pre- sumption of blame as against the infringer, unless he can show ^ Watson V. Clark, 1 Dow, 344; I\Iunro v. Vandam, 1 Park, Ins. 4(i9, per Ld. Kenyon; Parker v. Potts, 3 Dow, 23. 2 Pickup V. Thames Ins. Co., L. R., 3 Q. B. D. 594, per Ct. of App. ; 47 L. J., Q. B. 749, S. C. This case deserves an attentive perusal. •'' Foster v. Steele, 3 Bing. N. C. 892; 5 Scott, 25 S. C, per Tindal, C. J. and Park, J.; Vaughan and Coltman, Js., diss. * The Bothnia, Lush. Adm. R. 52. ^ The Sea Nymph, Lush. Adm. R. 23. « The Queen, 2 Law Rep., Adm. & Ecc. 354; 36 & 37 V., c. 85, ? 16. ' Made under Order in Council, of 14 Aug. 1879, and which came into operation on 1st Sept. 1880; see L. R., 4 P. D. 241; and 49 L. J., Ord and Rules, p. 1. This Order is now annulled, and New Regulations substituted, by an Order in Council, gazetted on 19th Aug., 1884. «25&26 A^, c. 63. (3090) CHAP, v.] PRESUMPTIONS ADOPTED IN MARITIME LAW. 225 either tliat circumstances " made a departure from the regulation necessary," ' or that the infringement charged could not by possi- bility have contributed to the collision." Again, if a salvor's vessel has been injured or lost while engaged in the salvage service, the Admiralty Division presumes, prima facie, that such injury or loss was caused by the necessities of the service, and not by the salvor's default.^ § 207. By the principles, too, of our maritime law, every § ig3 reasonable presumption must be made in favour of the rights of property in the owners, whenever any question of derelict is mooted between them and the salvors. Thus, the 33rd article of the laws of Oleron enacts, that " if from any ship or other vessel have been cast overboard several goods or merchandises which are in chests well locked and made fast ; or books so well secured and so well conditioned that they may not be damnified by salt water; in such cases it is to be presumed that they who did cast such goods overboard do still retain an intention, hope, and desire of recovering the same : for which reason, such as shall happen to find such things, are obliged to make restitution thereof to him who shall make a due inquiry after them." On the principle of this enactment, — which has been the law for the last seven hundred and fifty years, and which is still in full force,* — it has repeatedly been held, that where salvors make a claim, as in a case of dere- liction, it will not sufiice for them merely to prove that they found the vessel at sea apparently abandoned, but they must go further and prove that the master and crew, when they left the vessel, did so without any hope, expectation, or intention of being able to return, or, in the technical language of the law, sine spe recuperandi.^ ' 36 & 37 v., c. 85, ^ 17. These words mean " absolutely necessary," leav- ing no margin for disci'etion, Stoomvaart, &c. v. Pen. & Orien. St. Nav. Co. L. R., 5 App. Cas. 876, per Dom. Pr. But § 17 does not apply to an infringe- ment of the Thames Rules; The Harton, L. R., 9 P. D. 44. 2 The Fanny Carvill, 44 L. J., Adm. 34 per P. C; Law Rep. ,'^4 Adm. & Ecc. 417, S. C. nom. The Magnet; The Englishman, L. R. 3 P. D. 18; 47 L. J., P. D. & A. 9, S. C. ; The Tirzah, 48 L. J., P. D. & A. 15; P. R., 4 P. D. 33, S. C; Emery v. Cichero, re The Arklow, 53 L. J., P. C. 9. =* The Thomas Blyth, Lush. Adm. R. 16. * In re Cosmopolitan, 6 Ecc. & Mar. Cas., Supp. xxviii, per Dr. Stock. * Id. x\ai, and cases there cited. The judgment of the court in this case is 15 LAW OF EVID.— V. I. (3091) 226 PRESUMPTIONS ADOPTED IN MARITIME LAW. [pART I. § 208. It here deserves notice that a ship-owner, — except so far g 164 as his liability is limited by the Merchant Shipping Acts, 1854 and 1SG2,' — is primfi facie presumed to be responsible for any damao^e occasioned by negligence in the navigation of his vessel. In order, therefore, to bring himself within the exemption from liability conferred npon him by the first named Act Avhere pilotage is com- pulsory," it is not svifficient merely to show that he had a pilot on board at the time of the accident, and that the presence of such pilot was compulsory,^ but the burthen of proof lies upon him to establish the further fact, that the damage was occasioned exclu- sively by the pilot's fault.* In using this language it is not meant very elaborate, and well deserves an attentive pernsal. The Admiralty Division Tdll never decree more than a moiety of the value of the article saved for mere salvage, independent of dereliction. Gore v. Bethel, 12 Moo. P. C. K. 189; The Inca, Swab. Adm. R. 370. 1 17 & 18 v., c. 104, U 503—516, and 388; 25 & 26 V., c. 63, § 54; see The Eajah, 3 Law Rep., Adm. & Ecc. 539. '^ § 388 enacts, that "No owner or master of any ship shall be answerable to any person whatever for any loss or damage occasioned by the fault or in- capacity of any qualified pilot acting in charge of such ship, within any district where the employment of such pilot is compulsory by law." See Conserv. of Riv. Thames v. Hall, 37 L. J., C. P. 163; 3 Law Rep., C. P. 415, S. C; Prowse V. The European & Amer. St. Shipping Co., 13 Moo. P. C. R. 484: Lu.sh. Adm. R. 103, S. C. nom. The Peerless; The Clan Gordon, L. R., 7 P. D. 190. This statutable law is applicable to a case, where the collision has occurred within the limits of a foreign port; The Halley, 2 Law Rep., P. C. 193; overruling S. C, as decided per Sir R. Phillimore; 2 Law Rep., Adm. & Ecc. 3; 37 L. J., Adm. 1, S. C. As to the meaning of the word "compulsory," see Gen. St. Nav. Co. r. Brit. & Col. St. Nav. Co., 3 Law Rep., Ex. 330; 37 L. J., Ex. 194, S. C. ; 38 L. J., Ex. 97, S. C. in Ex. Ch. ; and 4 Law Rep., Ex. 238. As to the meaning of the term "acting in charge," see The Princeton, 47 L. J., Adm. 33; L. R. 3 P. D. 90, S. C; The Guy Mannering, L. R., 7 P. D. 132, per Ct. of App. ; 51 L. .J., P. D. & A. 57, S. C. A pilot being on board a towed vessel will not exempt the tug from liability; The Mary, 48 L. J., P. D. & A. 66; The Sinquasi, L. R., 5 P. D. 241; 50 L. J., P. D. & A. 5, S. C. ISee also, Spaight V. Tedcastle, L. R., 6 App. Cas. 217, per Dom. Proc. in App. from Ireland. » The Earl of Auckland, 30 L. J., Pr. Mat. & Adm. 121 ; Lush. Adm. R. 164, S. C; S. C. nom. Malcomson v. Baldock, 15 Moo. P. C. R. 304; The Hanna, 36 L. J.. Adm. 1; The Annapolis, Lu.sh. Adm. R. 295; The Lion, Owners r. The York-Town, Owners, 38 L. J., Adm. 51 ; 2 Law Rep., P. C. 525, S. C. * Hammond v. Rogers, 7 Moo. P. C. R. 160; Pollock v. M'Alpin, id. 427; Bates ?'. D.m Pablo S :)ra, 10 Moo. P. C. R. 467; The Carrier Do\c, 1 B. & Lush. Adm. R. 113; The lona, 1 Law Rep., P. C. 426; 4 Moo. P. C, N. S. (3092)- CHAP. V.J PRESUMPTIONS RESPECTING DOMICIL. 227 that the ship-o^vner will be obliged to exonerate himself by indefi- nite negation, but it will suffice for him in the first instance to show that the pilot's fault occasioned the damage, leaving his opponent, if he can, to establish as against the ship-owner a case of contribu- tory negligence.' The legal owner of a ship is also prima facie liable to pay for all such repairs and stores ordered by the master,^ as are necessary for the equipment and navigation of the ship in the voyage of trade in which she is empoyed; for the master, in the absence of all evidence to the contrary,^ is presumed to be the agent of the owner to give all needful orders, and he consequently has authority to pledge the owner's credit for goods supplied or work done in pursuance of such orders. "^ § 209. In cases respecting the national character of a man, who ^ 155 either has no fixed place of residence, or who has two homes, and the scale is almost evenly balanced between them, the legal pre- sumption is in favour of what is called the forum originis, or domicU of origin ; by which is meant, not the place where he may chance to have been born, but the home of his parents.^ When a man's 336, S. C; The Minna, 2 Law Rep., Adm. & Ecc. 97; The Valesquez, 1 Law Rep., P. C. 494; 4 Moo. P. C, N. S. 426; 36 L. J., Adm. 19 S. C; The Vic- toria, 1 Ir., Eq. 336; The General De Caen, Swab. Adm. R. 9; The Mobile, id. 69 & 127; The Admiral Boxer, id. 193; The Schwalbe, Lush. Adm. R. 239; 14 ]\Ioo. P. C. R. 241, S. C. nom. North German Lloyd St. Ship Co. v. Elder; The Netherlands St. Boat Co. r. Styles, 9 Moo. P. C. R. 286; The Protector, 1 Rob. Adm. 4o: The Diana, id. 181; 4 Moo. P. C. R. 11, S. C; Rodriques v. Melhuish, 10 Ex. R. 110; Wood v. Smith, Re The City of Cam- bridge, 43 L. J., Adm. 11; 5 Law Rep., P. C. 451, S. C; Clyde Navig. Co. v. Barclay, L. R., 1 App. Cas. 790; The Meteor, I. R., 9 Eq. 567. ' Clyde Navig. Co. v. Barclay, L. R., 1 App. Cas. 790; The Daioz, 47 L. J., P. D. & A. 1; The Marathon, 48 L. .!., P. D. & A. 17. ^ As to the authority of a ship's husband to bind the owners, see Thomas v. Lewis, L. R., 4 Ex. E. 18. •' Mitcheson v. Oliver, 5 E. & B. 419; Hibbs v. Ross, 1 Law Rep., Q. B. 534; 35 L. J., Q. B. 193; 7 B. & S. 655, S. C. ; Gunn v. Roberts, 9 Law Rep., C. P. 331; 43 L. J., C. P. 233, S. C. ^ Frost V. Oliver, 2 E. & B. 301; Beldon v. Campbell, 6 Ex. R. 880; The Great Eastern, 2 Law Rep., Adm. & Ecc. 88; Edwards v. Havell, 15 Cam. B. 107. See Wallace v. Fielden, 7 Moo. P. C. R. 398; Tronson v. Dent, 8 Moo. P. C. R. 419; Myers v. Willis, 17 Com. B. 77; 18 Com. B. 886, S. C; Brodie u. Howard, 17 Com. B. 109; Hackwood v. Lyall, id. 124; Mackenzie v. Pooley, 11 Ex. R. 638; Whitwell v. Perrin, 4 Com. B., N. S. 412. See Atlantic Mnt. Ins. Co. r. Huth, L. R., 16 Ch. D. 474. ^ Munro v. Munro, 7 CI. & Fin. 842; Bell v. Kennedy, 1 Law Rep., H. L. (3093) 228 PRESUMPTIONS RESPECTINO DOMICIL. [pART I. domicil of origin is not known, or when his intention to abandon it can be proved, the law presumes, prima facie, that the place of his actual residence is the place of his acquired domicil: ' but this pre- sumption may be easily rebutted by showing that he has merely come to live in the country where he is staying, either for a limited period, or for a special purpose, or that in point of fact he has no animus manendi, no settled intention of making that country his place of permanent abode." When a married man has two houses situate in different countries, in both of which he is in the habit of residing, his home or domicil will generally be presumed to be that house, in which his wife and his establishment of servants usually remain when he is at the other.^ In conseqiience of the legal pre- sumption in favour of the domicil of origin,* slighter evidence is required to warrant the conclusion that a man has intended to abandon an acquired domicil, and to resume his domicil of origin, than is necessary to justify the conclusion that he has determined to abandon this last, and to acquire a new domicil.^ § 210. The presumption, too, against the acquisition of a new ? 165 domicil will be stronger in the case of a person, who is alleged to have gained it in a foreign land, than it would be, were the domicil in a country where the party would not be a foreigner." Sc. 307; Somerville v. Somerville, 5 Ves. 750; Forbes v. Forbes, 1 Kay, 364 Crookenden v. Fuller, 29 L. J., Pr. & Mat. 1; 1 Swab. & Trist. 441, S. C. Whicker v. Hume, 28 L. J., Ch. 396; in Dom. Proe." 7 H. of L. Cas. 124, S. C. Lord V. Colvin, 28 L. J., Ch. 361, per Kindersley, V.-C. ; Hodgson i'. De Beauchesne, 12 Moo. P. C. E. 285. ' Bempde v. Johnstone, 3 Ves. 198, per Ld. Thurlow; Bruce v. Bruce, 2 B. & P. 230; n. per id.; 6 Br. P. C. 566, S. C; The Diana. 5 Rob. Adm. 60; The Ocean, id. 90; The President, id. 277; Guier v. O'Daniel, 1 Binn. 349, n. 2 Bruce i-. Bruce, 2 B. & P. 230, n. ; 6 Br. P. C. 560, S. C. ; Bell v. Kennedy, 1 Law Rep., H. L. Sc. 307; Lord v. Colvin, 38 L. J., Ch. 361, 366; Jopp v. Wood, 4 De Gex, J. & S. 016; King v. Foxwell, L. R., 3 Ch. D. 518; 45 L. J. Ch. 693, S. C; Gillis v. Gillis, I. R., 8 Eq. 597; The Harmony, 2 Rob. Adm. 322; Guier v. O'Daniel, 1 Binn. 349, n. « Forbes v. Forbes, 1 Kay, 364, per Wood, V.-C; Piatt v. Att.-Gen. of New S. Wales, L. R., 3 App. Cas. 336, 343, in J. C; 47 L. J., P. C. 26, S. C. * See Udny v. Udny, 1 Law Rep., H. L. Sc. 441; and King r. Foxwell, L. E., 3 Ch. D. 518; 45 L. J., Ch. 693, S. C. s Lord V. Colvin, 28 L. J., Ch. 373, per Kindersley, V.-C; Douglas v. Douglas, 12 Law Rep., Eq. 642, per Wickens, V.-C; 41 L. J., Ch. 74, S. C 6 Id.; Whicker v. Hume, id. 399, 400, per Ld. Cramvorth; 7 H. of L. Cas. (3094) CHAP, v.] DOMICIL — COPYHOLDS — PEERAGES. 229 For instance, the court would more readily decide that a Scotchman had acquired an English, or an Anglo Indian, domicilthan a French one ; for a man's acquisition of a domicil in a foreign country is obviously a most serious matter, since it not only renders the validity of his testamentary acts, and the disposition of his personal property, liable to be governed by foreign laws, but it is calculated to involve him in a conflict of national duties, and to subject him to the embarrassments of a divided allegience.^ The law presumes that the domicil of a wife is the domicil of her husband ; and this presumption is, as a general rule, conclusive." An exception, however, might possibly be recognized in the case of a judicial sepa- ration pronounced by competent authority,^ or where the husband had abjured the realm, deserted his wife, and established himself permanently in a foreign country, or had committed felony, and been transported.* § 211. With respect to copyhold property, the law presumes, in § 1Q6 the absence of proof of any specific custom in the jpianor, first, that estate tail cannot be created, and next, that if they can, they are liable to be barred either by a common surrender, or by a surrender to the use of a will.^ § 212. Where the limitation of a peerage cannot be discovered, § 167 the law presumes that it descends, not to the heirs general, but to the heirs male of the body of the original grantee,® § 213.' A spirit of comity is presumed to exist among nations ; a jgg and, consequently, it has become a maxim of international law that 124, S. C; Hodgson v. De Beauchesne, 12 Moo. P. C. E. 285, 317; Crookenden V. Fuller, 29 L. J., Pr. & Mat. 1, 8; Swab. & Trist. 441, S. C. ^ Id. "^ Dolphia V. Robins, 7 H. of L. Cas. 390 ; 3 Macq. So. Cas. H. of L. 563 S. C. * 7 H. of L. Cas. 416, per Ld. Cranworth ; 420, per Ld. Kingsdown. * Id. 418, 419, per Ld. Cranworth * Gould V. White, 1 Kay, 683 ; Radford v. Wilson, 3 Atk. 815 ; Moore v. Moore, 2 Ves. Sen. 596, 603. ® Glencairn Peer, 1 ]\Iacq., Sc. Cas. H. of L. 444, recognised and confirmed in Montrose Peer. id. 401 ; Herries' Peer. 3 id. 585, 588, 600, 603 ; 2 Law Rep., H. L. Sc. 258, S. C; Breadalbane Peer. 2 Law Rep., H. L. Sc. 269. ' Gr. Ev. ?i 43, in imrt. (3095) 230 NATIONAL COMITY — PRESUMPTIONS OF FACT. [PAKT I. •when the solution of any legal question depends upon the law of a foreign state, — as for example, when a contract made in one country is sought to be enforced in another, — courts of justice will, in the silence of any positive rule affirming or denying or restrain- ing the operation of such foreign laws, presume the adoption of them by their own government, unless they are repugnant to its policy, or prejudicial to its interest.' § 214.^ Pkesumptions of fact, usually treated as composing the ^ 1(>!' second general head of presumptive evidence, can hardly be said with propriety to belong to this branch of the law. They are in truth but mere arguments, of which the major premiss is not a rule of law; they belong equally to any and every subject-matter; and are to be judged by the common and received tests of the truth of pro- positions, and the validity of arguments. They depend upon their own natural efficacy in generating belief, as derived from those con- nexions, which are shown by experience, irrespective of any legal relations. They differ from presumptions of law in this essential respect, that while those are reduced to fixed rules, and constitute a branch of the system of jurisprudence, these merely natural pre- sumptions are derived wholly and directly from the circumstances of the particular case, by means of the common experience of man- kind, without the aid or control of any rules of law. Such, for example, is the inference of guilt, drawn from the discovery of a broken knife in the pockft of the prisoner, the other part of the blade being found sticking in the window of a house, which, by means of such an instrument, had been burglariously entered.' § 215. These presumptions remain the same under whatever law | no 1 Bk. of Augusta v. Earle, 13 Pet. 519, 589 ; Story, Confl. U 36—38 ; Huber, de Confl. Leg., lib. 1, tit. 2, | 2, p. 538. ^ Gr. Ev. I 44, almost verbatim, except the note. ^ See Henry VI., Pt. ii., Act iii., Sc. 2. where Warwick, after contemplating " Duke Humphrey's timeless death," is made by our gieat poet of nature to comment thus : — "Who finds the heifer dead, and bleeding fresh, And sees fast bj' a butcher ^\'ith an axe, But Avill suspect 'twas he that made the slaughter?" See, also, Smollett's " Adventures of Roderick Random," Ch. xx. (3096) CHAP, v.] PRESUMPTIONS OF FACT. 231 the legal effect of the facts, when found, is to be decided.' They embrace all the relations between the fact requiring proof and the fact or facts actually proved, whether such relations be direct or indirect, and whether they be physical or moral. A single circum- stance may raise the inference, as well as a long chain of circum- stances. For instance, the decision of King Solomon as to which of the two harlots was the mother of the living child, rested on the general presumption" in favour of maternal affection, and on the sole fact that the " bowels" of the real mother "yearned upon her son," and she would in no wise consent to his being slain. ^ So, — to pass from history to fiction, — the famous judgment of Saucho Panza acquitting the herdsman charged with rape,* was founded on the ascertained fact that the prosecutrix successfully resisted the attempt to take her purse, which the accused made by order of the court. "Sister of mine," said honest Sancho, to the forceful but not forced damsel, "had you shown the same, or but half as much courage and resolution in defending your chastity, as you have shown in defending your money, the strength of Hercules could not have violated you." § 216.^ Although it is the exclusive province of the jury to fix a j-.j the due weight which ought to be given to presumptions of fact, juries are usually aided in their labours by the advice and instruc- tion of the judge, more or less strongly urged, at his discretion. 1 See 3 St. Ev. 932 ; 6 Law Mag. 370. This subject has been successfully illustrated in Wills, Cir. Ev. passim. ^ It may deserve notice that, apart from this presumption, the sacred naiTa- tive contains not one word to show that, after all, the judgment was right, that is, that it was really in accordance with the fact. The proverbial wisdom of the decision has, all along, been assumed rather than proved. * 1 Kings, ch. 3, vv. 16 — 28. Suetonius, in his life of the Emperor Claudian, ch. 15, states that the monarch discovered a woman to be the real mother of a young man, whom she refused to acknowledge, by commanding her to marry him ; for rather than commit incest she confessed the truth. Diodorus Siculus also speaks of a King of Thrace, who discovered which of three claimants was the son of a deceased king of the Cimmerians, by ordering each of them to shoot an arrow into the dead body. Two obeyed without hesitation, but the other refused. See Bagster's Comprehensive Bible, note B. to V. 25 of ch. 3 of 1 Kings. * Don Quixote, part 2, book 3, ch. 13. * Gr. Ev. I 45, in part. (3097) 232 TESTIMONY OF ACCOMPLICES — VERBAL ADMISSIONS. [PART I. Indeed, some few general propositions in regard to matters of fact, and the weight of testimony, are now universally taken for granted in the administration of justice, and are sanctioned by the usage of the bench.' Such for instance, is the caution given to juries, to regard with distrust the testimony of aD accomplice, unless it be materially confirmed by other evidence. There is no ■ rigid pre- sumption of the common law against such testimony ; yet experi- ence has shown that it is little worthy of credit : and on this experience the usage is founded.^ A similar caution should prevail in regard to mere verbal admissions of a party, this kind of evidence being subject to much imperfection and mistake.^ So, if a witness be detected in telling a falsehood in one part of his testimony, the jury will be advised to place little reliance on the remainder of his narrative. 1 See New York Civ. Code, I 1852. ^ See further as to the corroboration of acccomplices, post, §§ 967 — 971. 2 5 C. & P. 512, n., per Parke, J.; R. v. Simons, 6 C. & P. 541, per Alder- son, B. ; Williams v. Williams, 1 Hagg. Cons. 304. See post, II 861, 862. (3098) ALLEGATIONS AND EVIDENCE MUST CORRESPOND. 233 PART II. KULES GOVERNING THE PRODUCTION OF TESTIMONY. CHAPTEE I. CORRESPONDENCE OF EVIDENCE WITH ALLEGATIONS ; SUBSTANCE OF ISSUE ; VARIANCE ; AND AMENDMENT. § 217.' The production of evidence on the trial of an action is x 170 governed by certain principles, which may be treated under four general rules. First, the evidence must correspond with the allegations, but the substance only of the issues need be proved ; secondly, the evidence must be confined to the points in issue ; thirdly, the burthen of proving a proposition at issue lies on the party holding the substantial affirmative ; and fourthly, the best evidence, of which the case in its nature is susceptible, must always be produced. These rules will now be considered in their order. § 218.^ The pleadings are composed of the written allegations ^ 173 of the parties, terminating in propositions distinctly affirmed on one side, and denied on the other, called the issues. If these are pro- positions of fact, the first rule, which it is important to remember, is, that the evidence must correspond ivith the allegations, hut that it is sufficient if the substance of the issues be j^roved. As one of the main objects of pleading is to apprise the parties of the specific nature of the questions to be tried, and as this object would be defeated, if either party were at liberty to prove facts essentially different from those which he has stated on the record, as consti- tuting his claim or charge on the one hand, or his defence on the other, the necessity of establishing such a general rule as the present becomes apparent, and the only remaining question concerns ^ Gr. Ev. § 50, slightly. ^ Qj. y.v. § 51, in part, as to first six lines. (3099) 234 ABUSES OF OLD LAW OF VARIANCE. [PART II. its limitation and extent.^ Great strictness was formerly required in the application of this rule ; almost every disagreement between the allegation and the proof, except in matters clfearly impertinent, being held to constitute what was called a variance, the conse- quences of which were as fatal to the jjarty on whom the proof lay, as a total failure of evidence. § 219. Thus, in an action for the breach of warranty of a horse, I 173 where the declaration stated a general warranty, and the proof was that the defendant had warranted the horse sound everywhere except a kick on the leg, the plaintiff was nonsuited on account of this variance, although the unsoundness of which he complained, and which he established at the trial, was a dropsy.^ So, where a declaration in ejectment described the premises as situate in the united parishes of St. Giles-in the- Fields, and St. George, Blooms- bury, and it appeared that the parishes were united by Act of Par- liament for the maintenance of the poor, but for no other purpose, and that the premises in question were in the parish of St. George, Bloom sbury, this was held to be a fatal variance, though it was idle to suppose that the defendant could have been misled by the misdescription.^ To give but one more instance where hundreds might easily be furnished, a plaintiff was nonsuited in an action for defamation, because the libel, as set out on the record, imputed to him " mismanagement or ignorance," while, according to the ' In thecase ofCaton r. Caton, 7 Ec. & Mar. Cas. 28, Dr. Lushington very sensibly observed : " The maxim of the Eccles. Courts, and I may say of all other courts, is to decide secundum allegata et probata. There must be both charge and evidence ; the party cited is entitled to know the specific charge for the purpose of defence. * * The difficulty I feel is to avoid the error of adhering to this rule with pedantic stridness, and, on the other hand, not to weaken a rule which is founded on one of the great principles of justice." See IMalcomson r. Clayton, 13 Moo. P. C. R. 206, per Ld. Chelmsford ; and The Ann, Lush. Adm. R. 55, in which last case little trouble seems to have been taken by the learned judges of the Privy Council to avoid the " pedantic strictness" alluded toby Dr. Lushington. See, also, Tyrer, v. Henry, 14 Moo. P. C. R. 83; Kilgour v. Alexander, id. 177 ; The Haswell, 2 B. & Lush., Adm. R. 247 ; The Amalia, id. 311. - Jones V. Cowley, 4 B. & C. 445, declared most justly by Alder-son, B., to be "a great disgrace to the English law," in Hemming v. Parry, 6 C. & P. 580. ^ Goodtitle v. Lammiman, 2 Camp. 274. (3100) CHAP. I.] AMENDMENTfe UNDER SUCCESSIVE STATUTES. 235 evidence, the expressions really used in the libel, which had been destroyed, were " ignorance or inattention." ' § 220. The attention of the Legislature being at length drawn g 174 to the flagrant injustice which was thus constantly occasioned, a partial renaedy was provided in 1828 by the Act of 9 G. 4, c. 15 ; ^ but as that statute, though a salutary measure so far as it went, was found to afPord a very inefiPectual remedy for an evil which all suitors felt to be highly oppressive, larger powers of amendment were granted in 1833 to the English judges, and in 1840 to the Irish judges, by the respective Acts of 3 & 4 W. 4, c. 42, §§ 23 & 24,' and 3 & 4 Y., c. 105, §§ 48 & 49. In 1852, the Legislature again interposed, and by §§ 34, 35, 37 & 222 * of the Common Law Procedure Act,^ and §§ 49 & 53,^ of the Equity Procedure Act of the same year,' conferred on the courts additional powers of granting amendments. In the Common Law Procedure Acts of 1854 and 1860 further clauses were inserted, authorising the amendment of " all defects and errors in any proceedings under the provisions " of those Acts respectively, " if duly applied for;"** and the Irish Common Law Procedure Act of 1853 also empowered the judges in that country to amend " all defects and errors in any writ, pleading, record, or other proceeding in civil causes." ^ § 221. The law relating to amendments was not further altered till the Rules of Court framed under the Judicature Acts of 1873 and 1875 came into operation. Those rules, — which introduced into the different Divisions of the Supreme Court a more lax practice than formerly prevailed, — were annulled in 1883; and the rules, ' Brooks V. Blanshard, 1 C. & M. 779; 3 Tyr. 844, S. C. '■^ Repealed as to Sup. Ct. in Eng., except as to criminal proceedings, by 42«fe43V., c. 59. ^ Repealed by 44 & 45 V., c. 59. * Repealed by 4G & 47 V., c. 49. * 15 & 16 v., c. 76. See corresponding sections in the Irish Act ol 16 & 17 v., c. 113, U 85—91. « Repealed by 44 & 45 V., c. 59. ' 15 & 16 v., c. 86. See corresponding sections in the Irish Act, 30 & 31 v., c. 44, U 154, 158. M7 & 18 v., c. 125, ^ 96; 23 & 24 v., c. 126, g 36. Repealed by 46 & 47 v., c. 49. » 16 & 17 V., c. 113, ^ 231, Ir. (3101) 236 AMENDMENTS UNDER NEW RULES OF 1SS3. [PAET 11. which now regulate the amendment of proceedings in the Supreme Court, are embodied in Orders XVI., XIX., and XXVIII. of the new Rules of that year. § 221a. It should be specially noted that not one of these Orders has any effect on criminal proceedings, or on proceedings for divorce or other matrimonial causes; but that the first two differ from the third in this respect, that the former are inoperative in all pro- ceedings, either on the Crown side, or on the Revenue side, of the Queen's Bench Division, while the last applies to all civil proceed- ings on the Crown side, including mandamus, prohibition, and quo warranto, and to all proceedings on the Revenue side, of the same Court. ^ § 222. The three most important rules of Order XVI. are the 2nd, the 11th, and the 12th. ^ The 2nd provides, that, "Where an action has been commenced in the name of the wrong person as plaintiff, or where it is doubtful whether it has been commenced in the name of the right plaintiff, the court or a judge, may, if satis- fied that it has been so commenced through a bond fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as pZainf/^, upon such terms as may be just." An application under this rule cannot be made ex parte,^ nor can it succeed unless there has been a bona fide mistake; * but such mistake may be one of law as well as of fact.^ The court must also be satified that the person, whose name is proposed to be added, has consented to that step, or, at least, that his interests have been duly protected.® § 223. Rule 11 provides that " no cause or matter shall be de- 1 Ord. LXVIIL, ER. 1 & 2. ^ See also RR. 1 & 4 of this Order, whicli respectively render amendments unnecessary in cases where too many plaintiffs or defendants have been ioined. SeeChild v. Stenning, 46 L. J., Ch. 523 ; L. E., 5 Ch. D. 695, S. C; Booths. Briscoe, L. R., 2 Q. B. D. 496? » Tildesley v. Harper, L. R., 3 Ch. D. 277, per Hall, V. C. * Clowes V. Hilliard, L. R., 4 Ch. D. 413, per Jessel, M. R. 5 Duckett V. Gover, L. R., 6 Ch. D. 82, per Jessel, M. R.; 46 L. J., Ch. 407, S. C. 6 Turqiiand v. Fearon, L. R., 4 Q. B. D. 280. (3102) CHAP. I.] AMENDMENT OF PLEADINGS. 237 feated by reason of the misjoinder or nonjoinder of parties, and the court may in every cause or matter deal with the matter in con- troversy so far as regards the rights and interests of the parties actually before it. The court or a judge may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court or a judge to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out, and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added.'' ' 224 Eule 12 provides, that " any application to add, or strike out, or substitute a plaintiff or defendant may be made to the court or a judge at any time before trial by motion or summons, or at the trial of the action in a summary manner." It would seem that, under this Rule, a County Court Judge might amend a misjoinder of defendants in a cause sent to him for trial from the High Court." Order XIX. has only one rule bearing on the subject,'^ and that provides, "that the court or a judge may at any stage of the pro- ceedings order to be struck out or amended any matter in any in- dorsement or pleading, which may be unnecessary, or scandalous, or which may tend to prejudice,* embarrass,^ or delay the fair trial of the action ; and may in any such case, if they or he shall think ^ The Rule goes on to provide, that if a plaintiif be added, it must be with his consent in writing, and that if a defendant be added, he must be served ■with a summons or a notice. 2 See Bennison v. Wallier, 7 Law Rep., Ex. 143. ' ^ R. 27 * As to when a plaintiff will not be held to have prejudiced the fair trial of an action by asking for alternative relief, see Bagot v. Easton, 47 L. J., Ch. 22.5, per Ct. of App. = Heap V. Harris, L. R., 2 Q. B. D. 630 ; 46 L. J., Q. B. 761, S. C; Davy V. Garrett, L. R., 7 Ch. D. 473, per Ct. of App.; 47 L. J., Ch. 218, S. C; Stokes V. Grant, L. R., 4 C. P. D. 25 ; Philipps v. Philipps, 48 L. J.,Q. B. 135, per Ct. of App.; L. R., 4 Q. B. D. 127, S. C. This last case is important as showing what statements must be alleged in an action for the recovery of land of which the plaintiff has never been in possession. (3103) 238 AMENDMENT OF PLEADINGS. [tart II. fit, order the costs of the application to be paid as between solicitor and client." § 225. Order XXVIII. is as follows : — "Amendment.^ 1. The court or a judge may, at any stage of the proceedings, allow either party to alter or amend his indorsement^ or pleadings iu such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. 2. The plaintifp may, without any leave, amend his statement of claim, whether indorsed on the writ or not, once at any time before the expiration of the time limited for reply and before replying, or, where no defence is delivered, at any time before the expiration of four weeks from the appearance of the defendant who shall have last appeared. 3. A defendant who has set up any counter-claim or set oflP may, without any leave, amend such counter-claim or set-off at any time before the expiration of the time allowed him for answering the reply, and before such answer, or in case there be no reply, then at any time before the expiration of twenty- eight days from defence. 4. Where any party has amended his pleading under either of the last two preceding rules, the opposite party may, within eight days after the delivery to him of the amended pleading, apply to the court, or a judge, to disallow the amendment, or any part thereof, and the court or judge may, if satisfied that the justice of the case requires it, disallow the same, or allow it subject to such terms as to costs or otherwise as may be just.^ 5. Where any party has amended his pleading under Rule 2 or 3, the opposite party shall plead to the amended pleading, or amend his pleading, within the time he then has to plead, or within eight days from the delivery of the amendment, whichever shall last expire ; and in case the opposite party has pleaded before the deli- ^ As to amendmeut of pleadings in the Consistorj' Ct. of London, see Eeg. Gen. of 1877, relating to that court, Ord. III. 2 See Cornish v. Hockin, 1 E. & B. 602 ; Leigh v. Baker, 2 Com. B., N. S. 367. ' See Bourne v. Coulter 53, L. J., Ch. 699, where held by Kay, J., that Avhen a plaintiff had amended his claim by altering the entire cause of action, the proper course for the defendant was to apply to the Court to disallow the amend- ment, or to allow it on terms (3104) CHAP. I.] AMENDMENT OF PLEADINGS. 239 very of the amendment, and does not plead again or amend within the time above mentioned, he shall be deemed to rely on his original pleading in answer to such amendment.' 6. In all cases not provided for by the preceding rules of this Order, application for leave to amend may be made by either party to the court, or a judge, or to the judge at the trial of the action, and such amendment may be allowed upon such terms as to costs or otherwise, as may be just. 7. If a party, who has obtained an order for leave to amend, does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited, then within fourteen days from the date of the order, such order to amend shall, on the expiration of such limited time as aforesaid, or of such fourteen days, as the case may be, become ipso facto void, unless the time is extended by the court or a judge. 8. An indorsement or pleading may be amended by written alterations in the copy which has been delivered, and by additions on paper to be interleaved therewith if necessary, unless the amend- ments require the insertion of more than 144 words in any one place, or are so numerous or of such a nature that the making them on writing would render the document difficult or inconvenient to read, in either of which cases the amendment must be made by de- livering a print of the document as amended. 9. Whenever any indorsement or pleading is amended, the same, when amended, shall be marked with the date of the order, if any, under which the same is so amended, and of the day on which such amendment is made, in manner following, viz ; — ' Amended day of , , pursuant to order of dated the of .' 10. Whenever any indorsement or pleading is amended, such amended document shall be delivered to the opposite party within the time allowed for amending the same. 11. Clerical mistakes in judgments or orders, or eiTors arising therein from any accidental slip or omission, may at any time be corrected by the court, or a judge, on motion or summons withoiit an appeal. 1 See Boddy v. Wall, 47 L. J., Ch. 112; L. R., 7 Cli. D. IGl, S. C. (:]10.-,) 240 AMENDMENT OF PLEADINGS. [PART II. 12. The court or a judge may at any time, and on such terms as to costs or otherwise as the court or judge may think just, amend any defect or error in any proceedings;' and all necessary amend- ments shall be made for the purpose of determining the real ques- tion or issue raised by or depending on the proceedings. 13. The costs of and occasioned by any amendment made pur- suant to Rules 2 & 3 of this Order shall be borne by the party making the same, unless the court or a judge shall otherwise order." § 226. From these Rules it will be seen, 1st, that the court or a judge may now, at any stage of the proceedings, allow either party to alter or amend his indorsement or pleadings; 2nd, that all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy; 3rd, that, without leave, but subject to the risk of having to pay costs, the plaintiff may amend his statement of claim, and the defendant may amend his counterclaim or set-off; 4th, that the application for leave to amend any pleading may be made by either party to the court or a judge, or to the judge at the trial of the action; 5th, that pleadings may be amended by striking out any scandalous or embarrassing matter; and lastly, that any of these respective amendments may be allowed upon such terms as to costs or otherwise as may be just. § 227. The powers of amendment conferred on the judges by these rules will unquestionably be productive of signal benefit to suitors, if, in furtherance of this salutary design, they are exercised, as they ought to be, in a liberal spirit.^ As yet however no very ^ See the Immacolata Concezione, L. R., 9 P. D. 42, where the admiralty judge, under this Rule, sent back a special case to be amended by the Regis- trar. 2 See Parry v. Fairhurst, 2 C. M. & R. 196, per Alderson, B. ; Sainsbury v. Matthews, 4 M. & W. 347, per Parke, B. ; Ward v. Pearson, 5 M. & W. 18, per id.; Evans v. Fryer, 10 A. & E. 615, per Williams, J.; Pacific St. Navig. Co. v. Lewis, 16 M. & W. 792, per Pollock, C. B. ; Smith v. Knowelden, 2 M. & Gr. 561; 9 Dowl. 402, S. C. See, also, St. Losky v. Green, 9 C. B., N. S. 376, per Byles, J., who observes in the true spirit of an enlightened law reformer, — "Various statutes have, from time to time for more than 500 years, been passed, from the 14 Ed. 3, c. 6, downwards, to facilitate amendments, but the strict and almost perverse construction which the judges put (3106) CHAP. I.] AMENDMENT OF PLEADINGS. 241 important decisions have been pronounced upon the subject, though a few cases, determined under the Kules of 1875, will serve in some degree to illustrate the operation of the new law. § 228. Perhaps the most important of these cases is that of Budding v. Murdock/ That was a suit to enforce an alleged right to a flow of water. The plaintiff rested his title, first, on a deed, and, next, on a prescription, but at the hearing" he failed on both points. He then contended that the watercourse had been con- structed by him at considerable expense, and that the defendant's ancestors had stood by and acquiesced, thus giving him a title to maintain his suit. Thereupon the Master of the Rolls gave him leave to amend, the defendant being at liberty to put in a further answer, both parties to bring forward fresh evidence, and the costs to be reserved. In King v. Corke ^ the plaintifP had charged the defendant with wilful neglect, but had not alleged any particular instance, and at the hearing he was allowed to amend the bill by specifying certain acts which had been disclosed by the answer, but the terms imposed upon him were, first, that the defendant should have leave to answer further, and, next, that he himself should not go into any new evidence, and should pay the costs of the day. In another case * a bill to set aside a settlement on the ground of fraud and surprise was allowed to be amended at the hearing, by setting up a case of infirmity of mind on the part of the settlor, but there also the defendant was permitted to put in a further answer and evidence. A defendant has also been allowed, after putting in with other defendants a joint statement of defence, to deliver a separate supplemental statement, he having been advised that an independent ground of defence was open to him.^ Of course in this case he was upon them, rendered them nearly abortive. But now a totally different principle prevails. Every amendment is to be made, which is necessary for determining the real question in controversy between the parties." 1 L. R., 1 Ch. D. 42, per Jessel, M. R.: 45 L. J., Ch. 213, S. C. "^ Had this been a trial hy jury the result might have been different. See post, I 240. ' L. R., 1 Ch. D. 57 ; 45 L. J., Ch. 190, S. C; Mozeley v. Cowie, 47 L. J., Ch. 271, per Fry, J. * Roe V. Davies, L. R., 2 Ch. D. 729. * Cargill V. Bower, 46 L. J., Ch. 175. 16 LAW OF EVID. — V. I. (3107) 2i2 AMENDMENTS ALLOWED UNDER OLD LAW. [PART II. ordered to indemnify the plaintifif against the costs rendered neces- sary by the amendment. § 229. In the case of Tildesley v. Harper ' the facts were as follows. The statement • of claim alleged that the defendant, in order to induce the plaintiff to grant a lease, had offered him a bonus, or, in other words, a bribe of £500, and had actually paid him £200. These allegations were specifically denied in the state- ment of defence, but the defendant did not go on to deny that any bribe had been offered or given. On these pleadings, the learned judge held at the trial that the giving of some bribe was admitted on the statement of defence ; and — refusing the defendant's appli- cation to allow an amendment — gave judgment for the plaintiff. The defendant appealed ; and the Lords Justices, apparently almost as a matter of course, decided that the judgment must be set aside, with liberty to defendant to amend his statement on payment of costs, the plaintiff being also at liberty to amend his pleadings, if necessary. Lord Justice Bramwell in this case, while discussing the circumstances under which the power of amendment should be exercised, very justly observed, that "leave to amend should always he given, unless- the judge were satisfied that the party applying for it either had acted mala fide, or had by his blunder caused some injury to his opponent, which could not be adequately compensated by the payment of costs or otherwise."" Again, it has been held by one of the Vice-Chancellors, that an action might, by amendment of the writ and statement of claim, be turned into an information and action without predjudice to a pending motion in the action, the sanction of the Attorney- General having first been obtained.^ As all disputed questions of amendment depend upon the discretion of the judge, the Court of Appeal ^ will be very unwilling to interfere with that discretion, unless in a case where it is obvious that some serious mischief would result from non-interference.^ ) 1 48 L. J., Ch. 495. ^ M. 496. :( 'Caldwell v. Pagham Harbour Reclamation Co., L. R., 2 Ch. D. 221, per Hall, V.-C. * See Rules of Sup. Ct., 1883, Orel. Ivili., R. 4, cited post, ? 1883. ^ Golding r. Wharton Salt Works Co., L. R., 1 Q. B. D. 374, per Ct. of App. (3108) CHAP. I.] AMENDMENTS ALLOWED UNDER OLD LAW. 243 § 230. As the decisions just cited by no means exhaust the subject, it will still be advisable, for the purpose of explaining the general nature of variance, and of marking the distinction between material and immaterial allegations, to refer to some of the cases ^decided under the earlier statutes.' And first, as to those cases in which an amendment has beeti allowed. § 231. In the case of May v. Footner,^ the declaration stated § 182a that the defendant had entered certain land of the plaintiff. The. real questions in dispute were, first, whether the land was the plaintiff's property; and, next, whether there was a public footway across it. At the trial, it turned out that the close in question was, at the time of the trespass, in the actual possession of a tenant of the plaintifi", whereupon the plaintiff was allowed by the judge to amend the declaration, so as to adapt it to an injury to his rever- sionary interest. The court subsequently held that this amend- ment had been properly made. In another case, where issue had been taken on an allegation that a certain cargo of goods was not delivered in March, it appeared at the trial that this was strictly true, but that it did not raise the real question, which was whether the cargo had been delivered in such time that the defendant was bound to accept it. Thereupon the judge, at the instance of the plaintiff, amended the declaration by inserting an averment that the plaintiff, at the defendant's request, had delayed the shipment, and that the defendant had promised to accept a de- livery of that shipment within a reasonable time, and had exonerated the plaintiff from delivering in March. This amendment was also upheld by the court above. ^ § 232. In an action of slander, where the words charged in the ^ 134 declaration were, " S. is to be tried at the Old Bailey, &c." and ^ Those who wish to understand the very old doctrine of variance, and to trace its oppressive operation previously to the passing of the remedial statutes, Avill find the subject fully and ably treated in 1 St. Ev. 430 — 494. See, also, 1 Ph. Ev. 503, et. seq. - 25 L. J., Q. B. 32 ; 5 E. «fe B. 505, S. C. ' Tennyson v. O'Brien, 5 E. & B. 497. See Savage v. Canning, I. R., 1 C. L. 434, per C. P. (3109) 244 AMENDMENTS ALLOWED UNDER OLD LAW. [pART II. those proved to have been really spoken were, "/ have heard that S. is to be tried, &c." the court held that the variance might be amended on payment of costs, though it was urged, that as the ex- pression " I have heard " reduced the charge fronn a direct assertion to mere idle gossip, the defendant was prejudiced by the amend- ment, because, had these words been originally declared upon, he might have suffered judgment by default, or otherwise have pleaded a justification.' Mr. Justice Bosanquet observed, that the intro- duction of the words " I have heard " left the slander as actionable as before, although the amount of damages might be lessened; — that a variance, which is not material to the issue raised, but which may afPect the quantum of damages, was not within the contemplation of the legislature when speaking of the " merits of the case;" — and that, as the damages were given for the words as joroved, and as the defendant did not apply to amend his pleadings or to put off the trial, it did not appear how he could have been prejudiced in his defence.' This case, therefore, is important, as phowing that an amendment should not be refused, simply because it may lessen the amount of damages, provided that it cannot affect the substantial line of defence. In another action of slander, where the words alleged to have been spoken of and concerning the plaintiff, as a surgeon, were, " There have been many inquests held upon persons who have died, beeause he attended them;" but those proved were, " Several have died that he (the plaintiff) has attended, and inquests have been held on them," the judge amended the record, and the court held that he was justified in so doing.^ So, where the only variance was, that the words stated, in the declara- tion were in the English language, while the expressions proved were Welsh, an amendment was allowed.* § 233. In another action of defamation, an amendment was held ^ jss to have been properly made when, on objection being taken that the declaration contained the mere substance of the libel, a verbatim 1 Smith V. Knowelden, 2 M. & Gr. 561 ; 9 DowL 402 ; 2 Scott, N. R. G57, S. C. 2 2 M. & Gr. 565. ' Southee v. Denny, 1 Ex. E. 196. * Jenkins v. Phillips, 9 C. & P. 766, per Coleridge, J. (3110) CHAP, 1.] AMENDMENTS ALLOWED UNDER OLD LAW. 245 copy of the defendant's letter was set out on the record.' So, where the declaration alleged that the defendant published a libel, ^^con- tained in and being an article in a certain tveekly paper, called the ''Paul Pry,'' " and it was proved that he gave a slip of printed paper, containg the libellous matter, to several persons to read; but it did not clearly appear that it had been cut from that newspaper, the record was amended without any terms being imposed on the plaintiff, by striking out the allegation marked in italics." Again, when a plea of justification, in an action for a malicious prosecution on a charge of receiving stolen goods, alleged that the goods had been stolen by "some person unknown," the judge at the trial was held to have rightly allowed these three words to be struck out, and the name of the party who was proved to have taken the goods to be substituted in their place. ^ § 23<1. The case of Whitwill v. Scheer* is important as deciding ^ 180 that, where a declaration in assumpsit had stated a special contract, and had then contained an erroneous allegation in conformity with its supposed legal effect, such allegation might either be struck out, or so altered as to express correctly the rekl meaning of the contract. § 235. In several cases an amendment has been made, where ? jgy the contract, or tort, or custom declared upon, has turned out to be either more or less comprehensive than the one proved. ** Thus, the statement of a general warranty of a horse has been amended by substituting an allegation of a qualified warranty, where the defence did not depend upon the qualification introduced.^ So, where the delaration alleged that the defendant promised to lay 1 Saunders v. Bates, 1 H. & N. 402. ^ Foster v. Pointer, 9 C. & P. 718, per Gurney, B. See also Pater v. Baker, 3 Com. B. 831. '^ Pratt V. Hanbury, 14 Q. B. 190. See, also, West v. Baxendale, 9 Com. B. 141; and Hailes v. Marks, 30 L. J., Ex. 389; 7 H. & N. 56, S. C. * 8 A. & E. 301; 3 N. & P. 391, S. C. But see Bowers v. Nixon, 2.C. & Kir. 372, cited post, I 239. * See Pacific St. Navig. Co. v. Lewis, 16 M. & W. 783. ® Hemming v. Parry, 6 C. & P. 580, per Alderson, B., Mash v. Densham, 1 M. & Rob. 442, per id. ; Eead v. Dunsmore, 9 C. & P. 588. (3111) 246 AMENDMENTS ALLOWED UNDER OLD LAW. [PART II. out certain money in the purchase of a government annuitij, and then aven-ed as a breach, that he had not done so, but had placed it in the hands of some private company, an amendment was allowed by substituting the word " security " for " annuity," the evidence showing that the money had in fact been received for the purpose of investing it in some government security,^ § 236. In other actions a like amendment has been allowed, | 189 where a contract, a duty, an instrument, or other matter has been misdescribed on the record. Thus, in Hanbury v. Ella," the declaration stated that the defendants, in consideration of the plaintiffs supplying beer to a third party, promised to j^ay them the amount of the beer so supplied, and in support of this statement a written guarantee was put in. This was a variance, since the declaration showed an original liability created, while the evidence merely proved a collateral one, but the court allowed an amendment to be made, by substituting the word "guarantee" for " pay," as the mistake could not under the circumstances have misled the defendants. So, the record has been amended, where the declaration alleged an undertaking by the defendants to carry and deliver certain goods, and the proof was that the undertaking was to forward them;^ — where in an action by the indorsee against the drawer of a bill of exchange, the plaintiff alleged a presentment to the acceptor, but proved that the acceptor was de"ad, and that the bill had been presented to his executor;* — where the holder of a cheque, in suing the maker, alleged in his declaration that he had given due notice of dis- honour, but merely proved at the trial that he had a valid excuse for giving no notice;^ — where, to an action on a bill of exchange. 1 Gurford v. Bayley, 3 I\I. & Gr. 781; 4 Scott, N. R. 398; 1 Dowl. N. S. 519, S. C. See, also, Evans v. Fryer, 10 A. & E. 609; 2 P. «& D. 501, S. C; May. of Carmarthen v. Lewis, 6 C. & P. 608. M A. & E. 61 ; 3 N. & U. 438, S. C. •' Parry «. Fairhurst, 2 C. M. & E. 190; 5 Tyr. 685, S. C. * Caunt V. Thompson, 7 Com. B. 400; 6Dowl. & L. 621, S. C. ^ Jackson v. Carrington, 2 C. & Kir. 750, per Parke, B. In this case the trial was postponed, and the plaintiff had to pay the cost of the day and of the amendment. Whether the variance without amendment would have been fatal, compare Burgh v. Legge, 5 M. & W. 418; Cordery v. Colvin, 14 Com. (3112; ■ CHAP. I.] AMENDMENTS ALLOWED UNDER OLD LAW, 247 the plea averred that the bill was accepted on an agreement that it should be in satisfaction of a large sum lost, in part at hazard, and in part at vingt-iin, and no proof was given of money lost at vingt-un ;' — where a guarantee was alleged in the declaration to have been given in consideration of advances to be made by A., and it appeared by the guarantee that the advances might be made by A., or by any member of his firm ; ^ — where an agreement to grant a lease was stated in the pleadings to have been made between the defendant and the plaintiff, and it appeared at the trial that the real agreement was between the defendant and two other persons, devisees in trust under the will of one Miller of the first part, and the plaintiff of the other part, but that it had been executed by the plaintiff and defendant alone f — where the contract, as alleged in the declaration, was that the defendant should build a room, booth, or building, and fit it up according to certain plans agreed upon, for the sum of 20Z., by the 28th of June, and that proved was, to erect certain seats and tables, to be completed four or five days before the 28th of June, for 25Z., and it did not appear that any plans had been prepared, but the defendant had pleaded non-assumpsit, and that the contract was rescinded by consent ; * — where similar pleas had been pleaded to a declaration, which stated a contract by the defendant to deliver to the plaintiff certain potatoes within a reason- able time, to be paid for on delivery, and the evidence established a contract that the plaintiff should have the potatoes at digging up time, and that he should find diggers ; ^ — where^ in an action on a bond, the penalty was stated in the declaration to be 260/., and it B., N. S. 374 ; S. C, nom. Cordery v. Colville, 32 L. J., C. P. 210 ; Killby v. Eochussen, 18 Com. B., N. S. 357 ; and Woods v. Dean, 32 L. J., Q. B. 1. 1 Cooke V. Stratford, 13 M. & W. 379 ; Masters v. Barrets, 2 C. & Kir. 715. 2 Chapman v. Sutton, 2 Com. B. 634, 644 ; Boyd v. Moyle, id. 644 ; Hassall V. Cole, 18 L. J., Q. B. 257. '^ Boys V. Ansell, 5 Bing. N. C. 390. The court in this case held it un- necessary to consider whether or not the variance was fatal, as it might clearly be amended. See Gregory v. Duff, 13 Q. B. 608. * Ward V. Pearson, 5 M. & W. 16 ; 7 Dowl. 382, S. C. In this case the contract as proved differed from that alleged in the nature of the work to be done, in the time for doing it, and in the price ; yet the court properly held that this was precisely the case which the Act of Parliament was meant to meet. See Jones v. Hutchinson, 10 Com. B. 515. * Sainsbury v. Matthews, 4 M. & W. 343 ; 7 Dowl. 23, S. C. (3113) 248 AMENDMENTS ALLOWED UNDER OLD LAW. [pARI 11. appearea on the face of the instrument to be 200/.;' — where the plaintiff brought his action against a sheriff for an escape, and proved a negligent omission to arrest;^ — where an instrument, declared on as a bill of exchange, appeared by the evidence to be a promissory note;^ and where a note was sot out in the declaration as made by the defendant, dated the 9th of November, 1838, and payable on demand, and the instrument proved at the trial was a joint and several note, made by the defendant and his wife, dated the 6th of November, 1837, and payable twelve months after date.* In this last case, the defendant had pleaded that he did not make the note, and the instrument produced differed from that declared upon, in its date, in the parties to it, and in its duration; but there being no proof of the existence of any other note between the parties, Mr. Baron Alderson expressed his opinion that " this was just the case in which the Legislature intended that the discretionary power of amendment should be exercised." * § 237. Upon the trial of an issue of nul tiel record, — which, be § 183 it remembered, must be determined by the court, and not by a judge and jury," — the court amended the declaration by inserting therein the true date of the judgment recovered.' In Edwards v. Hodges,* a plea of " Not guilty by statute " was amended by insert- ing in the margin an Act which had been omitted; and in Buckland V. Johnson," a plea, not technically proved by the evidence, was amended at Nisi Prius so as to raise the substantial question, with- out the imposition of any costs. In Knowlman v. Bluett,'" the judge at the trial went so far as to 'amend the declaration by in- creasing the demand from 600Z. to 750/., and the court above held 1 Hill V. Salt, 2 C. & M. 420. "" Guest V. Elwes, 5 A-. & E. 148 ; 2 N. & P. 230, S. C. ^ Moilliet V. Powell, 6 C. & P. 233, per Alderson, B. ; Perry v. Fisher, Sp. Ass. for Surrey, 184G, per Lil. Denman, MS. * Beckett v. Button, 7 ]\I. & W. 157 ; 8 Dowl. 865, B. C. ^ Beckett v. Button, 7 M. & W. 158. « Richardson r. Willis, 42 L. J., Ex. 15 ; 12 Cox, 298, S. C. ' Noble V. Chapman, 14 C. B. 400. See also Hunter v. Emmanuel, 15 Com. B. 290, where the true amount recovered was inserted in the declaration. 8 15 Com. B. 477.- ' Id. 145. *" 43 L. .T., Ex. 29 ; 9 Law Rep., Ex. 1, S. C. See Watkins v. Morgan, 6 C. & P. 661. (3114) CHAP. 1.] AMENDMENTS REFUSED UNDER OLD LAW. 249 that he was quite justified in so doing. Again, where an action had been brought against the clerk of a local board of health, the court allowed the proceedings to be amended by substituting the board as defendants, instead of the clerk;' and a similar amendment has been sanctioned, where the board had sued in the name of their clerk in lieu of their own name.^ § 238. The cases in which amendments have been refused under ? 181 the old law will not detain us long, and the more so as tbey furnish no safe guide in interpreting the njore liberal language of the new rules. Indeed, it is clear that very many of the decisions are no longer law. Not the least important case which has been deter- mined on this point is that of Wilkin r. Reed.^ There the declara- tion alleged, that the defendant had fraudulently represented to the plaintiff that the reason why he had dismissed a clerk, whom the plaintiff was about to take into his service, was the decrease in his business, and that the defendant had recommended the plaintiff to try the clerk, and had knowingly suppressed the fact that he had been dismissed on account of dishonesty. At the trial it appeared in evidence, that the plaintift had asked the defendant the cause of the clerk's dismissal, and had been told in reply that it was in consequence of the defendant's business having fallen off; that this answer was true; but that the clerk had been guilty of embezzle- ment while in the defendant's employ, and that the defendant, having been asked no questions respecting the clerk's honesty, had not communicated that fact to the plaintiff. On thit evidence the plaintiff's counsel applied to amend the declaration, by striking out the allegation, that the defendant had fraudulently misrepresented the reason of dismissal, and by substituting for it an averment, that the defendant had fraudulently suppressed the fact that the clerk had been guilty of dishonesty. Mr. Justice Maule, however, who tried the cause, refused to allow the amendment, on the ground that the real question in controversy was not whether the clerk had ' Ld. Bolinbroke v. Townsenu, 8 Law Rep. C. P. 645. ^ Mills V. Scott, 8 Law Rep., Q. B. 496; 42 L. J., Q. B. 2.34, S. C. ' 23 L. J., C. P. 193; 15 Com. B. 192, S. C. See, also, Lucas v. Tarleton, 27 L. J., Ex. 246. (3115) 250 AMENDMENTS REFUSED UNDER OLD LAW. [pART II. been dishonest, or whether his former master had suppressed the fact of his dishonesty, but whether the real cause of his dismissal had been truly stated. The Court of Common Pleas afterwards supported this ruling, and held, first, that it is a matter, not of law, but of fact, what " the real question in controversy between the parties" is; next, that this matter of fact must bo determined, not by the jury, but by the judge on a careful consideration of the pleadings and the evidence; and, lastly, that " the question in con- troversy " is, in other words, the question which both parties really intended to have tried, and not any question which, during the course of the trial, may for the first time be brought into contro- versy by one of the litigants.^ § 239. Though the mere impropriety or harshness of an action ^ 190 ought to have no effect in influencing the decision of the judge,^ the plaintiff has been refused an amendment where the matter sought to be expunged had been purposely and improperly intro- duced by him into the declaration, with the view of creating a pre- judice against the defendant; as, for instance, where a count in libel contained several averments and innuendoes unfairly connecting the plaintiff with parts of the alleged libel, which, in fact, related to other persons.^ Moreover, as the Rules for allowing amend- ments at Nisi Prius are intended to meet variances arising from mere slips or accidents, the judge will be very reluctant to allow an amendment, where the party has intentionally framed his pleading in such a manner as to give rise to the objection.* Neither will a judge amend the record, when it turns out at the trial that the plaintiff has misconceived his remedy, and when he consequently seeks to convert the proceedings into an action of a different character.^ 1 See Eoles v. Davis, 4 H. &N. 184. 2 Doe V. Edwards, 1 M. & Rob. 321, per Parke, B.; Doe v. Leach, 3 M. & Gr. 230. See Brennan v. Howard, 1 H. & N. 138. ^ Prudhomme v. Eraser, 1 M. & Rob. 435, per Ld. Denman. * Bowers v. Nixon, 2 C. & K. 372, per Maule, J.; Clowes v. Hilliard, L. R., 4 Ch. D. 115, per Jessel, M. R. But see Whitwill v. Scheer, 8 A. & E. 301; 3 N. & P. 3!)1, S. C, cited ante, ? 234. * Jacobs V. Seward, 5 Law Rep., H. L. 464. (3116) CHAP. I.] AMENDMENTS REFUSED UNDER OLD LAW. 251 § 240. The court has also refused to amend at Nisi Prius, where § 193 it appeared likely that the variance had prevented the defendant from pleading a good bar to the action/ or where the amendment proposed would in all probability have caused the defendant either to demur,^ or to plead different pleas from those on the record/ or would have introduced an entirely new contract and new breach,* or, perhaps even, any entirely new matter.^ Thus, in an action of covenant by the assignee of the reversion against the lessee, the declaration, in deducing title to the plaintiff, set out a deed, whereby the premises were appointed to him. The defendant traversed the appointment, and the deed, on its production, was found to be nugatory as an appointment, not being executed in pursuance of the power. The plaintiff thereupon sought to amend his declara- tion by setting out the deed at length, and by averring that a relationship existed between the parties, so as to raise a covenant to stand seized to uses; but the court considered that the case was much too complicated for an amendment to be made at Nisi Prius. If the declaration had thereby been rendered good, the defendant might have put on the record different pleas from those before pleaded; but if not, then she might have demurred.'' So, in an action on the case for diverting a stream of water, to which the plaintiff claimed a right as the possessor of a mill, when, in fact, he was entitled to it as the owner of the adjoining lands, the court considered that the declaration ought not to be amended, as the defendant had traversed the plaintiff's right in respect of the mill, and might have pleaded differently had the declaration claimed the right in respect to the land.^ * Ivey V. Young, 1 M. & Rob. 545, per Alderson, B. 2 Evans v. Powis, 1 Ex. E. 601; Bury v. Blogg, 12 Q. B. 877; Martyn v. Wil- liams, 26 L. J., Ex. 117; 1 H. & N. 817, S. C. ^ Perry v. Watts, 3 M. & Gr. 775, explained in Gurford v. Bajdcy, id. 784, 785; Frankum v. Ld. Falmouth 6 C. & P. 529; 2 A. & E. 452, S. C. * Brashier v. Jackson, 6 M. & W. 549; 8 Dowl. 784, S. C; Boucher v. Mur- ray, 6 Q. B. 362; Richards v. Bluck, 6 Dowl. & L. 325; 6 Com. B. 437, S. C; Moncrieff v. Reade, 2 C. & Kir. 705. * David V. Preece, 5 Q. B. 440. See Gull v. Lindsay, 4 Ex. R. 45; and Ad- dington v. Magan, 10 Com. B. 576. •* Perry t\ Watts, 3 M. & Gr. 775, explained by Maule, J., in Gurford v. Bayley, id. 784, 785. ^ Frankum v. Ld. Falmouth, 6 C. & P. 529; 2 A. & E. 452; 4 N. & M. 330, S. C. (3117) 252 ADDING PLEAS AT TRIAL. [PART II. § 241. Independent of actual decisions little doubt can be now § 182 entertained that the judge may allow a plea to be added at the trial, whenever it is necessary for the purpose of placing on the record the real question in dispute.' It often happens, as was once observed by Mr. Justice Maule, that in consequence either of imperfect in- structions given to the pleader, or of ignorance, or of oversight, the substantial point intended by the parties to be tried is not raised by the pleadings; " and when this occurs it would be obviously unjust to refuse an amendment. It would seem, however, not to be im- perative on the court to allow a plea to be substituted after issue joined, even though the application be made prior to the trial, and though it be supported by an affidavit that the real question in con- troversy between the parties can only be raised on the record by the introduction of the proposed plea.^ The case in which this point was ruled was an action for money lent, to which the defendant had pleaded that he was "never indebted." After issue joined he applied to the court for leave to substitute a plea, which set up as a deience that the loan was contracted for an illegal purpose, and he swore that the real point in dispute was whether the plaintiff was debarred fi'om recovering on the ground of the illegality. In support of the motion the defendant contended that he was entitled as of right to the rule as prayed, for the Act then in force * expressly stated that all amendments necessary for determining the real question in controversy ^' shall be so made." Notwithstanding this argument the rule was refused. § 242. It remains to notice a few practical points which have been § 197 decided respecting the operation of the earlier Statutes. And, first, it has been held that an amendment at Nisi Prius must be made, if at all, during the trial and before the verdict;^ unless, indeed, the opposite party waives his right to enforce this amount of strictness, in which case it will suffice if the amendment be made within the time allowed for moving, provided it ultimately agrees with the judge's 1 Mitchell V. Crassweller, 13 Com. B. 237. 2 Wilkin V. Reed, 23 L. J., C. P. 195, 197; 15 Com. B. 205, S. C. 3 Kitchie v. Van Gelder, 9 Ex. R. 762. * 15 & 16 v., c. 76, I 222. ^ Brasliier v. Jackson, 6 M. & W. 549; 8 Dowl. 784, S. C; Doe v. Long, 9 C. & P. 777, per Coleridge, J. (3118) CHAP. I.] COSTS OP AMENDMENTS. 253 note ; ^ secondly, it must be allowed by the presiding judge, who, it seems, may be the sheriff or his officer; " thirdly, when, in consequence of an amendment being allowed in a declaration, some alteration becomes necessary in the plea, the court will direct this also to be made, should the counsel for the defendant decline to interfere or to amend the pleadings himself ; ^ and, fourthly, the court will not control the discretion of the judge either in refusing* or allowing'^ an amendment to be made, imless upon clear proof that he was wrong, or, at least, unless it be shown, by affidavit, that the defen- dant has been prejudiced by the amendment. In all these cases, if both parties consent, a larger power may be exercised, either by the judge at Nisi Prius, by the person substituted in his stead, or by the court above. ^ § 243. With respect to costs, it is difficult to lay down any dis- g 19,^ tinct rule, as each case must, in a great degree, depend upon its own particular circumstances ; still it may be advanced as a safe proposition, that the court will not allow any additional expense to be thrown upon the opposite party by reason of any amendment.' Thus, if the defendant has put pleas on the record, the proof of which will be rendered unnecessary by the alteration proposed, or has summoned witnesses, whom it will become needless to call, or has otherwise been at any bona fide expense in preparing to dis- prove the original allegations, the plaintiff will be permitted to amend on payment of the costs occasioned by his error ; and if it appear probable that the defendant, in consequence of the amend- ment, will require to alter his pleas, or to summon other witnesses, the trial will at least be postponed, and the plaintiff be obliged to ^ Jones V. Hutchinson, 10 Com. B. 515. 2 Hill V. Salt, 2 C. & M. 420 ; 4 Tyr. 271, S. C. See 30 & 31 V., c. 142, | 6. ^ Perry v. Fisher, Sp. Ass. Surrey, 1846, per Lcl. Denman, IMS. * Doe V. Errington, 1 A. & E. 750 ; 3 N. & M. 646 ; 1 M. & Rob. 344, n., S. C. ; Jenkins i\ Phillips, 9 C. & P. 768, per Coleridge, J. ; Whitwill v. Scheer, 8 A. & E. 309, per Patteson, J. ; Holden v, Ballaatyne, 29 L. J., Q. B. H8. See Lucas ('. Beale, 10 Com. B. 739 J Brennan v. Howard, 1 H. «& N. 138; 25 L. J., Ex. 290, S. C. ^ Sainshnry v. Matthews, 4 M. & W. 347, per Ld. Abinger. 8 Parry v. Fairhurst, 2 C. M. & E. 190; 5 Tyr. 685, S. C, noticed by Patteson. J., in Guest v. Elwes, 5 A. & E. 126 ; Roberts v. Snell, 1 M. & Gr. 577 ; Brashier v. Jackson, 6 M. & W. 558. ' Smith V. Brandram, 2 M. & Gr. 250, per Tindal, C. J (3119) 254 EXTENT OF APPLICATION OF RULES AS TO AMENDMENTS. [PART II. pay the costs of the postponement. In cases where jthe variance cannot have misled the opposite party, the amendment will be allowed without the payment of any costs.' § 244. Although the judge at Nisi Prius has a discretionary g 199 power of awarding or refusing costs in the event of an amendment, the court will take care that no injustice is done by his accidentally omitting to give directions on the subject ; and, therefore, when an order has been obtained by the plaintiff, enabling him to withdraw the record and amend the declaration, but no mention was made respecting the costs ; the court held that, as the variance had been corrected for the benefit of the plaintiff, he was bound to liquidate the defendant's costs of the day.^ § 245. It has already been stated' that the Rules respecting Amendments, as set out in § 225, — unlike many of the Rules of 18S3, — " apply to all civil proceedings on the Crown side of the Queen's Bench Division, including mandamus and prohibition, and also to quo warranto, and to all proceedings on the Revenue side of the said Division." * They further apply to the High Court exercising jurisdiction in Bankruptcy, which now forms part of the Supreme Court,^ and to such of the County Courts as have bankruptcy jurisdiction.*^ They are also applicable to Admiralty actions, and to Probate actions ; but they do not affect the procedure or practice, either in criminal proceedings, or in proceedings for Divorce or other Matrimonial Causes.^ In the Divorce Court the only material rule respecting the amendment of pleadings was promulgated in 1875, and is thus expressed : — " Either of the parties before the court desiring to alter or amend a pleading may apply by summons to one of the registrars for an order for that purpose." * § 246. Large powers of amendment are granted to the County ? 200 ' St. Losky I'. Green, 30 L. J., C. P. 19 ; 9 Com. B., N. S. 370, S. C. 2 Skinner v. Lond. & Brigh. Ry. Co., 1 L. M. & P. 189 ; 4 Ex. R. 885, S. C. » Ante, |22lA. * Ord. Ixviii. R. 2. » 46 & 47 v., c. 52, § 93. « 46 & 47 V., c. 52, § 100. ' Ord. Ixviii. R. 1. 8 Rules in Div. & Mat. Causes, R. 187. See also RR. 35—37. (3120) CHAP. I.] AMENDMENTS IN COUNTY CTS. — IN CIVIL BILL CTS. 255 Courts, when errors have been committed with respect to the names, descriptions, numbers, or representative characters of the plaintiffs and defendants ;^ and, in addition to these powers, it is provided by § 57 of the Act of 19 & 20 V., c. 108, that "the judge of a County Court may at all times amend all defects and errors in any pro- ceeding in such court, whether there is anything in writing to amend by or not, and whether the defect or error be that of the party applying to amend or not ; and all such amendments may be made with or without costs, and upon such terms as to the judge may seem fit ; and all such amendments as may be necessary for the purpose of determining in the existing suit the real question in controversy between the parties shall be so made, if duly applied for." Still, if the particulars of the plaintifP's claim do not disclose a case within the jurisdiction of County Court, the judge has no power to amend them, so as to turn the complaint into one over which he has cognisance.^ § 247. The Civil Bill Courts in Ireland are intruste(f with § 201 similar powers of making amendments by the Act of 14 & 15 V., c. 57, which in § 106 enacts, that " it shall and may be lawful for the several assistant barristers, and judges on appeal, and they are hereby respectively empowered, in all cases, to amend all variances between the statement of the cause of action in any civil bill, or other process or proceeding in their respective civil bill courts, and the evidence in support of such cause of action, and also to amend all variances, omissions, and misdescriptions in the descriptions, additions, and residence of the parties, or any of them, or other- wise howsoever, of or in any such process, or between the original and any copy or copies thereof, provided such last-mentioned variances, omissions, or misdescriptions shall not, in the opinion of the assistant barrister, be calculated to mislead the defendant or defendants therein ; and in every case of any misjoinder of parties or causes of action, it shall and may be lawful for every assistant barrister to strike out of the process the name or names of any one ^ See Cy. Ct. Rules, 1875, 1876, Ord. xvii., r. 21. See Mills v. Scott, 8 Law Rep., Q. B. 496, cited ante, § 237. '' Hopper V. Warburton, 32 L. J., Q. B. 104, per Mellor, J., in B. Ct. (3121) 256 AMENDMENTS IN CRIMINAL PROCEEDINGS. [PAKT II. or more plaintiffs or defendants, or any count or counts in such process, by reason of whom or which such misjoinder shall arise, and thereupon to proceed therein as to justice shall appertain.'" § 248. The only statute which, prior to the year 1848, aiithorised § 202 the amendment of any variances in criminal cases was 9 G. 4, c. 15 ;" and that Act, which was confined to variances appearing between any matter in writing or in print produced in evidence, and the recital thereof upon the record,^ merely applied to misde- meanors, and then only to cases where the indictment or informa- tion was preferred before a court of oyer and terminer and general gaol delivery.'^ In 1848, however, more liberal views being enter- tained by the Legislature, the provisions of that Act were extended to all offences whatever;^ and, in the following year, similar powers ' Further powers of amendment are givin to the Civil Bill Cts., and to the "judge of assize on appeal," by 27 & 28 V., c. 99, | 48, Ir. •^ See ante, ^ 220. ■^ See . R. V. Cooke, 7 C. & P. 559 ; R. v. Hewins, 9 C. & P. 786 ; R. v. Christian, C. & Marsh. 388. * This Act, — after reciting that "great expense is often incurred, and delay or failure of justice takes place at trials, by reason of variances between writings produced in evidence and the recital or setting forth thereof upon the record on which the trial is had, in matters not material to the meriis of the case, and such record cannot now, in any case, be amended at the trial, and in some cases cannot be amended at any time:" — for remedy thereof, enacts, that "it shall be lawful for every court of oyer and terminer, and general gaol delivery in England, Wales, Berwick-upon-Tweed, and Ireland, if such coiirt shall see fit so to do, to cause the record on which any trial may be pending before any such court in any indictment or information for any misdemeanor, when any variance shall appear between any matter in writing or in print produced in evidence, and the recital or setting forth thereof upon the record whereon the trial is pending, to be forthwith amended in such particular by some oflScer of the court, on payment of such costs (if any), to the other party, as such court shall think reasonable ; and thereupon the trial shall proceed as if no such variance had appeared ; and thereupon the papers, ^olls, and other records of the court shall be amended accordingly." ^ 11 & 12 v., c. 46, I 4, which,— following the language of the Act of G. 4, as cited in last note, — enacts, "that it shall and maybe lawful for any court of oyer and terminer and general gaol delivery, if such court shall see fit so to do, to cause the indictment or information for any offence whatever, when any variance or variances shall appear between any matter in writing or in print produced in evidence, and the recital or setting forth thereof in the indictment or inf irmation whereon the trial is pending, to be forthwith amended in such particular or particulars by some officer of the court, and after such amend- (3122) CHAP. I.] LORD Campbell's criminal act of 1851. 257 of amendment were conferred on all courts of general or quarter sessions in England.' These alterations in the law were no doubt steps in the right direction, but still they were found to afford a very ineflPectual remedy for the evil complained of; and conse- quently, in 1851, the interposition of Parliament was again invoked by Lord Campbell, and an Act was at length passed," which has placed criminal proceedings ^ on nearly the same footing with civil actions, in respect to the amendment of variances between the record and the proof. § 249. After reciting that " a failure of justice often takes place ^ 203 on the trial of persons charged with felony and misdemeanor, by reason of variances between the statement in the indictment on which the trial is had, and the proof of names, dates, matters, and circumstances therein mentioned, not material to the merits of the case, and by the mis-statement whereof the person on tiial cannot have been prejudiced in his defence; " — the statute proceeds to enact, in § 1, that " whenever, on the trial of any indictment for any felony or misdemeanor, there shall appear to be any variance between the statement in such indictment and the evidence offered in proof thereof, in the name of any county, riding, division, city, borough, town corporate, parish, townshij), or place mentioned or described in any such indictment, — or in the name or description of any person or persons, or body politic or corporate, therein stated or alleged to be the owner or owners of any property, real or per- sonal, which shall form the subject of any offence charged therein, — or in the name or description of any person or persons, body politic or corporate, therein stated or alleged to be injured or damaged or intended to be injured or damaged by the commission of such offence, — or in the Christian name or surname, or both Christian name and surname, or other description whatsoever, of ment the trial shall proceed in the same manner in all respects, both with regard to the liability of witnesses to be indicted for perjury and otherwise, as if no such A^ariance or variances had appeared." ^ 12 & 13 v., c. 45, I 10. Cts. of Quart. Sess. in Irel. have large jwwers of amendment by 27 & 28 V., c. 99, Ir. " 14 & 15 V., c. 100. * The Inferior Courts in Scotland have now, under "The Summary Pro- cedure Act, 1864," 27 & 28 V., c. 53, ^5, large powers of amending complaints before them with respect to variances and other defects. ■ 17 LAW OF EVID. — V. I. (3123) 258 LORD Campbell's criminal act of 1851. [part ii. any person or persons whomsoever therein named or described, — or in the name or descriptio)i, of any matter or thing tchatsoever herein named or described, — or in the ownership of any property named or described therein, — it shall and may be lawful for the court before which the trial shall be had, if it shall consider such variance not material to the merits of the case, and that the defen- dant cannot be prejudiced thereby in his defence on such merits, to order such indictment to be amended, according to the proof, by i3ome officer of the court or other person, both in that part of the indictment where such variance occurs, and in every other part of the indictment which it may become necessary to amend, on such terms as to postponing the trial to be had before the same or another jury, as such court shall think reasonable; and after any such amendment the trial shall proceed, whenever the same shall be proceeded with, in the same manner in all respects, and with the same consequences, both with respect to the liability of wit- nesses to be indicted for perjury and otherwise, as if no such variance had occurred; and in case such trial shall be had at Nisi Prius, the order for the amendment shall be indorsed on the postea, and returned together with the record, and thereupon such papers, rolls, or other records of the court from which such record issued, as it may be necessary to amend, shall be amended accordingly by the proper officer; and in all other cases the order for the amend- ment shall either be indorsed on the indictment, or shall be engrossed on parchment, and filed, together with the indictment, among the records of the court." § 250. The Act then contains a proviso, " that, in all such cases » 204 where the trial shall be so postponed as aforesaid, it shall be lawful for such court to respite the recognisances of the prosecutor and witnesses, and of the defendant, and his surety or sureties, if any, accordingly; in which case the prosecutor and witnesses shall be bound to attend to prosecute and give evidence respectively, and the defendant shall be bound to attend to be tried, at the time and place to which such trial shall be postponed, without entering into any fresh recognisances for that purpose, in such and the same manner as if they were originally bound by their recognisances to appear and prosecute or give evidence at the time and place to (3124) CHAP. 1.] AMENDMENTS IN CRIMINAL PROCEEDINGS. 259 with such trial shall have been so postponed ;" and a further proviso directs, "that, where any such trial shall be to be had before another jury, the Crown and the defendant shall respectively be entitled to the same challenges, as they were respectively entitled to before the first jury was sworn." § 251. The second section enacts, ex majori cautela, that " every ^ 205 verdict and judgment, which shall be given after the making of any amendment under the provisions of this Act, shall be of the same force and effect in all respects, as if the indictment had originally been in the same form in wbich it was after such amendment was made;" while § 3 provides, that, "if it shall become necessary at any time for any purpose whatsoever to draw up a formal record, in any case where any amendment shall have been made under the provisions of this Act, such record shall be drawn up in the form in which the indictment was after such amendment was made, without taking any notice of the fact of such amendment having been made." ' § 252. Under these salutary provisions it has been held, that an ^ 206 indictment charging the defendant with having obstructed a footway may be amended, when one of the termini of the way has been misdescribed, provided the variance be not calculated to prejudice the defence;^ — that an amendment may be made when the owner- ship of stolen property,^ or the stolen property itself,* is wrongly described; — that the misnomer of a party injured may be rectified;* — that the misdescription of any persons described in the indictment may be set right; "^ — that an erroneous date ascribed to the passing of a statute may be struck out ;' — that where an indictment for perjury alleged that the crime was committed on atrial for burning a barn, and it was proved that the actual charge was one of firing a ^ See further as to the amendment of formal defects in indictment, | 25 of the Act, cited post, | 2 80, n.\ , ^ E. v. Sturge, 3 E. & B. 734. ^ R. V. Vincent, 2 Den. 464; R. v. Fullarton, 6 Cox, 194. * R. V. Gumble, 42 L. J., M. C. 7 ; 2 Law Rep., C. C. 1 ; 12 Cox, 248, S. C. 5 R. V. Welton, 9 Cox, 297. « R. V. Western, 37 L. J., M. C. 81 ; 1 Law Rep., C. C. 122; 11 Cox, 93, S. C. ' R. V. Westley, Bell, C. C. 193. (3125) 260 AMENDMENTS IN CRIMINAL PROCEEDINGS. [PART 11. stack, the court had power to amend the variance; ' — and that it is not too late to apply for an amendment, even though the counsel for the prisoner may have addressed the jury.^ This last case is important, as it overrules a mischievous decision by "Williams, J., to the effect that an application to amend must at latest be made before the case for the prosecution is closed.^ It seems that, in general, the court will not amend an indictment after plea, if, in its amended form, it would be open to a demurrer.* Neither can an amendment be made after verdict.^ Nor will the coiirt amend an amendment, or restore an indictment, once amended, to its original form/' Where a prisoner was indicted for a statutable forgery, but the evidence only sustained a forgery at common law, Mr. Justice Hill declined to amend the indictment by striking out the word " feloniously," and thus converting a charge of felony into one of misdemeanor.' § 253. Although Lord Campbell's Act has now been in operation ^ 907 for thirty-three years, the decisions under it scarcely justify the expression of any confident opinion as to the amount of liberality with which its language will eventually be construed by the courts. The narrow rules of interpretation, which have been promulgated by one or two of the judges with reference to the prior statute, 9 G. 4, c. 15,^ are calculated to excite a reasonable fear lest an equally strict construction should be applied to the amendment cLauses of this act ; but, on the other hand, it cannot be denied that the subject is now far better understood than it formerly was, and that even judges are beginning to discover that 1 R. V. Neville, 6 Cox, 69, per Williams, J.; R. v. Tymms, 11 Cox, G45, per Lush, J. ^ R. V. FuUarton, 6 Cox, 194, per Lefroy, C. J., and Monahan, C. J. =* R. V. Rymes, 3 C. & Kir. 326. * R. V. Lallement, 6 Cox, 204. Sed qu. The case, as reported, is not satisfactory. ^ R. V. Larkin, G Cox, 377 ; R. v. Frost, Pearce & D. 474 ; 24 L. J., M. C. 116, S. C. 8 R. V. Barnes, 1 Law Rep., C. C. 45; 35 L. J., M. C. 204 ; R. v. Pritchard, 30 L. J., M. C. 169; L. & Cave, 34, S. C; R. r. Webster, L. & Cave, 77. ^ R. V. Wright, 2 Post. & Pin. 320. * R. V. Cooke, 7 C. & P. 556, per Patteson, J. ; R. v. Hewins, 9 C. & P. 786, per Coleridge, J. (3126) CHAP. I.] DREAD OF AMENDING INDICTMENTS ERRONEOUS. 261 substantial justice is of more real importance than mere technical precision. Wise men should ever bear in mind, that the object of the Acts which authorise amendments in criminal proceedings, is to render punishment more certain, by neutralising the effect of trivial variances, which have constantly protected the wrong doer. So long as the least rational doubt exists respecting the guilt of a prisoner, it is only fair that the ample shield of justice should screen him from injury ; that juries should weigh with jealousy the evidence against him ; and that judges should see most clearly that the act, with which he is charged, is an offence against the law. But when courts of justice go further than this, and permit the law to be defeated by technical eiTors, which cannot by pos- sibility mislead a defendant, and which have nothing to do with the substantial merits of the case, they take the most effectual means of rendering the administration of the criminal law a fitting subject for contempt and ridicule. In civil causes, the Rules authorising amend- ments receive a liberal construction, and properly so.' Why, then, should an absurdly strict construction be applied in criminal courts ? The statutes themselves warrant no such distinction, and to intro- duce into the interpretation of them the old doctrine " strictissimi juris," is to misunderstand and misapply the meaning of that doctrine, and to make the commandments of the Legislature of none effect through your traditions. § 254. Having now drawn attention to the Rules and the Acts § 208 which authorise amendments to be made, whether in civil or criminal proceedings, and having also examined the leading cases that have been decided under them, it will be expedient briefly to notice some general rules which regulate the law of variance; because, although a discrepancy between the allegation and the proof is not, as formerly, fatal, provided that it be not material to the 1 The language of Ld. Mansfield in Bristow v. Wright, 2 Doug. GGfi, should never be forgotten. " I am very free to own," said his Lordship, "that the strong bias of my mind has always leaned to prevent the manifest justice of a cause from being defeated or delayed by formal slips, which arise from the inadvertence of gentlemen of the profession ; because it is extremely hard on the party to be turned round, and put to expense, from mieh mistakes of the counsel or attorney he employs. It is hard, also, on the prt^ession. ' ' (3127) 262 VARIANCE — SURPLUSAGE NEED NOT BE PROVED. [PART II. substantial merits, yet it may still entail considerable expense on the party, who is di'iven to apply for an amendment. It is there- fore important to ascertain, upon what occasions the opposite party is entitled to object, that the substance of the issue has not been proved. § 255.' The first rule in connexion with this subject is, that ^ 200 surplusage need not be proved, and the proof, if offered, should be rejected. The term surplusage comprehends whatever i-nay be stricken from the record without destroying the right of action, or the charge, on the one hand, or the defence on the other. This, it is true, is a loose, and therefore an unsatisfactory, definition ; but it is difficult, not to say impossible, to find one more distinct and practical. Each case must, in a great measure, depend on its own particular circumstances, and the best means of ascertaining what will, or will not, amount to surplusage, is by examining the decisions on this subject. The case of Williamson v. Allison,^ is a leading authority. That was a declaration in tort, for breach of a warranty that some claret was in a fit state to be exported to India, whereas it was at the time, and the defendant tcell knew that it was, in a very unfit state. At the trial no evidence was given of the defendant's knowledge, and the verdict being for the plaintiff, a motion was made for a new trial, on the ground that the scienter, having been alleged, ought to have been proved ; but the court were unanimously of opinion that the allegation of the scienter was wholly unnecessary and immaterial, and therefore required no proof. The grounds for this decision are explained with great clearness by Lord Ellenborough in pronouncing his judgment. " If," said his Lordship, " the whole averment re- specting the defendant's knowledge of the unfitness of the wine for exportation were struck out, the declaration would still be sufficient to entitle the plaintiff to recover upon the breach of the warranty proved. For, if one man lull another into security as to the goodness of a commodity, by giving him a warranty of it, ^ Gr. Ev., § 51, in part. ^ 2 East, 446 ; cited by Ld. Abinger in Cornfoot r. Fowke, G M. «Sc W. 377. (3128) CHAP. I.] INSTANCES OF SURPLUSAGE. 263 it is the same thing whether or not the seller knew it at the time to be unfit for sale; the warranty is the thing which deceives the buyer, who relies on it, and is thereby put off his guard. Then, if the warranty be the material averment, it is sufficient to prove that broken to establish the deceit." Mr. Justice Lawrence added, "■ I take the rule to be, that if the whole of an averment may be struck out without destroying the plaintiff's right of action, it is not necessary to prove it; but otherwise, if the whole cannot be struck out without getting rid of a part essential to the cause of action; for then, although the averment be more par- ticular than it need have been, the whole must be proved, or the plaintiff cannot recover."' § 256." So, in an action for removing earth from the defendant's ^ r,,^ land, whereby the foundation of the plaintiff's house was injured, the allegation of bad intent in the defendant need not be proved, for the cause of action is perfect, independent of the intention.^ So, in an action for impounding cattle in an unfit pound, an averment that the pound was "at all times unfit, as the defendant well knew," may be rejected as immaterial, and consequently it requires no proof.* Again, if a declaration discloses a state of facta upon which an action may be maintained, although the defendant has not been guilty of malice or fraud, the plaintiff is not bound to prove either, notwithstanding both be alleged, and he may recover upon the liability which the facts disclose, though both fraud and malice be actually disproved.^ In an action, too, against a common carrier for the loss of property intrusted to him, negligence, though averred, need not be proved.® So, also, in trespass, for driving against the plaintiff's cart, an averment that he was in the cart is immaterial.^ ' 2 East, 451, 452. See, also, Jackson v. Allaway, 6 M. & Gr. 942; 7 Scott, N. R. 875, S. C; Att.-Gen. v. Clerc, 12 M. & W. 640; Tempest v. Kilner, 2 Com. B. 300; Anderson v. Thornton, 8 Ex. R. 425; Thorn, v. Bigland, id. 725; Southall v. Rigg, and Forman v. Wright, 11 Com. B. 481. ^ Gr. Ev., § 64, as to the first four lines. 3 Panton v. Holland, 17 Johns. 92; Twiss v. Baldwin, 9 Conn. 291. * Bignell v. Clarke, 5 H. & N. 485. 5 Swinfen v. Lord Chelmsford, 5 H. & N. 890, 920, 921. « Richards v. Lond. & South Coast Ry. Co., 7 Com. B. 839. See ante, § 187. ^ Howard v. Peete, 2 Chit. R. 315. (3129) 264 INSTANCES OF SURPLUSAGE. [PART II. In like manner, where a declaration, — after alleging that the plaintiff was possessed of a pond, and the defendant was possessed of an adjoining close, used as a private road, — averred that the defendant wrongfully cut in his close, tised as a private road, a certain large sewer, and thereby diverted the water from the pond, the court held that the words marked in italics were clearly immaterial, and that the plaintiff might recover damages, though it appeared that the sewer was cut previously to the construction of the road. "What," said Chief Justice Tindal, "has it to do with the wrongful act of the defendant, or the measure of damages which the plaintiff is entitled to claim, whether the defendant used his close as a road, an orchard, or a garden?"^ § 258. In an action, too, by a servant against his masters for I 211 the breach of a contract of hiring, where the declaration charged the defendants with having wrongfully and without reasonable or probable cause dismissed the plaintifF, and the plea alleged that they did not ivrongfuUy and ivithout reasonable or probable cause dismiss him, the court held that the fact of the dismissal was alone put in issue.' So, where a defendant, while traversing in terms the plaintiff's declaration, had averred in his plea that he did not ivrongfully maintain a weir at an improper height, he was not allowed to prove that such maintenance was rightful, for that would have been tantamount to giving matter of confession and avoidance in evidence under a simple traverse.* So, where a girl of ten years old, by her prochein ami, sued a surgeon in case, and the declara- tion stated that she had employed him to cure her, and then claimed damages for misfeasance, the court held that there was no material variance between the allegation and the proof, though the defendant 1 Dukes V. Gostling, 1 Bing. N. C. 588, 593. ■^ Powell V. Bradbury, 7 Com. B. 201. See, however. Lush v. Eussell, 1 L. M. & P. 369, 374, 375; 5 Ex. R. 203, 209, 210, S. C, where this case is denied to be law, and it is laid down that "if a traverse, instead of being in a general form, puts in issue an immaterial part in exprc&s terms, that must be disposed of by the jury, and, generally speaking, according to the terms of the issue." See Smith v. Lovell, 10 Com. B. 6, 23, 24; and Hortou v. M'Murtry, 29 L. J., Ex. 265; 5 H. & N. 667, S. C. "Keller v. Blood, 13 Ir. Law E., N. S. 19, per Ex. Ch., affirming S. C. reported 11 Ir. Law R., N. S. 132. (3130) CHAP. I.] INSTANCES OF SURPLUSAGE. 265 had traversed the statement that the plaintiff had employed him, and it appeared that he had, in reality, been sent for by the mother, and paid by the father, of the child; for either the fact of the girl having allowed him to operate was evidence that she had employed him, and that he had accepted the employment, or, — the substance of the issue being, that he was employed to cure his patient, — it was immaterial hy ichom he was employed, and the statement that he was employed by the plaintiff might be struck out of the pleadings/ § 259. Again, if a bill be accepted payable at a particular place, | 212 without stating it to be payable there only, it is no variance, in an action against the acceptor, to declare upon it as payable at that place, though such an acceptance is declared by the Legislature to be, for all intents and purposes, a general acceptance;" for a general acceptance, being an engagement to pay anywhere, must include, amongst others, the particular place mentioned in the declaration; and it does not lie in the defendant's mouth to say that the bill was not payable at that place, when he has himself referred the parties there for payment.^ So, in an action on a promissory note, where the declaration stated that the defendant made it, " his own proper hand being thereunto subscribed," but it appeared that the nolo was, in fact, drawn by his son, with his authority; Lord Tenterden held that this was no variance, as the allegation respecting the defendant's handwriting might be rejected as surplusage.* So, also, in action by an indorsee against the drawer or indorser of a 1 Glad well v. Steggall, 5 Bing. N. C. 733; 8 Scott, 60, S. C. Mo & 46 v., c. 61, I 19. * Blake v. Beaumont, 4 M. & Gr. 7, 10. It will be seen that this case depends rather on the doctrine or estoppel, than on that of variance. * Booth V. Grove, M. & M. 182; 3 C. & P. 335, S. C. This case is probably correct law, though, on one occasion, where the declaration contained similar words, with respect to an indorsement which turned out to have been made by procuration, Ld. Ellenborough directed a nonsuit, Levy v. Wilson, 5 Esp. 179. In Helmsley v. Loader, 2 Camp. 450, the same learned judge, however, under precisely similar circumstances, would not allow the defendant to raise the objection, he having promised to pay, with a knowledge of all the facts; and his lordship was inclined to think that, even independently of the promise, it was enough to show that the defendant's name was written by an authorised agent. Levy v. Wilson may therefore be considered as overruled. (3131) 266 NEEDLESS AVERMENT — NEEDLESS PARTICULARITY. [PAET II. bill for default of paymeut, an allegation of acceptance need not be proved,' except in the case of a bill payable after sight. So, where the holder of a bill averred, as an excuse for not giving notice of dishonour to the drawer, that the latter had no funds in the acceptor's hands, and had sustained no damage from want of notice, this last negative averment was held to be immaterial, though the defendant had pleaded that he had sustained damage, because the acceptor had promised him to provide for the bill." § 260. In an action on a promissory note brought by the indorsee g 212 against the maker, the defendant pleaded that he delivered the note to the indorser to enable him to take up a former accommodation note, and that after the note declared on became due, he paid the amount to the plaintiff. On a replication de injuria to this plea, the court held that the averment introductory to the payment of the last mentioned note might be rejected as surplusage, and need not be proved. It amounted, in fact, to a mere unnecessary statement of the motive which, induced the defendant to give the note. Mr Justice Coleridge observed : " The distinction is between an aver- ment, the whole of which can be got rid of without injury to the plea, and an averment of circumstances essential to the defence, which are stated with needless particularity. In the latter case the whole averment must be proved as pleaded. In the former case, in civil or criminal proceedings, the whole may be considered as struck out, and therefore need not be proved." ^ § 261. The distinction here pointed out may be well illustrated ^ 213 by the case of Bristow v. Wright.* That was an action on the case against a sherifP, for taking the tenant's goods in execution without satisfying the landlord for a year's rent; and the plaintiff averred ' Tannery. Beau, 4 B. & C. 312; 6 D. & R. 338, S. C; overruling Jones v. Morgan, 2 Camp. 474. ^ Fitzgerald v. Williams, 6 Bing. N. C. 68. ' Shearm v. Burnard, 10 A. & E. 593, 596; 2 P. & D. 565, S. C. See, also, Noden v. Johnson, 16 Q. B. 218, 226, 227, per Patteson, J. * 2 Doug. 665; 1 Smith, L. C. 570, S C; explained and confirmed by Buller, J., in Peppin v. Solomons, 5 T. E. 497, 498; and by Ld. Ellenborough in Williamson v. Allison, 2 East, 450. See, also. Savage v. Smith, 2 W. Bl. 1101; Hoar V. Mill, 4 M. & Sel. 470. (3132) CHAP. I.] NEEDLESS AVERMENT — NEEBLEjBS PARTTCULARTTY. 267 that the rent was reserved quarterly, whereas it turned out to be reserved yearly. There, had the whole averment as to the reservai- tion of the rent been struck out, the plaintiff could not have main- tained his action, because some rent must necessarily have been averred to be due ; and therefore, though the plaintiff need not have stated in which manner the rent was reserved, yet, as he had chosen to do so, the defendant was held entitled to avail himself of the defect of proof in that particular. So, if in justifying the taking of cattle damage feasant, in which case it is sufficient to allege that they were doing damage in the defendant's freehold, he should needlessly state a seisin in fee, which is traversed, the precise estate which he has set forth becomes an essentially descriptive allegation, and must be proved as alleged.' § 262. Upon the same ground it was held, prior to the Act of ? 213 14 & 15 v., c. 100, that if a person were indicted for stealing a live fowl he could not be convicted upon evidence showing that he had stolen a dead one ;" and the allegation of the colour of an animal, though wholly unnecessary, was, as a matter of description, obliged to be proved as laid.^ So, where an indictment for bigamy described the second wife as a widow, when in fact she had never been mar- ried, the misdescription was held fatal, though it was unnecessary to have stated more than her name ;* and where a crime, alleged to have taken place "at A., in the county of B., within five hundred yards of the boundary of D., to wit at C, in the county of D.," was proved to have been committed in D., the prisoner was acquitted, Mr. Justice Crompton observing, "If you choose to go out of your way to make a special averment, and to allege a particular place in ^ Leke's case, Dyer, 365 ; Turner v. Eyles, 3 B. & P. 456 ; E. v. Dendy, 1 E. & B. 835, per Cromijtou, J. ^ R. V. Edwards, R. & R. 497. Holroyd, J., there observed, that an indict- ment for stealing a dead animal should state that it was dead ; for upon a general statement that a party stole an animal, the law will intend that he stole it alive. ^ St. Ev. 434. * R. V. Deeley, 1 Moo. C. C. 303; but see R. v. Ogilvie, 2 C. & P. 230, where the prosecutor being described as A. B., Esquire, the addition was rejected as surplusage by Burrough, J. So, in R. v. Graham, 2 Lea. 547, where the goods stolen were alleged to be the property of J. H., Esq., commonly called Earl of C. in the Kingdom of Ireland, it was held that the words marked in italics might be rejected as surplusage. (3133) 268 SURPLUSAGE IN CRIMINAL PROCEEDINGS. [PAKT n. the indictment, the question is, whether you are bound to prove it. I think you are.'" In these cases, the essential and non-essential parts of the statement were so connected and dovetailed, as to be incapable of separation, and therefore both were considered as alike material. § 2C3. The language of Mr. Justice Coleridge, cited above,^ is § 214 also important, as showing that the law, which rejects surplusage, applies equally in criminal as in civil proceedings. Thus, if a party be indicted for robbery in the dwelling house of A. B.^ or for arson in the night time,^ the allegations marked in italics may be rejected as surplusage, and, consequently, need not be proved.^ The case of R. v. Jones will illustrate this subject.*^ The repealed Act of 9 G. 4, c. 41, provided,' in § 29, that no person, not a parish patient, should be taken into a lunatic asylum without a certificate of two medical men, containing certain particulars. § 30 enacted, that any person who should knowingly, and tvith intention to deceive, sign such certificate, untruly setting forth sUch particulars, should be guilty of a misdemeanor ; while a second clause made it a sub- stantive offence for any physcian, surgeon, or apothecary to sign such certificate, without having visited the patient. The indictment stated that the defendant, being a surgeon, knoivingly, and icith intention to deceive, signed the certificate iciihout having visited the patient, thus blending in one charge two distinct oifences. The jury negatived any intent to deceive, but found the defendant guilty; and the court held that the conviction was right, since the averment of intention was mere surplusage. ' E. V. M'Kenna, Ir. Cir. R. 416; see, also, R. r. Durore, 1 Lea. 351; 1 East, P. C. 45, S. C. ; and R. v. Upton-on-Severn, 6 C. & P. 133. 2 See ante, end of I 260. ^ E. V. Pye, 2 East, P. C. 786 ; R. v. Johnstone, id. by all the judges; see, also, R. V. Wardle, R. & R. 9. * R. v. Minton, 2 East, P. C. 1021. * For other instances, see R. v. Phillips, R. & R. 369 ; R. v. Oxford, id. 382 ; R. V. Summers, 2 East, P. C. 785 ; R. v. Hickman, id. 593 ; 1 Lea. 318, S. C; R. V. Radley, 1 Den. 450'; R. v. Otway, 1 Ir. Law R., N. S. 69 ; R. v. Williams, 2 Den. 61 ; R. v. Kealey, id. 68; R. v. Healey, 1 Moo. C. C. 1 ; 2 Russ. C. & M. 786—789. 6 2 B. & Ad. 611. ' This Act was repealed by 2 & 3 W." 4, c. 107, which, in its turn, was repealed by 8 & 9 V., c. 100, which was amended, and partially repealed, by 16 & 17 v., c. 96, the Act now in force. (3134) CHAP. I.] CUMULATIVE ALLEGATIONS IMMATERIAL, 269 § 264. So, where an indictment charged the defendants with § 215 conspiring to indict the prosecutor falsely, with intent to extort money, they were held to be rightly convicted, though the jury, in finding them guilty of conspiring to indict with the intent alleged, expressly negatived any conspiracy to make a false charge; for the court observed that a conspiracy to prefer an indictment for pur- poses of extortion was doubtless a misdemeanor, whether the charge was true or false.' So, where a parish was indicted for non-repair of a highway, an allegation that the road in question was an immemorial highway has been rejected as surplusaee." Upon an indictment, too, for jointly receiving stolen property, persons guilty of separately receiving any part of such property may be convicted.^ If a common law offence belaid as committed "against the form of the statute," the allegation may be rejected as sur- plusage.* § 265. A second rule respecting variances is, that cumulaiive § 215 allegations, or such as merely operate in aggravation, are immaterial, provided that sufficient is proved to establish some right, offence, or justification, included in the claim, charge, or defence, specified on the record.^ This rule, as applicable to criminal proceedings, was adopted and defined by Lord Ellenborough in the case of R v. Hunt.*^ There the defendant was charged in an information with composing, printing, and publishing a libel, but no evidence was given to show that he was the author. His counsel thereupon claimed an acquittal on his behalf, but the learned judge observed, "It is enough to prove publication.' If an indictment charges that the defendant did and caused to he done^ a particular act, it is ' R. V. Hollingberry, 4 B. & C. 329. ^ jj ,, Turweston, 16 Q. B. 109. '' 24 & 25 v., c. 96, ^ 94, enacts, that, " if upon the trial of any two or more persons indicted for jointly receiving any property, it shall be proved that one or more of such persons separately received any part or parts of such property, it shall be lawful for the jury to convict upon such indictment such of the said persons as shall be pro%'ed to have received any part or parts of such property." * R. V. Mathews, 5 T. R. 162. See, also, 14 & 15 V , c. 100, § 24, cited post, I 280, n.'. ^R.v. Macpherson, 39 L. J.. P. C. 59 ; 11 Cox, 604, S. C, « Camp. 583. ^ S. P. in R. V. Williams, 2 Camp. 646, per Lawrence, .J. * S. P. per Ld. Mansfield, in R. v. Middlehurst, 1 Burr. 400. (3135) 270 CUMULATIVE ALLEGATIONS IMMATERIAL. [PART. II. enough to prove either. The distinction runs through the whole criminal law; and it is invariably enough to prove so much of the indictment as shows that the defendant has committed a substantive crime therein specified." § 266. Thus, on an indictment for murder the prisoner may be ^ oig convicted of manslaughter, for the averment of malice aforethought is merely matter of aggravation. ^ So, on an indictment for burglary and stealing, if the prosecutor establish his case with the exception of proving that the breaking was by night, the prisoner may be convicted of housebreaking;^ if no breaking be proved, but the property stolen be laid in the indictment, and be proved by the evidence, to be of the value of five pounds, the verdict may be guilty of stealing in a dwelling-house to that amount;" if no satis- factory evidence be offered to show, either that the house was a dwelling-house, or some building communicating therewith ; or that it was the dwelling-house of the party named in the indictment; or that it was locally situated as therein alleged; or that the stolen property was of the value of five pounds; still, the prisoner may be convicted of simple larceny, provided it appear that any goods were stolen by him.* So, on a charge of stealing in a dwelling-house with menaces,^ or of stealing from the person, with or without violence,'' or of stealing as a servant,' the prisoner may be found guilty of larceny, if the evidence be not sufficient to prove the commission of the more aggravated crime; ^ and an indictment under the statute for horse stealing, though bad for not describing the animal by any term used in the Act, will support a conviction for larceny.^ Again, on the same principle, if an indictment for treason or conspiracy charge several overt acts, it is sufficient to prove one; '° and, on an indictment for obtaining property by several false pretences, it is not necessary to prove them all, unless they » Ck). Lit. 282 a. ' Under 24 & 25 V., c. 96, § 56. •'' Under 24 & 25 V., c. 96, § 60; see R. v. Compton, 3 C. & P. 418, per Gaselee, J. * R. I'. Bullock, 1 Moo. C. C. 423, n. a ; R. v. Brookes, C. & ISIarsh. 543, per Patteson, J. ; R. v. Jackson, cited 2Russ. C. & M. 801, per Cresswell, J. 5 See 24 & 25 V. ; c. 96, § 61. « See 24 & 25 V., c. 96, U 40, 43. ' R. V. Jennings, Dears. & Bell, 447 ; 24 & 25 V., c. 96, | 67. 8 2 Hale, 302-; 2 East, P. C. 784. » R. v. Beaney, R. & R. 416. ^° Fost. 194. (3136) CHAP I.] CUMULATIVE ALLEGATIONS — SEVERAL INTENTS. 271 are so connected as to be incapable of separation,' but it will suffice to prove the one or more, by which the property was in fact obtained.^ § 267. In like manner, if a compound intent, or several intents, § 217 be laid in the indictment, and if one part of the corr" pound intent, or each of the several intents, when coupled with the act done, constitute an offence, it will not be necessary to prove the whole as laid. Thus, an indictment for killing a sheep with intent to steal the whole carcase, will be supported by proof of an intent to steal part of the carcase.^ So, if a prisoner be charged with obtainino- an order for a certain sum from the prosecutor with intent to defraud him of the same, he may be legally convicted, though it appears that his real intention was to cheat the prosecutor out of a small portion only of the proceeds of the order.* So, a man accused under the old law of assaulting a girl with intent to abuse her and carnally know her, has been found guilty of an assault with intent to abuse simply;^ and a party indicted for publishing a libel with intent to defame certain magistrates, and also to bring the adminis- tration of justice into contempt, may be found guilty, if the libel was published with either of those intents.** § 268. But the intent proved must either correspond with, or be ^ 217 included in, the intent alleged. Thus it will be a fatal variance, if an indictment for burglary charge an intent to steal, and it be shown that the real intent was to commit rape or murder; ^ and a prisoner charged with burglary and stealing will be acquitted, if no ' R. V. Wickham, 10 A. & E. 34. ^ jj ^ j^^^^ jj ^ jj jg^ * R. V. Williams, 1 Moo. C. C. 107. That case was decided on the Act of 14 G. 2, c. 6 (now repealed), which speaks, in the alternative, of an intent to steal the whole carcase or any part of the carcase. The same point seems, however, to have been ruled by Cresswell, J., in R. v. Marley, cited 2 Russ. C. & M. 137, which case must have turned on the language of 7 & 8 G. 4, c. 29, g 25. This last Act uses the words "with intent to steal the carcase or skin, or any part of the cattle so killed," t^c. The principle in both cases was the same, namely "that the offence of intending to steal a part was part of the offence of in- tending to steal the whole, and that the statute meant to make it immaterial whether the intent applied to the whole, or only to part." Per Cur. 1 Moo. C. C. 111. * R. V. Leonard, 1 Den. 304. * R. V. Dawson, 3 Stark. R. 62, perHolroyd, J. See 24 & 25 V., c. 100, ? 52, « R. V. Evans, 3 Stark. R. 35, per Bailey, J. ' 2 East, P. C. 514. (3137) 272 HOW FAR INTENT MUST BE PROVED AS LAID. [PAET II. property was taken, though it appear that the house was entered with an intent to steal: and though, had larceny actually been committed, he would have been convicted without any allegation in the indictment of a felonious intent.' § 269. The rule under discussion has been adopted by the Legis- § 218 lature on several occasions. Thus, if a woman be charged with the murder of her infant, she may be convicted of endeavoring to conceal its birth; " if a person be indicted for felony in administering poison so as to endanger life, or to inflict grievous bodily harm, he may be convicted of the misdemeanor of administering poison with intent to injure, aggrieve, or annoy some one ;^ and on Ihe trial of an indictment for simple or aggravated robbery, the jury may convict of a simple or aggravated assault with intent to rob, if the evidence shall prove such an offence to have been committed.* So, upon a count for maliciously wounding, or for maliciously inflicting grievous bodily harm, against the statute, a prisoner may be con- victed of a common assault, even though the term " assault " be not found in the indictment,^ Formerly, the Act of 7 W. 4 & 1 V., c. 85, § 11, provided, that if a party were indicted for any of the ofPences thereinbefore mentioned, or for any felony, where the crime charged included an assault against the person, the jury, though they acquitted him of the felony, might have found him guilty of the assault, if the evidence ivarranfed such finding. Great diffi- culties, however, having arisen in the construction of this enact- meat,^ it was repealed in 1851,' and a clause was substituted in its place,^ which provides that, " if, on the trial of any person charged 1 R. V. Furnival, R. & R. 44.5 ; R. v. Vanrlercomb, 2 East, P. C. 514. 2 24 & 25 v., c. 100, § 60. ? 24 & 25 V., c. 100, ? 25. * 24 & 25 v., c. 96, I il ; R. v. Mitchell, 2 Den. 468 ; 3 C. & Kir. 181, S. C. See R. v. Woodhall, 12 Cox, 240, per Denman, J. 5 R. r. Taylor, 1 Law Rep., C. C. 194 ; 38 L. J., M. C. lOG ; and 11 Cox, 261, S. C; R. V. Canwell, 11 Cox, 263 ; R. v. Oliver, 1 Bell, 218 ; 8 Cox, 384, S. C; R. V. Yeadon, L. & Cave, 81 ; 9 Cox, 91, S. C. See, also, R. v. Gutlirie, 11 Cox, .522; 1 Law Rep., C. C. 241 ; 39 L. J., M. C. 95, S. C. « R. V. Bird, 2 Den. 94- ■^ 14 Stuart ?;. Lovell, 2 Stark. R. 94 • Cornwall v. Eicliarclson, Ry. & M. 305. ^ Most of the cases referred to in the following observations were decided with re-spect to the old rules of pleading; but, that fact being borne in mind, they will serve to illustrate the present rules. ^ See Isaac v. Farrer, 1 M. & W. 70, per Ld. Abinger ; 4 DoavI. 755, S. C. ; J3arnett r. Glossop, 1 Bing. N. C. 636, fi.37, per Park and Bosanquet, Js. ; 3 Dowl. 625, S. C. ; Gntsole v. Mathers, 1 M. & W. 502, 503, per Ld. Abinger. * Ord. XIX., R. 2. ^ Id. « Id. ' Ord. XIX., R. 18. See post, ? 304, also ? 829, and Ord. XXVII., R. 13, there cited. » R. 2. ^R. 4. See Heap v. Marris, L. R., 2 Q. B. D. 630; 46 L. J., Q. B. 761, S. C; Philipps v. Philipps, 48 L. J., Q. B., 135, per Ct. of App.; L. R., 4 Q. B. D. 127, S. C. (3156) CHAP. II. ] FACTS NOT DENIED IN PLEADING — ADMITTED. 201 its existence, and to state its effect, but the party relying on it should state whether it be in -writing, or by parol, or the result of a series of documents.' In the case of Millington n. Loring" the meaning of the phrase "material facts " was much discussed, the Divisional Court holding that it should be confined to such matters as are necessary to establish the cause of action or the defence, but the Court of Appeal deciding, that the words will include any facts which the party pleading is entitled to prove at the trial. Thus, in an action for breach of promise of marriage, the plaintiff may allege in her statement of claim her consequent seduction or infection, if any, such averments being regarded in the light of important matters of aggravation.^ § 301. In addition to these cardinal propositions, twelve other pleading rules may here be cited as having a material bearing on the Law of Evidence. First comes Rule 13 of Order XIX., which provides that " every allegation of fact in any pleading, not being a petition or summons, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the opposite party, shall be taken to be admitted,* except as against an infant, lunatic, or person of unsound mind not so found by inquisition." Under Rule 14, " any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plantiff or defendant, as the case may be ; and, subject thereto, an averment of the performance or occurrence of all conditions precedent neces- sary for the case of the plaintiff or defendant shall be implied in his pleading." Rule" 15 next provides, that "the defendant or plaintiff, as the case may be, must raise by his pleading all matters which show the action or counter-claim not to be maintainable, or ' TurquancI and the Capital and Counties Bk. v. Fearon, 48 L. J., Q. B. 703, per Ct. of App. '' L. R., 6 Q. B. D. 190 ; 50 L. J., Q. B 214, S. C. ■•' Id. * See Tildesley v. Harper, 48 L. J., Ch. 495, per Ct. of App., overruling S. C. L. R., 7Ch. D. 403, per Fry, J.; Harris v. Gamble, L. R., 7 Ch. D. 877, per Fry, J.; 47 L. J., Ch. 273, S. C; Rutter v. Tregent, 48 L. J., Ch. 791; L. R., 12 Ch. D. 758, S. C. (3157) 292 AMENDMENTS — SPECIFIC DENIALS. [PART II. that the transaction is either void or voidable in point of law,' and all snch grounds of defence or reply, as the case may be, as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, as, for instance, fraud," the Statute of Limitations, release, pay- ment, performance, facts showing illegality either by statute or common law, or Statute of Frauds." According to Rule 16, " No pleading, not being a petition or summons, shall, — except by way of amendment,^ — raise any new ground of claim, or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same." § 302. By virtue of Rule 17 " it shall not be sufficient for a defendant in his statement of defence to deny generally ihe grounds alleged by the statement of claim,* or for a plaintiff in his reply to deny generally the grounds alleged in a defence by way of counter- claim, but each party must deal specifically with each allegation of fact of which he does not admit the truth, except damages." Rule 18 provides, that, " subject to the last preceding rule, the plaintiff by his reply may join issue upon the defence, and each party in his pleading, if any, subsequent to reply, may join issue upon the previous pleading.'^ Such joinder of issue shall operate as ^ An exceiition to this proposition is contained in Orel. XXI., E. 21, which provides, that '"no defendant in an action for the recovery of land, Avho is in possession by himself or his tenant, need plead his tille, unless his defence depends on an equitable estate or right, or he claims relief upon any equit- able ground against any right or title asserted by the plaintiff." It will suffice in such case to state that he is in possession, and .such statement will put the plaintiff to the proof of his case ; see Danford v. M'Anulty, 50 L. J., Q. B. 294, per Ct. of App. ; L. R., G Q. B. D. G45, S. C. ; L. R., 8 App. Cas. 456, S. C, per Dom. Proc; and 52 L. J., Q. B. 652. 2 See post, § 306. ^ See, also, Ord. XXIII., R. 6, which provides, that ^'' no new assignment shall be necessary or used. But everything which was formerly alleged by way of new assignment may hereafter be introduced by amendment of the statement of claim, or by way of reply. See Earp v. Henderson, L. R., 3 Ch. D. 254; 45 L. J., Ch. 738, S. C, as explained by Hall v. Eve, L. R., 4 Ch. D. 341 ; 46 L. J. Ch. 146, S. C. * See Harris v. Gamble, L. R. 7 Ch D. 877, per Fry, J. ; 47 L. J., Ch. 273, S. C; Rutter w. Tregent, 48 L. .1., Ch. 791, L. R. 12 Ch. D 75S, S. C. ^ As to the effect of not delivering a reply, or any subsequent pleading within the proper period, see Ord. XXVll., R. 13, cited post, I 829. (3158) CHAP. 11.] GENERAL ISSUE PRACTICALLY ABOLISHED. 293 a denial of every material allegation of facts in the pleading upon which issue is joined, but it may except any facts which the party may be willing to admit, and shall then operate as a denial of the facts not so admitted." § 303. It will be noticed that in their practical efifect these last two rales almost entirely' do away with what used to be termed by Special Pleaders " the General Issue," so far as the statement of defence is concerned, though, — at the option of the parties, — they retain in the reply or any subsequent loleading that sweeping form of traverse. Their operation on the plea will be best understood by referring to the former law on that subject, and pointing out how it differs from the present practice. Under the old forms of pleading, whenever the defendant could show that in fact no debt ever existed before action brought, he might do so under the plea of "never in- debted." For instance, if the action were for goods sold and de- livered, he might defend himself under that plea, by proving that they were paid for by ready money;' that they were sold on credit, which was unexpired when the action was commenced;^ that they were bought through an agent, and that before the expiration of the credit, the defendant had remitted the price of the goods to the agent;* that they were sold' under a condition, that if they did not answer their purpose nothing should be paid for them, and that in fact they did not answer their purpose;'^ that they were sold under any special agreement, which had not been performed;*^ that they were delivered under a contract of barter;' that the goods delivered 1 See post, I 311. "^ Bussey v. Barnett, 9 M. & W. 312. But see Littlechild v. Banks, 7 Q. B. 739. ■'' Broomfield v. Smith, 1 ]\I. & W. 542, overruling Edmonds v. Harris, 2 A. & E. 414 ; 4 N. & M. 182, S. C. * Smyth V. Anderson. 7 Com. B. 21. ^ Grounsell v. Lamb, 1 M. & W. 352. See Lamond v. Davall, 9 Q. B. 1030. ® Broomfield v. Smith, 1 M. & W. 543, per Ld. Abinger ; Garej' v. Pike, 10 A. & E. 512; 2 P. & D. 427, S. C. ; Hayselden v. Stall', 5 A. & E. 153; 6 N. & M. G59, S. C; Mosely v. M'Mullen, 6 Ir, Law R., N. S. 09. ' Harrison v. Luke, 14 M. & W. 139, Smith v. Winter, 12 Com. B. 487; Bracegirdle v. Hinks, 9 Ex. R. 36\ (3159) 294 GENERAL ISSUE UNDER OLD PLEADING RULES. [PART II. did not answer the description of the articles which the vendor pro- fessed to sell ;' or that they turned out to be utterly useless,^ § 303a. So, in an action for use and occupation, the defence that the premises were held under a demise at a rent payable quarterly, and that before the rent became due, either the plaintiff,^ or his superior landlord/ evicted the defendant, or the former accepted a surrender of a term from him, might have been given in evidence under the "general issue." The defendant might, also, '^ have proved under the same plea that, before the rent was due, he received notice from a mortgagee of the premises to pay the rent to him;'' but if the mort- gagee's claim had not been made until after the rent had accrued, and the plaintifP's right of action had consequently vested, the demand would have furnished no defence.' In a similar action, the defendant might probably have shown, under the plea of never in- debted, that the premises were uninhabitable,^ when such a defence was a bar to the action;" or that there had been no actual entry by him;'" or that his occupation had not been by the sufferance of the plaintiff;" or that he had originally occupied the premises by the permission of a prior owner, to whom he had paid all arrears of rent ^ Gompertz r. Bartlett, 2 E. & B. 849. There an unstamped bill of exchange, purporting to be a foreign bill, had been sold, but on proof that it was really- drawn in London, the vendee was held entitled to recover back the price of the bill, on the ground of a failure of consideration. See now 33 & 34 V., c. 97, § 52, cited ante, | 72. 2 Cousins V. Paddon, 2 C. M. & R. 457; 4 Dowl. 488; 5 Tyr. 535, S. C, recognised by Ld. Denman in Hayselden v. Staff, 5 A. & E. 162; Baillie v. Kell, 4 Bing. N. C. 638; 6 Scott, 379, S. C; Chapel v. Hicks, 2 C. & M. 214i Allen V. Cameron, 3 Tyr. 907. These cases overrule Roffey r. Smith, 6 C. & P. 662. * Prentice v. Elliott, 5 M. & VV. 60G; Dodd v. Acklom, 6 M. & Gr. 672. * Selby V. Browne, 7 Q. B. 620. * See Hickman v. Machin, 4 H. & N. 716. « Waddilove. r. Barnett. 2 Bing. N. C. 538; 2 Scott, 763; 4 Dowl. 347, S. C, recognised in Hayselden v. Staff, 5 A. & E. 159. See ante, § 102. ' Wilton V. Dunn, 17 Q. B. 249, overruling on this point Waddilove v. Barnett, 2 Bing. N. C. 538, and Pope v. Biggs, 9 B. & C. 245. See Hickman V. Machin, 4 H. & N. 716. 8 Smith V. Marrable, 11 M. & W. 5, 8, 9, per Parke, B. " See same case, and compare it with Sutton v. Temple, 12 M. & W. 52; Hart V. Windsor, id. 69; Gott v. Gandy, 2 E. & B. 845; Murray v. Mace, I. R., ^ 8 C. L. 396; and Wilson v. Finch Hatton, L. R., 2 Ex. D. 336. '"Lowe V. Ross, 5 Ex. R. 553; overruling a dictim of Tindal, C. J., in Atkins V. Humphrey, 2 Com. B., 654. " Powell v. Hibbert, 15 Q. B. 129. (3160) CHAP, 11.] REPLIES EVASIVE PLEADINGS. 295 without having received any notice of an assignment to the plaintiff;' or that he had been let into possession by the plaintiff, under a con- tract to purchase, which had contained no stipulation as to the terms of occupancy, and which afterwai'ds had gone off in conse- quance of the plaintiff's inability to make out a good title -j^ or, in short, the defendant might have given in evidence any other fact, which would have proved that he had never so occupied the premises as to render him liable, in point of law, to the payment of rent.^ Now, all 'these several defences require to be specifically set out in the statement of defence. § 304. In stating, as is done in Rule 18, that the plaintiff " by his reply may join issue upon the defence," ^ it is not intended that he must take that course; but, — excepting in a case where, under the old sytem of common law pleading, a new assignment would have been necessary,^ — he may still, instead of amending his claim under Order XXVIII., either traverse the allegations in the defence gene- rally or specially, or confess and avoid them, or unite in one reply those several answers.® § 305. Under Rule 19, "when a party in any pleading denies an allegation of fact in the previous pleading of the opposite party, he must not do so evasively, but answer the point of substance. Thus, if it be allege 1 that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with divers circumstances, it shall not be sufficient to deny it along with those circumstances." For, in interpreting this rule, as well as those which provide that facts not denied must be taken as admitted,^ and that facts denied must be specifically denied,^ the 1 Cook v. Moylan, 1 Ex. R. 67; 5 Dowl. & L 101, S. C. ^ Winterbottom v. Ingram, 7 Q. B. 611. See Hall v. Vanghan, 6 Price. 157; Hearn v. Tomlin, Pea. R. 192, per Ld. Kenyon; Howard v. Shaw, 8 M. & W. 118; Kirtland v. Pownsett, 2 Taunt. 145; Markey v. Coote, I. R., 10 C. L. 149. ^ Smith V. Marrable, 11 M. & W. 8, 9, per Parke, B. * See ante, § 302. ^ See ante, p. 202, n. I « Hall V. Eve, L. R., 4 Ch. D. 341, per Ct. of App. ; 46 L. J., Ch. 145, S. C. ^ See Rule 13, cited ante, I 301. * See Rule 17, cited ante, § 302. See Green v. Sevin, L. R., 13 Ch. D. 589, per Fry, J. (3161) 296 ISSUES TO BE DEFINITE AND DISTINCT. [PART II. courts vory properly will enforce a strict observance of the language used. That language was intended to be construed strictly, in order to enable each party to know what the real issues between him and his opponent are. The whole meaning of the system is to narrow the parties to definite and distinct issues, and thereby to diminish expense and delay, especially as regards the amount of oral testi- mony required on either side at the trial.' In a case which called forth the above remarks from the Master of the Rolls, the plaintiff prayed for a dissolution of partnership, stating that he and the defendant had become partners under a parol agreement, and that the terms of the arrangement had been definitely agreed upon at a certain interview. The defendant, in his statement of defence, admitted the agreement, but denied that the terms had been " definitely agreed upon as alleged." Sir George Jessel held that this denial was evasive within the meaning of the rule. " The words * as alleged,' " said bis Lordship, " mean the whole allega- tions of the statement of claim, not of the particular paragraph. I cannot tell from his pleading what part of the plaintiff's allega- tions the defendant means to deny. He may mean to deny that the terms were definitely agreed upon at the interview of the 17th of September, although they were definitely agreed upon on some other day, or he may have some peculiar view as to the meaning of the word 'definitely.' He may not be able to say that the terms were not arranged as agreed upon, but he may take the word ' definitely ' because he thinks it may give him some mode of escape. I cannot make out what he means. He is bound, if he intends to deny, to deny that any terms of arrangement have ever been come to, if that is what he means. If he does not mean that, he should deny that any terms of arrangement were ever come to except the following, and then state what those terms were; other- wise, there is no specific denial.'.' ^ ^ Thorp r. Holdsworth, 45 L, J., Ch. 406, 408, per Jessel, M.R ; L. E., 3 Ch. D. 637, S. C; Byrd v. Nunn, L. R., Ch. D. 781, per Fry, J.; S. C. aff. by Ct. of App., 47 L. J., Ch. I; and L. R., 7 Ch. D. 284; Tiklesley v. Harper, 48 L. J., Ch. 49.5, per Ct. of App., overruling S. C, L. R., 7 Ch. D. 403, per Fry. J.; Collete V. Goode, L. R., 7 Ch. D. 842, per Fry, J.; 47 L. J., Ch. 370, S. C. 2 Thorp V. Holdsworth, 45 L. J., Ch. 408, 409. (3162) CHAP. II.] TRAVERSE OF REPRESENTATIVE CHARACTER. 297 § 306. Eule 20 provides, that " when a contract, promise, or agreement is alleged in any pleading, a bare denial of the same by the opposite party shall be construed only as a denial in fact of the express contract, promise, or agreement alleged, or of the matters of fact fi'om which the same may be implied by law, and not as a denial of the legality or sufficiency in law, of such contract, pro- mise, or agreement, whether with reference to the Statute of Frauds or otherwise." The effect of this last rule is, that, when- ever a party intends to rely on the illegality or insufficiency in law of any contract, whether with reference to the Statute of Frauds, or otherwise, he must specially j^lead such illegality or insufficiency, and it will not be sufficient to traverse allegations made by his opponent in anticipation of objections to the contract upon such grounds.' Neither can a defendant avail himself of the Statute of Frauds by simply raising in general terms by his pleading a point of law ^ (such being the new fangled substitute for the old general demurers),^ nor will it suffice for him to state generally that ho relies on a statute, as, for instance, the Statute of Frauds, but the facts which make the statute applicable must also distinctly appear on the pleadings.* § 307. Again, Eule 5 of Order XXI., provides, that "if either party wishes to deny the right of any other party to claim as executor, or as trustee, whether in bankruptcy or otherwise, or in any representative or other alleged capacity, or the alleged constitu- tion of any partnership firm, he shall deny the same specifically." § 308. In some few instances it will be difficult to reconcile the language employed in this last rule, and also that used in Rule 13 of Order XIX, ^ with the special enactments contained in several Acts of Parliament. For example, if an action be brought to recover a doctor's bill, and the plaintiff allege in his statement of claim that ' Clarke v. Callow, 46 L. J., Q. B. 53, per Ct. of App. 2 Futcher v. Futcher, 50 L. J., Ch. 735, per Fry, J. ^Ord. XXV., RR. 1, 2. * Pullen V. Snelus, 48 L. J., C. P. 394. * Cited ante, I 301. (3163) 298 WANT OF STAMP — OF JURISDICTION. [PART II. he is a " legally qualified medical practitioner," ' what will be the effect of the defendant omitting to traverse that special allegation? According to the New Rules, this amounts to an admission of the fact not traversed. But then, what effect is to be given to " The Medical Act" " of 1858, which, — in order to diminish the public mischief caused by quackery, — expressly enacts, in § 32, that "no person shall be entitled to recover any charge in any court of law for any medical or surgical advice, attendance, or for the performance of any operation, or for any medicine which he shall have both pre- scribed and supplied, unless he shall prove upon the trial that he is registered under the Act ?" Will it be open to the defendant to contend, that an admission is not strictly proof, but only a substitute for proof, and that in spite of his defective pleading, the court must take care that the registration of the plaintiff be duly proved at the trial? If this reasoning be not recognised, the law, as it exists, is exposed to the absurd anomaly that a quack doctor, who must inevitably be nonsuited in any county court, may have a fair chance of recovering his charges, if he elects to sue in the High Court. § 309. Again, can the objection that an instrument is wof sfa?>y^d or is insufficiently stamped, be taken at the trial by a party, who has not relied on that point in his pleading? And if he can do so on ordinary occasions, is the same course open to him, when his opponent has affirmatively alleged in his pleading that the document in question has been duly stamped ? If either of these queries be answered in the negative, — and if the New Rules are strictly inter- preted they must be so answered, — then arises the following question ; what steps must be taken either by the presiding judge, or by the ministerial officer of the court, so as to protect the interests of the Revenue, where the fiscal rights of the Crown have been obviously set at nought by one or both of the litigants ? ^ § 310. The question how far a defendant can avail himself of z 0^7 . 1 See 21 & 22 v., c. 90, ? 34. ^ 21 & 22 V., c. 90. 3 See Field v. Woods, 7 A. & E. 114; 2 N. & P. 117, S. C; Dawson v. Mac- donald, 2 M. & W. 26 ; M'Dowall v. Lyster, id. 52. See, also, post, ^ 397. (3164) CHAP II. J PLEA OF NOT GUILTY BY STATUE. 299 want of jurisdiction in the court without raising that defence by means of a special plea, does not seem to have been set at rest by the New Rules of Pleading, and, independent of those rules, has been left in an iinsatisfactory state by the case of Spooner r. Juddow/ There the Judicial Committee of the Privy Council decided, that when the facts ousting the jurisdiction are brought by the plaintiff himself to the notice of the court, the mere omission of the de- fendant to plead specially will not give the cotirt jurisdiction over the suit, but it will be bound, whatever be the nature of the issues raised, either to nonsuit the plaintiff, or to direct a verdict for the defendant. The court, however, declined to state what would be the law, if the plaintifP were to close his case without betraying the want of jurisdiction, and the defendant were then, without any special plea raising the point, to offer evidence of facts with a view of show- ing that the cause of action was ultra vires. § 311. We have been hitherto discussing the operation of the g 293 pleading rules in limiting and defining the amount of evidence admissible in ordinary actions; but it must be carefully borne in mind, that the numerous class of cases, in which the defendant is expressly empowered to plead ^^ Not Guilty by statute,''^ and to give special matter in evidence under such plea, is not affected by these rules further than this, that the party who intends so to plead cannot " plead any other defence to the same cause of action with- out the leave of the court or a judge." ^ The pleader, too, must " insert in the margin of his pleading the words ' By Statute, ' to- gether with the year of the reign in which the Act of Parliament on which he relies, was passed, and also the chapter and section of such Act, and shall specify whether such Act is public or other- wise ; otherwise such defence shall be taken not to have been pleaded by virtue of any Act of Parliament." ^ § 312. It is extremely difficult to lay down, as an abstract g 294 proposition of law, what shall amount to an acting in pursuance of a statute, or in execution of an office, so as to entitle a defendant to 1 6 Moo. P. C. R. 257. 2 Ord. XIX., R. 12. ^ Qrd. XXI., R. 19. (3165) 300 PLEA OF NOT GUILTY BY STATUTE. [PAKT II. give special matter in evidence under the general issue, to rely on the want of notice of action, ' or on the fact that he has tendered amends, or otherwise to claim any particular protection which may be afforded by Act of Parliament; but thus much may be stated with safety, that if a party believes, bona fide, in the existence of a state of facts,- which, if they had existed, would have afPorded a defence to the action/ he is, — without reference to the reasonableness of such belief,* — entitled to protection, although he may have proceeded illegally or exceeded his jurisdiction.^ Statutes of this kind are intended for the protection of honest persons, who bona fide mean to discharge their duty ;'^ and the court will, consequently, so interpret their provisions, as to save harmless all persons who act illegally under the reasonable belief 1 See ArnolcU'. Hamel, 9 Ex. R. 404 ; Kiiby v. Simpson, 23 L. J., M. C. 165; 10 Ex. R. 358, S. C. In this last case it was held that a magistrate acting in execution of his office is entitled by 11 & 12 V., c. 44, ? 9, to notice of action, although he acts maliciously and without reasonable and probable cause. ^ If there are no facts on which a bona fide belief can reasonably be founded, the protection will not apply, Agnew v. Jobson, 13 Cox, 023 ; 47 L. J., M. C. 67, S. C. 3 Hermann v. Seneschal, 32 L. J., C. P. 43; 13 Com. B., N. S. 392, S. C. ; Heath v. Brewer, 15 Com. B., N. S. 803 ; Midi. Ry. Co. v. Withington Local Board, L. R.. 11 Q. B. D. 788, per Ct. of App. ; Roberts v. Orchard, 2 H. & C. 109, per Ex. Ch.; 33 L. J., Ex. 05, S. C. See Downing v. Capel, 30 L. J., M. C. 97 ; Selmes v. Judge, Law Rep., Q. B. 724 ; 40 L. J., Q. B. 287, S. C. nom. Judge v. Selmes. * Chamberlains. King, 6 Law Rep., C. P. 474 ; S. C. nom. Kingr. Chamber- lain 40 L. J., C. P. 273. Prior to this decision, it was thought by many that the belief to be available, must have rested '"on some colour of reason." See Cann v. Clipperton, 10 A. & E. 582 ; Cook v. Leonard, 6 B. & C. 351 ; 9 D. & ,R. 339. S. C, as qualified by the Ct. of Ex. in Jones t). Gooday, 9 M. & W. 743, 745. See, also, Kine v. Evershed, 10 Q. B. 143; Leete v. Hart, 3 Law Rep., C. P. 322 ; Spooner v. Juddow, Moo. P. C. R. 283, per Ld. Campbell ; Booth V. Clive, 10 Com. B. 827 ; Read v. Coker, 13 Com. B. 850 ; Arnold v. Hamel, 9 Ex. R. 409 ; Hermann v. Seneschal, 32 L. J., C. P. 43 ; 13 Com. B. N. S. 392, S. C. * Hazeldine v. Grove. 3 Q. B. 997, 1006, 1007 ; 3 G. & D. 210, S. C; Spooner V. Juddow, Moo. P. C. R. 257, 283 ; Jones v. Gooday, 9 M. (fe W. 730, 743— 740, per Parke and Alderson, Bs. ; Theobald v. Crichmore. 1 B. & A. 227, 229, 230, per Ld. Elleiiborongh, and Bavley, J. See, further Eliot f. Allen, 1 Com. B. 18 ; Shatwell r. Hall, 10 M. & W. 523 ; 2 Dowl. N. S. 507, S. C. ; Hopkins V. Crowe, 4 A. & E. 774 ; Lidster v. Borrow, 9 A. & E. 054 : Bush r. Green, 4 Bing. N. C. 41 ; Smith v. Shaw. 10 B. & C, 277 : 5 M. & R. 225, S. C; Davis V. Curling, 8 Q. B. 28r> ; Cox r. Rcid, 13 Q. B. 558; Thomas v. Stephenson, 2 E. & B. 108; Newton v. Ellis. 5 E. & B. 115 ; Poulsum v. Thirst, 2 Law Rep., C. P. 449; 30 L. J., C. P. 225, S. C. « Per Parke, B., in Jones r. Gooday, 9 M. & W. 743. • (3100) CHAP. II.] PLEA OF NOT GUILTY BY STATUTE. 301 that they are authorised in %vhat they do by Act of Parliament; and this, too, whether the error complained of has been committed in respect of time, place, or circumstance.^ § 313. It is now finally determined that, under the plea of ^^ Not ^ 095 Guilty by statute,'''' the defendant may set up any defence that could be specially pleaded, whether it be founded wholly or partly on the statute, or be merely sustainable at common law.^ Thus, in an action for an excessive distress, such a plea puts in issue, not only the matter of justilication, but the tenancy and the owner- ship of the goods ;^ and if a plaintiff sues as administrator, the defendant, who has thus pleaded, may dispute his title to that character,* The natural result of this rule is, that the courts will not, in general, allow the defendant to plead " not guilty by statute " in connexion with any other defence ; but if a reasonable doubt exists as to whether the defendant, in regard to the particular act complained of, is entitled to such a plea, the rule will, in favour of substantial justice, be sometimes relaxed.^ § 314. The statutes enabling persons, who act in pursuance s ogg thereof, or otherwise in execution of their offices, to plead not guilty, and to give special matter in evidence under such plea, are still extremely numerous, although the efPect of modern legis- lation has been greatly to reduce their number. For instance, by the Act of 5 & G V., c. 97, § 3, so much of any clause or provision in any Act commonly called Public local and personal, or Local and personal,' or in any Act of a local and personal nature,*^ whereby any party was entitled, before the 10th of 1 Hughes V. Buckland, 35 M. & W. 34G, 353, 354, per Tollock, C. B. ; Horn V. Thornborough, 3 Ex. R. 846; 6 Dowl. & L. 651, S. C. ' ■' Ross V. Clifton, 11 A. & E. 631; 1 G. & D. 72; 9 Dowl. 1033, S. C; Maund v. Monmouth Can. Co., C. & Marsh. 606, 608, per Cresswell, J., stating the general ophiion of the judges; Fisher v. Thames June.- Ry. Co., 5 Dowl. 773; Hainc v. Davey, 4 A. & E. 892; 6 N. & M. 356, S. C. ; Eagleton t;. Gutteridge, 11 M. & W. 469, per Parke, B. ^ Williams v. Jones, 11 A. & E. 643. * Tharpe v. Stallwood, 5 M. & Gr. 768, per Cresswell, J. 6 Langford v. Woods, 8 Scott, N. R. 369; 7 M. & Gr. 625, S. C. « As to the meaning of this phrase, see Richards v. Easto, 15 M. & W. 244 ; (3167) 302 PLEA OF NOT GUILTY BY STATUTE. [pART II. August, 1842, to give special matter in evidence under the general issue, is repealed. The Irish Common Law Procedure Act of 1853,^ also repeals, by § 09, " so much of any Act of Parliament as entitles or permits any person to plead the general issue only, and to give special matter in evidence without pleading the same." Unfortunately a similar clause is not to be found in either of the English Common Law Procedure Acts; and the pleader is conse- quently still left to discover, as best he may, in what cases the defendant may or may not avail himself of this indefinite and comprehensive form of pleading. § 315. It is not intended here to furnish a list of the statutes g 297 which authorise such pleas, but among them will be found the Acts passed in 1861 for consolidating the law relating to larceny, malicious injuries, and coin." In every action, too, which is brought against a jusiice of the peace, "for anything done by him in tho execution of his office,''' the defendant, — besides enjoying many other privileges,^— is allowed to plead the general issue, and " to give any special matter of defence, excuse, or justification, in evidence under such plea." * He may even prove under the general issue, that after notice of action and before the writ was issued, he tendered amends to the plaintifP, or that after the com- mencement of the suit, and before issue joined, he paid money into court ;^ and this circumstance is here mentioned, because in Cock v. Gent, 18 M. & W. 234; Barnett v. Cox, 9 Q. B. 617; Pilkington v. Riley, G Dowl. & L. 628; 3 Ex. R. 739, S. C. ; Shepherd v. Sharp, 25 L. J., Ex. 254; 1 H. & N. 115, S. C. 1 16&17 V.,c. 113, Ir. 2 24 & 25 v., c. 96, IW^\ c. 97, ?. 71; c. 99, ? 33. See, also, the Seamen's Clothing Act, 1869, 32 & 33 V., c. 57, I 6. 3 See 11 & 12 v., c. 44; and Kirby v. Simpson, 23 L. J., M. C, 165, cited ante, p. 300, n.'. * ? 10. ^ ?. 11 enacts, that " in every such case after notice of action shall be so given as aforesaid, and before such action shall be commenced, such justice to whom such notice shall be given may tender to the party complaining, or to his attorney or agent, such sum of money as he may think fit as amends for the injury complained of in such notice; and after such action shall have been commenced, and at any time before issue joined therein, such dcfendcnt. if he have not made such tender, or in addition to such tender, shall be at liberty to pay into court such sum of money as he may think fit, and which said tender and payment of money into court, or either of them, may afterwards be given in evidence by the defendant at the trial under the general issue aforesaid; and if the jury at the trial shall be of opinion that the plaintiff is not entitled to (3168) CHAP. II.] ACTION FOR INFRINGEMENT OF PATENT. 303 most of the other statutes/ which empower defendants to plead the general issue, and to tender or pay into court amends for the injury complained of, it is expressly enacted that such tender or payment into court shall be specially pleaded." § 315a. The general rule of law, which limits proof to the matters put in issue by the pleadings, as stated above in § 298, and which is equally applicable to all actions, has been supple- mented, in the case as an action being brought for infringement of a patent, by a more stringent and precise rule ; for the recent statute,^ which consolidates the law relating to patents, has expressly provided, in § 29, as follows : — • "(1.) In an action for infringement of a patent the plaintiff must deliver with his statement of claim, or by order of the court or the judge, at any subsequent time, particulars of the breaches complained of. "(2.) The defendant must deliver with his statement of defence, or, by order of the court or a judge, at any subsequent time, parti- culars of any objections on which he relies in support thereof. "(3.) If the defendant disputes the validity of the patent, the particulars delivered by him must state on what grounds he dis- putes it, and, if one of those grounds is want of novelty, must state the time and place of the previous publication or user alleged by him. "(4.) At the hearing no evidence shall, except by leave of the damages beyond the sum so tendered or paid into court, or bej'ond the sums so tendered and paid into court, then they shall give a verdict for the defendant, and the plaintiff shall not be at liberty to elect to be nonsuit, and the sum of money, if any, so paid into court, or so much thereof as shall be sufficient to pay or satisfy the defendant's costs in that behalf shall thereuiwn be paid out of court to him, and the residue, if any, shall be paid to the plaintiff; or if, where money is so paid into court in any such action, the plaintiff shall elect ' to accept the same in satisfaction of his damages in the said action, he may obtain from any judge of the court in which such action shall be brought an order that such money shall be paid out of court to him, and that the defendant shall pay him his costs to be taxed, and thereupon the said action shall be determined, and such order shall be a bar to any other action for the same cause." ^ Not in all. See the County Ct. Acts, 9 & 10 V.. c. 95, § 138; & 15 & 16 v., c. 54, ? 6. See, also, the Acts of 1861, cited ante, p. 302, n.'^; and 11 G. 2, c. 19, U 20, 21. M5 & 46 v., c. 50, § 226, subs. 2. ^ A6 & 47 V., c. 57. (3169) 304 EVIDENCE OF COLLATERAL FACTS EXCLUDED. [PART II. court or a judge, be admitted in proof of any alleged infringement or objection, of which particulars are not so delivered. "(5.) Particulars delivered may be fi'om time to time amended, by leave of court or a judge. "(6.) On taxation of costs, regard shall be had to the particulars delivered by the plaintiff and by the defendants ; and they respec- tively ehall not be allowed any costs in respect of any particular delivered by them, unless the same is certified by the court or a judge to have been proven, or to have been reasonable and proper, without regard to the general costs of the case." § 316. The rule confining evidence to the points in issue, not § 21)8 only precludes the litigant parties from proving any facts not distinctly controverted by the pleadings, but it limits the mode of proving even the issues themselves. Thus,' it excludes all evidence of collateral facts, which are incapable of affording any reasonable pi-esumption as to the principal matters in dispute ; and the reason is, that such evidence tends needlessly to consume the public time, to draw away the minds of the jurors from the points in issue, and to excite prejudice and mislead ; moreover, the adverse party, having had no notice of such evidence, is not prepared to rebut it. The due application of this rule will occa- sionally tax to the utmost the firmness and discrimination of the judge ; so that while he shall reject, as too remote, every fact which merely furnishes a fanciful analogy or conjectural inference, he may admit as relevant the evidence of all those matters which shed a real, though perhaps an indirect and feeble, light on the question in issue. And here it will generally be found that the circumstances of the parties to the suit, and the position in which they stood" when the matter in controversy occurred, are proper subjects of evidence ; and indeed, the change in the law enabling parties to give testimony for themselves, has rendered this proof of ^'^ surrounding circumstances,^^ still more important than it was in former times.^ In accordance with this doctrine it has been properly ^ Gr. Ev. § 52, in part for six lines. 2 See Woodward v. Buchanan, 39 L. J., Q. B. 71 ; 5 Law Rep., Q. B. 285, 3. C. 3 Bowling V. Dowling, 10 Ir. Law R., N. S. 244, per Pigot, C. B. (3170) CHAP. II.] RES INTER ALIOS ACTM EXCLUDED. 305 held, that, in an action for money lent, the poverty of the alleged lender was a very relevant fact, the evidence of w^hich was admissible for the purpose of disproving the loan.' § 317. The most important class of facts which are excluded § 298a on the ground of irrelevancy, comprises the acts and declarations, either of strangers, or of one of the parties to the action in his dealings with strangers. These, — which in tLe technical language of the law are denominated ' res inter alios actce,^ — it would be manifestly unjust to admit, since the conduct of one man under certain circumstances, or towards certain individuals, varying as it will necessarily do according to the motives which influence him, the qualities he possesses, and his knowledge of the character of those with whom ho is dealing, can never afford a safe criterion by which to judge of the behaviour of another man similarly situated, or of the same man towards other persons. § 318. The application and extent of this rule will be best under- g 299 stood by referring to a few of the leading decisions on the subject. In an action of trover brought against the creditor of a bankrupt by the assignees, the goods in dispute were sought to be jjj^covered on the ground that, before they came into the hands of the defendant, acts of bankruptcy had been committed; and the plaintiffs endeavoured to prove these acts by showing the prior delivery of other goods to various creditors, who, after the fiat had issued, had returned them to the assignees; but the court was of opinion that the conduct of these creditors in returning the goods could not affect the title of the defendant. The only way in which their conduct bore upon the case, was by showing their conviction that they had received the goods under circumstances which did not entitle them to keep possession ; and as their opinions, expressed after the fiat, could not have been received, evidence of their acts, adduced for the purpose of raising an inference respecting the previous intentions, either of themselves or of the bankrupt, was equally inadmissible.^ So, proof of the usage of a particular estate, however extensive it may be, is ^ Dowling V. Dowling, 10 Ir. Law R., N. S. 236. » Backhouse v. Jones, G Bing. N. C. 65; 8 Scott, 148, S. C. 20 LAW OF EVH). — v. I. (3171) 306 RES INTER ALIOS ACTiE EXCLUDED. [PART 11. inadmissiblo for the purpose of importing into the lease of a farm on that estate some special stipulations relative to the mode of cultivation.' So, where the question between landlord and tenant was, whether the rent was payable quarterly or half-yearly, evidence of the mode in which other tenants of the same land- lord paid their rent was rejected;" and where it was necessary for a brewer to prove that he had supplied a publican with good beer, other publicans were not allowed to show that, during the same period as the dealing in question, he had furnished them with beer of an excellent quality, for a man may deal well with some of his customers, though not with others.^ § 319. In another case, where the point in issue was whether the ^ 299 plaintiff's scholars were ill- fed, a witness was not allowed to be asked as to the comparative quality of the provisions supplied by the plain- .tifif, with those consumed in a particular school, where the witness was educated, though evidence would be admissible to show the general treatment of boys at schools.* Again, in an action of contract against a married woman, where the issue was in part, whether the defendant had represented herself to the plaintiff as a feme sole, and whether he had dealt with her believing her to be such, it was held that evidence of the defendant's dealings with other tradesmen could only be admissible, if at all, on the ground that she had held herself out to them as a single woman, in such a manner as to reach the plaintiff" 's ears.^ So, also, in an action brought by the indorsee against the acceptor of a bill, where the defence was that the acceptance was a forgery, evidence that a col ' Womersley v. Dally, 26 L. J., Ex. 219. ^ Carter v. Pryke, Pea. R. 95, per Ld. Kenyon. ^ Holcombe v. Hewson, 2 Camp. 391, per Ld. Ellenhorough. See, also, Hollingham v. Head, 27 L. J., C. P. 241; 4 Com. B., N. S. 388, 8. C. ; Rew v. Hutchins, 10 Com. B., N. S. 829; Howard r. Sheward, 36 L. J., C. P. 42; 2 Law Rep., C. P. 148, S. C. * Boldron v. Widdows, 1 C. & P. 6.j, per Abbott, C. J. * Barden v. Keverberg, 2 M. & W. 61. See Smith v. Wilkins, 6 C. & P. 180, where, the question being whether credit was given to defendant's -mfe or to her father, evidence that other tradesmen had gi.ven credit to the father was properly rejected by Tindal, C. J. Also Delamotte v. Lane, 9 C. & P. 261. (3172) CHAP. II.] CUSTOMS OF MANORS WHEN ADMISSIBLE. 307 lection of bills, on which the defendant's acceptance was forged, had been in the plaintiff's possession, and that some of them had been circulated by him, was rejected, as no distinct proof was given that the bill in question had ever formed 2icirt of that collection.^ § 320. These last words deserve special notice, since they point ^ 300 out an exception to the rule under discussion, in favour of the admissibility of facts which, though collateral, are proved to be connected by some general- link with the matter in issue. This exception has been recognised in numerous cases. Thus, no rule is better established, or more frequently acted upon, than that which precludes the customs of one manor from being given in evidence to prove the customs of another; because, as each manor may have customs peculiar to itself, to admit the peculiar customs of another manor in order to show the customs of the manor in question, would be a very false guide for the purpose of leading to any sound conclusion, and would, in fact, put an end to all question as to the peculiar customs in particular manors, by throwing them open to the customs of all surrounding manors." Still, such customs become evidence the moment that a foundation has been laid for their admission, by clear proof of a sufficient connexion between the two manors. The mere fact, indeed, that the two lie within the same parish and leet, will not be sufficient; nor oven that the one was a subinfeudation of the other; at least, u^nless it be clearly shown that they were separated after the time of legal memory, since otherwise they may have had different immemorial customs.^ If, however, it can be satisfactorily proved that the customs in the two manors are identical, or that the one was derived from the other after the time of Richard the First, then the customs of each will respectively become evidence;* and so, also, if the custom in 1 Griffiths V. Payne, 11 A. & E. 131 ; 3 P. & D. 107, S. C. ; Thompson v. Mosely, 5 C. & P. 502, per Ld. Lyndhurst ; Viney v. Barss, Esp. 293, per Ld. Kenyon ; Balcetti v. Serani, Pea. R. 142, per Bnller, J. Such evidence would be clearlj' inadmissible in an indictment for forgery, per Ld. Denman, 11 A. & E. 133. 2 M. of Anglesey v. Ld. Hatherton, 10 M. & W. 235, per Ld. Abinger ; Furneaux j). Hutchins, 2 Cowp. 807 ; Doe v. Sisson, 12 East, 62. ' M. of Anglesey v. Ld. Hatherton, 10 M. & W. 218. * Id. 242, 243, per Alderson, B. (3173) 808 COLLATERAL FACTS CONNECTED WITH FACT IN ISSUE. [PART II. question be a particular incident of the general tenure which is proved to be common to the two manors, evidence may be given of what the custom of the one is as to that tenure, for the purpose of showing what is the custom of the other as to the same/ For instance, prove in a particular manor that borough English or gavelkind prevails, and then you may see from other manors what are the peculiarities of these tenures.^ § 321. The manors on the border between England and Scot- § 301 land," and those in the mining districts of Derbyshire and Cornwall, will furnish other examples of the application of this rule; since, throughout the former, a particular species of tenure, called tenant- right, and in the latter, particular customs, as to the rights of the miners and the rights to the minerals, prevail; and consequently, if in one of the manors no example can be adduced of what is the custom in any particular case, it is only reasonable that, in order to explain the nature of the tenure or right in question, which is not confined to a single manor, but prevails equally in a great number, evidence should be admissible to show what is the general usage with respect to that tenure or right.'' Thus, where in each of several manors belonging to the same lord, and forming part of the same district, a particular class of tenants called assessional tenants held the farms, to whom their tenements were gi'anted by similar words, evidence of the rights enjoyed by those tenants in one manor was received, to show the extent of their rights in another.^ This last case, indeed, raised no question as to manorial title; for had there been no manor at all, precisely the same evidence would have been admissible, provided the land had been all held under the assessional tenure.*^ ' M. of Anglesey v. Ld. Hatherton, 10 M. & M. 242, 243, per Alderson, B. ; Stanley v. White, 14 East, 338, 341, 342, per Ld. Ellenborough ; R. v. Ellis, 1 M. & Sel. 662, per id. ; D. of Somerset v. France; 1 Str. 662 ; Champian v. Atkinson, 3 Keb. 90 ; explained by Rolfe, B., in 10 M. & W. 246, 247. 2 M. of Anglesey v. Ld. Hatherton, 10 M. & W. 246, per Rolfe, B. ^ Rowe V. Parker, 5 T. R. 31, per Ld. Kenyon. * M. of Anglesey v. Ld. Hatherton, 10 M. & W. 237. per Ld. Abinger. 6 Rowe V. Brenton, 8 B. &C. 758 ; 3 M. & R. 361, S. C. « Per Ld. Abinger, in M. of Anglesey v. Ld. Hatherton, 10 M. & W. 237, 238. (3174) CHAP II.] COLLATERAL FACTS CONNECTED WITH FACT IN ISSUE, 309 § 322. Again, upon a question whether the Crown, in right of § 302 the Duchy of Lancaster, had the exclusive privilege, under the original charter granted to Henry Duke of Lancaster in the year 1349, of appointing a coroner within the honour of Pontefract, evidence of appointments of coroners, and of their acting, in other parts of the duchy, out of the honour of Pontefract, was held admis- sible.^ On the same principle, the mode of conducting a particular branch of trade in one place has been proved, by showing the mariner in which the same trade is carried on in another place ; ^ and where the dispute at the trial was as to the exact line of boundary between the manors of Wakefield and Rochdale which the plaintiff contended ' was the ridge of a mountain, whence the waters descended in oppo- site directions, he was allowed to prove, in support of this view, that the ridge of the same range ci. hills separated the manor of Rochdale from another manor which adjoined the manor of Wake- field; because, this being natural boundary, which was equally suitable in both cases, it was highly improbable that it should have been varied.^ § 323. In like manner it has been held, — upon a question whether ^ 303 a slip of waste land, lying between the highway and the enclosed lands of the plaintiff, belonged to him, or to the lord of the manor, — ■ that the lord might give evidence of acts of ownership on other parts of the waste land between the same road and the enclosures of other persons, although at the distance of two miles from the spot in dispute, and although the continuity of the waste was interrupted for the space of some sixty or seventy yards, by the intervention of a bridge and some old houses.* So, where, in trespass, the object of the plaintiff was to prove himself the owner of the entire bed of a river flowing between his land and that of the defendant, and thus to rebut the presumption that each party was entitled ad medium ' Jewison v. Dyson, 9 M. & W. 540. See Fleet v. Murton, 41 L. J., Q. P.. 49. ^ Noble V. Kennoway, 2 Doug. 510. ^ Brisco V. Lomax, 8 A. & E. 198 ; 3 N. & P. 388, S. C. * Doe V. Kemp, 7 Bing. 332 ; 2 Bing. N. C. 102 ; 2 Scott, 9, S. C. recog- nised by Parke, B., in Jones v. Williams, 2 M. & W. 327, 328 ; Bryan v. Winwood, 1 Taunt. 208 ; Dendy v, Simpson, 18 Com. B. 831. (3175) 310 COLLATERAL FACTS CONNECTED WITH FACT IN ISSUE. [PABT 11. filum aqre/ he was allowed to give in evidence acts of ownership exercised by himself upon the bed and banks of the river on the de- fendant's side, lower down the stream, where it flowed between the plaintiff's land and the farm of a third party, adjoining the defen- dant's property, as also repairs which he had done, beyond the limits of the defendant's land, to a fence which, dividing that and other land from the river, ran along the side of the stream for a considerable distance, till it came opposite to the extremity of the plaintiff''s property on the other side." 1 Ante, I 119. 2 Jones V. Williams, 2 M. & W. 326. The observations of Parke, B., in this case are so pertinent, that no apology is necessary for introducing them here at length. "I am also of opinion that this case ought to go down to a new trial, because I think the evidence olfered of acts in another part of one continuous hedge, and in the Avhole bed of the river, adjoining the plaintiff's land, was admissible in evidence, on the ground that they are such acts as might reason- ably lead to the inference that the entire hedge and bed of the river, and, con- sequently, the part in dispute, belonged to tlie plaintiff. Ownership may be proved by proof of i^ossession, and that can be shown by acts of enjoyment; of the land itself; but it is impossible, in the nature of things, to contine the evidence to the very precise spat on which the alleged trespass 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 enclosure ; f-jr 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 differeni 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 enclosed 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 l)oundary surrounding the whole ; and the case of Stanley V. White, 14 East, :>:32, I conceive, is to be explained on this principle : there was a continuoiis belt of trees, and acts of ownership on one part were held to be admissible tj prove that the plaintiff 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 Avhole belonged to the same person, by showing acts of ownership en his part along the same fence. It has been said in the course of the argument, that the defendant had no interest to dispute the acts of ownership not opposite his own land; but the ground on ivhieh such acts are admissible is not the acquies- cence of any party : they are admissible of themselves 'proprio rigore, for they tend to jjrove that he who does them is the owner of the soil ; though if they are dorte in the absence of all persons interested to dispute them, they are of less (3176) CHAP. II.] COLLATERAL FACTS CONNECTED WITH FACT IN ISSUE. 311 § 324. The same principle applies with increased force to the ^ 304 case of mines, because it is not possible that the lessees of minerals, lying under an extensive district, can enter upon, and take actual possession of, every part of that which forms the subject of demise; and, moreover, the mode of occupying a mine cannot afford the same evidence of possession as the occupation of the surface, the produce of which is from time to time consumed and renewed. When one is taken, it is gone for ever. Evidence, therefore, of working under one part of the surface is, under a demise of all mines and minerals lying beneath a large continuous tract of waste land, evidence of possession of the entire subject of demise.' § 325. In these, and the like cases, it is for the judge to decide,^ ^ 305 whether such an unity of character exists between the spot in dispute and the parcel of land over which acts of ownership have been exercised, as to lead to the fair inference that both are subject to the same rights, and constitute in fact but parts of an entire pro- perty. If no such inference can be raised, evidence of acts done beyond the limits of the locus in quo will be inadmissible. Thus, where it was attempted to connect parcels of waste land with each other, merely by showing that they all lay within the same manor, and between enclosures and public roads, it was held that evidence of acts of ownership over some of these lands was inadmissible to prove title to the others.^ toeight. That observation applies only to the efifect of the evidence. Apply- ing that reasoning to the present case, surely the jilaintiff, who claims the whole bed of the river, is entitled to show the taking of stones, not only on the spot in question, but all along the bed of the river,' which he claims as being his property ; and he has a right to have that submitted to the jury. The same observation applies to the fence and the banks of the river. "What weight the jury may attach to it is another question. The principle is the same as that which is laid down in Doe r. Kemp." — pp. 331, 332. See, also, R. v. Brightside, Bierlow, 13 Q. B. 933; Peardon r.' Underhill, 16 Q. B. 120; Done- gall V. Templemore, 9 Jr. Law Kep., N. S. 374, 406, per Christian, J.; and In re Belfost Dock Act, I. R., 1 Eq. 128, 142. 1 Taylor r. Parry, 1 M. & Gr. 604, 615, per Tindal, C. J., 1 Scott, N. R. 576, S. C. * Doe V. Kemp, 7 Bing. 336, per Bosanquet, J. ; ante, ^ 24. ' Doe V. Kemp, 2 Bing. N. C. 102. Ld. Denman, in giving judgment, ob- serves, " If the lord has a right to one piece of waste land, it affords no infer- (3177) 312 COLLATERAL FACTS WHEN EXCLUDED IN CRIM, CASES. [PART II. § 320. This rulo, limited in the manner above stated, is founded g ^Od on common sense and common justice, and applies with even greater force to criminal than to civil proceedings; for, as one of the chief objects of an indictment is to. afford distinct information to the pri- soner of the specific charge which is about to be brought against him, the admission of any evidence of facts unconnected with that charge, would be clearly open to the serious objection of taking the prisoner by surprise. No man should be bound at the peril of life or liberty, fortune or reputation, to answer at once and unprepared for eveiy action of his life. Few even of the best of men would . choose to submit to such an ordeal.' If, therefore, on an indictment for burglariously entering a house on a certain day and stealing goods therein, the prosecutor fail in proving that any larceny was on that occasion committed, he cannot abandon the charge of burglary, and then proceed to show that the prisoner stole some of the articles mentioned in the indictment on a previous occasion; because, though time is not usually a material allegation, yet the prisoner, having been led to suppose that he was to meet a charge of burglary, cannot be expected to come prepared to prove his innocence with respect to a distinct offence, committed, if at all, at a totally different time.^ So, an admission by the prisoner, that he has, at another time, committed an offence similar to that with which he is charged, and that he has a tendency to perpetrate such crimes, cannot be ence, even the most remote, that he has a right to anotlier, in the same manor, although both may be similarly situated with respect to the highway; assum- ing that all were originally the jjroperty of the same person, as the lord of the manor, which is all that the fact of their being in the same manor proves, no presumption arises from his retaining one part in his hands, that he retained another; nor, if in one part of the manor the lord has dedicated a portion of the waste to the use of the public, and granted out the adjoining land to private individuals, does it by any means follow, nor does it raise any probability, that in another part he may not have granted the whole out to private individ- uals, and they afterwards have dedicated part as a public road. But the case is very different with respect to those parcels, Avhich from their local situation may be deemed parts of one waste or common; acts of ownership in one part of the same field, are evidence of title to the whole; and the like may be said of similar acts on part of one large waste or common." — pp. 107, 108. See, also, Tyrwhitt v. Wynne, 2 B. & A. 554; Hollis v. Goldfinch, 1 B. & C. 218, 219, per Bayley, J. 1 Fost., C. L. 246. 2 R. V. Vandercomb, 2 Lea. 708; 2 East, P. C. 519, S. C. (3178) CHAP. II.] WHAT COLLATERAL FACTS ADMISSIBLE. 313 received;' and, in treason, no overt act amounting to a distinct independent charge, though falRng under the same head of treason, can be given in evidence, unless it be either expressly laid in the indictment, or be direct proof of any of the overt acts which are laid." Thus, on an indictment for adhering to the King's enemies on the high sea, where the overt act laid was the prisoner's cruis- ing on the King's subjects in a vessel called the Loyal Clencarty, evidence that he had some time before cut away the custom-house barge, and gone a cruising in her, was rejected.^ § 327. But when felonies are so connected together as to form § 307 part of one entire transaction, evidence of one may be given to show the character of the other.^ Thus, where th- essee of a coal- mine had run levels from his own shaft into his neighbours' mines, and had, during a period of four years, been constantly extracting coal belonging to thirty different proprietoi's, an indictment charging him in one and the same count with stealing the coal of each of these pro- prietors was held to be valid; and although the judge, in summing up,advised the jury to confine their attention to one particular charge, he refused to make the prosecutor elect on which case he would rely, but allowed him to give evidence in support of all the charges, as at least furnishing proof of a felonious intent.^ So, where a shopboy was indicted for robbing his mistress of six shillings, and it was proved that on one occasion, when the till contained some marked silver and other money amounting in all to 12s. 6cZ. the prisoner went to it, and it was afterwards found to contain 1 Is 6d. only, the prosecutrix was allowed to show that, on subsequent examinations of the till, the money was perceived to have gradually diminished, ^ R. V. Cole, 1 Ph. Ev. 477, by all the judges. ^ 7 W. 3, c. 3, I 8, as explained in Fost., C. L. 245; citing Ambrose Rook- wood's case, 13 How. St. Tr. 139; Lowick's case, id. 267; Lawyer's case, 16 id. 93; Deacon's case, 18 id. 365; Fost., C. L. 9, S. C; and Wedderburne's case, 18 id. 425; Fost., C. L. 22, S. C. 3 Vaughan's case, 13 How. St. Tr. 485; Fost., C. L. 246. * R. V. Ellis, 6 B. & C. 147, 148, per Bayley, J. ; Roupell v. Haws, 3 Fost. & Fin. 784; R. v. Rearden, 4 Fost. & Fin. 76, per Willes. J. '" R. V. Bleasdale, 2 C. & Kir. 765, per Erie, J. See R. v. Firth, 38 L. J., M. C. 54, where the prisoner was indicted for stealing gas; 11 Cox, 234, S. C; R. V. Hen wood, 11 Cox, 526. (3179) 314 WHAT COLLATERAL FACTS ADMISSIBLE. [PART II. and that, on the prisoner being searched 8s. of the marked money was found on his person; for though each taking was a separate felony, they were all so connected together as mutually to illustrate and prove each other.' § 328. So, where four indictments were found against a woman, ^ 307 which respectively charged her with poisoning her husband and two of her sons, and with attempting to poison a third son, evidence was tendered on the trial of the first indictment, that arsenic had been taken by the three sons a few months after their father's death ; that all the four parties, when taken ill, exhibited the same symp- toms ; and that the woman, who had lived in the same house with her husband and children, had been in the habit of preparing their meals. It was objected, on behalf of the prisoner, that the facts proposed to be proved took place subsequently to the death of the husband, and were, moreover, calculated to create a suspicion that the prisoner had committed three other felonies; but the court held that the evidence was clearly admissible, for the purposes of proving, first, that the husband died of arsenic, and next, that his death had not been accidental.^ So, where a man committed three burglaries in one night, and left at one of the houses property taken from an- other, the three felonies were considered so connected, that the court heard the history of them all;^ and the same course was adopted, where the prisoner was charged on three indictments with firing three stacks belonging to separate parties, and it appeared that the stacks, being within sight of each other, were fired about the same time.* 1 E. V. Ellis, 6 B. & C. 145. « R. V. Geering, 18 L. J., M. C. 215, per Pollock, C. B., after consulting Aklerson, B., and Talfourd, J.; R. ?'. Garner, 3 Fost. and Fin. 681, per Willes, J., & Pollock, C. B. ; S. C. more fully reported, 4 Fost. & Fin. 34G; R. v. Cotton, 12 Cox, 400, per Archibald, J., eS: Pollock, B.; R. i'. Roden, id. 630, per Lush, J.; R. v. Heesom, 14 Cox, 40, per id. See post, g 340. But see R. V. Winslow, 8 Cox, 397, per Martin & Wilde, Bs. See R. Flannagan, 15 Cox, 463, per Butt, J. « Cited by Ld. Ellenborough in R. v. Wylie, 1 N. R. 94; 2 Lea. Wd, S. C; R. V. Stonyer, 2 Russ.,"C. & M. 775, per Wightman, J. See, also, Alison, Cr. L. 313, 314, and Wills, Cir. Ev. 58 — 60, for remarkable cases of a similar nature which occurred in Scotland. * R. V. Long, 6 C. & P. 179, per Gurney, B., R. v. Cobden, 3 Fost. & Fin. 833, per Bramwell, B. (3180) CHAP, II.] DOCTRINE OF ELECTION. 315 § 329. In immediate connexion with this Subject, though not g 308 strictly a question of evidence, may be noticed the doctrine of elec- tion. In point of law, no objection can be raised, either on demurrer or in arrest of judgment, though the defendant or defendants be charged in different counts of an indictment with different offences of the same kind/ Indeed, on the race of the record, every count purports to be for a separate offence," and in misdemeanors it is the daily practice to receive evidence of several libels, several assaults, several acts of fraud, and the like, upon the same indictment.^ In cases of felony, however, this rule has, from motives of humanity, been considerably modified ; for as an indictment containing several distinct charges is calculated to embarrass a prisoner in his defence, the judges in the exercise of a sound discretion, are accustomed to quash indictments so framed, when it appears, before the prisoner has pleaded and the jury are charged, that the inquiry is to include separate crimes. When this circumstance is discovered during the progress of the trial, the prosecutor is usually called upon to elect one felony, and to confine himself to that,* unless the offences, though in law distinct, seem to constitute in fact but parts of one continuous transaction. Here such a course will not be pursued, as its adoption would defeat the ends of justice.^ § 330. Thus, if a prisoner is charged with receiving several x 309 articles, knowing them to have been stolen, and it be proved that they were received at separate times, the prosecutor may be put to his election, but if it be possible that all the goods may have been received at one time, he cannot be compelled to abandon any part of the accusation.'* So, where several prisoners were charged in ^ E. V. Kingston, 8 East, 41 ; R. v. Jones, 2 Camp. 132, per Ld. Ellen- borough. As to election in civil cases, see Howard v. Newton, 2 M. & Rob. 509. 2 Young v. R., 3 T. R. 106, per Buller, J.; 1 Lea. 511, S. C. =* R. v. Jones, 2 Camp. 132, per Ld. Ellenborough; R. r. Levy, 2 Stark. R. 458. See, also, R. v. Finacane, 5 C. & P. 551; R. v. Collier, id. 160. But see R. V. Barry, 4 Fost. & Fin. 392, per Martin, B. * R. V. Ward, 10 Cox, 42, per Byles, J. That was an indictment with three counts for sending three threatening letters. Held, that prosecutor must elect to proceed on one count. ^ Young V. R., 3 T. R. 106, per Buller, J.; R. v. Levy, 2 Stark, R. 458; R. V. Birdseye, 4 C. & P. 386. See, also, Anon., Ir. Cir. Rep. 165, 167, n. a. ^R. V. Dunn, 1 Moo. C. C. 146; R. v. Hinley, 2 M. & Rob. 524, per Maule, J. (3181) 316 LIMITATION IN DOCTRINE OF ELECTION. [PART II. different counts of the same indictment with committing successive rapes upon the prosecutrix, and aiding each other in turn, she was not put to her election, but the court heard the history of the whole transaction;' and a similar course was adopted, where an indict- ment contained five counts for setting fire to five houses belonging to different owners, and it appeared that the houses were in a row, and that one fire burnt them all.^ So, where an indictment, in the same count, charged four prisoners with assaulting and robbing two persons, who, it appeared, were walking together at the time when they were attacked, Chief Justice Tindal refused to put the prosecutors to elect upon which felony they would rely, and evidence being given as to the entire transaction, the prisoners were con- victed.^ In another case the defendant was charged in a single count with uttering twenty -hio forged receipts, which were severally set out and purported to be signed by different persons, with intent to defraud the Crown. His counsel contended that the prosecutor ought to elect upon which of these receipts he would proceed, as, amidst such a variety, it would be almost impossible for the prisoner to conduct his defence. As, however, the indictment alleged that they were all uttered at one and the same time, end the proof corresponded with this allegation, the court refused to interfere, and all the judges subsequently held that a proper discretion had been exercised.* § 331. In the case of embezzlement by clerks, servants, and per- g 310 sons employed in the public service, or in the police, the Legislature has expressly provided that distinct acts, not exceeding three, may be charged in one indictment, if they have been committed against the same master, and within the period of six calendar months from the first to the last of such acts ; ^ this exception being suggested by the difficulty which was felt in procuring a conviction, 1 R. V. Folkes, 1 Moo. C. C. 354 ; R. v. Gray, 7 C. «& P. 164 ; R. v. Parry, id. 836. * R. i\ Trueman, 8 C. & P. 727. ' R. V. Giddins, C. & Marsh. 634. * R. I'. Thomas, 2 Lea, 877; 2 East, P. C. 934, S. C. *24 & 25 v., c. 96, § 71. See R. v. Balls, 40 L. J., M. C. 148; 1 Law Rep., C. C. 328; & 12 Cox, 96, S. C. (3182) CHAP. II.] LIMITATION OF DOCTRINE OF ELECTION. 317 where tbe inquiry was confined to one offence. Still, if the prose- cutor, disregarding the statute, indict his servant for a single act of embezzlement, be must confine his evidence to that alone, and, if it appear that the prisoner received difierent sums on different days, and made a false account respecting each sum separately, he must elect one sum and one day on which to proceed.^ § 332. In the case of larceny the doctrine of election has been g 311 still further limited; for not only may several counts be inserted in the same indictment for distinct acts of stealing, not exceeding three, which may have been committed by the prisoner against the same person within the space of six calendar months;^ but if, upon the trial of any indictment for larceny, the property alleged to have been stolen at one time shall turn out to have been taken at differ- ent times, the prosecutor shall nci. be put to his election, unless it shall appear that there were more than three takings, or that more than the space of six calendar months elapsed between the first and the last of such takings.^ In either of these last events the prosecutor shall be required to elect to proceed for such number of takings, not exceeding three, as have occurred within six months of each other.* § 333. Another salutary exception to the rule of election is recog- § 312 nised with respect to receivers of stolen goods ;'^ and, provided the inquiry relate to a single criminal act, one or more counts for feloniously sealing property may now be always joined in the same 1 R. V. Williams, G C. & P. 626. , ''24&25 v., c. 96, g 5. ^ Id. § 6. * Id. ^ 24 & 25 v., c. 96, § 92, enacts, that " in any idictment containing a charge of feloniously stealing any property, it shall be lawful to add a count or several counts for feloniously receiving the same, or any part or parts thereof, knowing the same to have been stolen ; and in any indictment for felonioasly receiving any property, knowing it to have been stolen, it shall be lawful to add a count for feloniously stealing the same ; and where any such indictment shall have been preferred and found against any person, the prosecutor .shall not be put to his election, but it shall be lawful for the jury who shall try the same to find a verdict of guilty, either of stealing the property, or of receiving the same, or any part or parts thereof, knowing the same to have been .stolen ; and if such indictment shall have been preferred and found against two or more persons, it shall be lawful for the jury, who shall try the same, to find all or (3183) 318 COLLATERAL FACTS WHEN ADMISSIBLE. [PART II. indictment with one or more counts, charging the felonious receipt of the same property by the prisoner, he well knowing it to have been stolen.' § 334. The time for putting the prosecutor to his election is, when § 3!3 it shall appear by the evidence that the two or more supposed occur- rences took place at different periods, and it is not sufficient for this purpose that the counsel for the Crown, in his opening address, has stated that the fact was so, because the witnesses, on being examined, may put the matter in a different light.'' § 335. Upon the same principle, that collateral facts are only § 3J4 excluded, when they cannot raise any fair inference respecting the matter in issue, evidence of other offences committed by the prisoner is sometimes admitted, with the view either of establishing his identity, or of corroborating the testimony of a witness in some material particular. Thus, on an information for a libel, where the printer swore that he had received the manuscript from the de- fendant, and had returned it to him, and notice had been given to the defendant to produce it, other libels written by him concerning the same subject were received by Lord Kenyon, as evidence to cor- roborate the statement of the printer.^ So, where the prisoner was charged with robbing the prosecutor of a coat by threatening to accuse him of an unnatural crime, evidence of a similiar, but ineffec- tual, attempt on the following evening, when the prisoner brought the duplicate pawn- ticket for the coat, and which ticket was found on his person at the time of his apprehension, was held admissible, as confirmatory of the truth of the prosecutor's evidence respecting what occurred on the former day.* So, on a charge of highway* robbery, the prosecutor was allowed to rebut an alibi, by proving any of the said persons guilty, either of stealing the property, or of receiving the same, or any part or jwrts thereof, knowing the same to have been stolen, or to find one or more of the said persons guilty of stealing the property, and the other or others of them guilty of receiving the same, or any part or parts thereof, knowing the same to have been stolen." ^ R. V. Beeton, 1 Den. 414 ; 2 C. & Kir. 9G0, S. C. See R. v. Hughes, 29 L. J., M. C. 71. 2 R. V. Smart, Ir. Cir. Rep. 15, per Bushe, C. J. * R. V. Pearce. Pea. R. 75. * R. V. Egerton, R. & R. 375, cited by Holroyd, J., in R. v. Ellis, 6 B. & C. 148. (3184) CHAP. II.] COLLATERAL FACTS WHEN ADMISSIBLE. 319 that, shortly before the attack inade upon him, and near the same spot, the prisoner had robbed another person ; ' and even had no such defence been set up, similar evidence would, it seems, have been admissible, as showing at least that the prisoner was in the neighbourhood at the time when the crime was committed.' § 336. In civil causes, too, evidence of collateral facts is some- g 315 times received for the purpose of confirming the testimony of wit- nesses. For instance, where a party was sued on a bill of exchange, which had been accepted in his name by another person, and evidence had been given that this person had a general authority from the defendant to accept bills in his name, the court held that an admis- sion by the defendant of his liability on another bill so accepted, was receivable in evidence, in order to confirm the witness who had spoken to the general authority.^ § 337. A.nother exception to the rule excluding evidence of colla- ^ 316 teral facts is recognised, where the question is a matter of science, and where the facts proved, though not directly in issue, tend to illus- trate the opinions of scientific witnesses. Thus, where the point in dispute was, whether a sea-wall had caused the choking up of a har- bour, and engineers were called to give their opinions as to the effect of the wall, proof that other harbours on the same coast, where there were no embankments, had begun to be choked about the same time as the harbour in question, was admitted, as such evidence served to elucidate the reasoning of the skilled witnesses.* So, if the point in dispute were whether the defendant was or was not on a certain occa- sion in his right mind, it is clear that, after proof given by a medical man, or admission made by counsel, that madness was often of an hereditary character, evidence tending to show that none of the defen- dant's ancestors or near relations had been insane, would be admis- 1 R. V. Briggs, 2 M. & Rob. 199, per Alderson, B. '^ R. V. Rooney, 7 C. & P. 517, per Littledale, J. See, also, R. v. Fursey, 6 C. & P. 81, per Parke & Gaselee, Jse. * Llewellyn v. Winckworth, 13 M. & "W. 598. See Hollingham v. Head, 27 L. J., C. P. 241; 4 Com. B., N. S. 388, S. C. ; Morris v. Bethell, 4 Law Rep., C. P. 765; ,38 L. J., C. P. 377, S. C; 5 LaAV Rep., C. P. 47, S. C. ♦ Folkes V. Chadd, 3 Doug. 157; M'Fadden v. Murdock, I. R., 1 C. L. 211. (3185) 320 COLLATERAL FACTS WHEN ADMISSIBLE. [PAET 11. sible in support of the negative proposition. So, on a question of dis- puted paternity, once prove as a matter of science that children are apt to inherit the features or general appearance of their pjii-ents, and then, as a matter of course, evidence will be received of personal resemblance between the party in question and his alleged father.' § 338. In some cases evidence has been received of facts which ? 317 happened before or after the principal transaction, and which had no direct or apparent connexion with it ; and, consequently, their admission might seem, at first view, to constitute another exception to this rule. But in these cases, the knowledge or good faith, or intent of the party was a material fact, on which the evidence, ap- parently collateral, and foreign to the main subject, had a direct bearing. The admission, therefore, of such evidence, instead of being an exception to the rule, falls strictly within it. Thus, where the question was, whethev the acceptor of a bill of exchange either knew that the name of the payee was fictitious, or else had given to the drawer a general authority to draw bills on him payable to ficti- tious persons, evidence was admitted to show that he had accepted other bills, drawn in like manner, before it was possible to have transmitted them from the place at which they bore date.^ So, in an action for an assault and consequent injury, where evidence for the defence was given that the plaintiff had ascribed her injury to a previous accident, she was allowed to show that in fact no such accident had ever occurred.^ So, in any trial, evidence will be admissible to prove or disprove any attempt at subornation of witnesses.* § 339. So, in an action for fraudulently representing that a trader § 317 was trustworthy, whereby the plaintiff was induced to sell him goods, and thus lost the price of them, the court permitted the defendant to call fellow -townsmen of the trader to state, that, at the time when the representation was made, the man was, according to their belief, in good credit.^ So, in an action for work and labour in fixing 1 Bagot V. Bagot, 1 L. R., Ir. 308. " Gibson v. Hunter, 2 H. Bl. 288. 3 Melhuish v. Collier, 15 Q. B. 878. * Id. s Sheen v. Bumpstead, 1 H. & C. 358; aflfd. in Ex. Ch., 2 New R. 370; 2H. & C. 193; 32 "L. J., Ex. 271, S. C. (3186) CHAP. II.] COLLATERAL FACTS WHEN ADMISSIBLE, 321 railings to certain houses belonging to the defendant, where the defence was that the plaintifF had given credit to a third person by whom the houses were built under a contract, the builder was allowed to state that the order was given by him on his own account, and not as agent for the defendant ; and that the defendant had actually paid him for the building of the houses, including the charge for the railings. This evidence of payment was objected to, but the court held that it was clearly admissible, as tending to show the bona fides of the defence.' In another case, where a plaintifP sought to set aside a contract on the ground of his having been insane when it was made, the court held, upon an issue as to whether or not the defendant was at the time aware of the insanity, that evidence of the plaintiff's conduct, at different times both before and after the date of the contract, was admissible, for the purpose of showing that the madness was of such a character as must have been apparent to any one, who had had opportunities of observation like those afforded to the defendant.^ § 340. Again, in an action against a company to recover a sum s 3J8 of money which the plaintiff had paid them in consequence of a fraud alleged to have been committed by their agent with their knowledge and for their benefit, evidence of similar frauds perpetrated on other persons by the same agent with the knowledge and for the benefit of the defendants, was held to be admissible in proof of fraudulent complicity in the case before the Court.^ So, in actions for false representation, where the question twYns on. fraudulent intent, other mis-statements besides those laid in the statement of claim will be admissible in evidence, for the purpose of showing that the defen- dant was actuated by dishonest motives.* So, in the Divorce Division, in a suit for dissolution of marriage, evidence of acts of adultery, subsequent to the date of the latest act charged in the petition, will be admissible, for the purpose of shewing the character ' Gerish v. Cliartier, 1 Com. B. 13. * Beavan v. M'Donnell, 23 L. J., Ex. 326; 10 Ex. R. 184, S. C. ^ Blake t'. Albion Life Ass. Co., L. R., 4 C. P. D. 94; 48 L. J., C. P. 169; & 14 Cox, 246, S. C. See ante, | 328. * Huntingford v. Massey, 1 Fost. & Fin. 690, per Crompton, J. 21 LAW OF EVID.— V. I. (3187) 322 COLLATERAL FACTS WHEN ADMISSIBLE. [PART II. of previous acts of improper familiarity.' So, in actions for malicious arrest, the jury are always at liberty to draw an inference of malice ex antecedentibus et consequentibus.^ In actions, too, for defama- tion, other words written or spoken by the defendant, either before,' or after, those declared upon, or even after issue joined,* are ad- missible as evidence of actual malice or of deliberate publication;^ and for this purpose it makes in general no difPerence, whether the language on which the action is founded be equivocal or clear,* — whether the collateral words tendered in evidence be addressed to the same party, to whom the slander is alleged in the statement of claim to have been spoken, or to a stranger,' — or whether those words be themselves actionable or not.* 1 Boddy V. Boddy, 30 L. J., Pr. & Mat. 23. 2 Spencer v. Thompson, 6 Ir Law R., N. S. 537, 571. ' Long V. Barrett, 7 Ir. Law R. 439 ; Barrett v. Long, 8 Ir. Law R. 331 ; 3 H. of L. Cas. 395, S. C. as affd. in Ex. Ch. and Dom. Proc. That was an action of libel, and the plaintiff, to show the animus of the defendant, tendered in evidence other libels published by him against the plaintiff six years before. These were held to be admissible, the jury having been cautioned not to give damages respecting them. Moreover, the omission to give such caution will not amount to misdirection, Darby v. Ouseley, 1 H. &N. 1. * Pearson v. Le Maitre, 6 Scott, N. R. 607 ; 5 M. & Gr. 700, S. C. In that case a letter was admitted, written subsequently to the commencement of the action, and fourteen months after the libel complained of. See, also, Macleod V. Wakley, 3 C. & P. 311, where the paragraph admitted by Ld. Tenterden was published only two days betore the trial; and Plunkett v. Cobbett, 5 Esp. 136, where, the defendant being the editor of a weekly periodical, proof that a copy of the paper containing the libel was sold after action brought, was admitte(i by Ld. Ellenborough as evidence of deliberate publication. ^ Pearson v. Le Maitre, 6 Scott, N. R. 607 ; 5 M. & Gr. 700, S. C. ; Barwell V. Adkins, 1 M. & Gr. 807, 2 Scott, N. R. 11, S. C. ; Perkins v. Vaughan, 4 M. & Gr. 988; Hemmings v. Gasson, 1 E. B. & E. 346 , Rustell v. Mac- quister, 1 Camp. 49, n., per Ld. Ellenborough. Charlter v. Barret, Pea. R. 22, per Ld. Kenyon; Lee v. Huson, id 166, per id.; Scott v. lA. Oxford, id. 3rd ed. 170, n. a, per Lawrence, J., B. N P 7, Delegal v. Highley, 8 C. & P. 444, per Tindal, C. J. ; Jackson v, Adams, 2 Scott, 599. * See n. 8, below. ' Pearson v. Lemaitre, 6 Scott, N. R. 607; 5 M. & Gr. 700, S. C; Mead v. Daubigny, Pea. R. 125, per Ld Kenyon. « Pearson v. Lemaitre, 6 Scott, N. R. 607; 5 M. & Gr. 700, S. C; question- ing Pearce v. Ornsbv, 1 M. & Rob. 455, and Symmons v. Blake, id. 477. Tindal, C. J., in pronouncing the judgment of the court, states the correct rule to be, '' That either party may, with a view to damages, give evidence to prove or di.sprove the existence of a malicious motive in the mind of the publisher of defamatory matter; but that, if the evidence given for that purpose establishes another cause of action, the jury shall be cautioned against giving any damages (3188) CHAP II.] COLLATERAL FACTS WHEN ADMISSIBLE. 323 § 341. The case of Warwick v. Foulkes' will illustrate this doc- I r,!"^ trine. That was an action of trespass for false imprisonment, to which the defendant pleaded first, not guilty, and secondly, a justi- fication, alleging that the plaintiff had committed a felony. This last plea was abandoned and apologised for at the trial; but the court held that, in estimating the damages under the first issue, the jury might take into account the fact of a jurisdiction having been pleaded, because the placing such a plea on the record was a per- sisting in the charge, which, under the circumstances, was strong evidence of malice. So, where on the trial of an action for slander, to which the general issue and a jurisdiction were pleaded, the plaintiff expressed his willingness to accept an apology and nominal damages if the plea of justification were withdrawn, but the defen- dant refused to abandon this plea, though he offered no evidence in support of its truth, the court held that the jury might consider the defendant's conduct, not only with reference to the question of damages, but as furnishing evidence of express malice, and thus rendering the words proved actionable, though they were prima facie privileged communications.^ § 342. If, however, to an action for a libel, the defendant were to « 3^9 set up as his defence a privileged communication and justification, the jury, in forming an opinion, under the first issue, should not, as it seems, take into consideration the circumstance that the justi- fication had been pleaded, provided that such defence were openly abandoned at the trial.^ So, if it clearly appear that other libels are offered in evidence, merely with the view of unfairly recovering in respect of it ; and if such evidence is offered merely for the purpose of obtaining damages for such subsequent injury, it will be properly rejected. And perhaps the cases of Pearce v. Ornsby and Symmons v. Blake went no farther than this. * * Upon principle, we think, that the spirit and inten- tion of the party publishing a libel are fit to be considered by a jury, in esti- mating the injury done to the plaintiff, and that evidence tending to prove them cannot be excluded, simply because it may disclose another and different cause of action." 5 M. & Gr. 719, 720. See, also, Russell v. filacquister, 1 Camp. 49, n., where Ld. Ellenborough remarked, that the distinction between words actionable and not actionable was not founded on any jirin- ciple ; and Camfield v. Bird, 3 C. & Kir. oQ^ per Jervis, C. J. 1 12 M. & W. 507. "^ Simpson v. Robinson, 12 Q. B. 511 * Wilson r. Robinson, 7 Q. B. 68. (3189) 324 COLLATERAL FACTS WHEN ADMISSIBLE. [pART II. damages for the injury sustained by their publication, they will properly be rejected;' and it seems that no subsequent libels will be admitted, unless they directly refer to the defamatory language set out in the statement of claim, or at least relate to the same subject matter.^ § 343. Not only is other defamatory matter admissible for the ? 320 purpose of showing the animus of the defendant, but the 77iode in which such matter was published may also be highly material; as for instance, if printed placards were sent to the plaintiff's house, or paraded before his door.^ § 344. On the same principle the defendant, in mitigation of § 321 damages, has been allowed to give evidence palliating, though not justifying, his act of publishing a libel, as, for instance, that he copied it from another newspaper,* or that he had been pj'ot'o/ced to act as he had done by the conduct of the plaintiff, who had previously published libels of him respecting the same subject matter. But in this last case some proof must be given that the libels published by the plaintiff had first come to the knowledge of the defendant,^ since they are admissible, not on the ground of any right to set oft one libel against another,® but simply from an indulgent ' See cases cited, ante, in n **, p, 322 ; Stuart v. Lovell, 2 Stark E. 95 ; Defries v. Davis, 7 C. & P. 112. ■^ Fiunerty v. Tipper, 2 Camp. 72, per Sir J. Mansfield. ^ Bond V. Douglas, 7 C. & P. 626, per Ld. Abinger * Saunders r. Mills, 6 Bing. 213 cited by Tindal, C. J., in Pearson v. Le Maitre, 5 M. & Gr. 719. In Talbutt v. Clark, 2 M. & Rob. 312, Ld. Denman would not permit the editor of a newspaper to show, in mitigation of damages, that the libel was published on the communication of a correspondent ; and referring to a case which was probably Saunders v. Mills, his Lordship observed, that '• that decision had been very much questioned." However, by the recognition of Saunders i). Mills in Pearson v. Le Maitre, the case of Talbut 11. Clark wiuld seem to be indirectly overruled. See, also, East v. Chapman, M. & M. 46 ; 2 C. & P. 570, S. C, per Abbott, C. S. ; Charlton v. Watson, 6 C. & P. 385, per Patteson, J. ; Creevy v. Carr, 7 C. & P. 64. 5 Watts V. Fraser, 7 A. & E. 223 ; 7 C. & P. 369, S. C. ; Tarpley v. Blabey, 2 Bing. N. C. 437 ; 2 Scott, 642 , 7 C. & P. 395, S. C. ; May v. Brown, 3 B. & C. 113 ; 4 D. & R. 670, S. C. ; Wakley v. Johnson Ry. & M. 422 ; Fiunerty v. Tipper, 2 Camp. 72. See Richards v. Richards, 2 M. & Rob. 557. " AVatts V. Fraser, 7 C. & P 370, per Ld. Denman. In Judge v. Berkeley, cited id. 371, n. a, Burrough, J , allowed the defen dant, in an action of assault, (3190) CHAP. II. ] COLLATE-RAL FACTS WHEN ADMISSIBLE. 325 consideration of the weakness of human nature, which leads a man, when his feelings are exasperated, to say " that he should be sorry for." Moreover, in all cases of this kind, where the de- fendant, without asserting the truth of his statement, attempts to reduce the damages by referring to the circumstances which in- fluenced his conduct, he can now only do so in one of two ways ; either he must obtain the leave of a judge, or, a week before the trial, he must furnish the plaintiff with particulars of the matters on which he relies. The New Rule on this subject is as follows : — " In actions for libel or slander, in which the defendant does not by his defence assert the truth of the statement complained of, the defendant shall not be entitled on the trial to give evidence in chief, with a view to mitigation of damages, as to the circumstances under which the libel or slander was published, or as to the character of the plaintiff, without the leave of the judge, unless seven days at least before the trial he furnishes particulars to the plaintiff of the matters as to which he intends to give evidence.'" § 345. Evidence of this kind is very frequently admitted in « 325 criminal proceedings. Thus, on an indictment for knowingly uttering a forged document, or a counterfeit bank note, or counterfeit coin, proof of the possession, or of the prior or sub- sequent^ utterance, either to the prosecutor himself or to other persons, of other false documents or notes, or bad money, though of a different description,^ and though themselves the subjects of separate indictments,* is admissible as material to the question of to prove, in mitigation of damages, a series of libellous articles published respecting him by the plaintiff, one of which appeared on the day of the assault. ' Rules of Sup. Ct., 1883, Ord. XXXVI., R. 37. •^ R. V. Forster, Pearce & D. 456. This case disposes of a doubt raised in R. V. Taverner, Carr. Supp. 195; 4 C. & P. 413, n. a, S. C. ; and in R. v. Smith, 4 C. & P. 411 ; as to whether evidence of subsequent utteriugs would be admis- ' sible, if the notes or com were of a different description. =* R. 1!. Harris, 7 C. & P. 429, by all the judges; R. v. Forster, Pearce & D. 456. Doubts had been entertained on this subject by some of the judges, in R. V. Millard, R. & R. 245, but the evidence was admitted in Sunderland's, Hodgson's, Kirkwood's, and Martin's cases, 1 Lew. C. C. 102 — 104. The same evidence is admissible in Scotland; Alison, Cr. L. 420. * R. V. Hough, R. & R. 122; R. v. Weeks, 8 Cox, 455; Kirkwood's case, 1 (3191) 32G COLLATERAL FACTS WHEN ADMISSIBLE. [pART II, guilty knowledge or intent-^ but in these cases it is essential to prove distinctly that the instruments offered in evidence of guilty knowledge were themselves forged.^ It seems also, that though the prosecutor may prove the uttering of other forged notes by the prisoner, and his conduct at the time of uttering them, he cannot proceed to show what the prisoner said or did at another time, with respect to such uttering; for these are collateral facts, too remote for any reasonable presumption of guilt to be founded upon them, and such as the prisoner cannot by any possibility be pi'epared to contradict/ § 346. This laxity of evidence, which has long prevailed in 2 303 charges of uttering, and of one or two offences of a cognate character,* has also, with respect to the receivers of stolen goods, been expressly sanctioned by the Legislature. Thus, "The Prevention of Crimes Act, 1871," * in § 19, contains an enactment that, "where proceedings are taken against any person for having received goods knowing them to be stolen, or for having in his possession stolen prof)erty, evidence may be given at any Lew. C. C. 103, per Littledale, J. ; Martin's case, id. 104, per id. ; R. v. Aston, 2 Russ. C. & M. 407, per Alderson, B. ; R. i;. Lehvis, id., per Ld. Denman, who observed, that "he could not conceive that the relevancy of the fact to the charge could be effected by its being the subject of another charge.'' Contra R. V. Smith, 2 C. & P. 633, per Vaughan, B. 1 R. V. Wylie, IN. R. 92, 94; 2 Lea. 983, S. C, nom. R. v. Whiley; R. v. Ball, 1 Camp. 324; R. & R. 132, S. C; R. v. Harrison, 2 Lew. C. C. 118, per Taunton, J., and Alderson, B. ; R. r. Green, 3 C. & Kir. 209, per Cresswell, J.; R. V. Nisbett, 6 Cox, 320, per AVilliams, J. ; R. v. Salt, 3 Fost. «*fc Fin. 834, per Williams, J.; R. v. Colclough, 15 Cox, 92, Jr. C. C; 10 L. R., Ir. 241, S. C. '' R. V. Millard, R. & R, 245. » R. V. Phillips, 1 Lew. C. C. 105, per Bayley, J. ; R. v. Cooke, 8 C. & P. 586, per Patteson, J. Contra, R. v. Forbes, 7 C. & P. 224, per Coleridge, J. See R. V. Brown, 2 Fost. & Fin. 559. * E. g. the obtaining money by falsely pretending to a pawnbroker that a spurious chain was silver; R. v. Roebuck, Dear. & Bell. 24, 26; R. v. Francis, 43 L. J., M. C. 97; 2 Law Rep., C. C. 128, 12 Cox, 612, S. C. The doctrine, however, does not extend to ordinary indictments for false pretences; R. v. Holt, 30 L. J., M. C. 11; Bell, C. C. 280, S. C; 8 Cox, 411, S. C. Still, it has been applied to cases of arson with intent to defraud insurance companies; R. V. Gray, 4 Fost. & Fin. 1102, per Willes. J., & Martin, B.; sed qu. * 34 & 35 V., c. 112. (3192) CHAP. 11.] COLLATERAL FACTS WHEN ADMISSIBLE. 327 stage of the proceedings that there was found' in the possession 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." § 347. Notwithstanding the above enactment, and perhaps, even, ? 323a in consequence of it, the judges may still decline to recognise the doctrine. under discussion in ordinary criminal trials.^ Thus much, however, may be safely predicated, that, on a charge of send- ing a threatening letter, other letters written by the prisoner, both before and after the one in question, are admissible to explain its meaning ;* on an indictment for malicious shooting, if it be doubtful whether the shot was fired by accident or design, proof may be given that the prisoner at another time intentionally shot at the same person;^ and in indictments for murder, while evidence of former menances or quarrels will have an important tendency towards sup- porting the legal inference of malice,® proof of expressions of kind- ness or of friendly acts towards the deceased will be entitled to equal weight as raising a counter presumption.^ § 348. In like manner, on an indictment for robbery, where ^ 324 it appeared that the prisoners had formed part of a mob, who went into the prosecutor's house, and that one of the mob had ^ It is not sufficient under these words to prove that the prisoner had very recently dealt with other stolen property; R. v. Drage, 14 Cox, 85, per Braui- well, L. J.; R. v. Carter, decided hy Ct. of Cr. App., 5 Apl. 1884; L. R., 12 Q. B. D. 522; 53 L. J., M. C. 96, S. C. ; and 15 Cox, 448." ^ This evidence will be admissible, though the property so found may be the subject of another indictment against the prisoner at the same assizes; R. V. Jones, 14 Cox, 3. •^ See and compare R. v. Fairie, 8 E. & B. 486; R. v. Winslow, 8 Cox, 397; R. V. Geering, 18 L. J., M. C. 215, cited ante, I 327; R. v. Oddy, 2 Den. 264; R. V. Sirrell, cited in id. 267; R. v. Dunn, 1 Moo. C. C. 146; R. v. Nicholls, 1 Fost. & Fin. 51. See, also, R. v. Flannagan, 15 Cox, 463, per Butt, J., follow- ing R. V. Geering. * R. v. Robinson, 2 East, P. C. 1110, 1112. * R. i\ Voke, R. & R. 531. For other examples, see R. v. Mogg, 4 C. & P. 364; R. II. Dossett, 2 C. & Kir. 306, per Maule, J.; R. v. Richardson, 2 Fost. & Fin. 343; 8 Cox, 448, S. C; R. t;. Harris, 4 Fost. & Fin. 342. See, also, ante, ^ 327, 328. ^ « See R. V. Hagan, 12 Cox, 357. ' 1 Ph. Ev. 470, 476. (3193) 328 EVIDENCE OF GENERAL CHARACTER. [PART II. civilly advised him to give them something to prevent mischief, evidence that this mob, in the presence of some of the prisoners, had demanded money at other houses on the same day, was admitted, as tending to prove that the advice was not given bona tide, but was in reality a polite mode of committing a robbery.^ This last case difPers from those just cited in one respect, namely, that the acts given in evidence were not committed by the prisoners themselves, but only by some of the mob with whom they were connected. The principle, however, is the same; for the law has wisely provided, that where several evil doers conspire together to effect some unlawful purpose, the acts done by one of the party in furtherance of the common design shall be considered as done by all.' § 349. To this rule may be referred the admissibility of evidence § 305 respecting the general character of individuals. Such evidence is tendered for the purpose of either raising a presityn^p^ion of innocence or guilt, or affecting the amount of damages, or of impeaching or supporting the veracity of a witness;^ the first object being chiefly confined to criminal prosecutions, and the second to civil causes, while the third is equally applicable to both modes of procedure. § 350. The term " character," as here used, is not, — as some of g 325^ our ablest judges have considered it to be,* — synonymous with '"disposition," but it simply means "reputation," or the general credit which a man has obtained in public opinion.^ A witness, therefore, who is called to speak to character, — unlike a master who is asked for the character of his servant, — cannot give the result of his own personal experience and observation, or express his own opinion, but, in strict law he must confine himself to evidence of mere general repute." This rule, — which appears to rest rather ' R. V. Wink worth, 4 C. & P. 444, per Parke, J., with the concurrence of Ld. Tenterden, Alderson, J., and Vaughan, B. 2 R. V. Watson, 32 How. St. Tr. 7; R. v. Hardy, 24 id. 704; R. v. Salter, 5 Esp. 125; R. v. Hunt, 3 B. & A. 566. ^ 2 St. Ev. 303. * R. V. Rowton, 34 L. J., M. C. i)7 ; L. & Cave, 520; 10 Cox, 25, S. C, per Erie, C. J., & Willes, J. » R. V. Rowton, 34 L. J., M. C. 57; L. & Cave, 520; 10 Cox, 25, S. C, per Cur., Erie, C. J., & Willes, J., diss. « Id. See post, I 1470. (3194) CHAP II.] EVIDENCE OF GENERAL CHARACTER. 329 on authority than on reason, — would probably have been rejected long ago by the courts, had it not been for two causes. First, the rule, in practice, is seldom strictly enforced; and, next, it has to a certain extent been modified by the judges. Aware that •' the best character is generally that which is the least talked about," ' they have found it necessary to permit witnesses to ^ive negative . evidence on the subject, and to state that " they never heard any- thing against the character of the person on whose behalf they have been called."'' Nay, some of the judges have gone so far as to assert that evidence in this negative form is the most cogent proof of a man's good reputation.^ § 351, When the point at issue is whether the accused has § 326 committed a particular criminal act, evidence of his general good character is obviously entitled to little weight, unless some reasonable doubts exists as to his guilt; and, therefore, in this event alone will the jury be advised to act upon such evidence/ The inquiry, too, must be confined, — except where the intention forms a material ingredient in the offence,^ — to the general character of the prisoner, and must not condescend to particular facts;'' for although the common reputation, in which a person is held in society, may be undeserved, and the evidence in support of it must, from its very nature, be indefinite, some inference, varying in degree according to circumstances, may still fairly be drawn from it; since it is not probable that a man, who has uniformly sustained a character for honesty or humanity, will forfeit that character by the commission of a dishonest or a cruel act. But the mere proof of isolated facts can afford no such pre- sumption. " None are all evil," and the most consummate villain ' Per Erie, C. J., 34 L. J., M. C. 63 ; L. & Cave, 535, 10 Cox, 33. S. C. 2 Per Cockburn, C. J., 34 L. J., M. C. 64, L. & Cave, 536; 10 Cox. 34, S. C. ' Id. * In R. V. Turner, 6 How. St. Tr. 613, Hyde, C, J., observed to the jury:— "The witnesses called in point of reputation I must leave to you. Few men that come to be questioned but shall have some come and say, ' he is a very honest man; I never knew any hurt by him;' but is this anything against the evidence of the fact .? " ^ Ante, ? 345. ^ J'Anson v. Stuart, 1 T. R. 754, per Buller, J. In former times the prac- tice was less strict. See R. v. Turner, 6 How. St. Tr. 606, 607. (3195) 330 EVIDENCE OF GENERAL CHARACTER. [PART II. may be able to prove, that on some occasions he has acted with humanity, fairness, or honour. In all cases, too, when evidence is admitted touching the general character of the party, it ought manifestly to bear reference to the nature of the charge against him;' as, for instance, if he be accused of theft, that he has been reputed an honest man; — if of treason, a man of loyalty. It should also relate to the same period as the supposed ofFence; for, as Lord Holt once remarked, "A man is not born a knave; there must be time to make him so, nor is he presently discovered after he becomes one." ^ Subject to these observations, evidence of the defendant's general good character is admissible in all prosecu- tions whether for felony or misdemeanor.^ § 352. Although the defendant, from motives of humanity, is ? 327 allowed this reasonable indulgence, the prosecutor cannot, in the first instance, have recourse to the same loose testimony, for the purpose of establishing the guilt of the accused;* but if, with the view of raising a presumption of innocence, witnesses to character are called for the defence, the counsel for the Crown may then rebut this presumption, by cross-examining the witnesses, either as to particular facts,^ or, if they deem it essential, as to the ground of their belief/ Evidence of general bad character will also in such case be admissible,' though it is seldom resorted to in practice." In most trials for felony, and in some for misde- meanor, if the defendant endeavours to establish a good character, either by calling witnesses himself, or by cross-examining the 1 Douglass V. Tousey, 2 Wend. 352. 2 R. V. Swendsen, 14 How. St. Tr. 596. =* 2 Russ. C. & M, 784. *R. V. Tuberfield, 34 L. J., M. C. 20; L. & Cave, 495; 10 Cox, 1, S, C. In that case the question was put, not to prove the guilt of the prisoner, but to show that the witness, a policeman, had had probable cause for arresting him. Held, nevertheless, that the answer was not evidence. * R. V. Hodgkiss, 7 C. & P. 298. In R. v. Wood, 5 Jur. 225, Parke, B., allowed a witness to character to be asked, in cross-examination, whether he had not heard that the prisoner was suspected of having committed a robbery- some years before. See, also, R. v. Turner, 6 How. St. Tr. 607. « 2 St. Ev. 304. 7 R. V. Rowton, 34 L. J., M. C. 57 ; L. & Cave, 520 ; 10 Cox, 25, S. C. ; by all the judges, overruling R. v. Burt, 5 Cox, 284. 8 2 St. Ev. 304. (3196) CHAP. II. ] EVIDENCE OF PREVIOUS CONVICTION. 331 ' witnesses for the prosecution/ the prosecutor is at liberty, in answer thereto, to give proof of the prisoner's previous conviction; but the statutes, which allow this course to be adopted, have strangely omitted all mention of capital felonies, and apply only partially to misdemeanors." § 358. Receivers of stolen goods have recently been subjected g 327a to a peculiar law, which, though probably salutary, is somewhat at variance with the human doctrine illustrated in the last section. Thus, " The Prevention of Crimes Act, 1871," ^ enacts, in § 19, that " where proceedings are taken against any person for having received goods knowing them to be stolen, or for having in his possession stolen property, and evidence has been given that the stolen property has been found in his possession, then if such person has within five years immediately preceding been convicted of any offence involving fraud or dishonesty, evidence of such previous conviction may be given at any stage of the proceedings, and may be taken into consideration for the purpose of proving that the person accused knew the property which was j^roved to be in his possession to have been stolen ; provided that not less 1 1 R. V. Shrimpton, 2 Den. 319; 3 C. & Kir. 373, S. C. ; E. v. Gadbury, 8 C. & P. 676, per Parke, B. ■■' 6 & 7 W. 4, c. Ill, after reciting that, by the Act of 7 & 8 G. 4, c. 28, " provision is made forthe more exemplary punishment of ofienders, who shall commit any felony not punishable iviih death, after a previous conviction for felony," provides, among other things, that, " if, upon the trial of any person for any such subseque)it felony as aforesaid, such person shall give evidence of his or her good character, it shall be lawful for the prosecutor, in answer thereto, to give evidence of the indictment and conviction of such person lor the previous felony, before such verdict of guilty shall have been returned, and the jury shall inquire concerning such previous conviction for felony at the same time that they inquire concerning the subsequent felony." The Larceny Act of 1861 contains a somewhat similar provision with resiDect to offenders punishable under that Act; 24 & 25 V., c. 96, § 116. So does the Act of 1861, relating to offences againt the coin; 24 & 25 V., c. 99, ? 37. See R. V. Martin, 1 Law Rep., C. C. 214; 11 Cox, 343, S. C. So does '^The Pre- vention of -Crimes Act, 1871," with respect to any "crime as defined" by that Act, that is, " any felony, or the offence of uttering false or counterfeit coin, or of possessing counterfeit gold or .silver coin, or the offence of obtaining goods or money by false pretences, or the offence of conspiracy to defraud, or any misdemeanor under 24 & 25 V., c. 96, ? 58." See 34 «& 35 V., c. 112, II 9, 20. 3 34 & 35 v., c. 112. (3197) 332 EVIDENCE OF CHARACTER WHEN ADMISSIBLE. [pART II. than SGven days' notice in writing shall have been given to the person accused that proof is intended to bo 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 person so accused." ' § 354. As evidence of general character can, at best, afford only a glimmering light, when the question is whether a party has done a certain act or not, its admission for such a purpose is exclusively confined to criminal proceedings, in which it was originally received, some two centuries ago,^ in favorem vitoe ; and so strict is this rule, that even upon an information filed in the Eevenue side of the Queen's Bench Division by the Attorney- General, with the view of recovering penalties from the defendant, for keeping false weights, and for offering to corrupt an officer, such evidence will be rejected, because proceedings of this kind, though brought in the name of the Sovereign, are considered as civil suits.^ So, in an action of ejectment brought by the heir-at-law against a devisee, where the defendant was charged with having imposed a fictitious will on the testator in extremis, he was not permitted to call witnesses to prove his general good character;* and a similar rule was laid down in an action for slander, where the words charged the plaintiff with stealing money from the defendant, though the latter, by pleading truth as a justification, had to put the character of the former directly in jeopardy.^ In an action, too, for a libel, which charged a surveyor with want of skill in doing some par- 1 R. V. Davis, 1 Law Rep., C. C. 272; 39 L. J., M. C. 135; and 11 Cox, 578, S. C. ^ In 1GG4 the practice of calling "witnesses in point of reputation" was well established. See, per Hyde, C. J., in R. v. Turner, 6 How. St. Tr. 613. In 1630, such evidence was received by Scroggs, C. J., Mr. Recorder Jefiteries being the prosecutor, R. v. Harris, 7 How. St. Tr. 926, 929. =* Att.-Gen. v. Bowman, 2 B. & P. 532, n. n, per Eyre, C. B. His Lordship observed, that " the true line of distinction is this; in a direct prosecution for a crime, "such evidence is admissible; but where the prosecution is not directly for the crime but for the penalty, as in this information, it is not." See Att- Gen. V. Radloflf, 10 Ex. R. 84, 97, per Martin, B. * Doe V. Hicks, per Buller, J., cited by Gibbs, arguendo, in Doe v. Walker, 4 Esp. 50; B. N. P. 296, nom. Goodright v. Hicks, S. C. * Cornwall v. Richardson, Ry. & M. 305, per Abbott, C. J (3198) § 328 CHAP. II.] EVIDENCE OF CHARACTER WHEN ADMISSIBLE. 333 tictilar work for the defendant, the plaintiff was not allowed to prove bis general competency as a surveyor, though he offered this evidence with the view of showing that the defendant, in making the charge, was actuated by malice.' It seems, — notwith- standing a decision by Lord Kenyon to the contrary,^ — that, in an action for malicious prosecution, the defendant, in support of probable cause, cannot give evidence of the plaintiff's notoriously bad character: ^ and it has been held that, in an action of trespass for false imprisonment on a criminal charge, the defendant must not cross-examine, either as to the plaintiff's bad character, or as to previous charges made against him.* § 855. A distinction, however, has been taken between cases where particular acts of misconduct are imputed to a party, and those where his general conduct is put in issue; and though evidence of character is rejected in the former, it has several times been admitted in the latter class of cases.^ Thus, in an action for a libel, contained in an answer to inquiries respecting the character of a governess, where the language complained of stated that the defendant parted with the plaintiff " on account of her incompetency, and her n(?t being ladylike or good tempered," general evidence was given of her competency, good-temper, and manners, by witnesses who were her personal friends ; ^ and on the same principle, where, in a similar action, the words charged the plaintiff generally with dishonesty and misconduct while in service, a witness, with whom she had formerly lived, was allowed to testify to her antecedent good conduct.^ These cases, however, ' Brine v. Bazalgette, 3 Ex. R. 692. ^ Rodriguez v. Tadmire, 2 Esp. 271. ^ Newsam v. Carr, 2 Stark. R. 69, per Wood, B. ; Gregory v. Thomas, 2 Bibb, 286. In America, this kind of evidence has been also rejected in actions of assault and battery, Givens v. Bradley, 3 Bibb, 192; and in assumpsit, Nash V. Gilkeson, 5 Serg. & R. 352; and is held to be inadmissible whenever the general character is involved by the plea only, and not by the nature of the action, Anderson v. Long, 10 Serg. & R. 5.3; Potter v. Webb, 6 Greenl. 14, See Gr. Ev. ? 55. * Downing v. Butcher, 2 M. & Rob. 374; Jones v. Stevens, 11 Price, 235. ^ Doe V. Hicks, per Bnller, J., as cited by Gibbs, arguendo, in 4 Esp. 50. « Fountain v. Boodle, 3 Q. B. 5. See Brine ?;. Bazalgette, 3 Ex. R. 692, ^ King V. Waring, 5 Esp. 14, per Ld. Alvanley. (3199) § 239 334 EVIDENCE OF CHARACTER TO AFFECT DAMAGES. [PART II. can scarcely be deemed an exception to the rule of exclusion; for it is clear that, as in cumulative ofPences, such as treason or a conspiracy to carry on the business of common cheats, many acts are given in evidence, because such crimes can be proved in no other way,' so, where the general behaviour of a party is im- peached, it is only by general evidence that the charge can be rebutted. § 356. It has been above observed, that in some cases general § 330 evidence of character is admissible, for the purpose of increas- ing or diminishing the amount of damages.'^ Thus, evidence impeaching the previous general character of the wife or daughter in regard to chastity, is admissible in a petition by the husband for damages on the ground of adultery,^ or in an action by the father for seduction ; * for in these proceedings the plaintiff in reality seeks compensation for the pain which the defendant has caused him to suffer, by disgracing his family, and ruining his domestic happiness ; and it is manifest that, such being the true nature of the claim, though in cases of seduction not the ostensible ground of action,^ the damages should be commensurate with the pain, which will vary according as the character of the wife or daughter has been previously un- blemished or profligate. In these cases, therefore, not only evidence of general bad character is admissible in mitigation of damages, but the defendant may even prove particular acts of immorality or indecorum.® S 357. But evidence of these acts, as well as proof of general bad | 331 1 R. V. Roberts, 1 Camp. 399, per Ld. Ellen borough. ' Ante, !>i 349. =* 20 & 21 V., c. 85, § 33. * B. N. P. 27, 296; Elsam v. Faucett, 2 Esp. 563, per Ld. Kenyon. * See Dodd v. Norris, 3 Camp. 520. per Ld. Ellenborough; Andrew v. Askey, 8 C. & P. 9, per Tindal, C. J. See, also, cases cited in n. a, to S. C. ; Grinnell v. Wells, 7 M. & Gr. 1033, 1043; Thompson v. Ross, 29 L. J., Fx. 1; 5 H. & N. 16, S. C. ; Long i;. Keightley, I. R., 11 C. L. 221; Rist v. Faux, 4 B. & S. 409, per Ex. Ch.; 32 L. J., Q. B. 386, S. C. ; Terry v. Hutchinson, 27 L. J., Q. B. 257; 9 B. & S. 487, S. C. ; Hedges v. Tagg, 7 Law Rep., Ex. 283; 41 L. J., Ex. 169, S. C. Verry v. Watkins, 7 C. & P. 308, per Alderson, B. ; B. N. P. 27, 296. (3200; CHAP. II.] EVIDENCE OF CHARACTER TO AFFECT DAMAGES. 335 character, must be confined to what occurred previously to the defen- dant's misconduct, because this very misconduct may, by weakening the principles of the woman, have directly caused any subsequent immorality, and may itself have directly occasioned her general want of reputation.' Whether in an action of seduction, where the plaintiff's daughter is called as a witness, the defendant can prove specific acts of immorality, without first laying a foundation for such evidence in the cross-examination of the woman, is not perfectly clear ; though, on principle, such a course seems open to no objection, provided the evidence be tendered with the view, not of impeaching the veracity of the party seduced, but of showing that, as her previous conduct had been disgraceful, the father's feelings could not have been wounded by the misconduct of the defendant.^ However, if the daughter, in her examination in chief, states that the defendant had seduced her, and that she has borne a child in consequence, and the defence is that she has declared another person to be the father, it is clear that witnesses cannot be called to prove her declarations, unless she be first cross-examined as to the fact of her having made them ; because, though language of this kind, if light uttered, would tend to degrade her character, yet if used in earnest, it would directly contradict the testimony she had given, and would be evidence, not in mitigation of damages, but in bar of the action.^ § 358. On a petition claiming damages from an alleged adul- | 332 terer,* the co-respondent may also prove in mitigation of damages, that the petitioner has been guilty of notorious infidelity ; has turned his wife out of doors ; has refused to maintain her ; or has otherwise been guilty of dissolute conduct f for, in such cases, a man can scarcely complain of the loss of that society, upon which he has himself placed so little value. It seems, also, that upon a like principle, evidence may be given in an action for seduction, that the plaintiff is a man of profligate habits. In actions for breach 1 Elsam V. Faucett, 2 Esp. 562; B. N. P. 27. ^ Carpenter v. Wall, 11 A. & E. 803 ; 3 P. & D. 457, S. C. ' id. ; Andrews v. Askey, 8 C. & P. 9, per Tindal, C. J. * See 20 & 21 V., c. 85, ? 33. * B. N. P. 27 ; Bromley v. Wallace, 4 Esp. 237. (3201) 336 EVIDENCE OF CHARACTER TO AFFECT DAMAGES. [PART II. of promise of marriage a similar rule prevails, the defendant being entitled to prove in mitigation of damages, tbat the plaintiflF is a person, either of bad character,' or of course and brutal manners,^ though if the acts of misconduct relied upon were committed after the promise, or even before that event ivithout tJie knoicledge of the drfendant,^ and were sufficiently glaring to constitute a bar to the action,* they can only be proved under a special defence.^ § 359. Whether in an action for defamation, evidence impeach- ? 333 ing the plaintiff's previous general character, and showing that, at the time of the publication, he laboured under a general suspicion of having been guilty of the charge imputed to him by the defendant, is admissible as affecting the question of damages, is a point which has been much controverted. On the one hand it is uro-ed, that the admission of such evidence would be cruelly unjust, as it would throw upon the plaintiff, while seeking redress in a court of justice for a specific injury, the difficulty of shoAving an uniform propriety of conduct during his whole life, and would give the defendant an opportunity, under pretence of mitigating the damages, of continuing and aggravating the original calumny ; and that, too, under circumstances, when, from the absence of any plea of justification, his opponent was utterly unprepared to dis- prove the aspersions. It is further contended, that if such evidence were admissible, any man might fall a victim to a com- bination made to ruin his good name, even by means of the very action which he should bring in order to free himself from the effects of malicious slander ; that timid, though well-conducted men, would consequently not dare to vindicate their characters in courts of justice, and thus libellers would enjoy a most dangerous impunity. § 360. To this it is replied with much force, that, though the § 333 1 Foulkes V. Sellway, 3 Esp. 236, Ld. Kenyon. See, also, Johnson v. Caulkins, 1 Johns. C. 116 ; Boynton v. Kellogg, 3 Mass. 189. ^ Leeds v. Cook, 4 Esp. 258, per Ld. Ellenborongh. =* Irving V.Greenwood, 1 C. & P. 350, per Abbott, C. J. ♦ Leeds v. Cook, 4 Esp. 256 ; Baddeley v. Mortlock, Holt, N. P. R. 151. ^ Ante, ? 301. See Young v. Murphy, 3 Bing. N. C. 54 ; and Pujolas v. Holland, Tr. Cir. R. 19. (3202) CHAP. II.] EVIDENCE OF CHARACTER TO AFFECT DAMAGES. 337 arguments on the other side would be entitled to gjreat weight, if the question respected the right of proving particular acts of misconduct, they do not apply where evidence is offered of merely general repntatio)t ; that evei'y man who demands compensation for the ruin of his good character, ought to be prepared to rebut any evidence of his general bad character; that the danger of admitting testimony of this kind is only imaginary, since the witnesses, on cross-examination, might be compelled to state the grounds of their belief; that, as any failure in the evidence would probably much increase the damages, witnesses would scarcely be called, except in support of a decisive case; that the law will not presume the existence of criminal conspiracies to ruin reputations, and cannot be moulded to suit the convenience of irrational timidity; that to estimate the extent of the injury which, a plaintiff has sustained, and, consequently, the amount of damages to which he is entitled, the jury must first ascertain what was the real value of his character at the time when it was attacked by the defendant; and, that they can best, if not only, arrive at a safe conclusion on this point, by inquiring what opinion was pre- viously entertained respecting him, by those with whom he was personally acquainted.' § 360a. Such being the arguments on either either side of this ^ See, in support of the admissibility of the evidence, Itichards v. Richards, 2 M. & Rob. 557; v. Moor, 1 M. & Sel. 284; Ld. Leicester v. Walter, 2 Camp. 251; Bell v. Parke, 11 Ir. Law R., N. S. 413, per Pigot, C. B.; Williams v. Callender, Holt, N. P. R. 307; Earner r. Merle, per Ld. Ellen- borough, cited 2 Camp. 253; Knobell r. Fuller, Pea. Add. Cas. 1.39. per Eyre, C. J. ; Newsman r. Carr, 2 Stark. R. 70, per Wood, B. ; Ellershaw v. Robinson, per Holroyd, J. ; Moore r. Oastler, in 1836, per Ld. Denman, after consulting Parke, B. ; Mawby v. Barber, in 1826, per Ld. Tenterden; and Hardy v. Alexander, in 1837, per Coltman, J. These last four cases are cited in 2 St. Ev. 641, 642, n. e. Kirkman v. Oxley, per Heath, J., cited 2 St. Ev. 306, n. k. See contra— Scott r. Sampson, L. R., 8 Q. B. D. 491, per Mathew & Cave, .LT.; 51 L. J., Q. B. 380. S. C; Jones r. Stevens, 11 Price, 325; Waithmanr. Weaver, D. & R., N. P. C. 10; 11 Price, 2.57, n. S. C; Cornwall v. Richardson, Ry. & M. 305, per Abbott, C. J. ; Snowdon v. Smith, per Chambre, J., cited 1 M. & Sel. 286. In Scotland the evidence is admissible. Dickson, Ev. ^ 24, and cases there cited in n. (d). For the American authorities, see Root r. King, 7 Cowen, 613; Bailey v. Hyde, 3 Conn. 463; Bennett v. Hyde, 6 Conn. 24; Douglass v. Tousey, 2 Wend. 3.52; Inman v. Fo.ster, 8 Wend. 602; Walcott {'. Hall, 6 Mass. 514; Ro.ss v. Lapham, 14 Mass. 275; Foot v. Tracy, 1 Johns. 45. 22 LAW OF EVID.— V. I. (3203) 338 EVIDENCE OF CHARACTER TO AFFECT DAMAGES. [pART II. vexed question, it remains only to observe that, — afifmniiny the evidence to bo admissible, — the defendant, who has not pleaded truth as a justitication, is now precluded, by a recent Kule of Court,' from attempting to mitigate damages by giving evidence reflecting on the plaintiff's character, unless he has first taken one of two courses; that is, he must either have obtained the leave of a judge, or he miist, at least seven days before his trial, have furnished " particulars to the plaintiff of the matters as to which he intends to give evidence." § 361. It seems, also, that here, as in other cases where wit- ^ :'>:!4 nesses to character are admitted, evidence must be confined to the particular trait which is attacked in the alleged libel, and, as to this, it can only furnish proof of general reputation, and must by no means condescend to particular oc^s of bad conduct.' And it is quite clear, that any evidence of rumors, which are calculated to compromise the plaintiff's character, must be strictly confined to such as were prevalent before the publication .of the slander of the defendant; for if this were not so, one man might slander another, and then call his neighbours to say that they had heard of the im- putations which he had himself originated.^ § 362. In aggravation of damages the plaintiff cannot give ^ 335 evidence of general good character, unless counter-proof has been , first offered by the defendant: for, until the contrary appear, the presumption of law is already in his favour. Therefore, in an action of slander for imputing theft, the plaintiff will not be allowed to prove his character for honesty, even though the defendant has placed on the record pleas of justification.^ This rule has, in some cases, been carried to a cnael extent. Thus, in an action for seduction, where evidence was produced for the defence, to prove that the girl had previously had a child by another man. Lord Ellenborough woilld not allow a question to be asked respecting her general good character for chastity, but 1 Rules of Sup. Ct., 1883, Ord. XXXVI., R. 37, cited ante, | 344, ad. fin. ■^ See cases cited in la.st note but one, and further, Andrews v. Vanduzer, 11 Johns. 38; Sawyer v. Eifert, 2 Nott & M'C. 511. ■' Thompson r. Nye, 16 Q. B. 175; Bell v. Parke, 11 Ir. Law K.. N. S. 413. * Cornwall v. Richardson. Ry. & M. 305, per Abbott, C. J. (3204) CHAP II.] EVIDENCE OF CHARACTER WHEN ADJNIISSIBLE. 339 restricted the plaintiff to the proof that the specitic charge made by the defendant was false;' and the same learned judge on another occasion, where the daughter was cross-examined at length, with a view of showing that she had been guilty of gross ' levity and indelicacy, rejected similar evidence, observing that the witness, on her re- examination, had had ample opportunity of explaining her condiict.' In another case for criminal conversation, in which the defendant had endeavored, by cross-examining the plaintiff's witnesses to impeach his character, but had failed in the attempt. Lord Kenyon refused to permit the plaintiff to call witnesses to his general good conduct.' It is true that in these cases the facts insinuated had, or might have, been denied, and that, consequently, the characters attacked remained in strictness unimpeached; still, the very circumstance of the questions being asked was calculated to excite a suspicion in the minds of the jury, which, in common justice, the plaintiff should have had an oppor- tunity of entirely removing.^ It is satisfactory to find that a contrary rale has prevailed in two later cases,' one of which has been recognised in Ireland." § 363. The law which regulates the admission of general evi- | 336 dence of character for the purpose of imjyeacliing the veracity of a ivitness will be discussed hereafter;' but it may be here con- venient to point out how far such evidence will be receivable, where its object is, not so much to shake the credit of the witness, as to show directly that the act in question has not been com- mitted. Thus, on indictments for rape, or an attempt to commit that crime, while evidence of general bad character is admissible to show that the prosecutrix, like any other witness, ought not to ' Bamliekl r. Massey, 1 Camp. 460, ^ Dodd r. Norris, ?> Camp. 519. '■' King V. Francis, 3 Esp. IKi. M C. & P. 100, n. a ; 2 St. Ev. 306, 307. '" Bate r. Hill, 1 C. & P. 100, per Park, .1. ; Murgatroyd v. Murgatroyd, perBayley, J., cited 2 St. Ev. 307, n. o. See, also, K. v. Clarke, 2 Stark. K. 241. '' Brown r. Goodwin, Ir. Cir. Rep. 61, per Torrens, .1. Trespass for seduc tion. Tlie daughter was asked (juestions tending to impeach her reputation, whereupon the plaintift' was allowed to call witnesses to speak to her general good character. ' Post, ^ 1470 — 1473. (3205) 340 EVIDENCE OF UHARACTEK OF PROSECUTRIX. [PAKT II. be believed upon her oath, proof that she is a reputed prostitute would go far towards raising an inference that she yielded willingly to the prisoner's embraces. General evidence, therefore, of this kind will be received, though the woman be not called as a witness, and though, if called, she be not asked, on cross-examination, any questions tending to impeach her character for chastity;' but it seems that the counsel for the defence cannot go further, and prove specific immoral acts with the prisoner, unless he has tirst given the prosecutrix an opportunity of denying or explaining tnem.'' It further appears to be the law, that although the prose- cutrix mav be cross-examined as to particular acts of immorality with other men, she may decline to answer such questions, and if she answers them in the negative, witnesses cannot be called to contradict her.' ' K. r. Clarke, * Stark. K. -^41, per Holroyd, J.; K. c. Clure, Ir. Cir. K. :27.'), per Crampton, .T. ^ R. I. Cockcroft, 11 Cox, 410. See K. r. Martin, (i C. & P. 562 ; R. o. Kobins, 2 M. & Rob. 512 ; R. r. Aspinwall, per Hullock, B., cited 3 St. Ev. 952, n. c In R. r. Hodgson, R. & R. 211, it was held that evidence of the prosecu- trix having had connexion with other men was inadmissible. On one occasion the prisoner's counsel was allowed to ask the prosecutrix, with the view of con- tmdkling her, whether she had not, on a day since the alleged rape, been walking in a certain street with a common prostitute, looking out for men. P. i\ Barker, 3 C. & P. 589, per Park, ,T., after consulting Parke, .T. ; see also Verry r. Watkins, 7 C & P. 308 ; Andrews i\ Askey, 8 C. & P. 7 ; and R. r. Dean, 6 Cox, 23. '^ R. c. Cockcroft, 11 Cox, 410, per Willes, .1., & Martin, B. ; R. c. Holmes and Furness, 41 L. .!.. M C. 12 ; 12 Cox, 137 ; 1 Law Rep., C. C. 334, S. C, per five judges in Ct. of Cr. Ap., overruling R. c. Robins, 2 M. & Rob. 512. (3206) A TREATISE LAW OF EVIDENCE AS ADMINISTERED IN ENGLAND AND IRELAND; ILLUSTRATIONS FROM AMERICAN AND OTHER FOREIGN LAWS. From the Eighth English Edition. BY His Honour JUDGE PITT TAYLOR. YOL. I. PART II. Longum iter est per prsecepta. Breve et efflcax per exempla — Seneca. PHILADELPHIA: THE BLACKSTONE PUBLISHING COMPANY. 1887 Entered according to the Acts of Congress in the year 1887, by the Black- stone Publishing Company In the office of the Librarian of Congress at Washington, D. C. (3208] CHAP. III.] RULES RESPECTING THE BURTHEN OF PROOF. 341 CHAPTER Iir BURTHEN OF PROOF. § 36'J..' A THIRD RULE, wbicb governs the production of evidence, | 337 is, that, the burthen of jjroof lies on the ijarty ivlio substantially asserts the affirmative of the issue. This rule of convenience, — which in the Roman law is thus expressed, Ei incumbit probatio, qui dicif, nan qui negat,' has been adopted in practice, not because it is im- possible to prove a negative, but because the negative does not admit of the direct and simple proof of which the affirmative is capable; ^ and, moreover, it is but reasonable and just that the suitor who relies upon the existence of a fact, should be called upon to prove his own case. In the application of this rale, regard must be had to the substance and effect of the issue, and not to its grammatical form; for in many cases the party, by making a slight alteration in the drawing of his pleadings, may give the issue a negative or affirmative form at his pleasure.* § 365. The best tests that can be devised for ascertaining on ^ 033 whom the burthen of proof lies, are, first to consider which party would succeed if no evidence were given on either side ; '' and, secondly, to examine what would be the effect of striking out of the record the allegation to be proved, bearing in mind that the onus must lie on whichever party would fail, if either of these steps were pursued.® For instance, if, in an action brought by a landlord ^ Gr. Ev. I 74 in yyart. 2 Dig. Lib. 2-2, tit. 3, 1, 2; Masc. de Prob. Concl. 70, tot.; Concl. 112>!, n. 10. See Tait, Ev. 1. ^ Dranquet v. Prudhomme, 3 Lonis. E. 83, 86. * Soward v. Leggatt, 7 C. & P. 615, per Ld. Abinger. * Amos r. Hughes, 1 M. & Rob. 464, per Alderson, B. ; Belcher v. M'Intosh, 8 C. & P. 721, per Id. ; Doe v. RowLands, 9 C. & P. 73."), per Coleridge, J. ; Osborn v. Thompson, 2 M. & Rob. 256, per Erskine, J.; Ridgeway v. Ewbank, 2 id. 218, per Alderson, B. ; Geaeh v. Ingall, 14 M. & W. 97, per id. " Mills V. Barber, 1 M. & W. 427, per Alderson, B. (3209) 342 EXAMPLES RESPECTING TIIK nRTHEN OF PROOF. [pART II. against Lis tenant, tbo breach of contract assigned be that the premises were not kept in repair, and this allegation be traversed by the statement of defence, the plaintiff must prove his negative aver- ment; ' for though according to the grammatical construction of the issue, the affirmative lies on the defendant, yet the substantial merits of the case mu&t be proved by the plaintifP; and if no evidence were given, or if the allegation on which issue was joined were struck from the record, the defendant would clearly be entitled to a verdict. So, if a statement of claim on a life policy, — after averring that the insurance was effected on an assertion made by the plaintiff, that the insured was not subject to habits or to attacks of illness tending to shorten life, but was in good health, — should allege that this assertion was true, and the defendant were to plead that it was false in these respects, that the insured was subject to habits and to attacks tending to shorten life, that is, to habits of intemperance and to attacks of erysipelas, and was ill at the time when the assertion was made, the burthen of proof would lie upon the plaintiff, because, to entitle him to a verdict, some evidence must be given to show that, at the time when the policy was effected, the life was insurable.^ § 366. Again, if to an action for not executing a contract in a § 338 workmanlike manner, the defendant plead that the work was pro- perly done,^ or if a statement .of claim allege that a horse sold under warranty was unsound, and this fact be traversed by the statement of defence,^ the onus, in either case, will lie on the 1 So ward r. Leggatt, 7 C. & P. 61.3; Doe v. Rowlands, 9 C. & T. 734, per Coleridge, J.; Belcher v. M'iDtosh, 8 C. & P. 720, per Alderson, B. 2 Iliickman r. Firnie, 3 M. & W. .50.3, 510; Ashby v. Bates, 15 M. & W. 589; 4 Dowl. & L. 3.3, S. C; Geach r. Ingall, 14 M. & W. 95; Eawlins v. Desborough, 2 M. & Eob. 70, per Ld. Denman; 8 C. & P. 321, S. C; Craig v. Fenn, C. & Marsh. 43, per id. In Pole r. Rogers, 2 M. & Rob. 287, Tindal, C. J., held, that xmder similar pleadings, the defendant should begin; but this case, being distinctly oyjposed to the authorities stated above, cannot be sup- ported. ^ Amos V. Hughes, 1 M. & Eob. 464. * Osborn v. Th^mpson, 9 C. & P. 337, per Erskine, J.; 2 M. & Rob. 254, S. C; Cox V. Walter, cited 9 C. & P. .339, per Ld. Denman; S. P. ruled per Tindal, C. J., as cited id. .338. In Fisher v. Joyce, cited id. 338, Coleridge, J., allowed the defendant to begin, but in Doe v. Rowlands, id. 735, he confessed that this decision was wrong. (3210) CHAP. III.] EFFECT OF DISPUTABLE PRESUMPTIONS OF LAW. 343 plaintiff; and the same rule will prevail in an action brought against a solicitor for not using due diligence,' or against a merchant for not loading a sufficient cargo on board a ship, pursuant to a charter-party,' or against an architect for not building houses according to a specification,^ and, indeed, in every case in which the plaintiff grounds his right of action upon a negative allegation, and where, of course, the establishment of this negative is an essential element in support of his claim.* So, if a damage suit be instituted in the Admiralty Division of the High Court, and the defendant, making no charge of negligence against the plaintifP, denies his averments, and pleads inevitable accident, the plaintifif on the trial must begin. ^ § 367. On this general rule, that the burthen of proof lies on the I 339 party holding the substantial affirmative, some exceptions have been engrafted, which should here be noticed. First, if a disputable pre- sumptioyi of law^ is in favour of an affirmative allegation, the party who supports the negative must call witnesses to rebut this pre- sumption. For instance, where a shipper was charged, in an action on the case, with having shipped goods dangerously combustible on board the plaintiff's ship, without giving notice of their nature to any officer on board, whereby the ship was burnt, it was held that, as the omission to give notice would have been a criminal neglect of duty on the part of the defendant, the law presumed that notice had been given, and threw upon the plaintiff the burthen of proving the nega- tive.' So, where a landlord brought an action of ejectment against his tenant, on an alleged forfeiture by breach of a covenant to insure in some office in or near London, it was held that the omission to 1 Shilcock r. Passman, 7 C. & P. 291, per Aldersou, B. * Ridgway v. Ewbauk, 2 M. & Rob. 217, per Aklerson, B. 3 Smith V. Davies, 7 C. & P. 307, per Aklerson, B. ♦ Doe V. .Johnson, 7 M. & Gr. 1047, 1063, per Tindal, C. J. ° The Benmore, 4 Law Rep., Adm. & Ecc. 132; 43 L. J., Adm. 5, S. C; The Otter, 4 Law Rep., Adm. & Ecc. 203. ^ It is only with reference to disputable presumptions of law that this rnle applies, for if the presumption be conclusive, no evidence can be given to rebut it; if it be merely one of fact, it can only be made through the intervention of a jury. See ante, U "1, 109, 214—216. ^ Williams v. E. India Co., 3 East, 192. (3211) 344 EFFECT OF PRESUMPTIONS IN SHIFTING ONUS. [ PART II. insure was a fact which the plaintiflP had to prove, because the law, in favour of the party in possession, presumed that he had satisfied the terms of the covenant; ' and had the landlord wished to have been relieved from the necessity of establishing this negative proof, he micjht easily have inserted a clause to that effect in the lease.^ If, to an action on a policy of insurance effected on a ship, the underwriter plead that certain material facts, known to the assured, had been concealed from him, the burthen of proving the non-communication of these facts will, on a reply traversing the whole statement of defence, fall on the defendant; for, although the allegation con- tained in his statement may be negative in its terms, still, as it was the duty of the assured to make the communication, — either upon the principle that every policy is based on the supposed existence of a certain state of facts, or on the ground that insurance is a contract uberrimse fidei, — some evidence should be given by the underwriter to rebut the presumption that the assured had discharged his duty. The amount of the proof required will, indeed, vary according to the circumstances of the case, and very slender evidence will often be sufficient; for, suppose a ship was known by the assured to have been burnt at the time when the assurance was effected, proof of this fact would in itself be reasonable evidence to show that it had not been communicated, because no underwriter in his senses, had he been aware of such a circumstance, would have executed the policy.^ § 368. Again, if a party be sued on a bill of exchange alone, without any substantive claim being made in respect of the con- sideration, the plaintiff need not allege in his statement or prove at the trial that the bill was given for a good consideration, as the law will presume that fact in the absence of evidence to the contrary.* 1 See Toleman v. Portbury, 39 L. J., Q. R. 136, per Ex. Ch. =* Doe V. Whitehead, 8 A. & E. 571. The court there held that the defen- dant's refusal to produce the policy or any receipt for premium, both before the action was commenced, and also at the trial, was not sufficient proof of an omission to insure, though due notice to produce had been served. » Elkin V. Janson, 13 M. & W. 655, 663, 665, per Parke and Alderson, Bs. * 45 & 46 v., c. 61, ^ 30. Eules of Sup. Ct., 1883, Ord. XIX., R. 25, is as follows: — "Neither party need in any pleading allege any matter of fact ■which the Icno inesumcs in his favour, or as to which the burthen of proof lies (3212) CHAP. III.] EFFECT OF PRESUMPTIONS IN SHIFTING ONUS. 345 So, — to put a somewhat more complex case, — where to an action g 340 brought by an indorsee against the acceptor of a bill of exchange, the defendant pleaded that the bill was accepted by him for the accom- modation of the drawer, and was indorsed to the plaintiff without value, and the plaintiff replied that it was indorsed to him for a valuable consideration, the burthen of proving this issue was held to lie on the defendant, because the mere possession of the bill raised a prima facie presumption of due consideration having been given for it,' and perhaps also, — independent of this presumption,— because the defendant was bound to prove all those facts, whether affirmative or negative, which were necessary to establish his defence to the action.^ So, where the defendant pleaded that he had accepted the bill for his own accommodation, and that the drawer, instead of getting it discounted for the use of the defendant, had indorsed it to a stranger, who had fraudulently indorsed it to the plaintiff, after it became due, or without consideration, and the plaintiff traversed this last allegation, the burthen of proving that the bill was overdue at the time of indorsement, or that no value was given for it by the holder, was held to have devolved on the defendant, because the plea did not contain such an allegation of fraud as would counteract the presumption arising from the possession of the instrument.^ § 3G9. Where, however, the defendant's plea, after disclosing some g 341 original fraud or illegality in the transaction, — as, for instance, after stating that the bill had been obtained by fraud or duress, or had been given for gambling purposes,* or had been lost or stolen, — • averred that the plaintiff held it without value, and this last fact upon the other side, unless the same has first been specifically denied. E.g. — Consideration for a bill of exchange, where the plaintiff sues only on the bill, and not for the consideration as a substantive ground of claim." 1 Mills V. Barber, 1 M. & W. 425; Tyr. & Gr. 835; 5 Dowl. 77, S. C. ; Whit- taker V. Edmunds, 1 M. & Eob. 366, per Patteson, J. ; Fitch v. Jones, 5 E. & B. 238. 2 gee per Alderson, B., in Elkin v. Janson, 13 M. & W. 664. * Lewis V. Parker, 4 A. & E. 838; .Jacob v. Hungate, 1 M. & Eob. 445, per Parke, B. ; Brown v. Philpot, 2 id. 285, per Ld. Denman. See, also, Smith v. Martin, C. & Marsh. 58. * The fact that a note was given for a wager on the hop duty, when that duty was subject to fluctuation, was held not to render the instrument illegal within this rule, for such a wager was only a promise which the law would not enforce, Fitch v. Jones, 24 L. J., Q. B. 293; 5 E. & B. 238, S. C. (3213) 34G EFFECT OF PRESUMPTIONS IN SHIFTING ONUS. [PART II. was traversed by the replication, the plaintiff was required to prove his traverse, because the presumption of illegality arising from an admitted fraud was held to attach to every subsequent holder, and rendered him incapable of recovering in the absence of evidence, showing under what circumstances he became possessed of the bill.' If, too, in such a case as that just put, the plaintifif, in accordance with the present practice of pleading," were to meet the statement of defence by a general denial, and the defendant at the trial were to give evidence of fraud, the burthen of proving consideration would by such evidence be shifted on the plaintiff.^ So, where in answer to an action on a promissory note brought by the indorsee against the maker, the defendant pleaded that he had presented a petition to the Court of Bankruptcy, and that the note, which had been indorsed to the plaintiff without value, had been given to the indorser in consideration of his not opposing the petition, the court held, on a replication de injuria, that, as soon as the illegality was proved, the onus was cast upon the plaintiff of showing that he gave value.* § 370. Again, if the plaintiff' were to aver that a certain party » ^^2 ^ See cases cited in last four preceding notes. Also 45 & 46 V., c. 01, ? 30, subs. 2; and Bingham v. Stanley, 2 Q. B. 117; 1 G. & D. 237, S. C, over- ruling Ld. Denman's decision at Nisi Prius as reported in 9 C. & P. 374. In Elkin V. Janson, 13 M. & W. 664, 665, Alderson, E., observes, "But take the case of fraud; — where the defendant, who is sued upon a bill of exchange, pleads that it was obtained from the drawer by fraud upon the part of A., and that A. then indorsed it to the holder; there i>roof of the fraud renders it highly probable that A., who has obtained the bill from the drawer by fraud, and has not been able to get anything from him, would hand it over to some one else, to be the conduit-pipe for obtaining value for it. That raises a presumption, until some answer is given, that there has been no indorsement for value, and casts upon the plaintifif, after this general evi- dence, the necessity of negativing that presumption, and of showing that, although the above inference might fairly be made from the fact of there being fraud in the original inception of the bill, value has in fact been given for it by the indorsee." See, however, Masters v. Barrets, 2 C. & Kir. 715. 2 Rules of Sup. Ct., 1883, Ord. XIX., R. 18; ante, U 302, 304. 3 Harvey r. Towers, 6 Ex. R. 656; Smith v. Brain, 16 Q. B. 244; Hogg v. Skeen, 34 L. J., C. P. 153; 18 Com. B., N. S. 426, S. C; Berry v. Alderman, 14 Com. B. 95; Fitch v. Jones, 24 L. J., Q. B. 293; 5 E. & B. 238, S. C; Mather v. Ld. Maidstone, 26 L. J., C. P. 58; 1 Com. B., N. S. 273, S. C; Hall V. Featherstone, 3 H. & N. 284. * Bailey v. Bidwell, 13 M. & W. 73, overruling Paterson v. Hardacre, 4 Taunt. 114. (3214) CHAP. III. ] BURTHEN OF PROOF IX CRIMINAL PROCEEDINGS. 347 was, at a specified time, of sound mind, and this averment were tra- versed by the defendant, the latter would be bound to prove the negative allegation of incompetency, because every man may reason- ably be presumed to be sane till the contrary is shown, and conse- quently, this presumption of fact, in the absence of evidence to the contrary, would equally serve the plaintiff's purpose, as though he had given express evidence of the sanity.' If, however, on the trial of such an issue, the defendant were to put in evidence an inquisi- tion finding that the party had been lunatic prior to the transaction in question, this evidence, though not conclusive, would be sufficient to shift the bui'then of proof on the plaintiff, who relied on the party's sanity.^ So, if a will duly signed and attested be impugned in the Probate Division of the High Court, on the ground of the testator's insanity, the onus of proof will lie on the impugnerf but if it be shown that the testator was insane, or even subject to delusions,* at any time prior to the date of the will, or within a few years after that date, the buiihen of establishing his capacity to have made the will in question will be shifted on the propounding party.* § 371. On the twofold ground that a prosecutor must prove every ^ 344 fact necessary to substantiate his charge against a prisoner, and that the law will presume innocence in the absence of convincing evidence to the contrary, the burthen of proof, unless shifted by legislative interference, will fall in criminal proceedings on the prosecuting party, though, in order to convict, he must necessarily have recourse to negative evidence. Thus, if a statute, in the direct description of an offence, and not by way of proviso, contain negative matter, 1 See Sutton v. Sadler, 26 L. J., C. P. 284; 3 Com. B., N. S. 87, S. C; Dyce Sombre v. Troup, Deane, Ec. R. 38, 49. * Hassard v. Smith, I. E., 6 Eq. 429. ^ A contrary rule prevails in Massachusetts, Crowninshield v. Crownin- shield, 2 Gray, 524; and see Anderson v. Gill, 3 Macq., Sc. Cas. H. of L. 197, per Ld. Wensleydale; and Smee v. Smee, L. R., 5 P. D. 91; 49 L. J., P. D. &. A. 13, S. C. * Smee v. Smee, L. R., 5 P. D. 84, per Sir J. Hannen; 49 L. J., P. D. & A. 8, S. C. 5 Waring v. Waring, 6 Moo. P. C. R. 341, 355—357, 368, 369, per Ld. Brougham ; 6 Ec. & Mar. Cas. 394—396, S. C. ; Fowlis v. Da\idson, 6 Ec. & Mar. Cas. 473, 474, per Sir H. Fust; Grimani v. Draker, 6 id. 420—422, 441, per id. ; Prinsep & E. India Co. v. Dyce Sombre, 10 Moo. P. C. K. 232, 244— 247; ante, I 197. (3215) 348 BURTHEN OF PROOF SHIFTED BY STATUTE. [PART II. the indictmciit or information must also contain a negative allega- tion, wliich must in general be supported by prima facie evidence.' Such was formerly the case in prosecuting parties, either for cours- ing deer in inclosed grounds without the consent of the owner,^ or for cutting trees without such consentf and although the old sta- tutes, which made the absence of consent a material element in these offences, are now repealed, the cases decided upon them will illus- trate the principle under discussion- In such cases, indeed, it is not necessary to call the owner himself to prove that no consent was given by him, but the juiy may infer the absence of consent from the conduct of the accused, or from other circumstances; still, some evidence must be given, — as, for instance, that the act complained of was done in a suspicious manner, or at an unusual hour, or that the defendant, when detected, endeavoured to escape, or the like, — which, in the absence of counter testimony, would afford ground for presuming that the allegation of non-consent was true.* § 372. The necessity of giving this prima facie evidence on § 345 the part of the prosecution having been found, in the great majority of criminal cases, not only useless, but highly incon- venient, the Legislature has in many instances interfered, some- times by re-describing the offence, and omitting all mention of the negative matter,^ but generally, by expressly enacting, that ^ E. V. Jarvis, 1 East, 644, n.; Taylor v. Humphries, 17 Com. B., N. S. 539, 549; Davis v. Scrace, 4 Law Rep., C. P. 172; 38 L. J., M. C. 79, S. C. nom., Davis V. Scrase; Morgans. Hedger, 5 Law Rep., C. P. 485; 40 L. J., M. C, 13, S. C; Copley v. Burton, 5 Law Rep., C. P. 489. 2 R. V. Allen, 1 Moo. (J. C. 154; 42 G. 3, c. 107, ^ 1, repealed by 7 & 8 G. 4, c. 27. Other provisions, omitting all mention of consent, are now substi tuted by 24 & 25 V., c. 96, § 13. 2 R. V. Hazy, 2 C. & P. 458; 6 G. 3, c. 36, repealed first by 7 & 8 G. 4, c. 27, and, secondly, by 30 & 31 V., c. 59. Other provisions, omitting all mention of consent, are now substituted by 24 & 25 V., C.-97, §| 20, 21. * See R. V. Allen, 1 Moo. C. C. 154, overruling R. v. Rogers, 2 Camp. 654, Avhere it was held that the owner must be called; R. v. Wood, Dear. & Bell, 1, overruling R. v. Edge, an unreported case, said to have been decided by Martin, B.; R. t). Hazy, 2 C. & P. 458; R. v. Stone, 1 East, 639; R. v. Haw- kins, 10 East, 211; Frontine v. Frost, 3 B. & P. 302; Evans v. Birch, 3 Camp. 10. See ante, | 113. * See the two notes immediately preceding the last. (3216) CHAP. III.] BURTHEN OF PROOF SHIFTED BY STATUTE. 349 the burthen of proving authority, consent, lawful excuse, and the like, should lie on the defendant. Thus, if a party be indicted for being found by night, having in his possession any picklock key, crow, jacl^, bit, or other implement of housebreaking;' or for buying or selling at an undervalue, or for exporting or im- porting, counterfeit coin;^ or for making, mending, or having in his possession coining tools, or for conveying such tools, or any coin or bullion, out of the Mint;^ or for having in his possession any forged dies or stamps,'' or any instruments or materials for making, either letter stamps,^ or excise paper,'' or paper used for making exchequer bills,' banks notes, '^ the notes of private bankers,^ or foreign notes;'" or for manufacturing paper similar to that used for postage covers," or exchequer bills ;''^ or for having in possession such paper before it has been stamped and issued for use;'^ or for engraving bank notes or any part thereof,'* the notes of private bankers, '^ or foreign notes; "^ or for having in possession counterfeit dies for making gold and silver wares, or instruments for making such dies, or any wares of gold, silver, or base metal, having thereon forged dies; " or for having in possession hackney-coach and stage plates, or drivers' or watermen's tickets;'^ —in all these, and in several other cognate ofPences,''^ the defendant, by the express language of the statutes relating to them, is bound to protect himself, by showing the existence of some lawful authority or excuse. § 373. So, if a party be charged with applying any marks ap- ^ 345 ^ 24 & 25 v., c. 56, | 58. ^ 24 & 25 V., c. 99, U 6, 7, 8, 14, 19. * 24 & 25 v., c. 99, H 14, 24, 25. See R. r. Harvey, 1 Law Rep. C. C. 284; 40 L. J., M. C. 63, S. C. * 33 & 34 V., c. 98, §g 18, 22. * 3 & 4 v., c. 96, I 22. 6 2 W. 4, c. 16, ? 3; 11 & 12 V., c. 121, I 18. T 24 & 25 v., c. 5, ? 18; 24 & 15 V., c. 98, § 9. '« 24 & 25 v., c. 98, | 14. » Id. § 18. '« Id. ? 19. " 3 & 4 v., c. 96, I 29. ^2 24 & 25 v., c. 5, § 18; 24 & 25 V., c. 98, I 10. " 3 & 4 v., c. 96, § 30; 24 & 25 V., c. 98, ?i 11; 24 & 25 V., c. 5, I 19. " 24 & 25 v., c. 98, 'il 16, 17. ^* Id. ? 18. i« Id. U9. " 7&8V.,c. 22, §?2,3. 18 6& 7V., c. 86, I 20. See 30 & 31 V., c. 134, § 17. 13 See R. V. Edmundson, 28 L. J., M. C. 213; and 17 G. 3, c. 56, I 10, now repealed by 24 & 25 V., c. 101. (3217) 350 BURTHEN OF PROOF SHIFTED BY STATUTE. [pAET 11. propriateJ to Her Majesty's stores/ or with conveying or having in his posse_ssion any such stores, when the same are reasonably sus- pected of being stolen or unlawfully obtained," he must, — as soon as proof has been given, or an inference has been raised, that he has acted ^ " knowingly," — either prove that he was lawfully autho- rised to do what he has done, or at least furnish some satisfactory evidence of the legality of his conduct.^ In any prosecution, too, under the direction of the Commissioners of Customs, in respect of goods seized for non-payment of duties, or any other cause of forfeiture, or for recovering any penalty under any Act relating to the customs, if any dispute arise whether the duties of cus- toms have been paid, or whether the goods have been lawfully imported or unshipped, or concerning the place whence such goods were brought, the proof in every such case lies on the defendant.^ So, if a person be indicted for making a signal to a smuggling vessel at sea, the burthen of proving that the signal was not made for the purpose of giving illegal notice will lie upon the defendant;** and if any goods be found or seized under the customs laws, they will be deemed to be run goods, unless the owner can prove the contrary.^ So, in proceedings under " The Seamen's Clothing Act, 1869," the accused must be prepared to justify his conduct/ So, under " The Foreign Enlistment Act, 1870," if the breach of neutrality charged relate to the delivery of a ship to one of the States at war, the burthen lies on the builder " of proving that he did not know that the ship was intended to be employed in the military or naval ser- vice of such State."^ So, under " The Merchant Shi{>ping Act, 1876," any person, who sends, or attempts to send, or takes a ship to sea in an unseaworthy state so as to endanger life, is guilty of a misdemeanor, unless he proves that he used all reasonable means to ensure her going to sea in a seaworthy state, or that her 1 38 & 39 v., c. 25, H- ^ ? 7. See also US&9. ^ R. V. Wilmett, 8 Cox, 281, per Coltman, J.; R. v. Cohen, 8 id. 41, per Watson, B., and Hill, J.; R. v. Sleep, L. & Cave, 44; 8 Cox, 472, S. C. * R. V. Banks, 1 Esp. 146, per Ld. Kenyon. * 39 & 40 v., c. 36, § 259. « Id. § 191. ' Id. § 178. « 32 & 33 v., c. 57, U 4; 5. " 33 & 34 V., c. 90, g 9. (3218) CHAP. III.] BURTHEN OF PROOF SHIFTED BY STATUTE, 351 going to sea in an unseawortby state was, under the circamstances, reasonable and justitiable.' So, in all legal proceedings under " The Passengers' Act, 1855," the ship in question will be taken to be within the provisions of the statute, unless proof to the contrary be adduced." So, in any prosecution under the Act for preventing accidents by Threshing Machines, if it be shown that the machine was not duly fenced while working, the person to whom it belongs or for whom it has been used shall be deemed to have permitted such neglect, " unless he satisfy the court that he took all reasonable precautions to ensure the observance of the Act." ^ So, if any person be charged iinder the Army Act, 1881, with illegally purchasing from soldiers regimental necessaries, equip- ment, or stores, or with illegally being in possession of any such articles, the burthen of proving that he has acted innocently will lie upon him.* So, if a man be summoned for being unlawfully in possession of venison, he must satisfy the magistrate that he came lawfully by it;^ end if he be charged with knowingly and unlaw- fully having on his premises any tree, shrub, post, pale, rail, or the like, he must, on pain of conviction, give a satisfactory account of how he came possessed of the articles found. "^ Persons, too, found in possession of shipwrecked goods or ofPering such goods for sale, are bound to show that they have not transgressed the law in taking them.^ § 373a. So, if proceedings be inbtituted against any person for ? 346 having or keeping an unlicensed theatre, or for acting for hire therein, and it be proved that the theatre is used for the public performance of stage plays, the burthen of proving that the theatre is duly licensed or authorised lies on the accused.* So, in any action for a penalty under " The Public Health Act, 1875," for im- properly acting as a member of a local board, the burthen of proof ' 39 & 40 v., c. 80, I 4. The indictment in such a case need not aver that the accused knew the ship was unseaworthy, or negative the use of reason- able means to insure her going to sea in a seaworthy state. R. v. Freeman, I. R., 9 C. L. 527. M8 & 19 v., c. 119, ? 89. » 41 & 42 v., cl2, ? 1- M4 & 45 V., c. 58. | 156, subs. 1 & 2. 6 24 & 25 v., c. 96, ? 14. « 24 & 25 V., c 96, § 35 ' Id. U G5, 66. 8 6 & 7 v., c. 68, ^ 17. (3219) 352 BURTHEN OF PROOF SHIFTED BY STATUTE. [pART II. is in great measure shifted on to the defendant.' So, in the hosiery and silk-weaving trades, if any dispute arises between the manu- facturer and the workmen respecting the alleged imperfect execution of any work, which has been delivered to the manufacturer or his agent, the work, if not produced in order to adjudication, will be deemed to have been properly executed.^ So, if complaint be made that a person employed in a factory or workshop without a surgical certificate, is under the prescribed age, and the Court be of that opinion, the employer shall be liable to penalties, unless he can prove that the party employed is of the age required.^ So, in any prosecution of a chimney sweeper for illegally employing a climbing boy,* and in any proceeding against any person for employing a child in a dangerous performance,^ the proof of the age of the person employed lies on the defendant; and on the hearing of any infor- mation for a penalty for keeping a dog without a license, the accused must prove the age of the dog if he relies on the animal being a mere puppy.® So, if a pawnbroker be charged with certain offences against " The Pawnbrokers' Act, 1872," he will be required to prove some lawful or reasonable excuse for his conduct.' § 374. Again, in most of the prosecutions for offences against the Bankrupt Law, the accused will be open to conviction on the sole proof of his having committed the act complained of, " unless the jury is satisfied that he had 7io intent to defraud," or, " to con- ceal the state of his affairs," or, " to defeat the law," as the case may be.^ So, if any person be charged with having committed an offense against " The Contagious Diseases Animals' Act, 1878," the burthen of proving any " lawful authority or excuse" for his conduct will lie upon him." So, if a consumer of gas be charged with fraudulently abstracting it, " the existence of artificial means" for altering the index to any meter, or for preventing any meter from duly registering, or for abstracting, consuming, or using gas 1 38 & 30 v., c. 55, Sch. 2, Rule 1, sub-rule 70. 2 8 & 9 v., c. 77, § 3; 8 & 9 V., c. 128, g 3 ' 41 v., c. 16, § 92. " 27 & 28 V., c. .37, | 10 M2 & 43 v., c. 34, H Ml v., c. 1.5, U9. ^ 35 & 30 v., c. 93, ^ 23, r. 4, & ? 31. «32&.33V., c. 62, U H, 12; as amended by 46 & 47 V., c. 52, § 163; 35 & 36 v., c. 57, F^H. 12, Ir. " 41 & 42 v., c. 74, ^'i 01, 02. See Huggins v. Ward, 8 Law Rep., Q. B. D., 521. (3220) CHAP III.] FACTS PECULIARLY WITHIN KNOWLEDGE OF A PARTY. 353 when such meter is under the consumer's control, shall be " prima facie evidence that such alteration, prevention, abstraction, or con- sumption has been fraudulently, knowingly, and wilfully caused by the consumer.'" A similar presumption of guilty knowledge is also recognised with respect to water when supplied by measure." § 375. In accordance with the law as just illustrated, "The g 346b Prevention of Crimes Act, 1871," ^ — after showing how minor offences against that Act may be prosecuted, — goes on to enact, in subs. 3 of § 17, that "any exception, exemption, proviso, excuse, or qualitication, whether it does or does not accompany the de- scription of the offence in this Act, may be proved by the defendant, but need not be specified or negatived in the information or com- plaint, and, if so specified or negatived, no proof in relation to the matters so specified or oegatived shall be required on the part of the informant, or prosecutor, or complainant." * ^ 375 and notes 3 and 4. All the enactments, referred to in this sect, and the notes, are now repealed by 47 & 48 V., c. 43, | 4, and Sched., excepting 34 & 35 V. c. 96, § 20, snbs. 3 ; 41 & 42 V. c, 52, ? 250, Ir. ; and the Summary Jur- isdiction Act, 1879, 42 & 43 V. c. 49, ^ 39, subs. 2. This last enactment is henceforth to apply to all proceedings before Courts of Summary Jurisdiction. § 376. In several of the instances above given, the Legislature | 347 has adopted a principle which the common law also recognises, and which may here be noticed as a second exception to the general rule, that the burthen of proof lies on the party who substantially alleges the afiirmative. The exception is this, that where the subject matter of the allegation lies peculiarly icithin the knowledge of one of the parties, that party must prove it, 1 34 & 35 v., c. 41, I 38. 2 38 & 39 v., c. 55, ? 60 ; 41 & 42 V.. c. 52, | 70, Ir. » 34 & 35 v., c. 112. * This seems to be a fovourite form of the present Parliamentary draughts- man, for it will be found in many other Acts passed in and since 1871. See The Pedlars Act, 1871, 34 & 35 V., c. 96, 'i 20, subs. 3 ; The Petroleum Act, 1871, 34 & 35 v.. c. 105, § 15, subs. 5 ; The Infant Life Protection Act, 1872, 35 & 36 v., c. 38, ? 11 ; The Mines Regulation Acts, 1872, 35 M. & W. 662, Alderson, B., while commenting on that passage, observed, "I doubt, as a general rvrle, whether those expressions are not too strong. They are right as to the weight of the evidence, but there should be some evidence to start it, in order to cast the onus on the other side." 2 Under 55 G. 3, c. 194. See, now, 21 & 22 V., c. 90, § 40. =* Apoth. Co. V. Bentley, Ry. & INI. 159, per Abbott, C. J. * The Act of 1 & 2 W. 4, c. 32, which relates to Game, enacts, in | 42, that "it shall not be necessary, in any proceeding against any person under that Act, to negative by evidence any certificate, licence, consent, authority, or other matter of exception or defence ; but that the party seeking to avail himself of any such certificate, licence, consent, authority, or other matter of exception or defence, shall Ije bound to prove the same." ^ R. V. Turner, 5 M. & Sel. 206 ; Smith v. Jeffries, 9 Price, 257 ; Harrison's case, Paley, Conv. 45, n.; Sheldon v. Clark, 1 Johns. 513; U. S. v. Hayward, 2 Gall. 485 ; Gening v. The State, 1 McC. 573. See Doe v. Whitehead, 8 A. & E. 571 ; cited ante, ^ 367, where this rule was held inapplicable. 8 Under 3 & 4 W. 4, c. 15, I 2. (3222) CHAP. III.] RULES RESPECTING THE RIGHT TO BEGIN. 355 dant.' In misprision of treason, if the treason be proved, and the knowledge of it be traced to the prisoner, he is, in strictness, bound to negative the averment of concealment, by offering proof of a discovery on his part." The same rule is recognised in the Ecclesiastical Courts; and, therefore, if proceedings be there in- stituted against a clergyman for non-residence without licence or exemption, the promoter of the suit need neither allege nor prove that the defendant had not a licence, or was not resident on another benefice.^ § 378. The rules of law relating to the burthen of proof are § 349 obviously of great importance in all legal proceedings, especially when viewed in connexion with the doctrine of presumptions ; but questions respecting their application most frequently arise at Nisi Prius, on arguments concerning the right to hegin.* The privilege of opening the case to the jury is frequently one of con- siderable advantage, as it not only enables the party enjoying it to create an impression in his favour, which it may be difficult by subsequent evidence to erase, but in the event of witnesses being called by his opponent, it secures to him also the last word; still, cases sometimes occur where a defendant goes to trial relying simply on the weakness of the plaintiff's case, and where, if called upon to begin, he will instantly be defeated.^ Hence it follows, that the duty of beginning is seldom a matter of indiffer- ence, but is generally regarded as an object which it is important either to attain or to avoid, according to the circumstances. The question, therefore, is frequently discussed with much spirit ; and as the principles which govern the right are difficult of applica- tion, and, moreover, are not very distinctly understood, the decisions ^ Morton v. Copelaad, 16 Com. 517. 2 R. V. Thistlewood, 33 How. St. Tr. 691, per Abbott, C. J., in cbarge to the Grand Jury. * Bluck v. Rackman, 5 Moo. P. C. R. 305, 314. * On the hearing of appeals in equity the appellant always used to begin. Williams v. Williams, 2 Law Rep. Ch. Ap. 15. 5 Best " On Eightto Begin,'" 27, 28 ; Edwards v. Jones, 7 C. & P. 633. This was an action by the indorsee against the maker of a note; the plea in sub- stance amounted to want of consideration, and the plaintiff replied, as to part of the sum claimed that he gave consideration for the note, and as to the residue, nolle prosequi. Held by Alderson, B., that on this issue the defendant must begin, and as he had no witness, the plaintiff had a verdict. 2 LAW OF EVID. — V. II. (3223) 356 RULES RESPECTING THE RIGHT TO BEGIN. [PART II. are alike numerous and conflicting. A lengthened examination of these decisions would be misjilaced in a work of this nature, but perhaps a few general rules may be laid down, that will be found of practical value. § 379. The first general rule on this subject is, that the party I 350 on ivhom the onus probnndi Ues,^ as developed on the record, must begin.' It has been sometimes asserted, that the right of beginning belongs to the party on whom the affirmative of the issue lies ; but this assertion, if literally understood, is by no means accurate, since, as we have seen, it does not apply to cases where either the afiirmative allegation is supported by a legal presumption, or the truth of the negative averment is peculiarly within the knowledge of the party who relies on it.'^ Indeed, the rule as stated above is subject to some exceptions, which it will be convenient here to notice. And, first, if the defendant will admit at the trial the whole prima facie case of the plaintiff, he will perhaps be entitled to begin, provided he was not bound to have made this admission by his pleading at an earlier period. For instance, if a party, claiming premises as heir-at-law of the person last in possession, brings an action to recover them against a devisee under such person's will, the defendant, as it seems, is entitled to begin, on admitting not only that the plaintiff is heir, but that the ancestor, through whom he claims, died seised of the estate.* § 380. But this exception will be strictly confined to cases where a 35J the defendant admits Xheivhole hYZe of the plaintiff; and, therefore, if a defendant in an action to recover land were to admit at the trial a ' As to the best tests of the onus probandi, see ante, I 365. ^ This rule is recognised in the Probate Division of the High Court, and therefore where a husband petitioned lor a restitution of conjugal rights, and the wife answered by pleading his cruelty on which issue was joined, the respondent was held entitled to begin; Cherry r. Cherry, 1 Swab. & Trist. 319; 28 L. J., Pr. & Mat. .36, S. C. 3 Best " On Right in Begin,'' 29. See ante, U 367, 376. * Good title v. Braham, 4 T. II. 498; Doe v. Brayne, 5 Com. B. 670—674; Doe V. Barnes, 1 M. & Rob. 386, per Ld. Denman ; Doe v. Smart, id. 476, per Gurney, B., after consulting Patteson, J. In this last case the defendant was allowed to begin, though the plaintiff, as to part of the premises, was prepared to prove that he was assignee of an outstanding term. See Kules of Sup. Ct., 1883, Ord. XXI., E. 21, cited ante, p. 292, n. '. (3224) CHAP. III.] PLFF. SEEIvING UNLIQUIDATED DAMAGES MUST BEGIN. 357 will under -which the plaintiff claimed, and were to rely on a subse- quent devise or codicil, he would not be allowed to begin; because, in such case, so far from admitting the whole title of the plaintiff, the defendant would expressly deny a most material part of it; for by setting up a second will or codicil, he would in effect assert that his opponent was not devisee at the time or the testator's decease.' So, if the defendant's title rests upon a conveyance from the ancestor,^ or if he claims, even in part, under the ancestor's marriage settlement,^ he cannot, by simply admitting the heirship of his opponent, and his own possession, deprive the former of his right to begin, because such an admission will not cover the entire title of the plaintiff'. So, where each party claimed as heir-at-law, and the defendant was clearly the heir, if legitimate, his admission of the plaintiff's con- ditional title was held insufficient to give him the initiative, because the plaintiff, in order to recover, must prove his own title; and although in this particular case, the title might depend on the defendant's legitimacy, the fact of legitimacy did not constitute the direct issue.* § 381. Another exception to the rule under discussion rests upon 2 353 the broad principle of public convenience and justice, and provides that the plaintiff shall begin in all actions where he seeks sub- stantial and tinliquidated damages, thovgh the affirmative lie iqoon the defendant. This doctrine was promulgated by a majority of the judges many years back, as applicable to actions for libel, slander, and injuries to the j^ersonf and the Court of Queen's Bench after- wards extended its operation to actions of covenant and assumpsit, and indeed, as it would seem, to all actions, where the plaintiff' is seeking to recover actual damages of an unascertained amount.** ^ Doe V. Brayne, 5 Com. B. 655; overruling Doe v. Corbett, 3 Camp. ."^6^, and an anonymous case cited by Ld. Denman in Doe v. Barnes, 1 M. & Rob. 388. ^ Doe v. Tuck5r, M. & M. 536, per Bolland, B. ■^ Doe V. Lewis, 1 C. & Kir. 12:2, per ]\Iaule, J. * Doe V. Bray, M. & M. 166, per Vaughan, B. 5 Carter i\ Jones, 6 C. & P. 64; 1 M. & Rob. 281, S. C. ; Mercer v. Whall, 5 Q. B. 462, per Ld. Denman. It deserves notice that Parke, B., nev§r assented to this exception, but was always of opinion that "in all cases, he on whom the burthen of proof lay ought to begin." 8 See Foley v. Tabor, 2 Fost. & Fin. 663. (3225) 358 RIGHT TO BEGIN WHEN DAMAGES ARE LIQUIDATED. [PART II, § 382. The case which establishes this important exception is § 354 that of Mercer v. Whall,' and the language of Lord Denman, in pronouncing the judgment of the court, well illustrates the subject. After observing that " the natural course would seem to be, that the plaintiff should bring his own cause of complaint before the court and jury in every case where he has anything to prove, either as to the facts necessary for his obtaining a verdict, or as to the amount of damages to which he conceives the proof of such facts may entitle him,"' his Lordship proceeds thus: — "In ejectment, the defendant may entitle himself to begin, by admitting that the plaintiff must recover possession unless the defendant can establish a certain fact in answer; and if in an action for damages the damages are ascertained, and the plaintiff has a prima facie case on which he must recover that known amount and no more, unless the defendant proves what he has affirmed in pleading, here is a satisfactory ground for the defendant's proceeding at once to establish that fact. But if the extent of damages is not ascertained, the plaintiff is the person to ascertain it; and his doing so will have the good effect of making even the defence, in a vast majority of cases, much more easily understood for all who are intrusted with the decision."^ § 383. This last exception does not extend to cases where the ^ 355 plaintiff seeks to recover a debt, or a liquidated demand in money;* because in such actions, unless a specific denial of the claim be placed on the record, the plaintiff is not required to give any evidence as to its amount. Neither does the exception apply where the damages sought to be recovered, though unliquidated, are obviously nominal,^ or where they are admitted by the defendant, so far as ^ 5 Q. B. 447. This was an action of covenant by a solicitor's clerk for im- properly dismissing him, to which the defendant had pleaded, that the plaintiff had been s^ii^ty of misconduct in the service. The co;irt held that the plaintiif was entitled to begin. ^ 5 Q. B. 458. 3 5 Q. B. 464, 4G5. * Woodgate v. Potts, 2 C. & Kir. 457, per Parke, B. ; Fowler v. Coster, M. & M. 241, per Ld. Tenterden; 3 C. «& P. 463, S. C; Bonfield v. Smith, 2 M. & Rob. 519; Rules of Sup. Ct., 1883, Ord. XXVII., R. 2. ^ Hodges r. Holder, 3 Camp. 366, per Bayley, J. ; Jackson v. Hesketh, 2 Stark. R. 518, per id. (3226) CHAP. III.] WHEN PLAINTIFF MUST BEGIN. 359 the amount is concerned,' or where they can be ascertained by mere computation, as, for instance, where the action is brought on a bill of exchange or a promissory note; ^ or where the plaintifif will not say whether or not he intends to proceed for substantial damages.' § 384. A second general rule respecting the right to begin is, § 336 that if the record contains several issues, and the burthen of proving any one of them lies on the plaintiff, he is entitled to begin, provided he ivill undertake to give evidence upon it.* This rule will equally prevail, though it clearly appears, as a matter of calculation, that if the defendant should eventually succeed on one of the issues which he is bound to prove, the plaintiff will recover nothing on the issue which lies upon him.^ But the proviso at the end of the rule con- stitutes a material part of it; and, therefore, if to some special count, claiming liquidated damages, the plaintiff adds the common money counts, and the defendant, confessing and avoiding the former, specifically denies the latter, this will not entitle the plaintiff to begin, unless in fact he intends to rely on the common money counts, and to adduce evidence in support of them, for the only object of an opening is to explain to the jury the facts which are to be proved by the witnesses. ** § 385. If several issues be joined, some of which lie on either § 357 party, the plaintiff may, at his option, go into the whole case' in the first instance, or he may content himself with adducing evidence in support of those issues which he is bound to prove, reserving the 1 Tindall v. Baskett, 2 Fost. & Fin. 644, per Erie, C. J. 2 Cannam v. Farmer, 2 C. & Kir. 746; 3 Ex. E. 698, S. C. ; Eules of Sup. Ct., 1883, Ord. XXXVI. , R. 57. ^ Chapman v. Rawson, 8 Q. B. 673. ' * Rawlins v. Desborough, 2 M. & Rob. 328, per Ld. Denman. ^ Cripps V. Wells, C. & Marsh. 489, per Rolfe, B. ; recognised in Booth v. Millns, 15 M. & W. 669; 4 Dowl. & L. 52, S. C. ^ « Smart v. Rayner, 6 C. & P. 721, per Parke, B. ; Mills v. Oddy, id. 728, per id., overruling Homan v. Thompson, id. 717; Faith v. M'Intyre, 7 C. & P. 44, per id. ; Oakeley v. Ooddeen, 2 Fost. & Fin. 656, per Byles, J. See Edge V. Hillary, 3 C. & Kir. 43. There, to an action for goods sold, defendant pleaded, except as to £150, the general issue, and as to that sum a special plea. The plaintiif 's particulars limited his demand to £150. Held by Ld. Campbell that defendant should begin. (3227) 360 WHEN PLAINTIFF MAY RESERVE REBUTTING PROOF. [PABT 21. right of rebutting his adversary's proofs, in the event of the de- fendant establishing a prima facie case with respect to the issues which lie upon him.' The latter course is the one which, in practice, is most usually adopted, and the defendant may then have a special reply on the plaintiff's fresh evidence, while the plaintiff will be entitled to the general reply on the whole case. If, how- ever, the plaintiff at the outset thinks fit to call any evidence to repel the defendant's case, he will not be permitted to give further evidence in reply; for if such a privilege were allowed to the plaintiff, the defendant, in common justice, might claim the same, and the proceedings would run the risk of being extended to a very inconvenient length.^ In one case, where the general issue and a set-off were pleaded to an action on contract, the plaintiff was per- mitted to prove certain debts due to him from the defendant, and to reserve the proof of the remainder of his claim till evidence in sup- port of the set-off had been given by the defendant;" but, although the court refused a new trial in this case, it may well be doubted whether such a course would now be allowed, without the mutual consent of both parties. § 386. However this may be, it is tolerably clear that where there g 353 is only one issue, the onus of proving which lies on the plaintiff, he must put forth all his evidence in the first instance, and cannot rely on a prima facie case, and, after that case has been shaken by the defendant's proof, call other evidence to confirm it. Thus, in an action by the indorsee of a bill against the acceptor, where issue was raised on a plea denying the indorsement, the plaintiff was not allowed to rest his case at first on testimony given to identify the indorser's handwriting, and after evidence for the defence had been given that he was himself too poor to have discounted the bill, and ^ Formerly, when either hy pleading or notice, the defence was known, the plaintiff was bound to open his whole case, Rees v. Smith, 2 Stark. R. 30; but this practice, having been found inconvenient, has been abandoned; Browne V. Murray, Ry. & U. 254, per Abbott, C. J.; Shaw v. Beck, 8 Ex. R. 392. See Penn v. Jack, 1 Law "Rep., Eq. 314. ^ Browne v. Murray, Ry. & M. 254, per Abbott, C. J. ; Sylvester i-. Hall, id, 255, n. per id. 3 Williams v. Davies, 1 C. & M. 464. (3228) CHAP. HI.] PRACTICE AS TO CALLING EVIDENCE IN REPLY. 361 had disclaimed all knowledge of it, to prove that in fact he had discounted the instrument.' § 386a. When evidence is taken by affidavit under Order XXXVIII. of the Rules of the Supreme Court, 1883, it is expressly provided by R, 27, — in accordance v^^ith the practice described in the preceding section, — that the plaintiff's affidavits in reply "shall be confined to matters strictly in rejjly.^^ Notwithstanding the precision of this language. Vice- Chancellor Hall is reported on a recent occasion to have set the rule at nought, and to have held that a plaintiff was at liberty to refrain fi-om overloading his case with evidence in the first instance, and might in reply bring forward additional evidence con- firmatory of that originally given.^ § 387. In deciding upon the admissibility of evidence called in ? 359 reply, regard must be had to the circumstances of the individual case, and considerable latitude will necessarily be granted to the judge in the exercise of his discretion.^ Thus, where a plaintiff in ejectment made out a prima facie case as heir-at-law, which was met by a will being proved for the defendant, he was permitted, in reply, to put in a subsequent will whereby the estates claimed were devised to himself ; for although this will proved him to be entitled to the premises as devisee, and thus set up a title different from that on which he originally relied, it operated also as a revocation of the former will, and thus demolished the defendant's case.* So, in an action for negligent driving, where the plaintiff, as confirmatory evidence of the defendant's having committed the injury, had offered proof that about the time in question, the defendant was at Layton where the collision took place, and the defendant had called witnesses to show that he was then at Richmond, Lord Denman refused to exclude further witnesses, who were tendered by the ' Jacobs V. Tarleton, 11 Q. B. 421. See Wright v. Wilcox, 19 L. J., C. P. 333 ; 9 Com. B. 650, S. C. ■^ Peacock v. Harper, 47 L. J., Ch. 238 ; L. R., 7 Ch. D. 648, S. C. Sed qu. 3 Wright V. Wilcox, 19 L. J., C. P. 333 ; 9 Com. B. 650, S. C. * Doe V. Gosley, 2 M. & Rob. 243, per Ld. Denman. Sed qu. as to the present practice. See Rules of Sup. Ct., 1883, Ord. XXI., R. 21, and Ord. XXIII., R. 6, cited ante, ? 301. (3229) 3G2 PRACTICE AS TO CALLING EVIDENCE IN REPLY. [pAET II. plaintiff to prove that the defendant was not at Richmond, but at Lay ton, when the accident occurred.' This case certainly carries the privilege of adducing evidence in reply to its extreme limit; for although the plaintiff was at liberty to disprove the abili by showing that the defendant was not at Richmond, yet when the witnesses went on to prove that he was at Lay ton, they not only gave ervidence which ought to have been submitted to the jury in the first instance, but confii-med that which was actually given in chief, and which consequently should have been then exhausted.^ Where the issue turned on the soundness of a horse, which was exhibited to the jury during the defendant's case, the plaintiff was not allowed to recall his veterinary witnesses, who had attended the view, to give their opinion respecting his soundness, these gentlemen having had an opportunity of inspecting the horse before the plaintiff's case had closed.^ § 388. The question respecting the right to begin is a matter of § 360 practice and regulation upon which the presiding judge must exercise his discretion ; and the court will not interfere with his decision, unless it be clearly proved, not only that the ruling on this point was manifestly ivrong, but that it has occasioned substantial injustice.* It seems that the court will not grant a new trial, merely because the judge has either admitted evidence in reply, which should in strictness have been produced in support of the plaintiff's original case,'* or has prevented the plaintiff from calling witnesses in anticipation of the defendant's case, provided such wit- nesses be subsequently examined in reply.^ ^ Briggs V. Aynsworth, 2 M. & Rob. 168. • * See note a to S. C. pp. 169, 170. ^ Osborn v. Thompson, 2 M. & Rob. 2.54, per Erskine, J. * Brandford v. Freeman, 5 Ex. R. 734 ; Edwards v. Matthews, 16 L. J., Ex. 291. See, also, Burrell v. Nicholson, 1 M. & Rob. 306, per Ld. Denman ; Bird V. Higginson, 2 A. & E. 160 ; Huckmau v. Fernie, 3 M. & W. 510, 511, 517; Doe V. Brayne, 5 Cora. B. 655 ; Booth v. Millns, 15 M. & W. 671, n.; 4 Dowl. & L. 52, 54, n., S. C. ; Chapman v. Emden, 9 C. & P. 717, per Coleridge, J.; Doe V. Rowlands, id. 736, per id. ; Mercer v. Whall, 5 Q. B. 447 ; Geach v. Ingall, 14 M. & W. 98, 99, per Pollock, C. B. s Williams v. Davies, 1 C. & M. 465 ; 3 Tyr. 383, S. C. ; Doe v. Bower, 16 Q. B. 805. « Smith v. Marrable, C. & Marsh. 479. (3230) CHAP. III.] RULE RESPECTING THE RIGHT TO REPLY. 363 § 389. The right to begin draws after it, both in civil and g 3(ji criminal proceedings, the right to reply, whenever the adversary adduces evidence to the jury in support of his case; ' but the mere- commenting on a cash-book, which has been used to refresh the memory of one of the adverse witnesses, or even a reference to parts of this book, not looked at by such witnesses, will not entitle the opposite counsel to reply," neither will the production of a paper, which the judge has called for in order to satisfy his conscience.^ If in the course of the trial it shall become necessary for the defendant to call witnesses, for the purpose of informing the judge upon a question respecting the admissibility of evidence, the plaintiff's counsel will not thereby be entitled to the last word, because the evidence, in order to give this right, must be produced to the jury.* Where several prisoners are jointly indicted, and one of them calls witnesses, the counsel for the prosecutor has a strict right to reply generally, if the charge be a joint one, and the evidence affects the prisoners generally, though, if the charges be separate, as for stealing and receiving, or the defence be a separate one, as an alibi, he should confine his remarks to the case of the party for whom witnesses have appeared.^ " If the only evidence called on the part of a prisoner is evidence to character, although the counsel for the prosecution is entitled to the reply, it will be a matter for his discretion whether he will use it or not. Cases may occur in which it may be fit and proper to do so." * Whether the counsel for the plaintiff or the prosection will be entitled to reply, if the defendant, without adducing evidence, opens new facts, is a point not yet clearly decided; but the better opinion is that no such right can be claimed, though the judge may, in a flagrant case, permit its exercise.' ^ Best " On The Bight to Begin,^^ 85, and cases there collected. 2 Pullen V. White, 3 C. & P. 434, per Best, C. J. » Dowliug V. Finigan, 1 C. & P. 587, per Best, C. J. * Harvey v. Mitchell, 2 M. & Rob. 366, per Parke, B. ; Dover v. Maestaer, 5 Esp. 96, per Ld. Ellenborough. See ante, | 23. * R V. Hayes, 2 M. & Rob. 155, per Parke, B., & Coltman, J.; R. v. Blackburn, 6 Cox, 339; per Talfourd & Williams, Js.; R. r. Jordan, 9 C. & P. 118, per Williams, J.; R. v. Trevelli, 15 Cox, 289, per Hawkins, J.; R. v. Kain, 15 Cox, 388, per Stephen, J. « Resolution of the judges, 7 C. & P. 676. ' Crerar v. Rodo, M. & ]SI. 85, per Ld. Tenterden; 3 C. & P. 10, S. C. See, in favour of the right, R. v. Ilorne, 20 How. St. Tr. 664; R. v. Bignold, D. & (3231) 364 ATTORNEY-GENERAL ENTITLED TO REPLY. [PAKT 11. § 390. On the trial oi public ijrosecut ions, whether for felony or ^ 3^2 misdeuieanoz-, instituted by the Crown, the law officers of the Crown, and, perhaps, those who represent them,' are in strictness entitled to reply, although no evidence be adduced on the part of the defendant; " but as this is a privilege, or rather a prerogative, which stands opposed to the ordinary practice of the courts, and is, em- phatically, "more honoured in the breach than the observance," the true friend of justice will do well to watch with jealousy the parties who are entitled to exercise it. Mr. Home, so long back as 1777, very properly observed, that the Attorney- General would be grievously embarrassed to produce a single argument of reason or justice on behalf of his claim; ^ and as the rule which precludes the counsel for the prosecution from addressing the jury in reply, when the de- fendant has called no witnesses, has been long thought to afford the best security against unfairness in ordinary trials, this fact raises a natural suspicion that a contrary rule may have been adopted, and may stitl be followed, in State prosecutions, for a less legitimate purpose. It is to be hoped that, ere long, this question will receive the consideration which its importance demands, and that the Legislature, by an enlightened interference, will introduce one uniform practice in the trial of political and ordinary offenders.* R., N. P. 59, per Abbott, C. J.; 4 D. & R. 70, S. C; R. v. Carlile, 6 C. & P. 643, per Park, J.; Best " On The Bight to Li gin," 92—94; against it, Best, Id. 94—99; Faith v. M'Intyre, 7 C. & P. 46, per Parke, B.; Stephens v. Webb, 7 C. & P. 60; R. V. Abingdon, Pea. R. 236, per Ld. Keuyon; Naish v. Brown, 2 C. «& Kir. 219, per Pollock, C. B. J See, however, observations per Martin, B., in R. v. Christie, 1 Fost. & Fin. 75; 7 Cox, 506, S. C. It was there held that the privilege does not extend to the Att.-Gen. of the County Palatine. Neither does it extend to a prosecu- tion directed by the Poor Law Board,- R. v. Beckwith, 7 Cox, 505, per Byles, J. But it does apply to Post-Office Prosecutions, and to the Sol. -Gen., as well as to the Att.-Gen., R. v. Toakley, 10 Cox, 406, per Mellor, .T.; R. v. Barrow, id. 407. With respect to the Att.-Gen. of the Prince of Wales, see Att.-Gen. of P. of Wales, v. Cro.ssman, 4 H. & C. 568. 2 Resolution of the judges, 7 C. «& P. 676; R. v. Home, 20 How. St. Tr. 664, per Ld. Mansfield; R. f. Marsden, M. &M. 439, per Ld. Tenterden. The .same unjust rule prevails in the Revenue side of the Queen's Bench Div., in all cases where the Crown is concerned. M. ■ of Chandos v. Comrs. of Inl. Rev., 6 Ex. R. 464; 2 L. M. & P. 311, S. C, nom. D. of Buckingham v. Comrs. of Inl. Rev. ' 20 How. St. Tr. 663. * Those who wish for further information respecting the subjects discussed in this chapter are referred to Mr. Best's work " On The Bight to Begin.'" (3232) CHAP. IV.] BEST EVIDENCE MUST BE PRODUCED. 365 CHAPTER IV. BEST EVIDENCE. § 391.' The fourth rule, which governs the production of ^ 3G3 evidence, requires that the best evidence, of ivhich the case in its nature is susceptible, should always be presented to the jury. This rule does not demand the greatest amount of evidence which can possibly be given of any fact; but its design is to prevent the intro- duction of any, which, from the nature of the case, supposes that better evidence is in the possession of the party. It is adopted for the prevention of fraud ; for when better evidence is withheld, it is only fair to presume, that the party has some sinister motives for not producing it, and that, if offered, his design would be frustrated.^ The rule thus becomes essential to the pure ad- ministration of justice. In requiring the production of the best evidence applicable to each particular fact, it is meant that no evidence shall be received which is merely substitutionary in its nature, so long as the original evidence is attainable.^ Thus, de- positions are in general admissible only after proof that the parties who made them cannot themselves be produced.* So, a preliminary agreement, which has been followed up by the execution of a deed of conveyance, cannot be admitted as evidence to show what parcels were subsequently conveyed.^ But every title by deed must be proved by the production of the deed itself, if it be within the power 1 Gr. Ev. I 82, in'part. '^ See per Best, C. J., in Strother v. Barr, 5 Bing. 151 ; per Holroyd, J., in Brewster v. Sewell, 3 B. & A. 302; per Jervis, C. J., in Twyman v. Knowles, 13 Com. B. 224; Clifton v. U. S., 4 Howard, S. Ct. R. 247, 248, per Nelson, J. =* 1 Phil. Ev. 418; 1 St. Ev. 500; Glassf. Ev. 266—278; Tayloe v. Riggs, 1 Pet. 591, 596; U. S. v. Rcyburn, 6 Pet. 352, 367; Minor v. Tillotson, 7 Pet. 100,101. *B. N. P. 239. 5 Williams v. Morgan, 15 Q. B. 782. (3233) 3GG BEST EVIDENCE MUST BE PRODUCED. [PART 11. of the party; for this is the best evidence of which the case is susceptible; and its non-production raises a presumption that it contains some matter of defeasance. If there be duplicate originals of a deed, all must be accounted for, before secondary evidence can be given of any one.' § 392. Again, if an instrument, which requires attestation to give g 363 it validity," be produced, its execution must in general be proved by calling the subscribing witness;'^ and if there be two such wit- nesses, it will not be sufficient, so long as one of them is alive, sane, free from permanent sickness, within the jurisdiction of the court, and capable of being found by diligent inquiry, to prove the signa- ture of the other who is dead; for such evidence would merely raise a jjvesumption that the deceased had witnessed all which the law requires for the due execution of the instrument; whereas the sur- viving witness would have been able to give direct proof. Such direct testimony, therefore, might fairly be considered as evidence of a better and higher nature than mere presumption arising from the proof of the witness's handwriting.* § 393. The rule under discussion excludes only that evidence 5 35^ which itself indicates the existence of more original sources of infor- mation; and, therefore, when there is no su.bstitution of inferior evidence, but only a selection of weaker, instead of stronger proofs, or an omission to supply all the proofs capable of being produced, the rule is not infringed.^ For instance, where an instrument is required to be attested by two witnesses, it is only necessary, — excepting in the case of wills relating to real estate, — to call one of them, though the other may be at hand.^ Even the previous 1 Alivon r. Furnival, 1 C. M. & R. 292, per Parke, B. 2 See 17 & 18 V., c. 125, | 26; and 19 & 20 V., c. 102, § 29, Ir. ^ Bowman v. Hodgson, 1 Law Eep., P. & D. 362 ; 36 L. J., Pr. & Mat. 124, S. C. Griffiths r. Griffiths, in Pr. D., 25 Oct., 1884, per Butt, J. * Wright V. Doe d. Tathara, 1 A. & E. 21, 22, per Tindal, C. J. ^ 1 Ph. Ev. 418. See Alfonso v. U. S., 2 Story, R. 421, 426. « Andrew v. Motley, 12 Com. B., N. S. 526; Belbin v. Skeats, 27 L. J., Pr. & Mat. 56; 1 Swab. & Trist. 148, S. C; Forster v. Forster, 33 L. J., Pr. & Matt. 113; Ansty v. Dowsing, 2 Str. 1253; B. N. P. 264; Andrew v. Motley, 12 Com. B., N. S. 527, per Byles, S.; Gresl. Ev. 120, 122, 123. (3234) CHAP. IV.] PRIMARY AND SECONDARY EVIDENCE — DISTINCTION. 367 examination of a deceased subscribing witness, if admissible on other grounds, may supersede the necessity of calling the survivor.' So, in proof or disproof of handwriting, or in proof of the contents of a letter which cannot be produced, it is not necessary to call the supposed writer." Even where it is necessary to prove negatively that an act was done without the consent, or against the will, of another, the person whose will or consent is denied, need not, as we have seen, be himself called.^ § 394.* This rule naturally leads to the division of evidence into ^ -jgs PRIMARY and SECONDARY. Primary evidence is what has been just mentioned as the best or highest evidence, or, in other words, it is that kind of proof which, in the eye of the law, affords the greatest certainty of the fact in question. Until it is shown that the pro- duction of this evidence is out of the party's power, no other proof of the fact is in general admitted. All evidence falling short of this in its degree is termed secondary. The question whether evidence is primary or secondary has reference to the nature of the case in the abstract,, and not to the peculiar circumstances under which the party, in the particular cause on trial, may be placed. It is a distinction of law, and not of fact; referring only to the quality, and not to the strength of the proof. Evidence, which carries on its face no indication that better remains behind, is not secondary, but primary. § 395.^ But though all information must, if possible, be traced I 36o to its fountain head, yet if there be several distinct sources of information of the same fact, it is not in general necessary to 1 Wright V. Doe d. Tatham, 1 A. & E. 3. ^ R. V. Hurley, 2 M. & Kob. 473; Hughes' case, 2 East, P. C. 1002; M'Guire's case, id.; K. v. Benson, 2 Camp. 508; Liebman v. Pooley, 1 Stark. R. 167; Bank Prosecutions, R. & R. 378. =* Ante, I 371; R. v. Hazy, 2 C. & P. 458; R. v. Allen, 1 Moo. C. C. 154; R. I'. Hurley, 2 M. & Rob. 473, where it Avas held that, on an indictment for forging a cheque, the party, whose name is supposed to be forged, need not be called, either to disprove the handwriting, or to show that he did not authorise any other party to use his name. * Gr. £v. ^ 84, in jjart. * Gr. Ev. § 84, as to first four lines. (3235) 368 CONTENTS OF DOCUMENTS NOT PROVABLE BY PAROL. [pART II. show that they have all been exhausted, before recourse can be had to secondary evidence with respect to one of them.' For in- stance, if it be requisite to prove that a collector, who is a stranger to the suit, has received certain suras of money, that fact may obviously be established by calling, either the collector himself, or the parties who paid him, and both these modes of proof are equally primary. But suppose the collector be dead; in this case the only primary evidence is the testimony of the persons from "whom the money was received. Still the law does not require the production of these persons, but, on proof of the collector's death, it will admit any entries in his book acknowledging the receipt, though such entries are merely secondary evidence of the fact in issue; and if the book be in the hands of the opposite party, who, after notice, refuses to produce it, even secondary evidence of its contents will be admissible.^ The distinction between this case, and that of the two subscribing witnesses to an instrument, — where, as we have seen,^ proof must be given that both the wit- nesses are unable to be called, before evidence of the handwriting of one of them can be received, — seems to rest on this, that the attesting witnesses are either rendered necessary by statute, or at least have been solemnly chosen by the parties, as the persons on whose united testimony they wish to rely, and, consequently, so long as one of them can be called, secondary evidence respecting the other cannot be admitted. § 396.* The cases which most frequently call for the application § 367 of the rule now under consideration, are those which relate to the substitution of oral for ivritten evidence; and the general rule of law with respect to this subject is, that the contents of a written instrument, irhich is capable of being produced, must be j^roved by the instrument itself, and not by parol evidenced This rule, which ' Cutbusli r. Gilbert, 4 Serg. & R. 555; U. S. v. Gibert, 2 Sumn. 19, 80, 81; 1 Ph. Ev. 421. 2 Middleton v. Melton, 10 B. & C. 322, 327, 328, per Bayley & Parke, Js. ; Barry v. Bebbington, 4 T. R. 514. ' Ante, g 392. * Gr. Ev. ? 85, as to first three lines. 5 The Queen's case, 2 B. & B. 289. (3236) CHAP. IV.] CONTENTS OF DOCUMENTS NOT PROVABLE BY PAROL. 369 is as old as any part of the common law of England, has ever been regarded with favour, and mentioned with approbation by the judges. "I' have always," said Lord Tenterden, "acted most strictly on the rule, that what is in writing shall only be proved by the writing itself. My experience has taught me the extreme danger of relying on the recollection of witnesses, however honest, as to the contents of written instruments; they may be so easily mistaken, that I think the purposes of justice require the strict enforcement of the rule." " Lord Wynford, also, in another case observes : " I seldom pass a day in a Nisi Prius court without wishing that there had been some written statement evidentiary of the matters in dispute. More actions have arisen, perhaps, from want of attention and observation at the time of a transaction, from the imperfection of human memory, and from witnesses being too ignorant, and too much under the influence of prejudice, to give a true account of it, than from any other cause. There is often a great difficulty in getting at the truth by means of parol testi- mony. Our ancestors were wise in making it a rule, that in all cases the best evidence that could be had should be produced ; and great writers on the law of evidence say, if the best evidence be kept back, it raises a suspicion that, if produced, it would falsify the secondary evidence on which the party has rested his case. The first case these writers refer to as being governed by this rule is, that where there is a contract in writing, no parol testimony can be received of its contents, unless the instrument be proved to have been lost." ^ One of the main reasons for the adoption of this rule is, that the court may acquire a knowledge of the whole contents of the instrument, which may have a very different effect from the statement of a part.* § 397. It cannot be denied that these authorities and reasons g 368 are entitled to the greatest weight, and the rule in general is un- doubtedly a wise one : but those who watch its practical working must be strangely prejudiced in its favour, if they are blinded to the cruel injustice which a strict observance of it too frequently ' Gr. Ev. ^ 88, in part. ^ Vincent v. Cole, M. & M. 258. ^ Strother v. Barr, 5 Bing. 151. * The Queen's case, 2 B. & B. 287. (3237) 370 AVAXT OF PROPER STAMP, UOW CURED AT TRIAL. [PART II. entails upon parties, in consequence of the stamp laws.^ The judges, it is true, are wont to show no great favour to stamp objec- tions ; and some years ago they promulgated a rule, that, unless the want or insufficiency of a stamp be pointed out at the earliest possible period,^ that is, as soon as the document is tendered ia evidence, the objection will not be entertained.^ This rule is of questionable policy ; for although it may occasionally promote sub- stantial justice, it has an obvious tendency to foster sharp practice. Modern legislation has grappled with the evil in a more straightfor- ward manner, and has done much to alleviate the oppressive opera- tion of the stamp laws, so far as the administration of justice is concerned. In the criminal courts, no objection can now be taken to the admissibility of any document in evidence for want of a suffi- cient stamp; ^ and in the civil courts an attempt has been made, as the Common Law Commissioners express it,* " to reconcile the claims of justice with the interests of the revenue, by enabling all such instruments as may be stamped after execution to be received in evidence, though unstamped, or insufficiently stamped, if the party who tenders them is prepared at the trial to pay to the officer of the court the proper duty ^ and penalty.'^ The Rules of the ^ See per Ld. Tenterden, in Eeid v. Batte, M. & M. 414. ^ Robinson v. Ld. Vernon, 7 Com. B., N. S. 235. See ante, ? 309. 3 33 & 34 v., c. 97, ill. * 2nd Rep p. 26. ^ A document to be "duly stamped" must be stamped "in accordance with the law in force at the time when it was first executed," 33 & 34 V., c. 97, ? 17 ; Clarke r. Roche, 47 L. J., Q. B. 147. ® 33 & 34 v., c. 97, ? 16, enacts, that "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, the officer, whose duty it is to read the instru- ment, shall call the attention of the judge to any omission or insufficiency of the stamp thej-eon ; and if the instrument is one which may legally be stamped after the execution thereof, it may, on payment to the officer of the amount of the unpaid duty, and the penalty payable by law on stamping the same as aforesaid, and of a further sum of one pound, be received in evidence, saving all just exceptions on other gi-ounds. The officer receiving the said duty and penalty shall give a receipt for the same, and make an entry in a book kept for that purpose of the payment and of the amount thereof, and shall communicate to the Commissioners the name or title of the cause or proceeding in which, and of the party from whom, he received the said duty and penalty, and the date and description of the instrument, and shall pay over to the Receiver- General of Inland Revenue, or to such other person as the Commissioners may appoint, the money received by him for the said duty and penalty." This section is rendered applicable to arbitration by 44 V., c. 12, I 44, subs. (a). (3238) CHAP. IV.] ORAL TESTIMONY, WHEN WRITING REQUIRED. 371 Supreme Court, .1883, by Orel. XXXIX., R. 8,' farther provide that "a new trial shall not be granted by reason of the ruling of any judge that the stamp upon any document is sufficient, or that the document does not require a stamp;" and this provision, — which impliedly restrains a judge at Nisi Prius from reserving for the court any question repecting the sufficiency of a stamp on a document admitted by him at the trial," — will doubtless be productive of much benefit to the suitor, by relieving him from the annoyance and cost of a second inquiry into a mattei", which cannot have any possible connexion with the real question in dispute. § 398. Returning now to the rule, which requires the contests of ^ 369 a document to be proved by the document itself, if its production be possible, it will be found that^ the cases on the subject may be arranged in three classes ; the first class relating to those instru- ments which the law requires to be in writing; the second, to those contracts which the parties have put in writing; and the third, to all other writings, the existence or contents of which are disputed, and which are material to the issue.* § 399.^ And, first, oral evidence cannot be substituted for any o ^--q instrument which the law requires to be in writing; such as records, public and judicial documents, official informations'^ or examinations, deeds of conveyance of lands, wills, other than nuncupative, acknow- ledgements under Lord Tenterden's Act, promises to pay the debt of another person, and other Avritings mentioned in the Statute of Frauds. In all these casps the law having required that the evidence of the transaction should be in writing, no other proof can be sub- stituted for that, so long as the writing exists, and is in the power of the party. Thus, for example, parol evidence is inadmissible to ' The Irish Act, 19 & 20 V., c, 102, contains in g 37 a similar provision. 2 Siordet v. Kuczinski, 17 Com. B. 251 ; Tattersall v. Fearnley, id. 368 ; Cory r. Davis, 14 Com. B., N. S. 370. ' Gr. Ev. § 85, in part. * Tlie (juestion how far witnesses may be cross-examined as to written state- ments made by them without producing the writings, will be discussed here- after. See post, ^ 1446, et seq. ^ Gr. Ev. ? 86, as to first six lines. 6R. r. Dillon, 14 Cox, 4. 3 LAW OF EVID. — V. II. (3239) 372 ORAL TESTIMONY, WHKN INADMISSIBLE, [PAET II. prove at what sittings or assizes a trial at Nisi Prius came on,' or even that it took place at all; but the record, or at least the postea, must be produced." So, the date of a party's apprehension for a particular ofPence cannot be shown by parol, the warrant for ap- prehension or committal being superior evidence.'* So, whenever the testimony of a witness is required by law to be reduced into writing, — as, for instance, when it is taken by depositions, either before an Examiner of the Court, or before a magistrate on an indictable charge, — the writing becomes in all subsequent proceed- ings, whether civil or criminal, the best evidence of what the witness has stated, and parol proof on the subject is consequently excluded in the first instance.* So, also, parol evidence cannot be received of the statement of a prisoner before the magistrate, where the examination has, in conformity with the Act of 11 & 12 v., c. 42, in England, or the Act of 14 & 15 V., c. 93, in Ireland, been reduced into writing, and subscribed, and returned by the justice.^ § 400. If, however, the written examination be excluded for informality," — other than for having been taken on oath, in which case the confession is inadmissible as not having been voluntarily made,^ — or if it be clearly proved* that the statement was not reduced into writing, parol evidence is admissible to show what was said by the prisoner, for such evidence is offered, not in sub- ' Thomas r. Ansley, 6 Esp. 80, per Ld. Ellenborougli ; R. r. Page, id. 83, per Ld. Kenyon ; as explained in Whitaker v. Whisbey, 21 L. J., C. P. 116 ; 12 Com, B. 52, S. C, cited ante, | 85. 2 B. N. P. 24;] ; R. v. lies, Hard. 118; R. v. Browne, M. & M. 319; 3 C. & P. 572, S. C. •^ R. r. Phillips, R. & R. 369. * Leach r. Simpson, 5 M. & W. 309; post, ? 416. ^ R. V. Fearshire, 1 Lea. 202 ; R. r. Jacobs, id. 309. See post, | 893, et seq. «^. V. Reed, M. & M. 403, per Tindal, C. J.; R. v. Christopher, 2 C. & Kir. 994 ; 1 Den. 536, S. C. ; post, ?, 416. ' R. V. Wheeley, 8 C. & P. 250, per Alderson, B. ; R. v. Rivers, 7 C. & P. 177, per Park, J. * See Parsons v. Brown, 3 C. & Kir. 295, where Jervis, C. J., held that the court could not, in the absence of positive evidence, presume that examinations before justices on a charge of felony were not taken down in writing, so as to let in parol evidence. (3240) CHAP. IV.] ORAL TESTIMONY, WHEN CONTRACT IN WRITING. . 373 stitution of the official document, since no such document in that case exists, but as tlie best evidence which the circumstances admit of being produced. So, if the prisoner was examined on two occasions, or with reference to two offences, and the exami- nation, signed by the magistrates, relates only to what occurred on one occasion,' or with respect to one offence," the prosecutor may call any party, who can speak to statements made by the prisoner in that part of the inquii-y not included in the written examination. In like manner, if a witness, having given a written deposition in a cause, has afterwards testified orally in court, parol evidence may, in the event of his death, be given of his viva voce testimony notwithstanding the existence of the deposition;^ for, in this last case, as two independent sources of information exist, the party who relies on the evidence may, at his discretion, have recourse to either. § 401.* In the second place, oral proof cannot be substituted for the iiTttten evidence of any contract which the parties have put in icriting. Here the written instrument may be regarded, in some measure, as the ultimate fact to be proved, especially in the case of negotiable securites; and in all cases of vs^ritten contracts,, the writing is tacitly considered by the parties themselves as the only repository and the appropriate evidence of their agreement. The written contract is not collateral, but is of the very essence of the transaction;^ and consequently, in all proceedings, civil or 1 R. r. Wilkinson, 8 C. & P. 662, per Parke, B., and Littledale, J.; R. v. Christopher, 2 C. & Kir. 994; 1 Den. 5:i6, S. C. 2 R. V. Harris, 1 Moo. C. C. 338. 3 Tod V. E. of Winchelsea, 3 C. & P. 387, per I.d. Tenterden. * Gr. Ev. I 87, in part. ^ See R. V. Castle Morton, 3 B. & A. 590, per Abbott, C. .T. The principles on which a document is deemed part of the essence of any transaction, and consequently the best of primary proof of it, are thus explained by Domat. — "The force of written proof consists in this: men agree to preserve by writing the remembrance of past events, of which they wish to create a memorial, either with a view of laying down a rule for their own guidance, or in order to have, in the instrument, a lasting proof of the truth of what is Avritten. Thus contracts are written, in order to preserve the memorial of what the contracting parties have prescribed for each other to do, and to make for themselves a fixed and immutable law, as to what has been agreed on. So, testaments are written, (3241) 37-Jr ORAL TESTIMONY, WHEN LEASE EXISTS. [PART. II, criminal, in which the issue depends in any degree upon the terms of a contract, the party whose witnesses show that it was reduced to writing, must either produce the instrument, or give some good reason for not doing so. Thus, for example, if in an action to recover land against an overholding tenant, or in an action for the use and occupation of real estate, it should appear, either on the direct or cross-examination of the plaintifP's witnesses, that a written con- tract of tenancy has been signed, the plaintiff must either pro- duce it, or account for its absence.' So, if a landlord were to bring an action against a tenant for rent and non-repair, and it should appear that the parties had agreed by parol that the tenant should hold the premises on the terms contained in a former lease between the landlord and a stranger, a nonsuit would be directed, unless this lease could be produced." § 402. The same strictness in requiring the production of the ^ 373 written instrument has prevailed, where the question at issue was simply what amount of rent was reserved by the landlord,^ or who was the actual party to whom a demise had been made,* or under whom the tenant came into possession;^ and in an action for the price of labour performed, where it appeared that the work was commenced under an agreement in writing, but the plaintiff's in order to preserve the remembrance of what the party, who has a right to dispose of his property, has ordained concerning it, and thereby to lay down a rule for the guidance of his heir and legatees. On the same principle are reduced into writing all sentences, judgments, edicts, ordinances and other matters, which either confer title, or have the force of law. The writing pre- serves unchanged the matters intrusted to it, and expresses the intention of the parties by their own testimony. The truth of written acts is established by the acts themselves, that is, by the inspection of the originals." — See Domat's Civ. Law, Liv. 3, tit. 6, § 2, as translated in 7 3Ionthly Law Mag. p. 73. ' Brewer r. Palmer, 3 Esp. 213, per Ld. Eldon; Fenn r. Griffith, 6 Bing. 533; 4 M. & P. 299, S. C. ; Henry r. M. of Westmeath, Ir. Cir. R. 809, per Richards, B.; Thunder v. Warren, 8 Ir. Law R. 181; Eudge v. M'Carthy, 4 id. 161. "^ Turner r. Power, 7 B. & C, 625; M. & M. 131, S. C. ' R. V. Merthyr Tidvil, 1 B. & Ad. 29; Augustien v. Challis, 1 Ex. R. 280, where Alderson, B., observes, " you may prove by parol the relation of landlord and tenant, but without the lease you cannot tell whether any rent was due." * R. V. Rawden, 8 B. & C. 708; 3 M. & R. 426. S. C. 5 Doe V. Harvey, 8 Bing. 2«9; 1 M. & Sc. 374, S. C. (3242) CHAP. IV.] ORAL TESTIMONY IN CLAIM FOR EXTRA WORK. oT5 claim was for extra work, it has been several times held that, in the absence of positive proof that the work in question was entirely separate from that included in the agreement, and was in fact done under a distinct order, the plaintiff was bound to produce the original document, since it might furnish evidence, not only that the items sought to be recovered were not included therein, but also of the rate of remuneration upon which the parties had agreed.' So, where an auctioneer delivered to a bidder, to whom lands were let by auction, a written paper signed by himself, con- taining the terms of the lease, the landlord was held bound, in an action for use and occupation, to produce this paper duly stamped as a memorandum of an agreement.^ § 403. In Whitford i\ Tutin,'' the plaintiff had been employed as secretary to the committee of a charitable society, pursuant to a resolution entered in the book of the committee, of which, during his service, he had had the care. The society being afterwards dissolved, the plaintiff sued some of the members of the com- mittee for his salary, and the court held that he was bound to produce the book under which he was engaged; for though he was no party to the original resolution, which was entered into before bis appointment as secretary, yet by accepting the situation and the benefit attached to it, he must be taken to have adopted the terms contained in the resolution, and consequently was bound to produce the book to show what those terms really were. Whether in an action for an injury done to the plaintiff's re- version, his interest as reversioner may be proved by the parol testimony of the tenant, when it appears that the premises are ' Vincent V. Cole, M. & M. 2r)7, per Ld. Tenterden; 3 C. & P. 481, S. C; Buxton V. Cornish, 1 Dowl. & L. 583: 12 M. & W. 426, S. C. ; Jones v. Howell, 4 Dowl. 176; Holbard r. Stephens, 5 Jur. 71, Bail C. , per Williams, J.; Partou V. Cole, 6 Jur. 37U, Bail C, per Patteson, J. See Reid v. Batte, M. & U. 413, cited post, § 405; and Edie v. Kingsford, 14 Com. B. 759. ? Ramsbottom v. Mortley, 2 M. & Sel. 445. See Kamsbottom v. Tunbridge, id. 434, cited post, ?. 406. See, .also, Hawkins v. Warre, 3 B. & C. 697, where Abbott, C. J., draws the distinction between papers signed by the parties or their agents, and those which are unsigned. » 10 Bing. 395; 4 M. & Sc. 166, S. C. (3243) 376 ORAL TESTIMONY, WHEN ADMISSIBLE. [PART II. occupied iinder a written agreement, may admit of some doubt. In one case it was held that tbe agreement must be produced ; ' but in a later case, where nominal damages only were recovered, and independent proof was given of the premises having been de- vised to the plaintiff, the judges of the Court of Common Pleas were equally divided upon the question whether a nonsuit should be entered, the plaintiff having omitted to produce the written agreement between the occupier and himself.' § 404. The fact that, in cases of this kind, the writing is in the § 375 possession of the adverse party, does not change its character ; it is still the primary evidence of the contract; and its absence must be accounted for by notice to the other party to produce it, or in some other legal mode, before secondary evidence of its contents can be received. In all these cases, however, if the plaintiff can establish a prima facie case, without betraying the existence of a written contract relating to the subject-matter of the action, he cannot be precluded from recovering by the defendant subsequently giving evidence that the agreement was reduced into writing ; but the defen4ant, if he means to rely on a written contract, must pro- duce it as part of his evidence,^ and in the event of its turning out to be unstamped, or insufficiently stamped, he must pay the duty and penalty. Nor, in such a case, will any material distinction be recognised in the defendant's favour, though a notice to produce the document has been served on the plaintifP.^ In an action of eject- ment it has even been held, that the plaintiff could not be turned round by one of his witnesses proving, on cross-examination, that an agreement, which he only knew related in some iraij to the land in question, was seen on that morning in the hands of the plaintiff's • ' Cotterill v. Hobl)y, 4 B. & C, 465. ^ Strother v. Barr, 5 Bing. 136, Best, C. J., and Burroiigh, J., in favour of a nonsuit; Park and Gaselee, Js., cont. ; 2 M. & P. 207, S. C. » Magnay v. Knight, 1 M. & Gr. 944; 2 Scott, N. R. 64, S. C; Stephens v. Pinney, 8 Taunt. 327; 2 Moore, 849, S. C; Marston v. Dean, 7 C. & P. 13; Fry V. Chapman, 5 Dowl. 265; R. v. Padstow, 4 B. & Ad. 208; 1 N. «&; M. 9, S. C. ; Reed v. Deere, 7 B. & C. 261, 266. * Ante, § 397. * See cases cited in n. 3 supra. (3244) CHAr. IV.] COLLATERAL WRITINGS NEED NOT BE PRODUCED. 377 solicitor, and was produced at a former trial between the same parties; for the court held that, in order to exclude parol evidence of the tenancy, it should appear that the agreement was between the same parties, and was binding at the time of the second trial; neither of which facts was proved.' § 405.^ Where the written communication or agreement between ^ 370 the parties is collateral to the question in issue, it need not be pro- duced. Thus, if during an employment under a written contract, a verbal order is given for separate work, the workman can perhaps recover from his employer the price of this work, without producing the original agreement, provided he can show distinctly that the items, for which he seeks rumeneration, were not included therein; as, for instance, if it clearly appears, that whilst certain work was in progress in the inside of a house under a written agreement, a verbal order was given to execute some alterations or improvements on the outside.^ So, if the fact of the occupation of land is alone in issue, without respect to the terms of the tenancy, this fact may be proved by any competent parol evidence, such as payment of rent, or the testimony of a witness, who has seen the tenant occupy, not- withstanditig it apjjears that the occupancy was under an agreement in writing;* and where a tenant holds lands under written rules, but the length of his term is agreed on orally, the landlord need not produce these rules in an action of trespass under a plea denying his possession, because such plea only renders it necessary for the plaintiif to prove the extent of the tenant's term, which, having been agreed to by parol, does not depend upon the written rules. ^ The fact of partnership may also be proved by parol evidence of the acts 1 Doe V. Morris, 12 East, 237. "^ Gr. Ev. I 89, in part. ^ Reid v. Batte, M. & M. 413, per 1x1. Tenterden; commented on by Patte- son, J., in Parton v. Cole, 6 Jur. 370, Bail C. See Vincent v. Cole, M. & M. 257, and cases cited ante, § 402, n. 1. * R. V. Holy Trinity, Hull, 7 B. & C. 611; 1 M. & R. 444, S. C; Doe v. Harvey, 8 Bing. 239, 242; 1 M. & Sc. 374, S. C. ; Spiers v. Willison, 4 Cranch, 398; Dennett v. Crocker, 8 Greenl. 239, 244. See, however, the observations of Best, C. J., on the case of R. v. Holy Trinity, in Strother v. Barr, 5 Bing. 158, 159; see, also, Twynam v Knowles, 13 Com. B., 222. * Hey V. Moorhouee, 6 Bing. N. C. 52; 8 Scott, 156, S. C. (3245) 078 COLLATERAL WRITINGS NEED NOT BE PRODUCED. [pART. II. of the parties, without producing the deed;' and the fact that a party has agreed to sell goods on commission may be established by oral testimony, though the terms respecting the payment of the commission have been reduced into writing.'^ § 406. So where, at the time of letting some premises to the § 377 defendant, the plaintiff had read the terms from pencil minutes, and the defendant had acquiesced in these terms, but had not signed the minutes;^ — and where, upon a like occasion, a memo- randum of agreement was drawn up by the landlord's bailiff, the terms of which were read over, and assented to, by the tenant, who agreed to bring a surety and sign the agreement on a future day, but omitted to do so;* and where, in order to avoid mistakes, the terms upon which a house was let, were, at the time of letting, reduced to writing by the lessor's agent, and signed by the wife of the lessee, in order to bind him; but the lessee himself was not present, and did not appear to have constituted the wife as his agent, or to have recognised her act, further than by entering upon and occupying the premises:^ — and where landa were let by auction, and a written paper was delivered to the bidder by the auctioneer, containing the terms of the letting, but this paper was never signed either by the auctioneer or by the parties;^ — and where, on the occasion of hiring a servant, the master and servant went to the chief constable's clerk, who in their presence, and by their direction, took down in writing the terms of the hiring, but neither party signed the paper, nor did it appear to have been ' Alderson r. Clay, 1 Stark. R. AO'^, per T.d. Ellenborough. ■' Whitfield V. Brand, 10 M. & W. 282. 3 Trewhitt v. Lambert, 10 A. & E, 470; 3 P. & D. 676, S. C. See Drant V. Brown, 3 B. & C. 665; 5 D. & R, 582, S. C. ; and Bethell v. Blencowe, 3 M. & Gr. 119, where the court held that written proposals, made pending a negotia- tion for a tenancy, might be admitted without a stamp, as proving one step in the evidence of the contract. * Doe V. Cartwright, 3 B. & A. 326. See Hawkins v. AVarre. 3 B. & C. 690; 5 D. & R. 512, S. C. * R. V. St. Martin's, Leicester, 2 A. & E. 210; 4 N. & M. 202. S. C. « Ramsbottom v. Tunbridge, 2 M. & Sel. 434. See Ramsbottom v. Mortley, 2 M. & Sel. 445, cited ante, | 402. (3246) CHAP. IV.] WHEN PAROL EVIDENCE NOT EXCLUDED BY WRITINGS. 379 read to them;' — in all these instances the court held that parol evidence was admissible, since the writings only amounted, either to mere unaccepted proposals, or to minutes capable of conveying no definite information to the court or jury, and they could not, by any sensible rule of interpretation, be construed as memoranda, which the parties themselves intended to operate as fit evidence of their several asrreements. § 407. On the same principle it has frequently been held, that § 378 where the action is not directly upon the agreement for non- performance of its terms, but is in tort, for its conversion, or de- tention, or negligent loss, the plaintifP may give parol evidence, descriptive of its identity, without giving notice to the defendant to produce the document itself; " and even though the defendant be willing to produce it without notice, the plaintiff is not bound to put it in, but may leave his adversary to do so, if he think fit, as part of his case.^ It has been well observed that, "for the purpose of identification, no distinction can be drawn between written instruments and other articles; — between trover for a pro- missory note, and trover for a waggon and horses.* § 408. The same rule prevails in criminal cases; and, therefore, 2 379 if a person be indicted for stealing a bill or other written instru- ment, its identity may be proved by parol evidence, though no notice to produce it has been served on the prisoner or his agent.^ If, however, the indictment be for forgery, and the forged instru- ment be in the hands of the prisoner, the pi'osecutor must serve him or his solicitor with a notice to produce it, before he can offer secondary evidence of its contents.*^ One ground of difference ^ R. V. Wrangle, 2 A. & E. 514. See, for other instan ces, Ingram v. Lea, 2 Camp. 521; Dalison r. Stark, 4 Esp. 163; Wilson v. Bowie, 1 C. & P. 8. 2 Scott r. Jones, 4 Taunt. 865; How v. Hall, 14 East, 274; Bucher r. Jarratt, 3 B. Sz P. 143; Head r. Gamble, 10 A. & E. 597; Ro.ss v. Bruce, 1 Day, 100; The People v. Holbrook, 13 .Johns. 90; M'Lean v. Hertzog, 6 Serg. & R. 154. These cases overrule Cowan v. Abrahams, 1 Esp. 50. ^ Whitehead v. Scott, 1 M. & Rob. 2, per Ld. Tenterden. * Jolley V. Taylor, 1 Camp. 143, per Sir J. Mansfield. * R. V. Aickles, 1 Lea. 294, 297, n. a., 300, n. a. « R. V. Haworth, 4 C. & P. 254, per Parke, J.; R. v. Fitzsimons, I. R., 4 C. L. 1. (3247) 380 WHEN PAROL EVIDENCE EXCLUDED BY WRITINGS. [PART II. between these two cases appears to be, that in the first it was always sufficient, both in the indictment and the proof, to describe in very general terms the instrument stolen, whereas in the case of forgery, the prosecutor, under the old law,' was often required to enter into a minute description of the document alleged to have been forged.^ But the main reason why parol evidence is admis- sible in a case of larceny, though inadmissible in a case of forgery, is, that a person charged with stealing an instrument must know, from the very nature of the accusation, that he will be called upon to produce it, while an indictment for forgery furnishes no such intimation; and it will be presently seen, when the rules which regulate the serving of notices to produce are discussed,'* that this is a material distinction. Indeed, it may well admit of a doubt, whether all the cases cited in this and the preceding section, wherein parol evidence has been received, do not rest on those rules, rather than on the fact that the contents of the writings were collateral to the questions in issue. § 409.* In the third place, oral evidence cannot be substituted § 380 for any writing, the existence or contents of ivhich are disputed, and which is material to the issue between the parties, and is not merely the memorandum of some <"tber fact. Thus, a witness cannot be asked whether certain resolutions were published in the newspapers,^ neither can he be questioned as to the contents of his account-books:® but in both these cases the papers and the books, as being the best evidence, must be produced. So, the primary proof of the publication of an opera is the production of the printed music, and the fact of publication cannot be proved in the first instance by a witness who has merely seen the opera in print, or heard parts of it played in society.' So, doubts have been entertained as to whether the contents of handbills, written by dictation at a meeting of conspirators, could be proved by oral ' See, now, 24 & 25 V., c. 98, | 42, cited ante, ? 291. ^ See Bucherf. Jarratt, 3 B. & P. 146, per Chanibrc, J. =* Post, ? 4.52. * Gr. Ev. ? 88, in part. 5 R. V. O'Connell, Arm. & T. 163. « Id. 198. See post, ? 462. ^ Boosey v. Davidson, 13 Q. B. 257. But see 10 Com. B. 696, per Jervis, C. J. (3248) CHAP. IV.] PAROL ADMISSIONS SUBSTITUTED FOR WRITINGS. 381 testimony.' So, the fact of a person being rated to the relief of the poor cannot be legally proved by the collector stating that such person's name was on the rate," but either the rate-book itself,' or at least a certified or examined extract from it,* must be produced. So, a plaintiff cannot be asked on cross examination whether his name is written in a certain book described by the questioner, unless a satisfactory reason be first given for the non- production of the book itself.^ § 410. In stating that oral testimony cannot be substituted for ^ 381 any writing included in either of the three classes above mem- tioned, a tacit exception must be made in favour of the parol admissions of a party, and of his acts amounting to admissions, both of which species of evidence are always received as primary proof against himself and those claiming under him, although they relate to the contents of a deed or other instrument, which are directly in issue in the cause.® " The reason," says Mr. Baron Parke, " why such statements or acts are admissible, with- out notice to produce, or accounting for the absence of the written instrument, is, that they are not open to the same objection which belongs to parol evidence from other sources, where the written evidence might have been produced; for such evidence is excluded from the pi'esumption of its untruth, arising from the very nature of the case, where better evidence is withheld; whereas, what a ' ' E. V. Thistlewood, 3.3 How. St. Tr. 756—759. See post, ? 417. 2 Justice V. Elstol), 1 Fost. & Fin. 256. * E. V. CoppuU, 2 Eist, 25, recognised by Pattcson, J., in E. v. Staple Fitzpaine, 2 Q. B. 494. See "The Poor Eate Assessment and Collection Act, 1869," 32 & 33 v., c. 41, ? 18, cited ante, | 147a. * Justice V. Elstob, 1 Fost. & Fin. 256. » Darby v. Ousel ey, 1 H. & N. 1. 6 Earle v. Picken, 5 C. & P. 542, per Parke, B.; Newhall v. Holt, 6 M. & W 662, per id.; Slatterie v. Pooley, id. 664, and cases cited in n. a, 669; Bethell v. Blencowe, 3 M. & Gr. 119; Howard v. Smith, id. 254; 3 Scott, N. E. 574, S. C; E. v. Welch, 2 C. & Kir. 296; 1 Den. 199, S. C; King V. Cole, 2 Ex. E. 632; E. v. Basingstoke, 14 Q. B. 611; Boulter v. Peplow, 9 Com. B 501 — 504. These cases overrule Lord Tenterden's decision in Bloxam v. Elsie, 1 C. & P. 558; Ey. & M. 187, S. C. See Fox v. Waters, 12 A. & E. 43. (3249) 382 PAROL ADMISSIONS — SLATTERIE V. POOLEY. [I'ART II. party himself admits to be true, may reasonably be presumed to be so." ' § 411. It may seem presumption to question the correctness § 382 of this reasoning and of the decisions founded upon it; but the author cannot refrain from observing that, although the admission of a party may fairly be presumed to be true, the parol evidence by which that admission is proved need by no means be so; and, indeed, such testimony is open to even greater objection than applies to the ordinary case, where secondary evidence is pro- duced, and the best evidence is withheld." When the admission is made in court, it may very reasonably be allowed to render needless the production of the written instrument to which it refers, because the simple question in such case will be, is the admission true? and the rational presumption is, that a man will not tell a falsehood, which is against his own interest; but when a witness is called to say that he has heard the opposite party make a certain statement with respect to the contents of a written instrument, the further question arises, was this statement really made? and to permit such parol evidence to be equally admis- sible, in proof of the contents of the instrument, with the produc- tion of the instrument itself, is to open a vast field for misappre- hension, perjury, and fraud, which would be wholly closed, if the salutary rule of law, requiring that what is in writing should be proved by the writing itself, were here, as in other cases, to prevail. It must be remembered, that Lord Tenterden, and Mr, Justice Maule, — no mean authorities, — have emphatically expressed opinions in support of the view here suggested;^ while Mr. Baron Parke himself has declared that the parol evidence of admissions may, in some cases, be quite unsatisfactory to a jury,* and that too great weight ought never to be attached to such evidence, 1 Slatterie v. Pooley, 6 M. & W. 069. 2 "According to Slatterie v. Pooley, what A. states as to what B., a party, has said respecting the contents of a document which B. has seen, is admis- sible, whilst what A. states, respecting a document which he himself has seen, is not admissible,— although in the latter case, the chance of error is single, in the former double." Per Reporter in 9 Com. B. 501. n. c. 3 Bloxam v. Flsie, Ry. & M. 188; Boulter v. Peplow, 9 Com. B. 501. * Slatterie v. Pooley, G M. & W. 669. (3250) CHAP. IV.] PAROL ADMISSIONS — CONFESSIO JURIS. 383 since it frequently happens that tlie witness not only has mis- understood what the party has said, but, by unintentionally alter- ing a few of the. expressions really used, has given to the statement an effect completely at variance with what was intended.' § 412. Since the above observations were written, the subject ? 383 has undergone much discussion in Ireland,^ where the judges have not hesitated to declare their disapproval of the principles advanced in Slatterie v. Pooley.^ "The doctrine laid down in that case," said Chief Justice Pennefather, " is a most dangerous proposition; by it a man might be deprived of an estate of 10,000Z. per annum derived from his ancestors through regular family deeds and conveyances, by producing a witness, or by one or two conspirators, who might be got to swear that they heard the defendant say he had conveyed away his interest therein by deed, or had mortgaged, or had otherwise encumbered it; and thus, by the facility so given, the widest door would be opened to fraud, and a man might be stripped of his estate through this invita- tion to fraud and dishonesty."^ The case which called forth these remai'ks was an action for use and occupation. At the trial, one of the plaintiff's witnesses, after proving the occupation of the premises by the defendant, acknowledged in cross-examination the existence of a written agreement; and the court held, that this agreement must be produced, though the defendant had ad- mitted that he was tenant at a particular rent. § 413. Whether the doctrine propounded in Slatterie ii Pooley ^ 334 would be held to extend to records, as well as to deeds and ordinary writings, and whether it would embrace the case of a confessio juris, as well as that of a confessio facH, may admit of some doubt. In one case before Lord EUenborough, the admis- sion of a party that he had been discharged under the Insolvent Debtors Act, was held insufficient evidence of a valid discharge, 1 Note to Earle v. Picken, ,C. & P. 542. 2 Lawless v. Queale, 8 Ir. Law R. 382. See, also, Ld. Gosford ?'. Robb, id. 217; and Parsons v. Purcell, 12 id. 90. •■* 6 M. & W. 664. * Lawless v. Queale, H Ir. Law R. .385. See, also, Henman v. Lester, 31 L. J., C. P. 370, 371, per Byles, J.; 12 Com. B., N. S. 781, 782, S. C. (3251) 384 ORAL EVIDENCE, WHEN ADJIISSIBLE. [pAKT II. because the judicial document, on being produced, might be found irregular and void, and the party might be mistaken ;^ but on an indictment for biga^ny it has been held that the prisoner's deli- berate declaration, that he had been married in a foreign country, rendered it unnecessary to prove that the marriage had been cele- brated according to the laws of that country.^ So, in an action for wages, an admission by the plaintiff that his cla,im had been referred to an arbitrator, who had made an award against him, has been held admissible evidence on behalf of the defendant.* § 414. It may be further observed, with respect to this exception, §384 that a material difference exists between proving by means of an admission the execution of an instrument requiring attestation, which is produced, and proving the party's admission, that by such instrument, which is not produced, a certain act was done; and, indeed, it still appears to be the law, — as will hereafter be shown,* —that, when an instrument, which requires attestation to give it validity,^ is in court, and its execution is to be proved against a hostile party, an admission on his part of due execution, unless made with a view to the trial of that cause, is, generally,** not sufficient. This rule is founded on reasons peculiar to the class of cases to which it is applied. § 415.' AVhere the writing does not fall within either of the § 385 three classes already described, no reason exists why it should exclude oral evidence. If, therefore, a written communication be accompanied by a verbal one to the same effect, the latter may be received as independent evidence, though not to prove the con- tents of the writing, nor as a substitute for it.** So, the payment ^ Scott V. Clare, 3 Camp. 236. See, also, Summersett v. Adamson, 1 Bing, 73; Jenner v. Joliflfe, G Johns. 9; Welland Canal Co. v. Hathaway, 8 Wend. 480. ^ R. V. Newton, 2 IVI. & Rob. 503, per Wightman and Cresswell, Js. ; 1 C. & Kir. 164, S. C, nom. R. v. Simmonsto. But see R. v. Flaherty, 2 C. & Kir. 782; and R. v. Savage, 13 Cox, 178, per Lush, J. 3 Murray v. Gregory, 5 Ex. R. 468. * See post, ?§ 1843, 1849. 5 See 17'& 18 V.-, c. 125, ?, 26; 19 & 20 V., c. 102, ^ 29, Ir. « See, however, Nagle v. Shea, I. R., 9 C. L. 3S9. ' Gr. Ev. § 90, in part. ^ See ante, ^ 400. (3252) CHAP. IV.] ORAL EVIDENCE, WHEN ADMISSIBLE. 385 of money may be pi'oved by oral testimony, though a receipt be taken ; ' a verbal demand of goods is admissible in trover, though a demand in writing was made at the same time;" and the admission of a debt is provable by oral testimony, though a written promise to pay was simultaneously given.^ So, the determination of an interest in land, whether freehold or copyhold, may be proved without pro- ducing, or accounting for the non-production of, the title-deeds or court rolls, by merely showing that a deceased occupier, had, while in possession, declared that bis interest in the premises would expire at his death.^ For, — as will presently be seen,^ — all statements by a person, while in possession of property, are, after his death, in themselves primary evidence, provided they tend to cut down his interest therein.** § 416. Where, on a preliminary hearing of a charge, the magis- § 386 trate's clerk takes down what the witness says, but neither the witness nor the magistrate signs the writing, nor does it constitute part of the depositions returned, oral evidence of what passed on that occasion is equally admissible with the clerk's note; ' and the same rule will prevail, if, on the hearing of an information for a trespass in pursuit of game,^ the clerk takes a note of the charge ; because this is not one of those cases where the magistrate is bound to take down what the witnesses say," So, in support of an indict- ment for perjury committed in a County Court, it is unnecessary to subpoena the judge to produce his notes, for he is not required by law to keep any, and the perjury may be proved by any witness who was present at the trial. ^° So, where the proceedings of direc- tors, commissioners, public trustees, and the like, are entered in ^ Rambert ?'. Cohen, 4 Esp. 213 ; Jacob t\ Lindsay, 1 East, 460. ^ Smith V. Young, 4 Camp. 439, per Ld. Ellenborough. 3 Singleton v. Barrett, 2 C. & J. 368. * Doe V. Langfield, 16 M. & W. 497. 5 Post, ^ 684, et seq. « Doe V. Langfield, 16 M. & W. 514, per Parke, B. ^ Jeans r. Wheedon, 2 M. & Rob. 486, per Cresswell, J.; R. v. Christopher, 2 C. «fe Kir. 994 ; 1 Den. 536 ; 4 Cox, 76, S. C. ; ante, § 400. 8 Under 1 & 2 W. 4, c. 32, ? 30. ^ Robinson v. Vaughton, 8 C. & P. 252, per Alderson, B. ^^ R. r. Morgan, 6 Cox, 107, per Martin, B. ; Harmer r. Bean, 3 C. & Kir. 307, per Parke, B. (3253) 386 ORAL EVIDENCE. WHEN ADMISSIBLE. [PART ir. books, the fact that sucli books are rendered by statute admissible in evidence, does not exclude parol proof of what has taken place at the respective meetings.' Neither is it necessary to produce a certificate of registration, in order to prove that a joint stock com- pany has been completely registered.' So, the fact of birth, l)ap- tism, marriage,'' death or burial, may be proved by parol testimony, though a nan-ative or memorandum of these events may have been entered in registers, which the law requires to be kept ; for the existence of contents of these registers form no part of the fact to be proved, and the entry is no moi-e than a collateral or subsequent memorial of that fact, which may furnish a satisfactory and con- venient mode of pi'oof, but cannot exclude other evidence, though its non-production may afford grounds for scrutinising such evidence • with more than ordinary care."* § 417.^ On a somewhat similar ground it has been held, that in ? SS'; prosecutions for political offences, such as treason, conspiracy, and sedition, the inscriptions on flags and banners paraded in public, and the contents of resolutions read at a public meeting, may be proved, as being of the nature of speeches, by oral testimony; '' and where a party was indicted for administering an unlawful oath, a witness was permitted to give parol evidence of the words used, though he stated, his belief that the accused read the words from a paper, which he held in his hand when he administered the oath, 1 Miles r. Bough, 3 Q. B. 845, 872; Inglis r. Gt. North. Ry. Co.,1 Macq. Sc. Cas., H. of L. 112, 118, 119. 2 Agi-icultural Cattle Ins. Co. ?'. Fitzgerald, 16 Q. B. 432 ; decided under the repealed Act, 7 & 8 V., c. 110, |^ 7 & 25. See, now, 25 & 26 V., c. 89, 13 Cox, 345, S. C. •' Lady Limerick v. Ld. Limerick, 32 L. J., Pr. & Mat. 22; 4 Swab. & Trist. 252, S. C. * Evans v. Morgan, 2 C. & J. 453 ; R. v. Allison, R. & R. 109 ; Harrison V. Corp. of Southampton, 22 L. J., Ch. 722; R. v. Mainwaring, 26 L. J., M. C. 10; Dear. & Bell, 132; 7 Cox, 192, S. C. ; Reed v. Passer, Pea. R. 232; St. Devereux r. ]\Iuch Dew Church, 1 W. Bl. 367 ; Morris v. Miller, id. 632; 4 Burr. 2067, S. C. ; Birt r. Barlow, 1 Doug. 172; Com. r. Norcross, 9 Mass. 492 ; Ellis r. Ellis, 11 Mass. 92 ; Owings v. Wyant, 1 Har. & M'H. 393. ^ Gr. Ev. I 90, in part. ^ R. V. Hunt, 3 B. & A. 566 ; Sheridan's and Kirwan's case, 31 How. St. Tr. 673 ; R. V. O'Connell, Arm. & T. 23,5—237. See ante., § 409, n. ^. (3254) CHAP. IV.] BEST DOCUMENTARY EVIDENCE MUST BE PRODUCED. 387 and no notice to produce this paper had been served on the prisoner.' § 418. The preceding observations have been confined to cases, § 388 where the attempt has been made to substitute oral for written evidence; but precisely the same rules operate to the exclusion of ivritings tvhich the law considers as entitled to less iceight than those which might, and, consequently, ought to be forthcoming. Thus, an original document must, — subject to some exceptions that will be presently mentioned," — be produced at the trial, and a mere cojjy, however accurate, will not in the first instance be admissible.'' If, then, it be necessary to show the contents of a manuscript which is in the possession of the opposite party, a paper, purporting to be a printed copy, cannot be received in evidence, without a notice to produce the manuscript ; * neither will a duplicate writing, taken from an autograph at one impres- sion by means of a copying machine, be regarded as an original, but the autograph itself must be produced, or its non -production to be accounted for as in ordinary cases.^ Still, all printed copies struck off in one common impression, though they constitute merely secondary evidence of the contents of the paper from which they are taken, are considered as primary evidence of each other's con- tents ; and, therefore, when the question was, whether a prisoner was acquainted with the contents of certain placards, some copies of which were traced to his possession, a copy remaining with the printer was allowed to be read in evidence for the prosecution,, though no notice had been served upon the prisoner to produce the copies which had been delivered to him.*^ Again, on an indictment for feloniously setting fire to a house, with intent to defraud the insurers, the policy itself, being the best evidence of the fact of insurance, must be produced by the prosecutor; and recourse- 1 R. V. Moors, 6 East, 421, n. ^ Post, § 428. 3.B. N. P. 293, 294, * E. V. Watson, 32 How. St. Tr. 82—86; 2 Stark. E. 129, S. C. ^Nodin V. Murray, 3 Camp. 228, per Ld. Ellenborough. In India, "an impression of a document made by a copying machine shall be taken without further proof to be a correct copy." Act 11 of 1855, § 35. « E. V. Watson, 32 How. St. Tr. 82—86; 2 Stark. E. 129, S. C. 4 LAW OF EVID.— V. II. (3255) 388 MEMORIAL OF REGISTERED DEED, WHEN ADMISSIBLE. [pART II. cannot bo bad to the books of the insurance office, even though the policy bo in the defendant's possession, unless notice to produce it has been duly served upon him.' § 419. The memorial of a registered conveyance is also inad- ? 389 missible as primary evidence against third persons, to prove the contents of the deed;" although against the party by whom the deed is registered, and those who claim under him, it can certainly be received as secondary,^ if not as primary,* evidence, being con- sidered in the light of an admission. ° On one or two occasions, the memorial, or even an examined copy of the registry, has been received as secondary evidence of the contents of an indenture, not only as against parties to the deed, who have had no part in registering it, but also as against third persons; but, in all these cases, the evidence has been admitted under special circumstances, as for instance, where parties have been acting for a long period in obedience to the provisions of the supposed instrument, or where the deed has been recited or referred to in other documents ad- missible in the cause. "^ The enrolment of a lease granted by the Crown is primary evidence, because the possessions of the Crown cannot be alienated but by matter of record; and the same rule applies to leases granted by the Duke of Cornwall, on account of the identity of interest which subsists between His Royal Highness and the Crown.' § 420. It may occasionally be a question of some nicety to deter- 5 390 mine what instrument constitutes the primary evidence of a transac- 1 R. V. Doran, 1 Esp. 127, per Ld. Keuyon, R. r. Kitson, 22 L. J., M. C. 118; Pearce&D. 187, S. C; R. v. Gilson, R. & R. 138; R. v. Ellicombe, 5 C. & P. 522, per Littledale, J. ; 1 M. & Rob. 260, S. C. ^ Molton I'. Harris 2 Esp. 549, per Ld. Kenyon. => Doe V. Clifford, 2 C. &. Kir. 448, 452, per Alderson B. ; D. of Devonshire V. Neill, 2 L. R., Ir. 132, 150. * Boulter v. Peplow, 9 Com. B., 502, per Maule, J. See Brown v. Armstrong, I. R.,,7 C. L. 130. * Wollaston r. Hakewill, 3 M. & Gr. 297; 3 Scott, N. R. 593, S. C. « See Sadlier v. Biggs, 4 H. of L. Cas. 435; Biggs v. Sadlier, 10 Ir. Eq. R. 522; Peyton v. M'Dermott, 1 Dru. & War. 198. See, also, Collins v. Maule, 8 C. & P. 502; Doe v. Kilner, 2 C. & P. 289. " Rowe V. Brenton, 8 B. & C. 755 — 758. For other instatices, see post, § 1650, et .seq. (3256) CHAP. IV.] broker's books — BOUGHT AND SOLD NOTES. 389 tion.- Thus, Avhere goods have been sold through the medium of a broker, it is not yet distinctly decided how far the broker^s book is admissible in proof of the contract. On the one hand, it has been powerfully urged by many eminent judges, that this book, if duly signed by the broker, furnishes the best evidence of the agreement,' but on the other hand it has been ruled, after much consideration, and after consulting merchants, that the bought and sold notes, provided they agree, and are signed so as to satisfy the Statute of Frauds,-' constitute the contract, and, as such, must be produced in the first instance.^ However this particular point may be ultimately determined, it seems to be quite clear, that if no notes have been transmitted to the principals, recourse may be had to the signed entry in the book kept by the broker,* or, indeed, to any other memorandum made by him as agent for both parties, which is sufficient to satisfy the statute.^ In one case, where the contract was made through the medium of a broker, but the note delivei:ed to the vendor was actually signed by the purchaser, Lord Ellenborough held, — and it would seem correctly, — that this note of itself constituted the contract, though it differed materially from the note which was sent to the purchaser." "Where, however, ' Sievewright v. Archibald, 17 Q. B. 115, per Patteson, J., 124, per Ld, Campbell; Hej^man v. Neale, 2 Camp. .337, per Ld. Ellenborough; Grant v. Fletcher, 5 B. & C. 436; 8 D. & R. 59, S. C: Henderson r. Barne^all, 1 Y. & J. 387. 2 Durrell v. Evans, 1 H. & C. 174; and 31 L. J., Ex. 337, per Ex. Ch., over- ruling .same case, 30 L. J., Ex. 254; and S. C. nom. Darrell v. Evans. 6 H. & N. 660. See Parton v. Crofts, 16 Com. B., N. S. 11; 33 L. J., C. P 189, S. C.^ and Thompson v. Gardiner, L. R. 1 C. P. D. 777. In these last two cases the production of the sold note only -was held sufficient to satisfy the statute. » Goom T. Aflalo, 6 B. & C. 117; 9 D. & R. 148, S. C. ; Thornton v. Kempster, 5 Taunt. 786 : Thornton v. Meux, AI. & M. 43, per Al)bott, C. J.^ Gumming v. Roebuck, Holt, N. P. R. 172: Hawes r. Forster, 1 M. & Rob. 368, perLd. Denman; Townend v. Drakeford. 1 C. & Kir. 20, per id. * Townend v. Drakeford, 1 C. & Kir. 20; Pitts i: Beckett, 13 ]\I. & W. 746, per Parke, B. ; Thompson v. Gardiner, L. R., 1 C. P. D. 777. ^ Richey v. Garvey, 10 Ir. Law R. 544. There the memorandum had been drawn up two or three days after the sale, but the court held this fact to be immaterial, the broker's authority as agent for the parties not having been revoked. ^ Rowe r. Osiborne, 1 Stark. R. 140; recognised in Cowie v. Remfry, 5 Moo. P. C. R. 249, 250. But see Moore r. Campbell, 10 Ex. R. 323, Avhere the vendor having signed a note which differed from the one sent to him by the (3257) 390 UROKKIl's BOOKS — BOUGHT AND SOLD NOTES. [I'ART II. the transaction was an ordinary one of bought and sold notes, signed by the broker, which substantially differed from each other, the Privy Council held that no binding contract had been effected, although the purchaser had, on objection raised by the vendor to a particular word inserted in the sold note, struck out that word, and evidenced his consent to the erasure by affixing his initials thereto.' § 421. "Whether, in the event of a material disagreement between the bought and sold notes, the broker's book may be resorted to, is a more difficult question. On two occasions. Lord Denman appears to have considered that such a course could not be pur- sued;^ and Lord Abinger has expressed a similar opinion, though he has carefully confined his observations to a case where it cannot be shown that the broker's book was known to the parties.^ On the other hand. Lord Wen sley dale appears to have entertained serious doubts upon the subject, urging that the broker would scarcely be bound by his oath and bond to enter the terms of the contracts negotiated by him in his books, and to sign these books, if the entries so made by him were not intended to have a binding effect.* The force of this reasoning is now, however, neutralised, since even London brokers are no longer bound to keep books.* Still, it is probable that the doctrine supported by Lord Wensley- dale will ultimately prevail; and the more so, as the argument rejecting the broker's book, on the ground that the parties are purchaser's broker, the court held that the validity of that note depended upon the question of fact, whether it was intended byl)oth parties to be the contract, or whether the vendor only intended to be bound by it, provided the purchaser would sign a corresponding note. 1 Cowie V. Remfry, 5 Moo. P. C. R. 232. But see Heyworth v. Knight, 17 Com. B., N. S. 298, 310, 311, per Willes, J. 2 Townend v. Drakeford, 1 C. & Kir. 20; Gregson v. Ruck, 4 Q. B. 737, 747. In these cases the question did not directly arise, as, in the first, the entry in the broker's book was unsigned, and iu the last, the book does not appear to have been tendered in evidence at all. 3 Thornton v. Charles, 2 M. & W. 809. * Id. 804, 807, 808. ^ 33 & 34 v., c. 60, § 2. Stockbrokers were directed to keep books by 7 G. 2, c. 8, I 9, made perpetual by 10 G. 2, c. 8; but these Acts are now re- pealed by 23 & 24 v., c. 28. (3258) CHAP. IV. ] VARIANCE BETWEEN BOUGHT AND SOLD NOTES. 391 ignorant of its contents, appears to* be entitled to little weight ; for, first, there is no necessity that they should be ignorant, as either of the principals may, if he think fit, demand to see the entry of the contract ; secondly, if the broker perform his duties in so negligent a manner as to subject either of the parties to loss, he is responsible to the amount of the injury sustained; and, lastly, if this argument were to prevail, it might equally be applied to almost every case, where a contract is negotiated through the medium of an asent. § 422. Where a party wishes to enforce a contract made through § 392 a broker, it will be sufiicient for him to produce the note in his possession, and to show that the broker has been employed in the transaction by his adversary; and this latter, if he seeks to rely on any variance between the bought and sold notes, must produce, as his evidence, the one that has been handed to himself.' § 423. The amount of variance that will render the contract | 393 nugatory cannot be expressly defined. In one case, where the bought note spoke of a brokerage of one per cent., and a deposit of fifteen per cent., and the sold note stated that the brokerage was ten shillings per cent., and omitted all mention of the deposit, Lord Denman ruled that the discrepancy was fatal, though with respect to the brokerage, one of the jury interpreted the notes as meaning that the broker should be paid by the buyer one per cent., and by the seller half per cent.^ In another case, where Scotch iron was named in the bought note, and Dunlop's iron, which is Scotch iron, but not the only kind of Scotch iron, was specified in the sold note, the contract was held to be invalidated by the vari- ance f and the court arrived at a similar conclusion in a third case, where the sole difference between the bought and the sold notes was, that the one purported to deal with "Riga," and the ^ Hawes v. Foster, 1 M. & Rob. 368, per Ld. Denman. ^ Townend v. Drakeford, 1 C. & Kir. 20. See Kempson v. Boyle, 34 L. J., Ex. 191, where parol evidence was admitted to explain away an apparent variance between the notes ; 3 H. & C. 763, S. C. * Sievewright v. Archibald, 17 Q. B. 103. (3259) 392 NOTARIAL INSTRUMENTS — PROBATES. [PAKT II. other with "Petersburg," hemp.' It seems, however, that a mere clerical error, or even a mistake in a name, if productive of no loss, will not invalidate the sale.'"* § 424. With respect to notarial instruments, the general rule is ? 394 that a duplicate made out at any time from the original or protocol in the notarial book, is equivalent to an original drawn up at the time of the entry in the book.^ If, therefore, a foreign bill of exchange be protested for non-payment, or if it be paid under protest for the honour of an indorser, the fact of the protest may be primarihj established, not only by producing a formal instru- ment of protest, extended by the notary from his register at the date of the actual protest, but by putting in evidence a duplicate protest, even though it may have been drawn up after the com- mencement of the actioti, provided that the entries in the notary's book can be shown to have been made at the time when the trans- actions occurred.* § 425. The title of a person as executor or administrator might I 30r> have been primarily proved under the old law in any one of the following ways'": — namely, by producing either the probate or letters of administration, or an exemplification or certificate thereof granted by the Ecclesiastical Court,® or the Book of Acts in the Prerogative Office which directed the grant of the probate,' or letters,^ or an examined or certified copy of such book," or, if no act book or other record were kept, even minutes of the proving of the will and sealing of probate, indorsed on the original will by the surrogate and registrar or deputy registrar of the Diocesan 1 Thornton v. Kempster, 1 Marsh. 355 ; 5 Taunt. 786, S. C. 2 Mitchell V. Lapage, Holt, N. P. R. 253. See Bold v. Eayner, 1 M. & W. 343. * Geralopulo v. Wider, 10 Com. B. 712, per Maule, J. * Id. 690. ^ See post, | 1589. ® Kempton v. Cross, Cas. temp. Hard. 108 ; B. N. P. 246 ; Doe v. Gunning, 7 A. & E. 244. ^ Cox V. Allingham, Jae. 514, per Sir T. Plumer, M. E. 8 Elden v. Keddell, 8 East, 187 ; De Ross Peer., 2 Coop. 542, 543.' » Davis V. Williams, 13 East, 232; Dorrett v. Meux, 23 L. J., C. P. 221 ; 15 Com. B. 142, S. C; 14 & 15 V., c. 99, I 14. (3260) CHAP. 1\-.] DUPLICATE ORIGINALS — COUNTERPARTS. 393 Court.' Since the 11th of January, 1858," either the Court of Probate, or the Probate Division of the High Court, has had juris- diction over all matters testamentary; but as the statutes which established those courts respectively, and the rules and orders w^hich regulate their proceedings, are alike almost wholly silent on the subject of evidence, it is not easy to determine with pre- cision how much of the law just referred to remains in force. An executor or administrator, however, may doubtless still prove his title, either by producing the probate 'or letters, or by an exemplifi- cation thereof granted by a registrar or district registrar of ^ the Probate Division of the High Court.^ § 426. The rule, which determines under what head of evidence g 396 deeds executed in duplicate are to be classed, appears to be this: When two or more parts are sealed and delivered by each party, — a practice which of late years has frequently prevailed, — they are denominated duplicate or triplicate originals,'^ and as such are con- sidered to be primary evidence.^ When, however, each part is exe- cuted by one party only, as often occurs in the case of leases, the two instruments are called counterparts, and each is alternately the best evidence against the party sealing it, and those in privity with such party f' and secondary evidence of the contents of the other part.' Thus, if a landlord brings an action for rent, he produces the counterpart executed by the tenant as original evidence,^ or, in 1 Doe V. Mew, and Doe v. Gunning, 7 A. & E. 240; 2 N. & P. 260, 266, n., S. C. ^ When the Act of 20 & 21 V., c. 77, came into oi^eration. See Gazette of Friday, 4 Dec. 1857. ^ See forms of exemplifications appended to the Rules, &c., of 1862, for the Registrars of the Court of Probate in respect of non-contentious business, Nos. 10- & 11; and similar forms appended to Rules, &o., for the District Registrars, Nos. 11 & 12. * 2 M. & Gr. 518, b. ^ See Colling v. Treweek, 6 B. & C. 398, per Bayley, J. ; Brown v. Woodman, 6 C. & P. 206, per Parke, J. « Roe V. Davis, 7 East, 363; May. of Carlisle v. Blamire, 8 East, 487; Paul V. Meek, 2 Y. & J. 116; Pearce v. Morrice, 3 B. & Ad. 396; Burleigh v. Stibbs, 5 T. R. 465; Houghton v. Koenig, 18 Com. B. 235. ' Munn V. Godbold, 3 Bing. 292; 11 Moore, 49 S. C. As secondary evidence it will be admissible, though unstamped, id. See 33 & 34 V., c. 97, § 93; and ante, ? 148. « The law in Ireland is now regulated by § 23 of the Act 23 & 24 V., c. 154,' (3261) 394 COUNTERPARTS OF OLD LEASES. [PART II. the event of its loss, he may have recourse, either to the part sealed by himself, or to any other species of secondary proof;' but if the tenant is the person aggrieved, he must rely on the part delivered by the landlord, and that executed by himself will only be con- sidered as secondary evidence. With respect to the stamp, the counterpart sealed by the lessor is usually deemed the original; but that which is sealed by the lessee may be described in pleading as the "indenture," though stamped as a counterpart, provided the action be brought against the lessee." Where any discrepancy is found to exist between a lease and its counterpart, the law will presume that the lease is correct, unless it be clear that the mistake is in that instrument.^ § 427. On one or two occasions, where it was necessary to show that the plaintiff's ancestor had exercised acts of ownership over the property in question, counterparts of leases older than the period of living memory, and found in the ancestor's muniment room, have been admitted in evidence even against strangers, though they were executed by no one but the persons named as lessees, who were not shown to have actually held under them, and though no excuse was given for not producing the original leases sealed by the ancestor.* It is difficult to reconcile these which enacts, that "in all actions, suits, and proceedings, proof by or on behalf of any landlord of the perfection of the counterpart of any lease shall be equivalant to proof of the perfection of the original lease; and in case it shall appear that no counterpart existed, or that the counterpart has been lost, destroyed, or mislaid, proof of a copy of the original lease or counterpart, as the case may be, shall be sufficient evidence of the contents of the lease, as against the lessee, or any person claiming from or under him." ' Doe V. Ross, 7 M. & W. 102; Hall v. Ball, 3 M. & Gr. 242; 3 Scott, N. R. 577, S. C. 2 Pearce v. Morrice, 3 B. & Ad. 396. ^Burchell v. Clark, L. R., 2 C. P. D. 88; 46 L. J., C. P. 115, overruling S. C, L. R., 1 C. P. D. 602. * Doe V. Pulman, 3 Q. B. 622; D. of Bedford v. Lopes, cited id. 623, as decided by Ld. Denman; Bristow v. Cormican, 3 App. Cas. 668, per Ld. Blackburn, in H. L. (I.); Gov. of Magdalen Hospital v. Knott, 47 L. J., Ch. 726; L. R., 8 Cb. D. 709, S. C, per Ct. of App.; Clarkson v. Woodhouse, 5 T. R. 412, n. a; 3 Doug. 189, S. C. In this last case, the distinction between counterparts and leases does not appear to have been much discussed, if taken at all. (3262) CHAP, IV.] COUNTERPARTS OF OLD LEASES. 395 decisions with strict principle, since the counterparts amounted, in fact, to no more than admissions by third parties that the an- cestor was seised; but the judges appear to have relaxed the rule, in consequence of the acknowledged difficulty of tracing acts of ownership after the lapse of many years; and looking at the ques- tion in this light, few persons will probably feel inclined to quarrel with the doctrine as now established. (3263) 396 . SECONDARY EVIDENCE, WHEN ADMISSIBLE. [PAET II. CHAPTEB V. SECONDAEY EVIDENCE." § 428. In the last chapter the rule was discussed which requires 2 393 the production of the best attainable evidence, and an attempt was made to illustrate by examples the distinction between primary and secondary modes of proof. It remains to be seen upon what occasions secondarij evidence will be received; and the first general rule on this subject is, that such evidence is inadmissible, until it he shown that the j^yoductioii of j^fitnary evidence is out of the party's powei: It will be convenient to discuss this rule, and the excep- tions to it, as they apply, first, to documentary evidenfce, and, next, to oral testimony; and with respect to documents, it will be found that proof of their contents may be established by secondary evi- dence, first, when the original writing is destroyed or lost; secondly, when its production is physically impossible, or at least highly inconvenient; thirdly, when the document is in the posses- sion of the adverse party, who refuses, after notice, and in some cases without notice, to produce it; fourthly, when it is in the hands of a third party, who is not compellable by law to produce it, and who, being called as a witness with a subpoena duces tecum, relies upon his right to withhold it; fifthly, when the law raises a strong presumption in favour of the existence of the document; sixthly, when the papers are voluminous, and it is only necessary to prove their general results; and lastly, when the question arises upon the examination of a witness on the voire dire. § 429.' First, if the instrument he destroyed or lost, the party ^ 399 seeking to give secondary evidence of its contents must give some evidence that the original once existed,^ and must then either 1 Gr. Ev. I 558, in part. 2 Doe V. Wittcomb, 6 Ex. K. 601, 605, 606, per Ld. Campbell; S. C. in Dom. Proc, 4 H. of L. Cas. 431, per Alderson, B. (3264) CHAP, v.] WHEN INSTRUMENT IS DESTROYED OR LOST 397 prove its destruction positively, or at least presumptively, as by showing that it has been thrown aside as useless,' or he must establish its loss, by proof that a search has been unsuccessfully made for it, in the place or places where it was most likely to be found. "What degree of diligence is necessary in the search cannot easily be defined, as each case must depend much on its own peculiar circumstances;^ but the party is generally expected to show, that he has, in good faith, exhausted in a reasonable degree all the sources of information and -means of discovery, which the natm-e of the case would naturally suggest, and which were acces- sible to him.^ As the object of the proof is merely to establish a reasonable presumption of the loss of the instrument, and as this is a preliminary inquiry addressed to the discretion of the judge,* — the party offering secondary evidence need not on ordinary occa- sions have made a search for the original document, as for stolen goods, nor be in a position to negative every possibility of its having been kept back.^ If the document be important, and such as the owner may have an interest in keeping, or if any reason exist for suspecting that it has been fraudulently withheld, a very strict examination will properly be required; but if the paper be supposed to be of little or no value, a very slight degree of diligence will be demanded, as it will be aided by the presumption of destruction or loss, which that circumstance afPords.^ § 430. When the document belongs to the personal custody of ^ 400 a particular individual, or is proved, or may be presumed, to be 1 R. V. Johnson, 7 East, 66; 29 How. St. Tr. 437—440, S. C. 2 Brewster v. Sewell, 3 B. & A. 303, per Best, J. ; Gully v. Bp. of Exeter, 4 Bing. 298. See Pardoe v. Price, 13 M. & W. 267, R. v. Gordon, 2.5 L. J., M. C. 19; Pearce & D., 586, S. C. 3 R. V. Saffron Hill, 22 L. J., M. C. 22; 1 E. «& B. 93, S. C. See Moriarty V. Grey, 12 Ir. Law R., N. S. 129. * Ante, ^ 23. ^ M'Gahey v. Alston, 2 M. & W. 214, per Alderson, B., recognised per Wigram, V.-C, in Hart v. Hart, 1 Hare, 9. « Gathccole v. Miall, 15 M. & W. 319, 322, 329, 330, per Pollock, C. B.; 335, 336, per Alderson, B. ; Brewster v. Sewell, 3 B. & A. 299, 300, .303; Ken- sington V. Inglis, 8 East, 278; R. v. East Fairley, 6 D. & R. 153, per Bayley, J., Freeman v. Arkell, 2 B. & C. 494; 3 D. & R. 669, S. C. (3265) 398 SEARCH FOR LOST INSTRUMENT. [PART II. in his possession, he must in general be served with a subpoena duces tecum, and be sworn to account for it;' since, so long as he is capable of being called as a witness, his declarations respecting it will in strictness be inadmissible," and even after his death, this species of evidence, though admissible as tending to prove the diligence and extent of the search, must be received with great caution.^ Still, on one occasion, where an apprentice shortly before his death had stated that his indenture had been given up to him after the expiration of the apprenticeship, and that he had burnt it, secondary evidence of its contents was received without any search having been made for it, as proof was given that the deed had not been executed in duplicate, that the master was dead, and that his executrix had declared that she knew nothing about the instru- ment/ This decision appears to have proceeded on the somewhat dubious ground, that if the statement of the apprentice was inad- missible, the indenture was not traced into his hands, and as the term of service had expired, no particular reason could be assigned why it should be in his custody, while, if the statement was re- ceivable to show a possession of the deed by him, it further showed that search for it was unnecessary/ The second branch of this dilemma is unanswerable, but the first is open to much doubt; for even if the fact of the deed not being traced into the hands of the apprentice, could preclude the necessity of searching in that quarter,*^ it could not discharge the parties of laches, in having neither called the personal representatives of the master, nor even examined his papers. Perhaps, however, the case may best be sup- 1 See R. V. Saffron Hill, 22 L. J., M. C. 22; 1 E. & B. 93, S. C. 2 R. V. Denio, 7 B. & C. 620; R. r. Castleton, 6 T. R. 236; Williams v. Younghusband, 1 Stark. R. 139; Walker v. Lady Beauchamp, 6 C. & P. 552, per Alderson, B. * R. V. Rawden, 2 A. & E. 158 per Ld. Denman. * R. V. Morton, 4 M. «fe Sel. 48. See R. v. Fordingbridge, 27 L. J., M. C. 290; E. B. & E. 678, S. C. * Per Ld. Ellenborough, in 4 M. & Sel. 50; explained by Bayley, J., in R. V. Denio, 7 j;. & C. 622. See Richards v. Lewis, 11 Com. B. 1054. In City of Bristol V. Wait, 6 C. & P. 591, Alderson, B., held, that, in order to let in secondary evidence of the appointment of one of the defendants as overseer, it was sufficient to show that a witness had asked him for his appointment, when he stated that he had lost it, whereupon no search was made. « See post, g 432, n. *. (3266) CHAP. V.J SEARCH FOR LOST INSTRUMENT. 399 ported, by considering that the evidence was admitted for the mere purpose of satisfying the conscience of the judge on a preliminary inquiry; and that, consequently, a looser rule was allowed to prevail than would have been applicable to the proof of the material facts.* Indeed, this distinction between evidence addressed to the judge and that submitted to the jury, has been adopted by the Court of Queen's Bench, which has gone the length of holding, that, in order to show that search has been made for a document, so as to let in secondary proof of its contents, hearsay evidence of the answers given by persons who were likely to have it in their custody ought to be received.^ § 431. If the instrument ought to have been deposited in a § 401 public office, or other particular place, it will generally be deemed sufficient to have searched that place, without calling the party whose duty it was to have put it there, or any other person who may have had access to it. Thus, where it appeared that a parish indenture of apprenticeship had been given to a person since dead to take to the overseers, and a fruitless search was made for it in the parish chest, which was the proper repository for such instru- ments, secondary evidence was admitted, though none of the overseers were called, and no inquiry was made of the personal representative of the party, who ought to have delivered it to the parish officers. "^ So, where it was the duty of a paying clerk of a parish to deposit a certain cancelled cheque in a room of the workhouse, an application to the successor of this clerk for an inspection of the cheques in the room, and an ineffectual examina- tion of several bundles, which were handed to the party searching by the successor, was deemed a sufficient search to let in secondary evidence, though no notice to produce had been served on the first clerk, he being the defendant in the cause, and though the person who succeeded him in the office was not called.* Again, ^ R. V. Kenilworth, 2 Sess. Cas. 72, per Coleridge, J. ; 7 Q. B. 652, S. C. => R. V. Braintree, 28 L. J., M. C. 1; 1 E. & E. 51, S. C; R. v. Kenilworth, 2 Sess. Cas. 66; 7 Q. B. 642, S. C; Smith v. Smith, I. R., 10 Eq. 273. ' R. V. Stourbridge, 8 B. & C. 96; 2 M. & R. 43, S. C. See Minshall v. Lloyd, 2 M. & W. 450. * M'Gahey v. Alston, 2 M. & W. 206, 212. (3267) 400 SEARCH FOR LOST WRITINGS — PROPER CUSTODT. [pART 11. secondary evidence of the contents of a warrant, issued by the defendant, has been received, on proof by the high constable, who levied under it, that he had deposited it in his office, and had sought for it there in vain, though he added that the town-clerk had access to the office, and it was objected that the defendant should have been served with a notice to produce the warrant, and the town-clerk with a subpoena duces tecum.' § 432. It may often be difficult to ascertain what is the proper I 402 custody of an instrument," and on these occasions it will be always expedient, and sometimes necessary, to search several places. Thus, where a marriage settlement, after providing a portion for younger children, and vesting a legal term in trustees to secure it, reserved an ultimate remainder to the settlor's heir, it was held, that a search among the papers of the surviving younger child was insufficient to let in secondary evidence of its contents, and that the papers of the surviving trustees, and of the heir, should also have been examined.^ Again, an expired indenture of apprenticeship remains sometimes with the master, sometimes, with the apprentice; but as the apprentice appears to have the greatest interest in its preservation,* stricter inquiry should be made of him than of the master, though in the absence of posi- tive proof respecting the possession, caution would suggest, what strict law might not require,^ a search among the papers of both. The lessor and the lessee appear to be equally entitled to the custody of an expired lease; for, whether the term has come to an end by efflux of time or by forfeiture, the lessee, for a time at least, will have a right to keep the deed, since he may have occa- sion to use it in an action of covenant against the lessor; but, after a considerable interval, it will frequently be found in the landlord's possession, as constituting one of the muniments of his title.® Under these circumstances, prudence dictates an applica- 1 Fernley v. Worthington, 1 M. & Gr. 491. ^ As to this see post, §§ 659 — 6fi4. » Cruise v. Clancv, 6 Ir. Eq. II. 552, 556, per Sngden, C; Eichavfls v. Lewis, 11 Com. B. 1035. ' See Hall v. Ball, 3 M. & Gr. 247. * R. V. Hinckley. 32 L. J., M. C. 158; 3 B. & S. 885, S. C. « Hall I'. Ball, 3M. & Gr. 242, 253; 3 Scott, N. R. 577, S. C; Plaxton v. (3268) CHAP, v.] SEARCH FOR LOST WRITINGS. 401 tion to both parties, whenever it may be necessary to prove the loss of such an instrument, though it has never been expressly decided that a search among the muniments of the lessor alone would not let in secondary evidence ; and Mr. Justice Bayley, on one occasion, seems to have thought that an examination of the lessee's papers would not be absolutely necessary.^ § 433. The legal custody of a document appointing an overseer § 403 is in that officer, he being the person most interested in it, and recjuiring its production as a sanction for those acts which he may be called upon to do under its authority. In the absence, therefore, of proof that the parish officers have the actual custody of such an instrument, it will not suffice to give them notice to produce it, but before secondary evidence can be received it will be necessary to call the overseer himself." In a case before Vice- Chancellor Wigram it appeared that a solicitor, who had prepared an agreement between the plaintiff and defendant, had sent it after execution to the de- fendant by his clerk. This clerk was not called, having quitted the service of the solicitor a long time back ; but the defendant's clerk stated that he had searched for the deed in his counting-house, where the transactions to which it referred were all carried on, and where books containing entries relating to these transactions were kept. His Honour, on this state of facts, expressed no opinion as to the effect of the absence of the solicitor's clerk, but referred the case back to the Master, in order that a further search might be made at the defendant's private residence, since it did not appear that his clerk, who had been actively concerned in the transactions in question, had ever seen the deed at the counting-house.^ Dare 10 B. & C. 77 ; 5 M. & R. 1, S. C, El worthy v. Sandford, 34 L. J., Ex. 42 ; 3 H. & C. 330, S. C. ; R. v. North Redburn, Cald. 452, per Buller, J. ; Doe. V. Keeling, 11 Q. B. 884. ^ Brewster v. Sewell, 3 B. & A. 301, 302 ; Hall v. Ball, 3 M. & Gr. 247 ; per Erskine, J. ■^ R. V. Stoke Golding, 1 B. & A. 173, 176. ' Hart V. Hart, 1 Hare, 1. In Bligh v. Wellesley, 2 C. & P. 400, a witness stated that he had in vain searched for some papers in a box, in which he thought he had put them, but that he still fancied they were somewhere in his possession, though he had not looked elsewhere for them. Held insuffi- cient, per Best, C. J. (3269) 402 SEARCH FOR LOST WRITINGS. [PAET II. § 434. If the party entitled to the custody of a document be | 404 dead, inquiries should generally be made of his personal repre- sentatives, and if the document relate to real estate, of the heir-at- law also ; but these steps will not be necessary, should it appear that another party is in possession of the papers of the deceased. Where, therefore, the master of an apprentice, being possessed of the in- denture, failed, and an attorney took the management of the afFairs, and the custody of his papers, a search among these papers by the attorney, after the master's death, -wias held sufficient to let in secondary evidence of the deed of apprenticeship, though no in- quiries had been made of the master's widow.' § 435. The law does not require that the search should have been I 405 recent, or made for the purposes of the cause ; and therefore, where it was made amongst the proper papers three years before the trial, this was held sufficient; though it certainly would have been more satisfactory had the papers been again examined." If the instru- ment were executed in duplicate, or triplicate, &c., the loss of all the parts must be proved, in order to let in secondary evidence of the contents ; ^ and, in all cases, before such evidence will be ad- missible, it must be shown that the original instrument was duly exe- cuted, and was otherwise genuine.* If the instrument were of such a nature as to have required attestation,^ the attesting witness must, if known, be called, or in the event of his death, his handwriting must be proved, precisely in the same manner as if the deed itself had been produced ; though, if it cannot be discovered who the attesting witness was, this strictness of proof will, from necessity, be waived. In the absence of evidence to the contrary, the court will presume that the instrument was duly stamped.*^ ' R. V. PicMlehinton, 3 B. & Ad. 4G0. 2 Fitz V. Rabbits, 2 M. & Rob. 00. •^ R. V. Castleton, 6 T. R. 236 ; B. N. P. 254 ; Alivon v. Furnival, 1 C. M. & R. 292. See ante, ? 391. * Goodier v. Lake, 1 Atk. 446 ; R. v. Culpepper, Skin. 673 ; Doe v. White- foot, 8 C. & P. 270 ; Jackson v. Frier, 16 Johns. 196 ; Kimball v. Morrell, 4 Greenl. 368. = See 17 & 18 v., c. 125, ? 26 ; and 19 & 20 V., c. 102, | 29, Ir. « Ante, § 148. (3270) CHAP, v.] PROBATE OF LOST WILL — ACTION ON LOST WILL. 403 § 436. The question has often been mooted in the Court of § 406 Probate as to how far the judge is authorised to grant probate, where the will itself has, after the death of the testator, been irre- trievably lost or destroyed; and the decisions go thus far, that, if the substance of the will can be distinctly ascertained, either by the original instructions, or by a copy of the will, or even by the recol- lection of witnesses who have heard it read, probate may be granted of a copy embodying such substance.' On one remarkable occasion the contents, or rather, a large portion of the contents, of a lost will, were allowed to be proved by the testimony of a single in- terested witness, whose veracity and competency were unimpeached; and in that case probate was -granted to the extent of the proof. '^ In all cases, however, of this nature, it is obviously necessary that the jurisdiction of the court should be exercised with the greatest possible caution; and the judge will scarcely feel justitied in acting on the evidence, unless it be of the most cogent and irrefragable character, not only free from suspicion in its sources, but exact and certain in its conclusions.^ § 437. Notwithstanding the rule, which in general enables parties § 407; to prove, by secondary evidence, the contents of documents lost or destroyed, on some occasions it was necessary, prior to the year 1854, to produce^ the written instruments themselves. Thus, no action at law could be sustained on a lost bill of exchange, promis- sory-note, or cheque, or on the respective considerations, provided the instrument had been originally drawn payable to order, or bearer, and provided the fact of the loss had been specially pleaded."* 1 Whavram v. Wharram, 33 L. J., Pr. & Mat. 75; 3 Swab. & Trist. 301, S. C; Podmoret'. Whatton, 33 L. J., Pr. & Mat. 143; 3 Swab. & Trist. 449, S. C; Moore v. Whiteliouse, 34 L. J., Pr. & Mat. 31; In re Body, id. 55; In re Bar- ber, 36 id. 19; Wood v. Wood, id. 34; Finch v. Finch, id. 78; 1 Law Rep., P. & D. 371, S. C; Burls v. Burls, 36 L. J., Pr. & Mat. 125; 1 Law Rep., P. & D. 472, S. C; In re Callan, I. R., 9 Eq. 484; Mahood v. Mahood, I. R., 8 Eq. 359. See po.st, § 550. 2 Sugden v. Ld. St. Leonards, L. R., 1 P. D. 154: 45 L. J., P. D. & A. 1 & 49, S. C. See also Gouldstone v. Woodward, 29 Oct., 1884, in Pr. D., per Butt, J. Sed. qu. ^ Cases in last note but one. * Ramuz i'. Crowe, 1 Ex R. 167; Clay v. Crowe, 8 Ex. R. 295; Crowe v. Clay, 9 Ex. R. 604, S. C. in Ex. Ch.; Han.sard v. Robinson, 7 B. & C. 90; 9 D. & R. 860, S. C; Pierson v. Hutchinson, 2 Camp. 211; 6 Esp. 126, S. C. Mayor t'. Johnson, 3 Camp. 324; Davis v. Dodd, 4 Taunt. 602; Champion v. 5 LAW OF EVID.— V. II. (3271) 404 SECONDARY EVIDENCE OF MURAL MONUMENTS. [PAET II. As this law, however, was found to occasion great inconvenience to the payee of a lost note, — who, in order to recover payment, was com- pelled to have recourse to a court of equity,' — it has been materially modified, first, by the Common Law Procedure Act of 1854,^ and next, by the Bills of Exchange Act, 1882.' It is only necessary here to refer to the first named statute, which in § 87 enacts, that " In case of any action founded upon a bill of exchange or other negotiable instrument," — which last words will include a bank note,* — " it shall be lawful for the court or a judge to order that the loss of such instrument shall not be set up, provided an indemnity is given, to the satisfaction of the court or judge, or a master against the claims of any other person upon such negotiable instrument."^ If the payee of a lost note can show that the instrument was never negotiable, as having been originally made payable to himself alone, he cannot, as it would seem, be called upon to give an indemnity under this clause, but the action will be sustainable, either on the in- strument itself, or on the consideration; because, in such case, the de- fendant cannot be rendered liable to pay the amount a second time.^ § 438. Secondly, the contents of writings may be proved by § 408 secondary evidence, when their production is either i^hysicaJhj im- possible, or highly inconvenient. Thus,' inscriptions on uxills and fixed tables, mural monuments, gravestones, surveyors' marks on Terry, 3 B. & B. 295; 7 Moore, 130, S. C; Bevan v. Hill, 2 Camp. 381; Wood- ford V. Whiteley, M. & INI. 517. See Alexander v. Strong, 9 M. & W. 733; Lubbock V. Tribe, 3 M. & W. G07; Blackie v. Pidding, 6 Com. B. 196; Charnley V. Grundy, 14 Com. B. 608. 1 Warmsley v. Child, 1 Ves. Sen. 341; Toulmin v. Price, 5 Ves. 238; Ex parte Greenway, 6 Ves. 812; Macartney r. Graham, 2 Sim. 285; Davies v. Dodd, 1 Wils. Ex. 110; MossopiJ. Eadon, 16 Ves. 430. 2 17 & 18 v., c. 125. The Irish Act, 19 & 20 V., c. 102, contains a similar provision in § 90. '' 45 & 46 V., c. 61, l?i 69 & 70. * M'Donnell r. Murray, 9 Ir. Law P., N. S. 495. ^ See Aranquren v. Scholfield, 1 H. &N. 494; King c. Zimmerman, 40 L. J., C. P. 278. 8 Wain V. Bailey, 10 A. & E. 016; recognised in Pamuz v. Crowe, 1 Ex. P. 173; Clay v. Crowe, 8 Ex. P. 298. As to what is the effect of the bill being destroyed, see 2 322 of the Lst Ed. of this work, and AV right v. Ld. Maidstone, 1 Kay & J. 701, per Wood, V.-C. See, too, Conflans Quarry Co. v. Parker, 3 Law Rep., C. P. 1; 37 L. J., C. P. 51, S. C; where circular notes having been lost, the party losing them was held not entitled to sue the bankers for money had and received. ' Gr. Ev. ? 94, in part. (3272) CHAP, v.] FOREIGN DOCUMENTS — RECORDS — REGISTERS. 405 boundary trees, notices warning trespassers affixed on boards, and the like, may be proved by secondary evidence, since they cannot conveniently, if at all, be produced in court. ^ A remarkable illus- tration of this rule was furnished in the case of a man, who was convicted of writing a libel on the wall of the Liverpool gaol, on mere proof of his handwriting.^ But, in order to let in secondary evidence, it must clearly appear that the document or writing is affixed to the freehold, and cannot easily be removed; and therefore, where a notice was merely suspended to the wall of an office by a nail, it was considered necessary to produce it at the trial.^ On one occasion, the Committee for Privileges in the House of Lords received in evidence, as proof in a pedigree,* a copy of a plate of the arms of the Knights of the Garter, which had been put up in the Chapel Royal at "Windsor in the reign of Henry V., and which, being fastened to the building only by screws, was physically re- movable; but this case seems to rest, at least partly, on the ground that the plate in question could not have been removed without a special warrant from the Queen. '^ If a document be deposited in a foreign country, and the laws or established usage of that country will not permit its removal, secondary evidence of the contents will be admitted, because in that case, as in the case of mural inscrip- tions, it is not in the power of the party to produce the original.* § 439.' On a similar ground, the existence and contents of any § 409 record of a judicial court, and of entries in any other x^uhlic books or registers, may be proved by an examined copy, and in some cases by an office copy, by a certified copy, or even by a mere ' Mortimer v. M'Callan, 6 M. & W. 68, per Ld. Abinger, and 72, per Alder- son, B.; E. V. Fursey, 6 C. & P. 84, 85 ; Doe v. Cole, id. 360, per Patteson, J.; Bartholomew v. Stephens, 8 C. & P. 728, per id.; Bruce v. Nicolopulo, 11 Ex. R. 129. 2 Mentioned by Ld. Abinger, 6 M. & W. 68. » Jones 1'. Tarleton, 9 M. & W. 675; 1 Dowl. N. S. 625, S. C. * Semble, the above evidence would not have been admissible, had not the question at issue related to a j^ediffrre, Berkeley Peer., 8 H. of L. Cas. 21, 37. ^ Shrewsbury Peer, 7 H. of L. Cas., 1, 10. «Alivonr. Furnival, 1 C. M. & R. 277, 291, 292; Boyle v. Wiseman, 10 Ex. R. 647; Quilter v. Jorss, 14 Com. B., N. S. 747, S. C. See 14 & 15 V., c. 99, ? 7; and Crispin v. Doglioni, 32 L. J., Pr. & Mat. 109. ^ Gr. Ev ? 91, in part. (3273) 406 PAPERS IN POSSESSION OF OPPONENT. [PART II. certificate.' This rule extends to all records, and entries of a public nature in books required by law to be kept; and is adopted, — partly, because of the serious risk of loss which the removal of such documents would occasion,— partly, because of the inconvenience which the public might experience from the removal, especially if the documents were wanted in two or more places about the same time, — and partly, because of the public character of the facts recorded, and the consequent facility of detection of any fraud or error in the copy.^ § 440. Thirdly, when the document is in the possession of the § 410 adversary, who xvithholds it at the trial, secondary evidence of its contents will be admitted, provided that a notice to produce the original has been duly served, where such notice is requisite.'' In the application of this rule, no distinction is recognised between civil and criminal cases; but in either mode of proceeding, in order to render the notice available, it must be first shown that the in- strument is in the hands, or under the control, of the party required to produce it.* Of this fact very slight evidence will raise a sufiieient presumption, where the document exclusively belongs to him, or regularly ought to be in his custody according to the course of business; and therefore, where a bankruptcy certificate was proved to have been obtained for the defendant, the court presumed that it had come into his possession.^ So, if papers were last seen in the hands of the defendant, it lies upon him to trace them out of his possession,® and for this purpose he may interpose with evidence while the plaintiff's case is proceeding; and, as such evidence is submitted to the judge alone, its admission does not give the plain- tiff's counsel a right to reply to the jury.' It would seem that, ^ This .subject will be discussed post, ? 1534, et seq. .- B. N. P. 226. 3R. V. Watson, 2 T. R. 201, per Buller, J.; Att.-Gen. v. Le Marchant, id. n.; Cates r. "Winter, 3 T. R. 306. As to the presumption respecting the stamp, see ante, ^ 148. * Sharpe v. Lamb, 11 A. & E. 805; 3 P. & D. 454, S. C. ^ Henry v. Leigh, 3 Camp. 502, per Ld. Ellenborough. See, also, Robb v. Starkey, 2 C. & Kir. 143. « R. V. Thistlewood, 33 How. St. Tr. 757, 758; R. v. Ings, id. 989. ^ Harvey v. Mitchell, 2 M. & Rob. 366, per Parke, B. ; Smith v. Sleap, 1 C. & Kir. 48, per Alderson, B. (3274) CHAP, v.] NOTICE TO PRODUCE — POSSESSION BY AGENT. 407 where a party has notice to produce a particular instrument traced to his possession, he cannot object to parol evidence of its contents, on the ground that, previous to the notice, he had ceased to have any control over it, unless he has stated this fact to the opposite party, and has pointed out to him the person to whom he delivered it j^ neither can he escape the effect of the notice, by afterwards voluntarily parting with the instrument, which it directs him to produce.^ § 441. If the instrument be in the possession of a person in ? 411 privity with the party, such as his banker,^ agent, servant, deputy, or the like, such person need not be served with a subpoena duces tecum, or even be called as a witness, but a notice given to the party himself will suffice.* Thus, a notice to a shipowner to pro- duce papers, though the captain has possession of them for his own protection,^ — or a notice to a sheriff to produce a warrant, which is shown to have been returned to the under-sheriff during the time that the sheriff remained in office,^— will justify the admission of secondary evidence. Where a document deposited in a court of equity by a party to a suit, and scheduled in his answer, had been ordered to be delivered to him, it was held to be sufficiently within his control to let in secondary evidence after notice to produce, though it appeared that, at the time of the trial, the document was still in the hands of an officer of the courtJ But though, in order to render the notice available, the party need not have actual possession of the instrument, he must have such a right to it as would entitle him, not merely to inspect, but to retain ' Sinclair v. Stevenson, 1 C. & P. 585, 586, per Best, C. J. In Knight v. Martin, Gow, E. 103, where secondary evidence was held inadmissible, the party, who was served with notice to produce a lease, told his opponent that he had assigned it. 2 Per Dallas, C. J., in Knight v. Martin, Gow, E. 104. * Partridge v. Coates, Ey. & M. 156, per Abbott, C. J. ; Burton v. Payne, 2 C. & P. 520, per Bayley, J. * Sinclair v. Stevenson, 1 C. & P. 584, per Best, C. J. * Baldney v. Eitchie, 1 Stark. E. 33S, per Ld. Ellenborough. 6 Taplin v. Atty, 3 Bing. 164 ; Suter v. Burrell, 2 H. & N. 867; 27 L. J., Ex. 193, S. C. ' Eush V. Peacock, 2 M. & Eob. 162, per Ld. Denman. (3275) 40S SERVICE OF NOTICE — CONTENTS OF NOTICE. [PART II. it ; and, therefore, uhere it was held l)y a stakeholder between the defendant and a sti'anger to the cause,' or where it was dehvered to a third person, under whom the defendant justified in an action of trespass, and by whose directions he acted,' parol evidence of its contents was rejected, notwithstanding that a notice to produce had been duly served on the defendant. § 442. The notice, — which must, as it would seem, be given not I 412 only in ivriting,^ but, so far as civil proceedings are concerned, in a special form,* — may be directed to the party or to his solicitor, and may be served on either -^ indeed, it will be sufficient to leave the notice with a servant of the party at his dwelling-house,® or with a clerk at the solicitor's office ; and where the solicitor has been changed, a notice served on the first solicitor before the change will suffice ; for otherwise the effect of the notice might be easily evaded by changing the legal adviser on the eve of the trial.' A notice duly served on the party will not be rendered invalid by a subsequent bad service on the solicitor.^ § 443. It may be difficult to lay down any general rule as to ^ 413 1 Parry v. May, 1 M. & Rob. 279, per Littledale, J. 2 Evans v. Sweet, Ry. & M. 83, per Best, C. J. 3 See Rules of Sup. Ct., 1883, Order LXVI., R. 1. * Order XXXII., R. 8. The form is as follows :— No. 14. App. B. [Heading as in Form 1.] '' 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 entrj% memorandum, or minute relating to the matters in question in this , and particularly Dated the day of , 18 . To the above-named h solicitor or agent. (Signed) , of , agent for , solicitor for the above- named . ' ' ^Hughes V. Budd, 8 Dowl. 315; R. v. Barker, 1 Fost. & Fin. 32G ; R. v. Boucher id. 486 ; Houseman v. Roberts, 5 C & P. 394 ; Gates r. Winter, 3 T. R. 306. This last case was a qui tam action. See R. t. Down ham, 1 Fost. & Fin. 386. « Evans v. Sweet, Rv. & M. 84, per Best, C. J. ' Doe V. Martin. 1 M. & Rob. 242, per Tindal, C. J. ^ Hughes V. Budd, 8 Dowl. 315, per Patteson, J. (3276) CHAP, v.] CONTENTS OF NOTICE TO PRODUCE. 409 ichat the notice ought to contain, since much must depend on the particular circumstances of each case; but thus much is clear, first, that no mistatement or inaccuracy in the notice will be deemed material, if it be not really calculated to mislead the opponent;* and next, that it is not necessary, by condescending minutely to dates, contents, parties, &c., to specify the precise documents intended. Indeied, it may be dangerous to do so, since if any material errors were to creep into the particulars, the party sought to be affected by the notice might urge, with possible success, that ■ he had been misled thereby. If enough is stated on the notice to induce the party to believe that a particular instrument will be called for, this will be sufficient." Thus a notice to pro- duce " all letters written by the plaintiff to the defendant, relating to the matters in dispute in the action," ^ or " all letters written to or received by the plaintiff between the years 1837 and 1841, both inclusive, by and from the defendants, or either of them, or any person in their behalf; and also all books, papers, &c., relating to the subject matter of this cause," * has been held sufficient to let in parol evidence of a particular letter not other- wise specified. In these cases the names of the parties by and to whom the letters were addressed appeared on the notice, and perhaps this circumstance sufficiently distinguishes them from an older decision,^ where a notice to produce " all letters, papers, and documents, touching or concerning the bill of exchange mentioned in the declaration, and the debt sought to be re- covered," ** was held too vague to admit secondary proof of a notice of dishonour sent by the plaintifi" to the defendant. The authority, however, of this last case has been considerably shaken, if not entirely overruled, by a subsequent decision of the court of Queen's Bench, where, in an action for work and labour, a notice to pro- 1 Justice V. Elstob, 1 Post. & Fin. 258; Graham r. Oldis, id. 262. 2 See Eogers v. Custance, 2 M. & Eob. 181. ^ Jacob V. Lee, 2 M. & Rob. 33, per Patteson, .J. ; Conybeare v. Farries, 5 Law Eep., Ex. 16. * Morris f. Hauser, 2 M. & Rob. 392, per Ld. Denman; C. & Marsh. 29, S. C, nom. Morris v. Hannen. ^ This distinction was pointed out and relied upon by Patteson, J., in Jacob V. Lee, 2 U. & Rob. 33. ^ France v. Lucy, Ry. & M. 341, per Best, C. J. (3277) 410 TIME AND PLACE OF SERVICE OF NOTICE. [pART II. duce " all accounts relating to the matters in question in this cause," was beld to comprehend with sufficient precision a particular account relating to a small part of the work, though it appeared that many such accounts for difPerent parts of the work had been rendered by the plaintiff to the defendant.' The case of Jones v. Edwards" is not affected by this decision. That was an action against four defendants, as owners of a sloop, to recover an account for warehousing the rigging of the vessel. In order to prove that one of the defendants was a joint owner, the plaintiff called for a letter, which was stated to have been written nine years before by this defendant to the son of another defendant, and relied upon a " notice to produce letters and copies of letters, and all books re- lating to the cause." The Court decided that the notice was too uncertain, and no sensible man could entertain a different opinion. § 444. In one case, where the notice misdescribed the title of § 414 the cause, it was held to be invalid;^ but as the strict application of this rule, incases where it is evident that the party served has not been misled, might be productive of serious injustice, it is hoped that, at the present day, it would not be allowed to prevail, unless the misdescription were of a flagrant nature. Indeed, the Court of Exchequer has thrown out an intimation to this effect; for where a notice was objected to on the ground that it was entitled (by mistake) in a wrong court, Mr. Baron Alderson dis- countertanced the objection, saying, " One does not know where we are to stop. Would the notice be bad if one of the names was spelt wrong? . . At the time of the decision in Harvey v. Morgan, the courts were much more strict than now as to matters of this nature." * § 445. As to the time and place of the service, no precise rule § 415 can be laid down, except that it must be such as to enable the party, under the known circumstances of the case, to comply with the call.^ If the person to be served, whether client or solicitor, 1 Eogers v. Custance, 2 M. & Rob. 179. ^ M'Cl. & Y. 139. ^ Harvey v. Morgan, 2 Stark. R. 17. The notice in that case was entitled " A. & B., assignees of C. &D., v. E.," instead of " A. & B., assignees of C. V. E." * Lawrence v. Clark, 14 M. & W. 251. * R. V. Hankins, 2 C. & Kir. 823; R. v. Kitson, Pearce & D. 187. (3278) CHAP., V.J TIME OF SERVING NOTICE TO PRODUCE. 411 dwell in another town than that in which the trial is had, he must generally be served before the coramission day,' and if the service be postponed until he has left home to attend the court, it will be insufficient.^ In town causes, however, and in country causes where the solicitor lives in the assize town, a shorter notice will be required, and provided the documents be such as may reasonably be presumed to be in the solicitor's possession, a service on him, or at his office, before six o'clock^ in the afternoon of the day preceding the trial, will in general be sufficient ; * though, if they would pro- bably be in the client's custody, — as, for instance, if they were a tradesman's books,'^ or if they were letters or papers not obviously connected with the cause, — such a service would be too late, since the solicitor should have sufficient time to communicate with his client for the purpose of procuring the documents required.*^ If a party be served with notice sufficiently early to enable him to pro- duce the document, it makes no difference that at the time of the service the cause is part heard/ § 446. If the party served can prove that his papers are in a ? 416 foreign country, or at such a distance from the place of trial as to ' Trist V. Johnson, 1 M, & Rob. 259, per Pcark, J. ; E. v. Ellieombe, id. 260, per Littledale J. ; Lessee of Leader v. Duggan, Ir. Cir. R. 124 ; Humphrey v. St. Leger, id. 714 ; M'Master & Boyle's case, id. 768. See Howard t'. Williams, 9 M. & W. 725. ^ George v. Thompson, 4 Dowl. 656 ; Hargest v. Fothergill, 5 C. & P. 303, per Taunton, J. =* See post, I 1586a, citing Order LXIV., R. 11, of the Rules of the Sup. Ct., 1883. * Atkins V. Meredith, 4 Dowl. 658 ; Leaf v. Butt, C. & Marsh. 451, per Alderson, B.-, Meyrick v. Woods, id. 452, per id.; Firkin v. Edwards, 9 C. & P. 478, per Williams, J. ; Gibbons v. Powell, id. 634, per Gurney, B. ; R. v. Hamp, 6 Cox, 167, per Ld. Campbell ; Holt v. Miers, 9 C. & P. 195 ; Law- rence V. Clark, 14 M. & W. 250. If the trial is to take place on the Monday, a service on the Sunday, or even on Saturday after 2 p. m, (see Rule cited in last note), will not do ; and perhaps a service on a Sunday would* in any event be considered bad. See Hughes v. Budd, 8 Dowl. 317, per Patteson, J. ; and 29 C. 2, c. 7, ? 6. * Atkins V. Meredith, 4 Dowl. 658. * Byrne v. Harvey, 2 M. & Rob. 89, per Ld. Denman ; Vice v. Lady Anson, M. & M. 97, per Ld. Tenterden ; Aflalo v. Fourdrinier, id. 335, n., per Tindal, C. J. ' Sturm V. Jeffi-ee, 2 C. & Kir. 442, per Pollock, C. B. (.3279) 412 TIME OF SERVING NOTICE TO PRODUCE. [PART II. render it impossible for him to produce them under an ordinary notice, sucb a notice will be inoperative ; but the courts are very properly inclined to favour the sufficiency of the notice, whenever the circumstances of the case will warrant them in so doing. Thus, where a party had gone abroad, leaving the cause in the hands of his solicitor, it was presumed- that he had left with him all papers material to the cause, and, consequently, a notice served on the solicitor the evening next but one before the trial, was held to be sufficient.' So, a four days' notice, given to the defendant to produce letters written by him to his partner in New South Wales, was considered good, where long litigation on the subject of them made it presumable that they had been remitted to this country." It has even been held, that a similar notice to a foreign defendant was sufficient, though the letters required had been addressed to him eighteen years before at his residence abroad. In that case, the action had commenced seven months before the trial ; and though it was objected that the defendant had had no time to procure the original papers to be transmitted from his own country, where it was to be presumed they had been left, C. J. Abbott admitted secondary evidence of their contents, observing that it would lead to great inconvenience and delay, if trials were allowed to be postponed upon such an objection.^ § 447. The party who seeks the production of papers must not § 417 put his adversary to needless trouble and expense. Therefore, where a defendant's solicitor, having been served in Essex with notice to produce certain deeds, fetched them from London, and on the commission day was served with a fresh notice to produce another deed, upon which he stated that the document was in town, where he had already been once, but that it should be forthcoming at the trial if the plaintiff would pay the expenses of a messenger, which ofPer was declined, the court held that the defendant was justified in not complying with the notice, 1 Bryan v. Wagstafif, Ry. & M. 327, per Abbott, C. J. ; 2 C. & P. 125, S. C. 2 StuTge, V. Buchanan, 10 A. & E. 598. ^ Drabble v. Donner, Ry. & M. 47. But see Ehrenspergen v. Anderson, 3 Ex. R. 148. (3280) CHAP, v.] NOTICE TO PRODUCE WHEN UNNECESSARY. 413 and that secondary evidence was inadmissible.' If a party, on being served with a notice to produce a document, states that it is not in existence, i:)arol proof of its contents will be received, and no objection can be taken to the lateness of the service.^ It may here be added, that a notice. to produce certain documents "upon the trial of the cause," applies not merely to the trial which it immediately precedes, but to every subsequent trial of the same cause which may take place.^ § 448. The mode of proving that a notice to produce has been ^ 418 duly served is now regulated by the Rules of the Supreme Court, 1883, Order XXXII. R. 8,* which provides, that "An affidavit of the solicitor, or his clerk, of the sei-vice of any notice to produce, and of the time when it was served, with a copy of the notice to produce, shall in all cases be sufficient evidence of the service of the notice, and of the time when it was served." § 449. In seven cases notice to produce is not necessary. The ^ 419 fa-st is, where the instrument in the possession of the adversary, and that tendered in proof, are either duplicate origiyials,^ or are counterparts, and the part offered in evidence has been executed by the adversary, or by some person through whom he claims. Here no notice is necessary, because, as before stated, the instru- ment produced is considered, not as secondary, but as primary evidence.® § 450. Secondly, a notice to produce is not required, where the ^ 420 instrument to be proved is itself a notice. This exception appears to have been originally adopted in regard to notices to produce, for the obvious reason, that, if a notice to produce such papers were ^ Doe V. Spitty, 3 B. & Ad. 182. In this case, the second notice, having been served on the commission day, would perhaps have been held too late, independent of the special circumstances. "^ Foster v. Pointer, 9 C. & P. 720, per Gurney, B. * Hope V. Beadon, L. M. & P. 593; 17 Q. B. 509, S. C. * The Irish Act, 16 & 17 V., c. 113, contains, in ^ 120, a somewhat similar provision. * Colling V. Treweek, 6 B. & C. 398, per Bayley, J. ; Philipson r. Chase, 2 Camp. Ill, per Ld. Ellenborough. « Ante, l 426. (3281) 414 NOTICE TO PRODUCE A NOTICE UNNECESSARY. [PART n. necessary, the series of notices would become infinite.^ The judges, however, have subsequently extended the exception to many other notices; partly, perhaps, from a misapprehension of the ground on which the doctrine rests ; ^ partly, from the experienced inconveni- ence attendant on a strict observance of the rule requiring notice;' partly, because the secondary evidence that is usually offered of a notice is a copy of the paper sent, which partakes in a great measure of the character of a duplicate original;* and, chiefly, because it constantly happens that the opposite party is well aware, frorn the nature of the action, that he will be charged with the possession of the original document.^ On one or other of these grounds, it has been held, that, in order to let in proof by a copy, if not any species of secondary evidence, no notice is required to produce a notice to quit;® a notice of dishonour,^ provided the action be brought upon the bill, but not otherwise;* notices of action, or written demands, which are necessary to entitle the plaintiff to recover;' and bills of costs of solicitors, and parliamentary agents, delivered pursuant to statute.'" ' 3 St. Ev. 730; Philipson v. Chase, 2 Camp. 111. But see ante, ? 448. * In Philipson v. Chase, 2 Camp. Ill, Ld. Ellenborough observes, "lap- prove of the practice as to notices to quit; and I remember when the point ■was first ruled by Wilson, J., who said, that if a duplicate of the notice to quit was not of itself sufficient, no more ought a duplicate of the notice to produce, and thus notices might be required in infinitum." The fallacy of this reason- ing is ably exposed in 3 St. Ev. 730. 3 2 Ph. Ev. 226, n. 5. * Kine v. Beaumont, 3 B. & B. 291. 5 Colling V. Treweek, 6 B. & C. 399, 400, per Bayley, J. ; Eobinson v. Brown, 3 Com. B. 754, per Maule, J. See post, ^ 452. 6 Doe V. Somerton, 7 Q. B. 58; Jory v. Orchard, 2 B. & P. 41, per Ld. Eldon; Colling V. Treweek, G B. & C. 398, per Bayley, J. See K. v. Mortlock, 7 Q. B. 459. ' Swain v. Lewis. 2 C. M. & E. 261 ; 5 Tyr. 998, S. C. ; Kine v. Beaumont, 3 B. & B. 288; 7 Moore, 112, S. C; Ackland v. Pearce, 2 Camp. 601, per Ld. Blanc, J.; Roberts v. Bradshaw, 1 Stark. R. 28; Colling v. Treweek, 6 B. & C. 398, per Bayley, J. These cases — the first two of which were decided after conferring with the judges of the other courts,— put the question beyond all dispute, and overrule the earlier decisions of Langdon v. Hulls, 5 Esp. 156, and Shaw v. Markham, Pea. R. 165. ** Lanauze v. Palmer, M. & M. 31, per Abbott, C. J. 9 Jory V. Orchard, 2 B. & P. 39. 1° Colling V. Treweek, 6 B. & C. 394; 9 D. & R. 456, S. C. This case was decided on | 23 of the repealed Act, 2 G. 2, c. 23, but it is equally applicable to^^ 37 of 6 &7 v., c. 73. (3282) CHAP, v.] WHEN NOTICE TO PRODUCE UNNECESSARY. 415 § 45i. On one occasion, where an action was brought against a ^ 421 surety, on a bond conditioned to pay to the plaintifi", within six months after notice, the sum that should become due from the principal, a notice to produce this notice was held necessary by Lord Ellenborough, on the ground that it was not a mere notice, but in the nature of a statement of account between the plaintiff and the principal.' Whether this case would now be considered a binding authority, may be well questioned, since, in principle, it is difficult to distinguish it from several of the cases cited above, in which the notice to produce has been deemed unnecessary. But, be this as it may, the judges have determined, — in a case where two parties had become sureties, by a joint and several bond, for the payment, within one month after notice should have been given to them, of such sum as should be due from their prin- cipal, — that the service of notice upon one of the parties could not be proved in an action brought against the other, by pro- ducing the duplicate of the notice, but the first party should have been subpoenaed to produce the original, or to account for its non- production." Indeed, the exception would seem to be always in- applicable to cases in which the notice has been served on a third person.^ § 452. Thirdly, if, from the nature of the action, or indictment, ^ 422 or from the form of the pleadings, the defendant must know that he will be charged with the possession of an instrument, and be called upon to produce it, no notice to produce need be served upon him.* Thus, in an action of trover for converting a bond, a bill of exchange, or other writing,'^ or in a prosecution for stealing any document,'^ the counsel for the plaintiff or the Crown may at once produce secondary evidence of its contents, even though the defen- 1 Grove v. Ware, 2 Stark. R. 174. ^ Robinson v. Brown, 3 Com. B. 754. ^ Id. * Colling V. Treweek, 6 B. & C. 398, 399, per Bayley, J. See ante, ^§ 407, 408. ^ Scott r. Jones, 4 Taunt. 865 ; How v. Hall, 14 East, 275 ; Buclier v. Jarratt, 3 B. & P. 143. These cases overrule Cowan v. Abrahams, 1 Esp. 50. « R. V. Aickles, 1 Lea. 297, n. a.; R. v. Brennan, 3 Craw. & D., C. C. 109, per Perrin, J. (3283) 416 WHEN NOTICE TO PRODUCE UNNECESSARY. [pART II. dant should offer to produce the document itself;' and this excep- tion has been recognised in an action on contract against a carrier for the non delivery of written instruments,^ as also in indictments for conducting a traitorous correspondence.^ It has, however, been held inapplicable on a charge of forging a deed;* and no doubt can be entertained that an indictment for arson, with intent to defraud an insurance office, dues not convey such a notice that the policy will be required, as to dispense with a formal notice to pro- duce.^ So, if the maker of a note or cheque, or the acceptor of a bill, does not, as defendant in an action, deny by his plea the making or acceptance, the plaintiff, who is not bound to produce the instrument as part of his case,^ since it is admitted on the record, may object to the defendant's giving secondary evidence of its contents, for the purpose even of identification, unless a notice to produce has been duly served,' or unless the instrument is shown to be in court. ^ § 453. Fourthly, in odium spoliatoris, a notice need not be ^ 423 given to the adverse party to produce a paper, of which he has fi-audulently or forcibly obtained possession, as where, after action brought, he has received it from a witness, in fraud of a subpcena duces tecum." J Whitehead v. Scott, 1 M. & Eob. 2, per Ltl. Tenterden. 2 Jolley V. Taylor, 1 Camp. 143, per Sir J. Mansfield, C. J. 3 R. V. De la Motte, 1 East, P. C. 124; Layer's Case, 16 How. St. Tr. 170, 171. * R. V. Haworth, 4 C. & P. 254, per Parke, J. See Spragge's case, cited by Ld. "Ellenborouj^h, 14. East, 276; also, R. v. Elworthy, 1 Law Rep., C. C. 103; 37 L. J., M. C. 3, S. C. s R. V. Ellicombe, 5 C. & P. 522, per Littledale, J. ; 1 M. & Rob. 260, S. C. ; R. V. Kitson, 22 L. J., M. C. 118; Pearce & D. 187, S. C. See R. v. Hum- phries, cited 2 Russ. C. & M. 745; R. v. Mortlock, 7 Q. B. 459. " The plaintiff, however, cannot recover interest on the bill from the date of its maturity without producing it, Hutton v. "Ward, 15 Q. B. 26; Cliaplin V. Levy, 9 Ex. R. 534, per Parke, B. ' Goodered v. Armour, 3 Q. B. 956; explaining Read v. Gamble, 5 N. & M. 433; 10 A. & E. 597, n. a, S. C; Lawrence v. Clark, 14 M. & W. 250, 253. See, also, Chaplin r. Levy, 9 Ex. R. 534, per Parke, B. 8 Dwyer v. Collins, 7 Ex. R. 639. " Leeds v. Cook, 4 Esp. 256, per Ld. Ellenborough; Doe v. Ries, 7 Bing, 724. (3284) CHAP, v.] WHEN NOTICE TO PRODUCE UNNECESSARY. 417 § 454. Fifthly, the Legislature has interfered on behalf of mer- ^ 424 chant seamen, whose proverbial inexperience and recklessness have rendered them fit objects for special statutory protection, and has enacted, that every seaman may bring forward evidence to prove the contents of his agreement with the master of the ship, or otherwise to support his case, without producing or giving notice to produce the agreement itself or any copy of it.' § 455. Sixthly, notice will not be required, either where the' ? 425 adverse party or his solicitor has admitted the loss of the docu- ment, for in such case the notice would be nugatory," or, it seems, where the party in possession of the writing might himself give secondary evidence of its contents without producing it, as, for instance, if it be an inscription or notice attached to the freehold.^ A party, however, cannot under this exception call witnesses to prove the destruction of a document that has been traced into the hands of his opponent, and then show its contents by secondary proof without serving a notice to produce, because, notwith- standing evidence to the contrary, the document may still be in existence, and, at any rate, the opponent may dispute the fact of • its destruction.* § 456. Lastly, a notice to produce is rendered unnecessary by ^ 246 proof that the adverse party, or his solicitor, has the original instrument in court; for the object of the notice is not, — as was formerly thought,'^ — to give the opposite party an opportunity of providing the proper testimony to support or impeach the docu- ment; but it is merely to enable him to produce it, if he likes, at the trial, and thus to secure the best evidence of its contents.® The question is yet undecided, as to whether a solicitor would ^ 17 & 18 V., c. 104, ? 105. See Bowman v. Manzelman, 2 Camp. 315. 2 K. V. Haworth, 4 C. & P. 254, per Parke, J. ; Foster v. Pointer, 9 C. & P. 718, per Gurney, B. ; How v. Hall, 14 East, 276, per Ld. Ellenborough; Doe V. Spitty, 3 B. & Ad. 182. * Bartholomew v. Stephens, 8 C. & P. 728, per Patteson, J. * Doe V. Morris, 3 A. & E. 46; 4 N. & M. 598, S. C. * Bate (•. Kinsey, 1 C. M. & R. 38; Cook v. Hearn, 1 M. & Rob. 201, per Patteson, J.; Doe t'. Grey, 1 Stark. R. 284, per Ld. Ellenborough; Exsdl v. Partridge, id., cited as ruled per Ld. Kenyou. « Dwyer v. Collins, 7 Ex. R. 639. (3285) 418 SECONDARY EVIDENCE WHEN ADMISSIBLE. [PART 11. be ordered to search among his papers, if, on being called by his client's opponent to state whether he had a particular document in court, he were to assert that he did not know whether he had brought it with him or not, and that he did not intend to ascertain that fact, unless he were compelled to do so by the judge. § 456a. In order to check the service of vexatious notices to produce, a rule has been inserted in the Orders of 1883, which ' provides that, " if a notice to produce comprises documents which are not necessary, the costs occasioned thereby shall be borne by the party giving such notice." ' § 457. Secondary evidence is, in the fourth place, admissible, ? 42* when a document is in the hands of a stranger, who is not com- pelled by law to produce it, and who refuses to do so, either when summoned as a witness with a subpoena duces tecum,^ or when sworn as a witness without a subpcena, if he admits that he has the document in court.^ In applying this rule it must be carefully borne in mind, that the mere disobedience of a person served with a subpoena duces tecum will not render admissible secondary evidence of the contents of the document which he is called upon to produce;* but the witness must also be justified in refusing the production, for otherwise the party will have no remedy, except as against him} The reason why the rule is recognised at all is the same as that which admits parol proof, when the adversary, after notice, refuses to produce a deed in his possession, ^namely, that the party oflPering secondary evidence has done all in his power to obtain the original document.'' If therefore a solicitor refuses to produce a deed as claiming a lien upon it, secondary evidence of its contents cannot be received, provided the party tendering such evidence be the person liable to pay the solicitor's charges.' So, I Rules of Sup. Ct. Ord. XXXIL, R. 9. "^ Marston v. DoAvnes, 1 A. & E. 31; 4 N. & M. 861; 6 C. & P. 381, S. C; Doe V. Ross, 7 M. & W. 102; Mills v. Oddy, 6 C. & P. 728, per Parke, B. The case of Doe r. Owen, 8C. & P. 110, can no longer be supported. ^ Doe ?'. Clifford, 2 C. & Kir. 448, per Alderson, B. ; Newton v. Chaplin, 10 Com. B. 356. * Jesus Coll. V. Gibbs, 1 Y. & C, Ex. R. 156. * R. v. Llanfaethly, 2 E. & B. 940. 8 Doev. Ross, 7 M. &W. 122. ^ Att.-Gen. v. Ashe, 10 Ir. Eq. R., N. S. 300. (3286) CHAP, v.] WHEN WITNESS NOT BOUND TO PRODUCE DOCUMENT. 419 also, if a solicitor, who is not acting under special instructions from his client, declines to produce an instrument on the ground of privilege, it may be very questionable whether the client must not be subpoenaed, in order to ascertain whether he also relies on his right to withhold the deed; ^ and this course will assuredly be prudent, inasmuch as the privilege is, in strictness, not that of the solicitor, but that of the client. If, indeed, the solicitor can under- take to swear that his client has instructed him not to produce the instrument, it will not be necessary to subpoena the client; for in such a case the court would very properly assume that the client, if called, would continue to be of the same mind." § 458. Upon principles of reason and equity, judges will refuse ^ to compel either a witness or a party to a cause ^ to produce either his title-deeds,* or any document the production of which may tend to criminate him," or any document which he holds as mortgagee^ or pledgee.' But a witness will not be allowed to resist a subpoena duces tecum on the ground of any lien ^ he may have on the docu- ment called for as evidence,^ unless the party requiring the produc- iDoer. Ross, 7 M. & W. 122; Newton v. Chaplin, 10 Com. B. 356; In re Cameron's Coalbrook, &c., Rail. Co., 25 Beav. 1. - Phelps V. Prew, 3 E. & B. 430 ^ The rule, so far as it relates to parties, appears to be this ; a plaintifif will not be compelled to produce muniments of title which he swears do not, to the best of his knowledge, information, and belief, contain anything impeaching his case, or supporting or material to the case of the defendant. Minet v. Morgan, 8 Law Rep., Ch. Ap. 361; 42 L. J., Ch. 627, S. C. * Pickering v. Noyes, 1 B. & C. 263; 2 D. & R. 386, S. C. ; Harris v. Hill, 2 Stark. R. 140, per Abbott, C. J.; D. & R., N. P. R. 17, S. C. ; R. r. Upper Boddington, 8 D. &• R. 726 ; Doe v. Clifford, 2 C. & Kir. 448 ; Egremont. Burial Board v. Egremont Iron Ore Co., L. R., 14 Ch. D. 158, per Malins, y.-C; 49 L. J., Ch. 623, S. C. 5 See Whitaker v. Izod, 2 Taunt. 115. »Doev. Ross, 7 M. & W. 102, 122; 8 Dowl. 389, S. C, explained by Ld., Just. Turner in Hope r. Liddell, 24 L. J., Ch. 694; 7 De Gex, M. & G. 338, S. C; Chichester v. Marq. of Donegall, 39 L. J., Ch. 694, per Giffard, L. J.;. Costa Rica, Republic of, v. Erlanger, 44 L. J., Ch. 281. '' See Ex parte Shaw, Jac. 270. * In the Courts of Bankruptcy, "no person shall, as against the official receiver or trustee, be entitled to withhold po.ssession of the books of account, belonging to the debtor, or to set up any lien thereon. " Bankruptcy Rules, 1883, r. 259. ' Hunter r. Leathley 10 B. & C. 858; recognised by Parke, B., in Ley v. Barlow, 1 Ex. R. 801; Thompson v. Mosely, 5 C. & P. 501, per Ld. Lynd- hurst; Brassington v. Brassington, 1 Sim. & St. 455, per Leach, V.-C. ; Pratt 6 LAW OF EVID. — V. II. (3287) 420 WUEN WITNESS BOUND TO I'KODUCE DOCUMENT. [PART II. tionbe himself the person against whom the claim of lien is made.* If the witness be a solicitor, though he will be permitted, he will certainly not be forced,' — except in some cases for the purpose of identirication,^ — to produce any instrument which he holds confiden- tially for his client, and which his client has a right to keep back;* but, in this case, as has just been noticed, it by no means necessarily follows that, in the event of the client himself not being summoned, secondary evidence will be admissible. § 459. The rule exempting witnesses from producing title-deeds I 429 has been applied to a will, under which the witness claimed as devisee, though it was suggested that this will extended to per- sonalty as well as to realty, and, therefore, ought to" have been deposited in the Ecclesiastical Court, where the public might have had access to it.^ Still, unless it appears that the title of the person possessing the document will in some way be afPected by its production, the rule will not prevail ; « and, therefore, in an old action of ejectment, where the title of the lessor of the plaintiff was dis- puted, the solicitor of a gentleman, who had been in treaty with him for the purchase of the property, but which treaty had gone ofP, was allowed to produce on behalf of the defendant the abstract that had been delivered to his client, as furnishing secondary evidence V. Pratt, 51 L. J., Ch. 838, per Bacon, V.-C; Furlong v. Howard, 2 Sch. & Lef. 115, per Ld. Eedesdale; In re Cameron's Coalbrook, &c., Rail. Co., 25 Beav. 1; Hope v. Liddell, 7 De Gex, M. & G. 331; 24 L. J., Ch. 691; and 20 Beav. 438, S. C, overruling Griffith v. Ricketts, 7 Hare, 303. See, also, Lockett V. Gary, 3 New R. 405, per Romilly, M. R. ; Ex p. Paine & Layton, 4 Law Rep., Ch. Ap. 215; 38 L. J., Ch. 305, S. C. ; Re Toleman, ex p. Bramble, L. R., 13 Ch. D. 885. ^ Kemp & King, 2 M. & Rob. 437, per Ld. Denman; recognised in Hope V. Liddell, 24 L. J., Ch. 693, 694; 7 De Gex, M. & G. 338, S. C. See In re Capital Fire Ins. Assoc, L. R., 24 Ch. D. 408, and cases there cited. Also In re Cameron's Coalbrook, &c.. Rail. Co., 25 Beav. 4, per Romilly, M. E. ; Vale V. Oppert, 10 Law Rep., Ch. Ap. 340; 44 L. J., Ch. 579, S. C. But see Fowler j\ Fowler, 50 L. J., Ch. 686, per Kay, J., et qu. See Re Martin, 13 L. R. Ir. 312. 2 Hibberd v. Knight, 2 Ex. R. 11, explaining IMarston v. Downes, 6 C. & P. 381; 1 A. &E. 31. S. C. =» Phelps V. Prew, 3 E. & B. 430. * Harris r. Hill, 3 Stark. R. 140; Volant v. Soyer, 13 Com. B. 231 ; Doe v. James, 2 M. & Rob. 47, per Ld. Denman; Ditcher v. Kenrick, 1 C. & P. 161. See Doe v. Langdon, 12 Q. B. 711. ^ Doe V. James, 2 M. & Rob. 48, per Ld. Denman. « Lee V. Merest, 39 L. J., Ec. C. 53. (3288) CHAP, v.] AVIIEN WITNESS NOT BOUND TO PKODUCE D0CU3IENT. 421 of the contents of the deeds relating to property, "which the lessor of the plaintiff, after notice, had refused to produce.' § 460. Again, the mere circumstance, that the production of the ^ "130 document may render the witness liable to a civil action, does not come within the protection of the rule. Thus, in an action of eject- ment, in which the lessor of the plaintiff claimed as devisee in remainder, and the defendant held under an invalid lease made by the late tenant for life, a witness, who was an executor and legatee of the late tenant for life, was compelled to produce his testator's rent-book, for the purpose of enabling the lessor of the plaintiff to identify the lands in question with the lands originally devised, though the witness, as executor, was bound to indemnify the de- fendant from all loss he might sustain from an adverse verdict, under a covenant contained in the lease granted by the late tenant for life.^ Where a witness, who was steward of a borough, and attorney for the lord, declined to produce certain old precepts, books of presentment, and a case, relative to his office, on which the opinion of counsel had been taken by a former steward, saying that he held them as attorney for the lord, and that their production would pi'ejudice his client's interest. Lord Denman decided that he was bound to produce the precepts and presentments, they being public documents, but that the case and opinion might be with- held.' § 461.* Fifthly, in consequence of the strong presumption, which ? 431 arises from the undisturbed exercise of a public office, that the appointment to it is valid, the law does not in general require that the tiTiften appointments of public officers should be produced, but it will be sufficient to show that such officers have acted in an official capacity.^ § 462.® A sixth relaxation of the rule demanding primary proof g 432 » Doe V. Langdon, 12 Q. B, 711. 2 Doe V. Date, 3' Q. B. 609. ' R. v. Woodley, 1 M. & Rob. 390. * Gr. Ev. § 92, in great part. * See ante, ? 171. See, also, Brewster v. Sewell, 3 B. & A. 302, per Hol- royd, J. ^ Gr. Ev. § 93, in great part. (3289) ' 422 WHEN WITNESS NOT BOUND TO PRODUCE DOCUMENT, [PART II. has been admitted, where the evidence required is the result of voluminous facts, or of the inspection of many books and papers, the examination of which could not conveniently take place in court.' Thus, if bills of exchange have been drawn between particular parties in one invariable mode, this may be proved by the testimony of a witness conversant with their habits of business, and speaking generally of the fact, without producing the bills ; though, if the mode of dealing has not been uniform, the case does not fall within this exception, but is governed by the rule requiring the production of the writings." So, a witness, who has inspected the accounts of the parties, though he may not give evidence of their particular contents, will be allowed to speak to the general balance without producing the accounts.^ And, where the question turns upon the solvency of a party at a particular time, the general result of an examination of his books and securities may be stated in like manner.* This exception, however, will not enable a witness to state the general contents of a number of letters received by him from one of the parties in the cause, though such letters have since been destroyed, if the object of the examination be to elicit from the witness the impression which they produced on his mind, with reference to the degree of fi'iendship subsisting between the writer and a third party.^ The distinction between this and the preceding cases is obvious ; since in those, the fact in question was one, the truth of which simply depended on the honesty of the witness, whereas here, not only his honesty, but his taste and feelings were involved, and he might, from perusing the letters, conscientiously draw a very different inference as to their legitimate construction from that which would be drawn by an unbiased jury. ' Ph. Ev. 433. The rules of pleading have, for a similar reason, been made to yield to public conveuience in the administration of justice, and a general allegation is frequently allowed, "when the matters to be pleaded tend to infiniteness and multiplicity whereby the rolls shall be incumbered with the length thereof" Mints v. Bethil, Cro. Eliz. 749, Steph. PI. 392— 396. See Rules of Sup. Ct. 1883, Ord. XIX., R. 2; Ord. LXV., R. 27, subs. 20. The courts admit the same exception in regard to parties to actions, where they are numerous, on the like grounds of convenience ; Ord. XVI., R. 9. ■'' Spencer v. Billing, 3 Camp. 310, per Ld. Ellenborough. * Roberts v. Doxon, Pea. R. 83, per Ld. Kenyon. But see Johnson v. Kershaw, 1 De Gex & Sm. 260, where this course was not allowed by Knight Bruce, V.-C. * Meyer v. Sefton, 2 Stark. R. 274, per Holroyd, J. 5 Topham v. M'Gregor, 1 C. & Kir. 320, per Rolfe, B. See Taylor v. Carpenter, 2 Woodb. & M. 5, 6, (3290) CHAP, v.] SECONDARY EVIDENCE OF ORAL TESTIMONY. 423 § 463. Secondary evidence is admissible in the examination of a ^ 433 witness on the voii^e dire, and in preliminary inquiries of the same nature. But as this rule, owing to the modern improvements in the law of evidence on the subject of the competency of witnesses, has now become practically inoperative, further reference to it here is deemed unnecessary.^ § 464. Passing now to the consideration of the circumstances, i 434 under which secondary evidence of oral testimony will be received, and bearing in mind the broad proposition before stated,Hhat such proof is only admissible where the production of primary evidence is out of the party's power, it maybe advanced as a general rule of law, that where a witness has given his testimony under oath in a judicial proceeding, in which the adverse litigant had the power to cross-examine, the testimony so given, will, if the witness himself cannot be called, be admitted in any subsequent suit between the same parties, or those claiming under them, provided it relate to the same subject, or substantially involve the same material questions.^ § 465. In discussing the effect and extent of this rule, which is ^ now recognised by all courts of justice,^ it seems almost needless to observe, that, in order to render admissible secondary evidence of the testimony of a witness, it must be proved "that the witness was duly sworn in some judicial proceeding, to the authority of which the party, against whom his testimony is offered, was legally bound to submit, and in which he might have exercised the right of cross- examination; for, if this were not the case, the preposterous con- ^ See 1st Ed. of this work, ^ 342; and cases cited in this Ed., post, ^ 1393, last note. ^ Ante, | 428. 3 B. N. P. 239—243 ; IMay. of Doncaster v. Day, 3 Taunt. 262, Strutt v. Boviugdon, 5 Esp. 56, per Ld. Ellenborough ; R. v. Jollilfe, 4 T. R. 290, per Ld. Kenyon; Pyke v. Crouch, 1 Ld. Ray. 730, 5th Res.; Wright v. Doe d. Tatham, 1 A. & E. 3; Glass v. Beach, 5 Vern. 172; Lightner v. Wike, 4 Serg. & R. 203. * See Lawrence v. Maule, 4 Drew. 472, 479, 480, per Kindersley, V. -C. The rule has been extended to answers, Parker v. M'Kenna, 43 L. J., Ch. 802, and to affidavits, Dunne v. English, 18 Law Rep., Eq. 524. See Meyrick v. James, 46 L. J., Ch. 579. (3291) 424 SECONDARY EVIDENCE OF ORAL TESTIxMONY. [pART II. sequence would follow, that secondary evidence of testimony might be received under circumstances that would exclude the testimony itself. If, thei-efore, it should appear that depositions were taken, either by parties not legally authorised to take them,' or without the sanction of an oath or afl&i'mation, or in the absence of the party against whom they are offered,' when, as in most criminal investigations,^ his presence was requisite, they cannot be received.* § 4GG. But although the party, against whom depositions are g 43r) offered in evidence, must have had an opportunity of being present at the examination, and of cross-examining the witness,^ — and therefore, if a commission be executed without any notice, or with- out a sufficient notice,** being given to the opposite party, to enable him, if ho pleases, to put cross-interrogatories, the depositions will be rejected,' — yet, it is by no means requisite that he should exercise that power; and if notice has been given to him of the time and place of the examination, and he neither intimates any wish to cross-examine, nor applies to the court to enlarge the time for that purpose, it will be presumed that he has acted advisedly, and the depositions will be received.^ So, where a defendant, after joining the plaintiff in obtaining a commission to examine witnesses upon interrogatories, gave notice .that he declined to proceed with the ex- amination; whereupon the plaintiff" sent him word that he should » apply for a commiaeion ex parte, which he accordingly did: the court held that the examinations taken under this order were ad- missible in evidence, although the defendant had received no notice of the time and place of taking them." 1 12 Vin. Ab., Ev. A. b. 31; B. N. P. 241. ^ The admis.sibility of depositions taken before a coroner, in the absence of the accused, will be discussed hereafter. See post, § 494. ' See post, ? 479. * In R. V. Eriswell, 3 T. R. 721, Ld. Kenyon laid down that "the evidence should be given under the sanction of an oath legally administered, and in a judicial proceeding depending between the parties affected by it, or those who stand in privity of estate or interest with them." * Att.-Gen. v. Davison, M'Clel. & Y. 160. « Fitzgerald v. Fitzgerald, 3 Swab. «&Trist. 397. " Steinkeller v. Newton, 1 Scott, N. R. 148; 8 Dowl. 579; 9 C. & P. 313, S. C. ^ Cazenove v. Vaughan, 1 M. & Sel. 4. 8 M'Combie v. Anton, 6 M. & Gr. 27. (3292) CHAP. V. ] TESTIMONY GIVEN IN FORMER JUDICIAL PROCEEDING. 425 § 467.' The admissibility of this evidence seems to turn, rather ^ 436 on the right to cross examine, than upon the precise identity, either of the parties or of the points in issue, in the two proceedings. Therefore, where a witness testified in a suit, wherein A. and several others were plaintiffs and B. defendant, his testimony was, after his death, held admissible in a subsequent action relating to the same matter, brought by B. against A. alone." And although the two trials be not between the same parties, yet, if the second trial is between those who represent the former parties, and claim through them by some title acquired subsequently to the first trial, the evi- dence is admissible.^ Again, if in a dispute respecting lands any fact comes directly in issue, the testimony given to that fact is ad- missible to prove the same point in another action between the same parties or their privies, though the last suit relate to other lands.* So, in criminal cases, a deposition taken on a charge either of as- sault and robbery, or of stabbing, or of doing grievous bodily harm, can, after the death of the witness, be read upon a trial for murder, where the two charges relate to the same transaction;^ and, indeed, if this were not the law, the depositions of the deceased would, in all cases of homicide, be most improperly excluded.'^ In one case,^ where a prisoner, who had been summarily convicted of an assault, was, in consequence of the death of the party struck, subsequently indicted for murder, the convicting magistrate was permitted to state what the deceased had sworn in the prisoner's presence, the examination not having been reduced in writing; but the learned judge appears to have received the evidence, not as proving the facts stated, but as producing an answer from the prisoner. So, on another indictment for murder, a deposition of the deceased taken on a prior charge of larceny against the accused was read, but this course was allowed, not as furnishing any evidence of the facts de- 1 Gr. Ev. I 1G4, in part. ^ Wright v. Doe d. Tatham, 1 A. & E. .3. ^ Com. Dig. , Ev. A. 5, explained by Littledale, J. , in Doe v. Derby, 1 A. & E. 790; Doe v. Powell, 3 C. & Kir. 323. *Doe V. Foster, 1 A. & E. 791, n. b, per Alderson, B.; B. N. P. 232; Llanover v. Homfray, L. E., 19 Ch. D. 224. * K. V. Smitli, R. & R. 339; 2 Stark. R. 208, S. C; R. v. Lee, 4 Post. & Fin. 63, per Pollock, C. B. ; R. v. Dilmore, 6 Cox, 52, per Wightman, J. ; R. V. Beeston, 24 L. J., M. C. 5; Pearee & D. 405, S. C; R. v. Williams, 12 Cox, 101. « 2 Stark. R. 212, note by the reporter. ' R. V. Edmunds, G C. & P. 164, per Tindal, C. J. (3293) 426 SECONDARY EVIDENCE OF ORAL TESTIMONY. [PART II. posed, but simply as affording a motive for revenge on the part of the prisoner.' § 4G8. If the point in issue, though very similar, was so far § 437 different in the two proceedings, that the witness, who was called to prove or disprove the issue in the former, need not have been fulhj cross-examined in regard to the matters in controversy in the latter, his deposition, if tendered on the second trial, will be excluded; and on this ground it has been held — though, perhaps, with questionable propriety — that a deposition taken on a charge of assault could not afterwards be received on an indictment for wounding.^ Again, ^ it has been held in America, that where the issue in one action had been upon a common or free fishery, and that in another action was upon a several fishery, evidence of what a witness, since deceased, had sworn upon the former trial, was inadmissible.* § 4G9. In stating that this rule mainly depends on the right of § 43 ^ cross examination, care must be taken to guard against the error of imagining that, whenever a party has had the right of cross- examining a witness, he will be liable to have the statement of that witness adduced against him in any subsequent action. This will be so only in the event of his opponent being the same in both suits;'' because, the right to use evidence, other than admissions, being co-extensive with the liability to be bound thereby, the * adversary in the second suit has no power to offer evidence in his own favour, which, had it been tendered against him, would have been clearly inadmissible.** § 470. It has already been stated that secondary evidence of oral I 439 testimony cannot be received so long as the witness himself can be called; but an attempt was, some years ago, made in equity to engraft an exception on this wise rule, whenever depositions have been taken against a party in one suit, who is also a party to a 1 E. V. Buckley, 13 Cox, 293, per Lush, J. ^ R. V. Ledbetter, 3 C. & Kir. 108; commented upon in R. v. Beeston, 24 L. J., M. C. 5. 3 Gr. Ev. I 164. * Melvin v. Whiting, 7 Pick. 79; Jackson v. Winchester, 4 Dall. 206. 5 Morgan v. Nicholl, 36 L. J., C. P. 86; 2 Law Rep., C. P. 117, S. C. 6 Doe V. Derby, 1 A. & E. 783, 786. (3294) CHAP, v.] SECOND. EV. INAD3IIS. IF WITNESS CAN BE CALLED. 427 second suit, wherein substantially the same questions arise. The case in which this point was mooted was that of Blagrave v. Blagrave.' There, a person was tenant for life of certain real and personal estate. Two suits were instituted against him in respect of alleged mismanagement of the property, the one being commenced by the tenant for life in remainder, and referring only to the real estate, the other being commenced by the first tenant in tail, and embracing both the real and the personal estate. The objects sought in each suit, though not entirely identical, were to a great extent the same. Under these circumstances it was proposed, on the authority of Nevil v. Johnson,'' Barton v. Palmes,^ Byrne v. Frere,* and particularly, the City of London v. Perkins,^ to read as against the defendant in the second suit the depositions that had been taken against him in the first, without any proof that the witnesses were dead, or otherwise incapable of being examined. Vice- Chancellor Knight Bruce, however, .very properly held that this course could not be pursued ; and his de- cision would not have deserved any notice, had it not been that his Honour appeared to recognise the case of the City of London v. Perkins, as an authority to a certain extent for the doctrine pro- pounded by the plaintiff's counsel. Now, it is submitted that this is a mistake. § 471. The real facts were these. The City of London, having g 439 filed a bill against Messrs. Perkins to recover certain tonnage dues under an alleged custom, claimed to read, as evidence of reputation with respect to the custom, certain depositions which had been taken by them in two former suits for the recovery of the same species of tonnage against two other defendants. The Court of Exchequer rejected this proof on the ground that the deaths of the witnesses were not shown by "the depositions taken in the cause;" and they refused to allow the plaintiffs to prove by viva voce testi- mony or by affidavit that the witnesses were in fact dead. The plaintiffs appealed, and prayed, among other things, that the order of the court below should be reversed, and that they might be at liberty to read the depositions; whereupon, the House of Lords, 1 1 De Gex & Sm. 252 ^ 2 Vern. 247. ^ Tree, in Ch. 233. * 2 Moll. 157. 5 3 Br. P. C. 602. (3295) 428 WHEN A WITNESS IS INCAPABLE OF BEING CALLED. [PART II. without granting or alluding to the last paragraph of the prayer, gave judgment that the order be reversed.' It is obvious, therefore, that this case does not decide that depositions can in any event be read in evidence, where the witnesses are capable of being called. Neither can Such a doctrine be supported by any of the three other cases cited in Blagrave v. Blagrave." In Byrne v. Frere,^ it is clear that the witnesses were dead, and there is nothing to show that they were alive, either in Nevil v. Johnson,^ or in Barton v. Palmes.^ § 471a. Although the case of Blagrave v. Blagrave was clearly a right decisian, the Rules of the Supreme Court, 1883, have so far relaxed the law there recognised, as to provide, by Ord. XXXVII., R. 25, that " all evidence taken at the hearing or trial of any cause or matter may be used in any subsequent proceedings in the saiyie cause or matter.^^ § 472. Returning now to the rule which rejects secondary | 440 evidence of oral testimony so long as the witness can himself be called, it should be observed, that the common law regards a witness as incapable of being called, — 1, When he is dead; 2, When he is out of the jurisdiction of the court, or possibly, when he cannot be found after diligent inquiry; 3, When he is either insane, or seriously sick;^ and 4, AVhen he is kept out of the way by the contrivance of the opposite party. In noticing the authoi'ities which support these propositions, no case need be cited to establish what is admitted on all hands, that if the witness be proved to be dead, secondary evidence of his statement on oath in a former trial between the same parties will be received.' The court, however, — unless some account of the death of a witness be given, or at least some evidence be furnished show- ing that proper inquiries have been made, and that no tidings can be heard of him, — will not presume his death, so as to admit his 1 See and compare, 3 Br. P. C. 602, and 24 Lords' J. 448, under date 28th Jan., 1734. See, also, Carrington v. Cornock, 2 Sim. 567. 2 1 De Gex & Sm. 252. ^ 2 Moll. 157. * 2 Vern. 447. * Prec. in Ch. 233. « See post, § 506, citing Rules of Sup. Ct., 1883, Ord. XXXVII., R. 18. ' Pyke v. Crouch, 1 Ld. Ray. 730, 5th Res. (3296) CHAP v.] WHEN WITNESS OUT OF JURISDICTION. 429 depositions, though they were taken as much as fifty years before the trial.' § 473. The ground for admitting secondary evidence in civil ^ '^'^^ proceedings seems equally clear, where it is proved that the witness is actually residing in some place beyond the jurisdiction of the court ;" but questions have occasionally arisen respecting the amount and nature of the proof required to establish this fact. Thus, where a naval captain had been examined on interro gatories by consent, on account of his expected absence. Sir James Mansfield held that it was not absolutely necessary that he should be on his voyage when the trial came on. If the ship had sailed, though it had put back, or if the witness had gone on board, and was ready to sail, though prevented by contrary winds, that would be sufficient.^ The same doctrine has prevailed in another case, where the signature of an attesting witness was allowed to be proved, it appearing that he had sailed for Spain, had been driven back by stress of weather, and six days before the trial, was at Falmouth, expecting to sail again immediately* In a third case where it is was sworn that the witness was a seafaring man, and some six months before the trial had belonged to a ship lying in the Thames, Lord Ellenborough, in rejecting the evidence as too vague, was disposed to admit the depositions, if it could be further shown that any efforts had been recently made to find him.* This case suggests the propriety of noticing an old decision of the time of James the First,® in which it was expressly laid down that, if a party cannot find a witness, then he is, as it were, dead to him; and his depositions in a cause betwixt the same parties may be read, provided the party make oath that he endeavoured to find him, but could neither see him nor hear of him. In no modern case has precisely the same point being ruled, but as it has frequently been held that proof of inability to find an attesting 1 Benson r. Olive, 2 Str. 920. See ante, I 199. "" Fry V. Wood, 1 Atk. 445. * Fonsick v. Agar, 6 Esp. 92. But see Carruthers r. Graham, C. & Marsh. 5, cited post, ?, .517. * Ward r. Wells. 1 Taunt. 461. See Varicas v. French, 2 C. & Kir. 1008. * Falconer v. Hanson, 1 Camp. 171. ® Godb, 326. (3297) 430 WHEN tviTN. CANNOT BE FOUND — ANS. TO INQUIRIES. [PAET II. witness will let in evidence of his handwriting/ these analogous decisions would seem in some degree to support the correctness of the old authority, at least so far as relates to civil causes. § 474. In criminal proceedings a similar latitude is not allow- ? 442 able at common law, and the deposition of a witness, whether taken before a magistrate or a coroner, will not be rendered admissible, on mere proof that the witness himself cannot be found after diligent search.^ Neither will it be received, though satisfactory proof be given that the witness was not absent from any intention to defeat justice, but that, being a foreigner, he had, since the prisoner was committed for trial, returned to his own country, and was at the time of the trial resident abroad.^ This kind of evidence has also been rejected in America, both where the witness could not be found within the jurisdiction, but was reported to have gone to an adjoining State,* and where he was proved to have left the State, after being summoned to attend at the trial.^ § 475. How far ansivers to inquiries respecting the witness are § 443 admissible to prove that he cannot be found, is not very clearly defined by the decisions. That such answers will be rejected as hearsay, if tendered in proof of the fact that the witness is abroad is beyond all doubt,^ but where the question is simply whether a diligent and unsuccessful search has been made for the witness, it would seem, both on principle and authority, that the answers should be received, as forming a prominent part of the very point to be ascertained.' In order to show that inquiries » Kay V. Brookman, 3 C. & P. 555; Cunliffe v. Sefton, 2 East, 183; Crosby V. Percy, 1 Taunt. 364; Ld. Falmon.."h v. Roberts, 9 M. & W. 469; Parker v. Hoskins, 2 Taunt. 223; Burt v. Walker, 4 B. & A. 697; Spooner v. Payne, 4 Com. B. 328. ^ Ld. Morley's case, Kel. 55, 6th Res.; 6 How. St. Tr. 771, S. C; R. v. Scaife, 17 Q. B. 242—244; 2 Den. 281, S. C. '' R. V. Austen, Pearce & D. 612; 7 Cox, 55, S. C; R. v. Hagan, 8 C. & P. 167. These .cases overrule the law as laid down in B. N. P. 242. " Wilbur V. Selden, 6 Cowen, 162. ^ Finn's case, 5 Rand. 701. ® Robinson v. Markis, 2 M. & Rob. 375, per Ld. Abinger; Doe v. Powell, 7 C. & P. 617, per id. ; po.st, ^ 517. ' Wyatt V. Bateman, 7 C. & P. 586, per Coleridge, J.; Burt v. Walker, 4 B. & A. 697; Austin v. Rumsey, 2 C. & Kir. 736, per Erie, J. (3298) Chap, v.] when WITNESS INSANE OR SICK. 431 have been duly made at the house of the witness, his declarations as to where he lived cannot be received; ' neither will his state- ment in the deposition itself, that he is about to go abroad, render it unnecessary to prove that he has put his purpose in execution.^ § 476. If the witness be proved at the trial to be insane, his § 444 deposition will be admissible,^ in like manner as if he were dead;* and the same rule is stated to prevail, though the insanity be only of a temporary character.^ This, however, appears to be carrying the doctrine beyond its legitimate extent; for since the casual ill- ness of a witness will not, — as shown in the next section, — warrant the reading of his former testimony, at least in a civil suit, but will only furnish good ground for moving to postpone the trial, the same rule should surely prevail in the event of a witness being afflicted with temporary madness. No sensible distinction can be drawn between the two cases. Where depositions are tendered on the ground of the witness being insane, it may sometimes be advisable to show that his intellects were sound at the time of his previous examination; and this course may even be neces- sary, if such examination were had but a short time before the trial.*^ § 477. It is somewhat difficult to discover from the authorities § 445 what degree of illness must be proved in order to let in depositions.' In an old case, where a witness on his journey to the place of trial was taken so ill as to be unable to proceed, his deposition was allowed to be read; ^ but too much weight must not be given to this decision, since, if the course there adopted were ordinarily allowed, there would be very pudden indispositions and recoveries." The rule laid down by Lord Ellenborough, that where a witness is taken 1 Doe V. Powell, 7 C. & P. 617. ^ Proctor V. Lainson, 7 C. & P. 631, per Ld. Abinger. ^ As to depositions taken by committing justices, see post, § 479. * E. V. Eriswell, 3 T. R. 720, 721, per Ashhurst, J., and Ld. Kenyon. ^ R. V. Marshall, C. & Marsh. 147, per Ludlow, S., after consulting Colt- man, J. « R. V. Wall, per Park, J., cited 2 Russ. C. & M. 890. ' See R. V. Bull, 12 Cox, 31. See Rules of Sup. Ct., 1883, Ord. XXXVIL, R. 18, cited post, | 506. 8 Luttrell v. Reynell, 1 Mod. 284. ^ Harrison v. Blades, 3 Camp. 458, per Ld. Ellenborough; Jones v. Brewer, 4 Taunt. 47, per Heath, J. (3299) 432 POSTPONEMENT OF TRIAL WITN. KEPT OVT OF THE WAY. [PAET II. ill, the party requiring his testimony should move to put off the trial, is certainly less ojoen to objection and abuse.' In the cri- minal courts, this practice has long prevailed, and it has there been expressly decided, that the depositions of a woman, who was so near her confinement as to be unable to attend a trial, could not be received." If, however from the natiu-e of the illness or other infirmity, no reasonable hope remains that the witness will be able to appear in court on any future occasion, his deposition is cer- tainly admissible in criminal,^ as it is in civil,* proceedings. Where, upon an issue being directed out of the old Court of Chancery, it appeared that a witness, who had been examined in the cause as to the handwriting of certain documents, had since become blind, the court matle an order that his depositions should be read at thetrial.^ § 478. The proposition that, if a witness be kept out of the way ^ 44(3 by the adversary, his former statements on oath will be admissible, rests, partly, on the authority of several decisions both in the civil and criminal courts;'^ partly, on the analogies furnished by one or two statutes; ' but chiefly, on the broad principle of jus- tice, which will not permit a party to take advantage of his own wrong. In a case where three prisoners were indicted for felony, and a witness for the prosecution was proved to be absent through the procurement of one of them, the court held that his deposi- ^ Harrison v. Blades, 3 Camp. 458. 2 E. V. Savage, 5 C. & P. 143, per Patteson, J. See post, § 481. - 11 & 12 v., c. 42, § 17, cited post, ? 479; 11. v. Hogg, 6 C. & P. 176, per Gurney, B. ; K. v. Edmunds, id. 165, per Tindal, C. J. ; E. v. Wilshaw, C. & Marsh. 145; II. v. Cockburn, Dear. & Bell, 203; 7 Cox, 265, S. C, cited post, p. 435, n. '. * Jones V. Jones, 1 Cox, Ch. E. 184; Andrews v. Palmer, 1 Ves. & B. 22; Fry V. AVood, 1 Atk. 445; Corbett v. Corbett, id. 335, 336. The case of Doe V. Evans, 3 C. & P. 219, where Vaughan, J., is said to have rejected the depositions of a witness, Avho was bed-riddon and nearly a century old, and quite unable to attend the trial, is obviously not law. ^ Lynn v. Eobertson, 2 Coop. 217. « Ld. Morley's case, Kel. 55, 5th Ees. ; 6 How. St. Tr. 770, 771, S. C. ; E. V. Harrison, 12 How. St. Tr. 851, 852, 868, per Ld. Holt; Green v. Gatewick, B. N. P. 243; E. v. Scaife, 2 Den. 281; 17 Q. B. 238, S. C; E. v. Guttridge, 9 C. & P. 473. See, also, Egau v. Larkin, 1 Arm. M. & O. 403, per Brady, C. B. 7 See 50 G. 3, c. 102, § 5, Ir.; 56 G. 3, c. 87, ? 3, Jr., noticed post, § 497. (3300) CHAP, v.] DEPOSITIONS TAKEN BEFORE JUSTICES. 433 tion might be read in evidence as against the man who had kept him out of the way, but that it could not be received against the other two men.' § 479. Besides those cases, in which the admissibility of § 447 secondary proof of oral testimony is found to rest upon the ordinary principles of the common law, the Legislature in a few instances has expressly provided, that certain depositions should, under par- ticular circumstances, be received in evidence.^ The most important Act on this subject is that of 11 & 12 V., c. 42, which regulates the mode of taking depositions before committing magistrates, and their subsequent admissibility in evidence. § 17 of this statute enacts, "That in all 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 the high sea, or on land beyond the sea, or whether such person appear voluntarily, upon summons, or have been appre- hended, 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 the presence of such accused person, who shall be at liberty to put questions to any witness pro- duced against him, take the statement ^ on oath or a£firmation of those who shall know the facts and circumstances of the case, and 1 E. V. Scaife, 2 Den. 281 ; 17 Q. B. 233 ; 5 Cox, 243, S. C. 2 See "The Fugitive Oflfenders Act, 1881, " 44 & 45 V., c. 69, § 29, cited post, §1562. ^ The form given Sched. 31 to the Act is as follows : — Dex)ositions of Witnesses. " To Wit, — The examination of C. D. of [Farmer'] and E. F. of \_L(thourer'], taken on [on//j] this day of in the year of our Lord at in the \_eounty'] aforesaid, before the undersigned, [one] of Her Majesty's Justices of the Peace for the said \_coun1y'], in the presence and hearing of A. B. ; who is charged this day before [wie], for that he the said A. B. on at [&c., describing the offence as in a warrant of commitment']. This deponent C. D. on his [oatK] saith as follows [&c., stating the deposition of the ivitness as nearly as possible in the words he uses. When his deposition, is complete, let him sign it.] And this deponent E. F. upon his oath saith as follows [&c.]. The above depositions of C. D. and E. F. were taken and [stoorn] before me at on the day and year first above mentioned. T. S." (3301) 43-1 DEPOSITIONS TAKEN BEFOKE JUSTICES. [PAKT II. shall put the same into writing, and such depositions shall he read over to and signed respectively by the tcitnesses who shall have 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 witnesses shall appear to be examined as aforesaid, shall, before such witness is examined, administer to such witness the usual oath or afifirmation, which such justice or justices shall have full power 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 afiirmation of any credible witness, that any person whose deposition shall have been taken as aforesaid, is dead, or so ill as 7iot to be able to travel, and if also it be proved that such deposition 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 the witness, then, if such deposition purport to be signed by the justice by 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 depositon was not in fact signed by the justice purporting to sign the same." § 480. It would be diflficult to frame a clause open to more ^ ^'^^ objections than the one just cited. First, the Act states, that if it be proved, among other things, that the witness " is dead, or so ill as not to be able to travel," it shall be lawful to read his deposition as evidence in the prosecution. Now, any one, bearing in mind the maxim, "expressio unius est exclusio alterius," would reasonably interpret this to mean that, unless one or other of these facts be established, the deposition shall in all cases be excluded ; but, as such an interpretation would lead to very absurd results, the judges have put another construction on the words, and have held that they do not annul the wise common- law rule,^ that if a witness be fraudulently or forcibly kept out of the way by the prisoner himself, his deposition shall be received.^ ^ This fact may be negatived by proof that the accused was insane when the deposition was taken, or was otherwise incapacitated by illness from cross- examining the deponent. E. v. Peacock, 12 Cox, 21, per Brett & Mellor, Js. 2 Ante, ? 478. ^ R. V. Scaife. 2 Den. 281 ; 17 Q. B. 238 ; 5 Cox, 243, S. C. (3302) CHAP, v.] DEPOSITIONS TAKEN BEFORE JUSTICES. 435 In thus deciding, the judges have cerfainly got rid of one diffi culty, but since, in so doing, they have relaxed the principles of judicial interpretation, the law, regarded as a science, has lost almost as much as it has gained. AVhether the courts will go one step further, and admit the deposition of a witness, who, although not too ill to travel,' may be proved to be permanently insane,"* remains to be seen, but such a decision seems naturally to follow from the former ruling. § 481. Next, do the words just cited mean, that in all cases ? 449 where a witness is too ill to travel at the time of the trial, his deposition, if proved to have been properly taken, must be ad- mitted in evidence; or, in other words, do they set at nought the salutary practice of obliging the prosecutor to apply for a post- ponement of the trial,' where a material witness is only suffering / under a teinpovanj indisposition? Such appears to be the only construction that can fairly be put upon the Act; and, conse- quently, the court has admitted the deposition of a woman who, when the trial took place had just been confined,' though it was urged with much force that in a very few weeks the woman would almost certainly be able to testify viva voce in court.^ What ' When a witness is able to travel without risk, her ohl age and nervousness and inability to stand a cross-examination will not justify the reading of her deposition. R. v. Farrell, 43 L. J., M. C. 94: 12 Cox, 605; & 2 Law Rep., C. C. 116, S. C: R. r. Thompson, 13 Cox, 181, per Lush, J. 2 Ante, ^ 476. In R. r. Cockburn, Dear. & Bell, 203; 7 Cox. 265, S. C, the deposition of a witness was received, on his doctor proving, that, though he might have been brought to the court without danger to life, he was suffering from paralysis, which disabled him altogether from giving evidence. See, also, R. r. Wilson, 8 Cox, 453. ^ Ante, ? 477. * So, in R. V. Stephen.son, 31 L. J., M. C. 147; L. & Cave, 165; and 9 Cox, 156, S. C, the court admitted the deposition of a woman, who was dailv- expecting her confinement, and was "otherwise poorly." See. too, R. v. Croucher, 3 Fost. & Fin. 285; R. ?'. Wilson, 12 Cox, 622; R. v. Heesom, ll Cox, 40. per Lush, J. ; and R. r. Goodfellow, 14 Cox, 326, per Bowen, J. ; R. v. Wcllings, L. R., 3 Q. B. D. 428; 14 Cox, 105; and 47 L. J., M. C. 100, S. C. In these last three cases the woman was daily expecting her confinement. * R. V. Harvey, 4 Cox, 441. But see R. ?\ Omant, 6 Cox, 466, perCrompton. J.; R. V. Wilton, 1 Fost. & Fin. 309, per Willes, J.; R. t'. Walker, id. 534, pei id. ,-R. V. Tail, 2 Fost. & Fin. 553, per Crompton, J., from which cases it appears that the judge, notwithstanding the Act, has a discretionary power of postponing the trial, in.stead of allowing the deposition to be read. 7 LAW OF EVin,— v. II. (3303) 43G DEPOSITIONS TAKEN BY JUSTICES, HOW PROVED. [PART II. renders this state of the law the more remarkable is, that if, instead of the Avomao's deposition having been offered in evidence in a criminal case, her examination before a commissioner had been tendered in a civil suit — at least before the Rules of the Supreme Court came into operation,' — it could not have been received; for, as previously shown,^ an examination taken at common law could not have been read in evidence on the ground of the sickness or other infirmity of the witness, unless it were proved that such sickness or inlirmity was of a permanent character. § 482 Again, what amount of proof will authorise the reading I 450 of the deposition ? Will it suffice simply to show that the witness is dead, or too ill to travel ; that he was examined in the presence of the accused, who had a full opportunity of cross-examining him; and that the document purports to be signed, either by the committing justice, or, at least, by the justice "by or before whom the same purports to have taken place ?" ^ or must the prosecutor further prove all or any of the following facts, viz, that the depo- sition was taken before the accused was committed or bailed; that it was taken on oath or affirmation; that it was read over to the witness, and that it was signed by him? The clause enumerates all these circumstances as apparently necessary ingredients in a valid deposition; and then, in the paragraph relative to the proof, speaks, first, of "the person, whose deposition shall have been taken as aforesaid,^'' being dead, &c., and next, of '^^ such ^ depo- sition " purporting to be signed by the justice. If it be contended that the court will infer from the magistrate's signature that the statutory provisions have all been complied with, the form of the caption of the deposition, as given in the schedule to the Act,^ furnishes a probable answer to such an argument: for by that 1 See post, ? TilG. - Ante, U 472, 477. ^ In R. V. Vidil, 9 Cox, 4, Blackburn, J., held that the deposition of a sick witness was admissible, though it had been taken before two magistrates who acted only on that occasion, and though the prisoner had been charged before and committed l)y another magistrate. Sed qu. * As to the meaning of the word " such," see per Ld. Brougham in Case- ment V. Fulton, 5 Moo. P. C. R. 140. ^ Ante, § 479, n. '\ (3304) CHAP, v.] DEPOSITIONS TAKEN BY JUSTICES, HOW DISPROVED. 437 form the justice merely states that the witness was examined on oath, and in the presence of the accused, and it is wholly silent as to whether or not the examination was read over to the witness, or was signed by him. Now, as the magistrates's signature is clearly insufficient to prove that the accused was present during the examination of the witness, though that fact is positively stated in the caption so attested, on what ground can it be urged that the same signature is sufficient to prove the taking of the oath, which is a fact stated in the caption in a precisely similar manner? At all events, how can the facts that the deposition was read over to the witness, and that it was afterwards signed by him, be proved by the magistrate's signature, when neither of these circumstances is so much as alluded to in any part of the document? In short, if the signature of the magistrate does not authenticate the facts which are recited in the caption, how can it authenticate facts which are not there recited at all ? § 4S3. A further difficulty arises on determining what amoiint ^ 451 of proof on the part of the prisoner will render a deposition inadmissible? If he can show that the signature, purporting to be that of the justice, is a forgery, of course the deposition cannot be received. But how will the case stand, if, being unaVile to prove that fact, he can still show that the deposition was not taken upon oath, or that it was not read over to the witness, or that the signature purporting to be that of the witness was not made by him, or that the witness had refused or omitted to sign the state- ment? Will he be allowed to adduce such evidence, and will such evidence, if adduced, avail him ? These are, all of them, points which cannot fail to raise serious difficulties in interpreting the Act, and which might easily have been avoided had the drafts- man possessed ordinary knowledge of the subject, or exercised ordinary care. § 484. Passing now from these speculative questions, it will ^ 452 be convenient to consider briefly the proper course of taking depositions under the Act. And here it seems clearly to have been intended by the Legislature, that the accused should be charged, in the first instance, with some indictable offence; that (3305) 438 MODE OF TAKING DEPOSITIONS BY JUSTICES. [PAKT ir. the statement of each witness should then be made nnder the sanction of an oath or affirmation, administered by the magistrate before whom the charge is preferred; ' that such oath or affirma- tion should be administered in the presence of the accused; that the statement should be made entirely in his presences'^ and that he should have full opportunity for cross-examination; that the whole of the statement elicited either by examination or by cross- examination, and not merely so much of the evidence as the justice might consider material,^ should be reduced to writing in the first person, and in the very words of the witness,* that the deposition, when completed, should be read over to the witness, and be signed by him, as a token of his assenting to its correct- ness;^ that the whole body of the depositions, if not each depo- sition,*^ should also be signed by the justice, and that they should be transmitted by him, — together with the written information, the statement of the accused, and the recognizance of bail, if any such documents should exist, — to the proper officer of the court in which the trial is to be- had, before or at the opening of such court.' § 485. In directing the magistrate to take down the statements I 453 of the witnesses as nearly as possible in their own words, and not merely " so much thereof as shall be material," the Legislature, of course, did not intend that the depositions should be loaded with every idle word let fall by the persons under examination, though obviously having no reference to the charge against the accused, but it certainly meant to fetter the discretion of the justices, who, under the old law, were apt to reject as immaterial much valuable information. Regarded in this light, the change is salutary; for not only does it frequently happen, that facts, • See R. V. Vidil, 9 Cox, 4, cited ante, § 4P2, n. '' ^ The same doctrine prevailed at common law. See R. v. Errington, 2 Lew. C. C. 142; R. V. Woodcock, 1 Lea. 502; R. v. Dingier, 2 Lea. 561; R. v. Paine, 1 Salk. 281; 5 Mod. 163, S. C, cited with approbation by Ld. Kenyon in R. V. Eriswell, 3 T. R. 723. ' This was the old law: see 7 G. 4, c. 64, ?? 2 Sc 3. * See Sch. 3f. cited ante, | 479, n. l 5 SeeR. V. Plumnier, 1 C. & Kir. 604; R. r. Fleniniing, 2 Lea, 854. « See § 487, post. ' See H 17 & 20 of 11 & 12 V., c. 42. (3306) I CHAP, v.] DEPOSITIONS TAKEN BEFORE JUSTICES. 439 Avhich on a preliminary inquiry appear to be of trifling import- ance, turn out in the sequel to be extremely relevant but, where all the evidence is not given, the court, the prosecutor, and the prisoner, are alike kept in the dark, and much time may be wasted in endeavours to throw discredit upon the testimony of witnesses, by showing that they have made statements at the trial which are not to be found in the depositions returned.' If a person of weak intellect, or a child, be examined before the justice, it is also desirable that the questions and answers touching his capacity to take an oath, should appear on the face of the deposition.^ § 486. Whether a deposition originally written down in the § 454 absence of the prisoner could be received in evidence under the Act, on proof being given that it had afterwards been read over in his presence to the witness, who had then assented on oath to its contents, is a very problematical question ; for although depo- sitions, thus laxly taken, have more than once been admitted under the old law,^ this course of proceeding has frequently been condemned by the judges as highly unjust;* and, indeed, it is obvious that it affords no fair opportunity to the accused of cross- examining the deponent. On one occasion, Mr. Baron Platfc rejected a deposition expressly upon this ground; and, at the same time, took occasion to remark, that a prisoner could not have " a full opportunity of cross-examining the witness," within the meaning of the statute, unless the deposition was taken down in his presence, and in the presence of the magistrate, and unless he was warned by the magistrate at the close of the examination that 1 R. V. Potter, 7 C. & P. 650, n. ; R. v. Thomas, id. 817; R. r. Grady, id. 650; R. V. Smith, 2 C. & Kir. 207; R. v. Weller, id. 223. 2 R. 17. Painter, 2 C. & Kir. 319, per Wilde, C. J. 3 R. V. Smith, R. & R. 339; 2 Starlc. R. 208; Holt, N. P. R. 614, S. C. ; R. V. Calvert, 2 Cox, 491; R. v. Walsh, Sid. 115. See R. v. Christopher, 4 Cox, 76; 2 C. &"Kir. 994; 1 Den. 536, S. C. * R. V. Johnson, 2 C. «& Kir. 394, per Piatt, B. ; R. v. Forbes, Holt, N. P. R. 599, u., per Chambre, J.; R. v. Kiddy, 4 D. & R. 734; R. v. Calvert, 2 Cox, 492, per Rolfe, B.;R. v. Walsh, 5 id. 115; R. v. Beeston, 24 L. J., M. C. 6, per Alderson, B. ; Pearce & D. 408, S. C. See, also, R. v. Crowther, 1 T. R. 125. (3307) 4iO CAPTION OF DEPOSITIONS— ^SIGNATURES. [PART II. be might put any questions he liked to the witness, with reference to the statement which had been made.' — It is also extremely doubtful whether a deposition can be read in a case, where the prisoner has abstained from|askiug any cpiestion in consequence of the witness beinar too ill to bear further examination." § 487. With respect to the mode of entitling the depositions, ? 455 one caption at the head of the whole body of depositions will suffice,^ if, indeed, it be necessary in strict law,* to have a caption at aU;^ and no objection can be sustained on the ground that the title does not state with sufficient precision the charge against the accused." Although each witness must sign his own deposition, it will be sufficient for the magistrate to attach his signature, once for all, at the end of the whole body of depositions, provided that all of them be written either on one sheet of paper,' or on different sheets connected with each other.^ Still, this course of proceed- ing should not be indiscriminately adopted; for, if the depositions be copied on separate sheets, and no proof be given of their having been pinned, or otherwise fastened together, at or before the time when the last was signed,^ those bearing no signature will be rejected.'" It seems, too, that the signature of the justice must appear on the face of the deposition to be that of the ma- gistrate " by, or befoi'e, whom the same purports to have been taken," and that no parol evidence will be received to supply any 1 E. V. Day, 6 Cox, 55. See R. v. Bates, 2 Fost. & Fin. 317; R. v. Watts, 3 New R. 177; 33 L. J., M. C. 63; L. & Cave, 339; 9 Cox, 395, S. C. 2 R. i:. Hyde, 3 Cox, 90. ^ R. V. Johnson, 2 C. & Kir. 355, per Alderson, B. * See, however, R. v. Newton, 1 Fost. & Fin. 641; and R. r. Galvin, 16 Ir. LawR., N. S. 452; 10 Cox, 198, S. C, in which last case the Irish Judges were almost equally divided upon the point. ■^ R. r. Langbridge. 1 Den. 448; 2 C. «& Kir. 975, S. C. « Id. ' R. V. Young, 3 C. & Kir. 106; R. v. Osborne, 8 C. & P. 113, per Coleridge, J., and Ld. Abinger. 8 R. ?•. Parker, 1 Law Rep., C. C. 225; 11 Cox, 478; 39 L. J., M. C. 60, S. C. ; overruling R. v. Richards, 4 Fost. & Fin. 860. See, also, R. v. Carrol, 11 Cox, 322, per Hannen, J. « See R. V. Lee, 4 Fost. & Fin. 65, per Pollock, C. B. ^° R. V. France, 2 M. & Rob. 207, per Alderson and Parke, Bs. (3308) CHAP, v.] DEPOSITIONS TAKEN BEFORE JUSTICES. 441 omission ou this bead.' The depositions, when admissible under the Act, may be read in evidence before the grand jury as well as at the actual trial." § 488. Although, as before stated,^ many points may arise § 45G respecting the proper mode of proving depositions under the statute, thus much appears to be quite clear, that it is no longer necessary, as formerly was the case, to verify the signature of the magistrate. This change, however, is productive of no real advantage; for as proof must certainly be adduced "that the deposition was taken in the presence of the accused, and that he, or his counsel or attorney, had a full opportunity of cross- examining the witness," it is obvious that either the justice or his clerk, or at least some person who was present during the whole inquiry,* must be forthcoming, in order to show that the forms of law have been duly complied with. When the deposition is sought to be read on the ground of the sickness of the witness, it must, of course, be proved that he is at the actual time of the trial too ill to travel; and the judges, very properly, seem in- clined to hold that this fact should be strictly established.^ Mere proof that the witness was confined to his bed some days before will not suffice;'^ and, as a general rule, it will be prudent,' though it is not absolutely necessary,^ to have the testimony of a medical man. § 489. It may here be convenient to repeat, — what was mentioned ? 4:7 before in another connexion,'' — that a deposition will be admissible 1 R. V. Miller, 5 Cox, 166, per Maule, J. 2 R. V. Clements, 2 Den. 251; 5 Cox, 191, S. C. 3 Ante, F^ 482, 483. * See li. V. Wilshaw, C. & Marsh. 145; R. v. Wilson, 12 Cox, 622. * See R. r. Harris, 4 Cox, 440; R. v. Ulner, id. 442; R. v. Riley, 3 C. & Kir. 116; see, also, R. v. Day, 6 Cox, 55. « R. V. Riley, 3 C. & Kir. 116; R. v. Williams, 4 Fost. & Fin. 515, per Pigott, B. ' R. V. Riley, 3 C. & Kir. 116; R. v. Welton, 9 Cox, 296, per Byles, J.; R. v. Williams, 4 Fost. & Fin. 515, per Pigott, B. * R. V. Stephenson, 31 L. J., M. C. 147; L. & Cave, 165; 9 Cox, 156, S. C; R. V. Croucher, 3 Fost. & Fin. 285, per Bramwell, B. 9 Afate, g 467. (3309) 442 DEPOSITIONS TAKEN ON BEHALF OF THE ACCUSED. [PART II. under this Act, though it was taken upon a charge technically different from that in respect of which the accused is afterwards indicted, provided that on the former inquiry a full opportunity of cross-examination has been afforded to him. For instance, the deposition of a deceased person, taken on a charge against the prisoner of having stabbed him, or done him some grievous bodily harm, can be read on a subsequent trial for his murder or manslaughter.' § 490. In addition to the regulations for taking depositions, which are to be found in § 17 of 11 & 12 V., c. 42,' an Act was passed in 18G7,'' which contains two enactments of some importance relative to this subject. The first* provides, in sub- ' R. V. Beeston, 24 L. J., M. C. o; Pearce & D. 405, S. C. ; K. v. Dilmore, 6 Cox, 52, per Wightman, J. ; R. v. Lee, 4 Fost. & Fin. 63, per Pollock, C. B. ; R. V. Williams, 12 Cox, 101. See R. v. Clarke, 2 Fost. & Fin. 2. '' Ante, I 479. =» 30 & 31 v., c. 35. ^ ? 3 enacts, that " in all cases where any person shall appear or be brought before any justice or justices of the peace, charged with any indictable ofi'ence, whether committed within this realm or upon the high seas or upon land beyond the seas, and whether such person appear voluntarily upon summons, or has 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 for trial or admit him to bail, shall, Immediately after obeying the directions of the eighteenth section of the Act eleventh and twelfth Victoria, chapter forty-two, demand and require of the accused person whether he desires to call any witness; and if the accused person shall, in answer to such demand, call or desire to call any witness or witnesses, such justice or justices shall, in the presence of such accused person, take the statement on oath or affirmation, both examination and ci'oss-examination, of those who shall be so called as witnesses by such accused person, and who shall know anything relating to the facts and circumstances of the case, or anything tending to prove the innocence of such accused person, and shall put the same into writing; and such depositions of such witnesses shall be read over to and signed respectively by the witnesses who shall have been so examined, and shall be signed also by the justice or justices taking the same, and transmitted in due course of law with the depositions; and such witnesses, not being witnesses merely to the character of the accused, as shall in the opinion of the ju.stice or justices give evidence in any way material to the case, or tending to prove the innocence of the accused person, shall be bound by recognisance to appear and give evidence at the .said trial; and afterwards, upon the trial of such accused person, all the laws now in force relating to the depositions of witnesses for the prosecution shall extend and be applic.ible to the depositions of witnesses hereby directed to be taken." (3310) CHAP, v.] DEPOSITIONS TAKEN TO PERPETUATE TESTIMONY. 443 stance, that every person, who is charged before a justice with an indictable offence, shall be asked whether he desires to call any witnesses; and, if he does so, the justice, in his ])resence, shall examine such witnesses on oath, and reduce their state- ments to writing. The depositions thiis taken shall then be read over to the witnesses and signed by them, and shall also be countersigned by the justice, and "transmitted in due course of law;" and, afterwards, upon the trial, all the laws relating to the depositions of witnesses for the prosecution shall apply to these depositions. § 491. The other enactment' is intended to provide means for ^ '^^^^ perpetuating the testimony of witnesses, who, being dangerously ill and unable to travel, can yet give material information relating to some indictable ofience, or to some person accused of such crime. It is Yery inartistically drawn, and the lawyer would be more remarkable for courage than for wisdom who would venture to put a legal interpretation on its ambiguous phraseology. Let it speak for itself as follows: — "Whereas, by § 17 of 11 & 12 V., c. 42, it is permitted under certain circumstances 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 be unable to travel; and whereas, it may happen that a person dangerously 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 or deposition of the person so being ill, so as to make the same available as evidence in the event of his or her death before the trial of the accused I 4 also enacts, that "all the provisions of the said Act eleventh and twelfth Victoria, chapter forty-two, relating to the summoning and enforcing the attendance and committal of witnesses, and binding them by recognisance and committal in default, and for giving the accused person copies of the examinations, and giving jurisdiction to certain persons to act alone, shall be read and shall have operation as part of this Act." » 30 & 31 v., c. 35, I 6. (3311) 444 DEPOSITIONS TAKEN TO PERPETUATE TESTIMONY. [PART 11. y>erson, 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 practitioner 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 ofPence, and it shall not be practicable for any justice or justices 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 writing the statement on oath or affirmation of such person so being ill, and such justice shall thereupon sub- scribe the same, and shall add thereto by way of caption a state- ment 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 committed or bailed, and in all other cases he shall transmit the same to the clerk of the peace of the county, division, city or borough in which he shall have taken the same, who is hereby required to preserve 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 pi'oved to be dead, or if it shall be proved that there is no reasonable probability that such person will ever be able to travel or to give evidence, it shall be lawful to read such statement in evidence, either for or against the accused, without further proof thereof, if the same purports to be signed by the justice by or before whom it purports to be taken, and provided it be proved to the satisfaction of the court that rea- sonable notice of the intention to take such statement has been served vipon the person (whether prosecutor or accvased) against whom it is proposed to be read in evidence, and that such person, or his counsel or attorney, had or might have had, if he had chosen (3312) CHAP, v.] DEPOSITIONS TAKEN BEFORE CORONERS. 445 to be present, full opportunity of cross-examining the deceased person who made the same." ' § 492. The depositions of witnesses, who are examined before § 458 the coroner^ are rendered admissible as secondary proof, by virtue of the Act of 7 G. 4, c. G4, which in § 4 enacts, " That every coroner, upon any inquisition before him taken, whereby any person shall be indicted for manslaughter or murder, or as an accessory to murder before the fact, shall put in writing the evidence given to the jury before him, or as much thereof as shall be material, and shall have authority to bind by recognizance all such persons as know or declare anything material touching the said manslaughter or murder, or the said offence of being acces- sory to murder, to appear at the next court of oyer and terminer, or gaol delivery, or superior criminal court of a county palatine or great sessions, at which the trial is to be, then and there to pro- secute or give evidence against the party charged; and every such coroner shall certify and subscribe the same evidence, and all such recognizances, and also the inquisition before him taken, and shall deliver the same to the proper of&cer of the court in which the trial is to be, before or at the opening of the court." ^ § 493. It may be doubtful whether these provisions have not § 459 been repealed by § 34 of 11 & 12 V., c. 42;'^ but assuming that they are still in force, it will be seen that they differ materially from those which regulate the mode of taking depositions before justices, and of proving them when taken. In the first place, the ^ I 7 enacts, that " wlienever a prisoner in actual custody shall have served, or shall have received, notice of an intention to take such statement as here- inbefore mentioned, the Judj^e or justice of the peace by Avhom the prisoner was committed, or the visiting justices of the prison in which he is confined, may, by an order in writing, direct the gaoler having the custody of the prisoner to convey 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." * See 9 G. 4, c. 54, | 4, which contains similar provisions for Ireland. 3 See K. V. Cleary, 2 Fost. & Fin. 850, 852. (3313) 446 DEPOSITIONS TAKEN BEFORE CORONERS, [PART 11. coroner is only required to put in writing " so much of the evidence as shall be material; " secondly, the narrative maybe drawn up in the third person; thirdly, the witness is not required to sign the document, though he usually does so for the purpose of identi- fying it; ' fourthly, the deposition mast, it would seem, be proved, either by calling the coroner who subscribed it, or by proving his signature thereto, and showing by his clerk, or by some person who was present ct the inquiry, that the forms of law have been duly complied with.^ § 494. Another striking distinction is said to exist between de- ^ 460 positions returned by justices and those taken by coroners. The former, to be admissible as secondary evidence against the prisoner, must have been taken in his presence, but it is alleged that the latter will be received, though taken in his absence. This doctrine appears to rest on two or three decisions of the date of Charles II.,* which are capable of a far more limited interpretation, and are, moreover, entitled to little consideration, as having been pronounced at a time when the rules of evidence were only partially under- stood; — on dicta thrown out by Ld. Kenyon and Mr. Justice Buller in E. v. Eriswell; * — on a note of a case said to have been decided by Mr. Baron Hotham,^ — and on a ruling by Mr. Jvistice Coleridge,** the soundness of which it would be difficult to estab- lish. The opposite doctrine is not only ably supported by Messrs. Starkie,^ Phillipps,^ and Russell,^ but it has of late years been acted on by Mr. Justice Montague Smith, '° and it appears to be so consistent with sound principle as to insure its recognition, should the qu.estion be solemnly discussed in modern times." § 495. Two other statutes, which regulate the admissibility of § 461 ' See R. V. Flemming, 2 Lea. 854. ^ See R. r. Wilshaw, C. & Marsh. 145. * Ld. Morley's ease, Kel. 55; 6 How. St. Tr. 776, S. C. ; Bromwieh's case, 1 Lev. 180; Thatcher t\ Waller, T. Jones, 5:?; R. v. Harrison, 12 How. St. Tr. 852. * 3 T. R. 713, 722. ^ R. v. Purefoy, Pea. Ev. 61, n. 5th ed. 6 Sills V. Brown, 9 C. &. P. 601. ' 2 St. Ev. 384—386. 8 2 Ph. Ev. 74, 75. » 2 Russ. C. & M. 892, 898. '" R. V. Rigg, 4 Fost. & Fin. 1085. " See R. v. Wall, 2 Russ. C. & M. 893, n. e. (3314) CHAP, v.] DEPOSITIONS IN BANKRUPTCY, 447 certain depositions, are the Bankruptcy Act, 1883,' and the Irish Bankrupt and Insolvent Act. 1857.'' The one enacts, in § 130, that ' ' in case of the death of the debtor or his wife, or of a witness whose evidence has been received by any court in any proceedino- nnder this Act, the deposition of the person so deceased? purporting to be sealed with the seal of the court, or a copy thereof purporting to be so sealed, shall be admitted as evidence of the matters therein deposed to." The other enacts, in § 305, that, in the event of the death of any witness deposing to the petitioning creditor's debt, trading, or act of bankruptcy, under any bankruptcy heretofore or hereafter, or under any petition for arrangement, his deposition, purporting to be sealed with the seal of the Court of Bankruptcy, or a cojjy thereof purporting to be so sealed, shall in all cases be received as evidence of the matters therein respectively contained. § 496. The Irish Act of 50 G. 3, c. 102,— after the humiliating § 463 recital, that men, who have given informacion against persons accused of crimes in Ireland, have been murdered before the trial, in order to prevent their giving evidence, and to effect the acquittal of the accused, — enacts, in § 5, that if any person, after giving information or examination iipon oath against any person for any offence, shall, before the trial, be murdered or violently put to death, or so maimed, or forcibly carried away and secreted, as not to be able to give evidence on the trial, his information or examina- tion shall be admitted in all courts of justice in Ireland as evidence on the trif^l; provided (and this is a remarkable proviso, since it differs fi'om the ordinary rule of law on the subject '^), that the information or examination of a witness secreted shall not be evidence, unless it shall be found on a collateral issue, to be put to the jury trying the prisoner, that he was secreted by the person on trial, or by Fome person acting for him, or in his favour. By the subsequent stat. 56 G. 3, c. 87, § 3, Ir., informations, or ex- aminations, under similar circumstances, and after similar proof are rendered receivable in evidence before the grand jury. 46 & 47 v., c. 52. '^ 20 & 21 V., c. 60. Ir. 3 Aute, ? 23. (3315) 44S EXAMINATIONS TAKEN IN INDIA AS TO MISDEMEANOKS. [PAET II. § 499. The preceding observations have been confined to cases g 405 where the oral testimony has been given, either in some different suit from that in which the secondary evidence is tendered, or in a different stage of the same legal proceedings; but it now becomes necessary to advert to several Acts of Parliament, and Kules of Court, which have intrenched upon the common law rule, requiring the examination of witnesses to be viva voce in the presence of the jury, and which have, under certain circumstances, substituted for such examination the depositions of witnesses, who have been pre- viously examined in the cause. § 500. The first Act relative to this subject was passed in the § 4GG year 1773,' and by § 40 provides, that in all cases of indictments or informations laid or exhibited in what is now called the Queen's Bench Divisions of the High Court ior misdemeanors or offences com- mitted in India, it shall be lawful for the said court, upon motion to be made on behalf of the prosecutor" or defendant, to award a writ of mandamus, requiring the chief justice and judges ^ of the respec- tive High Courts of Judicature at Fort "William, or Madras, or Bombay,* to hold a court, with all convenient speed, for the exami- nation of witnesses, and receiving other proofs concerning the matters charged in such indictments or informations; and, in the meantime, to cause such public notice to be given of the holding of the said court, and to issue such summons or other process as may be reqiiisite for the attendance of the witnesses, agents, or counsel of the parties, and to adjourn from time to time as occasion may require; and such examination shall be publicly taken viva voce in the said court, upon the oaths of witnesses, and the oaths of skilful interpreters, administered according to the forms of their several 1 13 G. 3, c. 63. ^ If the Att.-Gen. move for the rule, his statement that it will be necessary is sufficient without any affidavit, R. v. Douglas, 2 DjwI. N. S. 416. » R. V. Douglas, 13 Q. B. 42. * The Act mentions the Supreme Court at Fort William or Calcutta, and the Mayor's Court at Madras and Bombay, but High Courts of Judicature have now been established at Fort William or Calcutta, at Madras, and at Bombay, and these courts have all the powers of the former courts, 24 & 25 v., c. 104, II 10 & 11. See Wilson v. Wilson, L. R., 9 P. D. 8, per Ct. of App. (3316) CHAP, v.] DEPOSITIONS TAKEN IN INDIA IN TROCEED. IN PARL. 449 religions; and shall, by some sworn officers of the court, be reduced into writing on parchment,' in case any duplicates shall be required on behalf of any of the parties interested, and shall be sent to the Queen's Bench Division closed np, and under the seals of two or more of the judges of the said court, and one or more of the said judges shall deliver the same to the agents of the parties requiring the same; which agents, or, in case of their death, the person into whose hands the same shall come, shall deliver the same to one of the clerks of the Queen's Bench Division, in the piiblic office, and make oath that he received the same from the judges in India, or if the agent be dead, in what manner the same came into his hands; and that the same has not been opened or altered since he received it (which oath the clerk in court is required to administer); "and such depositions, being duly taken and returned according to the true intent and meaning of this Act, shall be allowed and read, and shall be deemed as good and competent evidence, as if such witness had been present, and sworn and examined viva voce at any trial for such crimes or misdemeanors " in the Queen's Bench Division; " and all parties concerned shall be entitled to take copies of such depositions at their own costs and charges." § 501. § 42 enacts, that, in all proceedings in Parliament touch- § 467 ing any offences committed in India, the Lord Chancellor or Speaker of the House of Lords, and also the Speaker of the House of Com- mons, may issue their warrants to the Governor- General and Council, or to the chief justice and judges of the High Court of Judicature at Fort William, Madras, or Bombay," for the examina- tion of witnesses; and such examination shall be returned to the Lord Chancellor or Speakers respectively, and proceeded upon as if the directions contained in § 40 were again repeated; and the ex- amination, so returned, shall be deemed good evidence, and shall be allowed and read in the respective Houses. § 45 provides, that no depositions taken and returned by virtue of this Act shall be given in evidence, in any capital case, other than such as shall be proceeded against in Parliament. 1 R. V. Douglas, 13 Q. B. 42. ^ See ante, § 500, n. (3317) 450 DEPOSITIONS IN INDIA IN CRIMINAL CASES. [PABT 11. § 502. The Kuiue statute enacts in § 41, tbat, -wbonever any § 408 person shall commence any action,' for -wiiicb cause hath arisen in ' India,^ in any of the courts at "Westminster, such courts respectively' mav, upon motion there to be made,* award a writ in the natvu'e of a mandamus or commission to the chief justice and judges of the High Court of Judicature at Fort William, Madras, or Bombay,'' for the examination of witnesses; and such examination, being duly returned, shall be allowed and read, and be deemed good evidence, at any trial or hearing between the parties in such action, as if the directions prescribed in § 40 were again repeated. § 503. The provisions contained in § 40 of this statute were re- g 469 enacted in §§ 78 and 28 of the respective Acts of 24 G. 3, c. 25, and 26 G. 3, c. 57, which regulate the trial of British subjects, who, while employed in India under the Crown or the late East India Company, shall have been guihy of extortion or other mis- demeanors; and a clause substantially the same, though varying in some of the minute details, has been introduced into the Act of 42 G. 3, c. 85,"* which authorises the Queen's Bench Division, in Eno-land, to try any person employed in the public service abroad, who, in the exercise, or under colour, of such employment, shall have committed any offenca. By § 3 of this last-named statute, as also by § 81 of 24 G. 3, c. 25, the Queen's Bench t)ivibion, instead of directing the evidence to be taken viva voce, is empowered, on motion made by the Attorney General, prosecutor, or defendant, to order that an examination de bene esse of witnesses upon interro- gatories, in any case where the viva voce testimony of such witnesses ' The words of the Act are *' any action or suit in law or equity." ''■ See Francisco v. Gilmore, 1 B. & P. 177. ^ Savage v Binney, 2 DowL 643. * These words render it necessary for the application to be made to the court, the Judge at Chambers having no jurisdiction. Clarke v. E. India Co., 6 Dowl. & L. 278. The motion may be made, though issues in law are pending for argument, Kelsall v. Marsliall, 1 Com. B., N. S. 266. * See ante, I 500, n. \ •* I 2. See, as to mode ol proceeding under this sect., R. r. Jones, 8 East, 31, where the court held, that to entitle a defendant to have his trial put off till the return of the writ of mandamus, he must state, by affidavit, such special grounds as will lead the judges to believe that the witnesses sought to be examined are really material for the defence. (3318) CHAP, v.] DEPOSITIONS IN COLONIES IN CRIMINAL CASES. 45]. cannot conveniently be had, should be taken before an examiner appointed by the court; and the depositions so taken shall be read, and deemed sufficient evidence, upon the trial of the indictment or information, or in any subsequent proceedings relating thereto, saving all just exceptions to the same. The Legislature has, also, by the Act of G & 7 V., c. 98, § 4, extended the provisions con- tained in 13 G. 3, c. 63, § 40, to all indictments or informations laid or exhibited in the Queen's Bench Division, for misdemeanors or offences committed against the Acts passed for the suppression of the slave trade, in any places out of the United Kingdom, and within any British colony, settlement, plantation, or territory. § 504. By none of these statutes is the party, who seeks to use g 470 the depositions, directed to prove that the witnesses, at the time of the trial, are beyond the jurisdiction of the court. StiJl, upon general principle, some slight evidence of this nature would seem to be requisite; for although the language of the Acts, rendering the depositions evidence, is exceedingly strong, it may well be doubted whether an express enactment would not be necessary, in order to override the long- established rule of law, that when a wit- ness is living within the jurisdiction of the court, and the party who requires his evidence has the power of calling him, his deposi- tion cannot be read. This view of the subject is confirmed by the Rules of the Supreme Court, 1883, which expressly provide, — as will presently be seen,^ — that depositions taken under them shall, except under special circumstances, be deemed merely secondary proof. § 505. The Act of 1 W. 4, c. 22, further enacts, in § 1, that all § 471 the powers, authorities, provisions, and matters contained in the Act of 13 G. 4, c. 03, "relaling to the examination of witnesses in India, shall be, and the same are, hereby extended to all colonies, islands, plantations, and places under the dominion of His Majesty in foreign parts, and to the judges of the several courts therein, and to all actions' depending in the High Court of Justice, in what ' Post, § 516. "^ These words do not inchide an action at the suit of the Crown, E. v. Wood, 7 M. & W. 573, per Parke, B. 8 LAW OF EVID. — V. II. (3319) 452 RULES OF SUP, CT. RKSPECTING DEPOSITIONS. [PART, II, place or country soever the cause of action may have arisen, and whether the same may have arisen within the jurisdiction of the court, to the judges whereof the writ or commission may be directed, or elsewhere, when it shall appear that the examination of witnesses, under a writ or commission issued in pursuance of the authority hereby given, will be necessary or conducive to the due administration of justice in the matter wherein such writ shall be applied for." The stat. 3 & 4 V., c. 105, contains a similar enact- ment in § C)G, with respect to the High Court of Justice in Ireland. § 506. Although the enactments just cited have not been formally repealed, they have, so far at least as relates to civil pro- ceedings m the High Court, been to a great extent virtually super- seded by the Rules of the Supreme Court, 1883; for in all such proceedings, the law respecting depositions, and commissions to examine witnesses, is now attempted to be codified by Order XXXVII. of those rules' It will, therefore, be convenient for the purpose of facilitating reference, to place before the reader in a collective form the several Kules and Forms which relate to that subject, though many of them will be again referred to in other parts of this work. The Code runs thus: — "Order XXXVII. II. Examination of Witnesses.'' " R. 5. The Court or a Judge may, in any cause or matter where it shall appear necessary for the purposes of justice,'^ make any order^ for ' As to the law in Ireland, see 3 & 4 V., c. 105, Ir. As to when proof may be taken by commission under the law of Scotland, see 29 & 30 V., c. 112. '' Bidder r. Bridges, 53 L J , Ch. 479; L R. 26 Ch. D. 1, S. C. There held 1st, that Court may make an order ex parte, but at peril of applicant; 2d, that the fact of a witness being 70 years old is prima facie good ground for ordering his examination de bene esse; but 3d, that this rule will not apply to a large number of witnesses, except under very special circumstances. " » No. 35. A PP. K. "Order for Examixatiox of Witnesses before Trial." [Heading as in Form 1.] "Upon hearing and upon reading the affidavit of filed the day of 18 , and It is ordered that a witness on behalf of the be ex- amined vird voce (on oath or affirmation) before the Master [or before esquire, special examiner], the .solicitor or agent giving to the solicitor or agent notice in writing of the time and place where the examination is to take place. And it is further ordered that the examination so taken be filed in the Central Office of the Supreme Court of Judicature, and that an office copy or copies thereof may be read and given in evidence on the trial of this cause, (3320) CHAP, v.] ORDERS FOR COMMISS. TO EXAMINE WITNESSES. 453 the examination upon oath before the Court or Judge or any officer of the Court, or any other person and at any place, of any witness or person,' and may empower any party to any such cause or matter to give such deposition in evidence therein on such terms,' if any, as the Court or a Judge may direct. 6. An order for a commission^ to examine witnesses shall be in the Form No. 36,* in Appendix K., and the writ of commission saving all just exceptions, without any further proof of the absence of the said witness than the affidavit of the solicitor or agent of the as to his belief, and that the costs of this application be Dated the day of 18 ." ' See also R. 1 of same Order, cited post, ^ 1395, ■•' See R. 18, post, p. 460. •^ If in any case the court or a judge shall so order, there shall be issued a request to examine witnesses in lieu of a commission. Rules of Sup. Ct., Oct., 1884, R. 6, which may also be cited as Rules of Sup. Ct,, 1883, Ord. XXXVII. R. 6a. The Forms 1 & 2 in the App. to the above New Rules, contain the forms of such order and request. ' ' * No. 36. App. K. "Short Order for Issue of Commission to Examine Witnesses." \_Headinfj as in Form 1.] "Upoii hearing and upon reading the affidavit of tiled the day of 18 , and It is ordered that the be at liberty to issue a commission for the examination of witnesses on behalf at And it is further ordered that the trial of this action be stayed until the return of the said commission, the usual k)ng order to be drawn up, and iinless agreed upon by the parties within one week, to be settled by the Master \_or as the case may he'], and that the costs of this application be Dated the day of 18 ." No. 37. App. K. " Long Order for Commission to Examine Witnesses." [Heading as in Form 1.] "Upon hearing and upon reading the affidavit of filed the day of 18 , and It is ordered as follows : 1. A commission maj' issue direct to of and of commissioners named by and on behalf of the and to of and commissioners named by and on behalf of the for the examination upon interrogatories and viva voce of witnesses on behalf of the said and respectively at aforesaid ])efore the said commissioners, or any two of them, so that one commissioner only on each side be present and act at the examination. 2. Both the said and shall be at liberty to examine upon interrogatories and viva voce upon the subject matter thereof or arising out of the answers thereto such witnesses as may be produced on their be- half, with liberty to the other party to cross-examine the said witnesses upon cross interi'ogatories and viva voce, the party producing the witness for examination being at liberty to re-examine him vird voce; and all such additional vied voce questions, whether on examination, cross-examination, or (3321) 454- OllDKR FOR COMMISS. TO EXAMINK AVITXESSES. [pART II. re-examination, shall bo reduced into writinss or witnesses, and Ills and their answers thereto. 9. The (le])osilions to 1)0 taken under and by virtue ui' the said commission shall b(^ sid>scribed l)y the witness or witnesses, and ))y the commissioners or commissioner who shall have taken such depositions. 10. The interrogatories, cross-interrogatories, and depositions, together with any docunu'nts relcrred to therein, or eertified copie.i thereof or extracts therefrom, shall be sent to the Senior Master of the >Supreme Court of Judi- cature on or before the day of , or such further or other day as may be ordered, enclosed in a cover under the seal or seals of the said commissioners or commissioner, and office cojnca thereof may be given (3322) CHAP, v.] COMMISSION TO EXAMINE "WITNESSES. 455 shall be in the Form No. 13 " in Appendix J., with such variations as circumstances may require. in evidence on the trial of this action by and on behalf of the said and respectively, saving all just exceptions, \vithout any other proof of the absence from this country of the witness or witnesses therein named, than an affidavit of the solicitor or agent of the said or respectively, as to his belief of the 11. The trial of tliis cause is to be stayed until the return of the said commission. 12. The costs of this order, and of the commission to be issued in pursuance hereof, and of the interrogatories, cross-interrogatories, and depositions to be taken thereunder, together with any such document, copy, or extract as afore- said, and official copies thereof, and all other costs incidental thereto, shall be Dated the day of 18 ." * No. 13. App. J. " CojiMissioN TO Examine "Witxesses." [Fleaduig as in Form 1.] " Victoria, by the Grace of God, &c., to of and of Commissioners named by and on behalf of the and to of and of Commissioners named by and on behalf of the greeting: Know ye that we, in contidence of your prudence and fidelity, have appointed you and by these presents give you power and authority to examine on interrogatories and viva voce as hereinafter mentioned witnesses on behalf of the said and respectively at before you or any two of you, so that one Commis- sioner only on each side be present and act at the examination. — And we command you as follows : 1. Both the said and the said shall be at liberty to examine on interrogatories and viva voce on the subject matter thereof or arising out of the answers thereto such witnesses as shall be produced on their behalf with liberty to the other party to cross-examine the said witnesses on cross-interrogatories and vivd voce, the party producing any witness for examination being at liberty to re-examine him vivd voce ; and all such additional vivd voce questions, whether on examination, cross-examination or re-examination, shall be reduced into writing, and with the answers thereto shall be returned with the said Commission. 2. Not less than daj's before the examination of any witness on behalf of eitlier of the said parties, notice in writing, signed by any one of you, the Commissioners of the party on whose behalf the witness is to be examined, and stating the time and place of the intended examination and the names of the witnesses to be examined, .shall be given to the Commissioners of the other party by delivering the notice to them, or by leaving it at their usual place of abode or business, and if the Commissioners or Commissioner of that party neglect to attend pursuant to the notice, then one of you, the Commissioners of the party on whose behalf the notice is given, shall be at liberty to proceed with and take the examination of the witness or witnesses ex parte and adjourn any meeting or meetings, or continue the same from day to day (3323) 456 COMMISSION TO EXAMINE WITNESSES [PART 11, 7. Tho Court or a Judge may in any cause or matter at any stage of the {)roceediugs order the attendance of any person for the until all the witnesses intended to be examined by virtue of the notice have been examined, -without giving any furtlier Or other notice of the subsequent meeting or meetings. 3. In the event ot any witness on his examination, cross-examination, or re-examination i>roducing any book, document, letter, paper, or writing, and refusing tor good cause to be stated in his depositions to jiart with the original thereof, then a copy there.jf, or extract therefrom, certified by the Commis- sioners or Commissioner present and acting, to be a true and correct copy or extract, shall be annexed to the witnesses' deposition. 4. Each witness to be examined under this Commission shall be examined on oath, affirmation, or otherwise in accordance with his religion, by or before the Commissioners or Commissioner present at the examination. 5. If any one or more of the Avitnesses do not understand the English language (the interrogatories, cross-interrogatories, and viva voce questions, if any, being previously translated into the language with which he or they is or are conversant), then the examination shall be taken in English through the medium of an interpreter or interpreters to be nominated by the Commis- sioners or Commissioner present at the examination, and to be previously sworn according to his or to their several religions by or before the said Commissioners or Commissioner truly to interpret the questions to be put to the witness and his answers thereto. 6. The deijositions to be taken under this Commission shall be subscribed by the witness or witnesses, and by the Commissioners or Commissioner who shall have taken the depositions. 7. The interrogatories, cross-interrogatories, and depositions, together with any documents referred to therein, or certified copies thereof or extracts therefrom, shall be sent to the Senior Master of the Supreme Court of Judi- cature on or before the day of enclosed in a cover under the seals or seal of the Commissioners or Commissioner. 8. Before you or any of you, in any manner act in the execution hereof, you shall severally take the oath hereon indorsed, on the Holy Evangelist, or otherwise in such other manner as is sanctioned by the form of your several religions, and is considered by you respectively to be binding on your respec- tive consciences. In the absence of any other Commissioner, a Commissioner may himself take the oath. And we give you or any one of you authority to administer such oath to the other or others of you. Witness, &c. This writ was issued by, &c. Witnesses' Oath. You are true answer to make to all such questions as shall be asked you, without favour or affection to either party, and therein you shall speak the truth, the whole truth, and nothing but the truth. So help j'ou God. Commissioner's Oath. You [or I] shall, according to the best of your [or my] skill and know- (3324) CHAP, v.] COM.AIISSION TO EXAxMINE WITNESSES. 457 purpose of producing any tvritings or other documents named in the order which the Court or Judge may think fit to be pi'oduced: ledge, truly and faithfully, and without partiality to any or either of the parties in this cause, take the examinations and depositions of all and every witness and witnesses produced and examined by virtue of the Commission within written. So help you [or me] God. Jxtekpreter's Oath. You shall truly and faithfully, and without partiality to any or either of the parties in this cause, and to the best of your ability, interpret and trans- late the oath or oaths, affirmation or affirmations which shall be admini.stered to, and all and every the questions which shall be exhibited or put to, all and every witness and witnesses produced before and examined by the Com- missioners named in the Commission within written, as lar forth as you are directed and employed by the said Commissioners to interpret and translate the same out of the English into the language of such witne.ss or witnesses, and also in like manner to interpret and translate the respective depositions taken and made to such questions out of the language of such witness or witnesses into the Engli-sh language. So help you God. Clerk's Oath. You shall truly, faithfully, and without partiality to any or either of the parties in this cause, take, writedown, transcribe, and engross all and every the questions which shall be exhibited or put to all and every witness and witnesses, and also the depositions of all and every such witness and witnesses produced before and examined by the said Commissioners named in the Commission within written, as far forth as you are directed and employed by the Commissioners to take, write d )Avn, transcribe or engross the said ques- tions and depositions. So help you God. Direction of Interrogatories, &c., when returned by the Commissioners. The Senior Master of the Supreme Court of Judicature, Royal Courts of Justice, London." No 14. App. J. " Commission to Examine Witnesses." 18 . {here put the letter and monberl. ' ' In the High Court of .Justice, Probate Divorce and Admiralty Division. Between A.B, Plaintiff and the owners of the Victoria, by the Grace of God, &c., to [state name and address of examiner or commissioner appointed^, greeting. Whereas in an action of com- menced in Our said High Court of Justice on behalf of against , [and against intervening], the Judge has ordered a com- mission to be issued for the examination of witnesses concerning the truth of the matters at issue in the said cause. We therefore hereby authorize you, upon the day of 18 at , in the presence of (3325) 458 WITNESSES EXAMINED UNDPm COMMISSION. [PART II. Provided that no person shall be compelled to produce under any such order any writing or other document which he could not be compelled to produce at the hearing or trial. 8. Any person wilfully disobeying any order requiring his attendance for the purpose of being examined or producing any document shall be deemed guilty of contempt of Court, and may be dealt with accordingly. 9. Any person required to attend for the purpose of being examined or of producing any document, shall be entitled to the like conduct money and payment for expenses and loss of time as upon attendance at a trial in Court. 10. Where any witness or person is ordered to be examined before any officer of the Court, or before any person appointed for the purpose, the person taking the examination shall be furnished by the party on whose application the order was made with a copy of the writ and pleadings, if any, or with a copy of the documents necessary to inform the person taking the examination of the ques- tions at issue between the parties. 11. The examination shall take place in the presence of the parties, their counsel, solicitors, or agents,' and the witnesses shall be subject to cross-examination and re-examination. 12. The depositions taken before an officer of the Court, or before any other person appointed to take the examination, shall be taken down in writing by or in the presence of the examiner, not the solicitors in the said action, or in the presence of their or either of their lawfully appointed substitutes, or otherwise notwithstanding the absence of either of them, to swear the witnesses who shall be produced before you for examination in the said cause, and cause them to be examined, and their de- positions to be reduced into writing. "We further authorize you to adjourn (if necessary) the said examinations from time to time and from place to place, as you may find expedient. And We command you, upon the examinations being completed, to transmit the depositions and the whole proceedings had and done before you, together with this commission, to the Registry of the said Division of our said Court. Witness, &c. E.F., Registrar. Commission to examine Witnesses. Taken out by ." 1 How if they do not think fit to attend ? See R. 12. (3326) CHAP, v.] WITNESSES EXAMINED UNDER COMMISSION. 459 ordinarily by question and answer, but so as to represent as nearly as may be the statement of the witness, and when completed shall be read over to the witness and signed by him in the presence of the parties, or suck of them as maij think Jit to attend. If the witness shall refuse to sign the depositions, the examiner shall sign the same. The examiner may put down any particular question or answer if there should appear any special reason for doing so, and may put any question to the witness as to the meaning of any answer, or as to any matter arising in the course of the examination. Any questions which may be objected to shall be taken down by the examiner in the depositions, and he shall state his opinion thereon to the counsel, solicitors, or parties, and shall refer to such statement in the depositions, but he shall not have power to decide upon the materiality or relevancy of any question. 13. If any person duly summoned by subpoena to attend for examination shall refuse to attend, or if, having attended, he shall refuse to be sworn or to answer any lawful question, a certificate of such refusal, signed by the examiner, shall be filed at the Central Office, and thereupon the party requiring the attendance of the witness may apply to the Court or a Judge ex parte or on notice fer an order directing the witness to attend, or to be sworn, or to answer any question, as the case may be. 14. If any witness shall object to any question which may be put to him before an examiner, the question so put, and the objection of the witness thereto, shall be taken down by the examiner, and transmitted by him to the Central Office to be there filed, and the validity of the objection shall be decided by the Court or a Judge. 15. In any case under the two last preceding Rules, the Court or a Judge shall have power to order the witness to pay any costs occasioned by his refusal or objection. 16. When the examination of any witness before any examiner shall have been concluded, the original depositions, authenticated by the signature of the examiner, shall be transmitted by him to the Central Office, and there filed. 17. The person taking the examination of a witness under these Rules may, and if need be shall, make a special report to the Court touching such examination and the conduct or absence of any (3327) 4G0 WITNESSES EXAMINED UNDER COMMISSION. [l-ART 11. witness or other person thereon, and the Court or a Judge may direct such proceedings and make such order as upon the report they or he may think just. 18. Except where by this Order otherwise provided, or directed by the Court or a Jiidge,' no deposition shall be given in evidence at the hearing or trial of the cause or matter ivithout ihe consent of the party against whom the same may be offered, unless the Court or Judge is satisfied that the deponent is dead, or beyond the juris- diction of the Court, or unable from sickness or other infirmity 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 signatiire to such certificate. 10. Any officer of the Court, or other person directed, to take the examination of any witness or person, may administer oaths. 20. Any party in any cause or matter may by subpoena ad testi- ficandum or duces tecum require the attendance of any witness before an officer of the Court, or other person appointed to take the examination, for the purpose of using his evidence upon any pro- ceeding in the cause or matter in the like manner as such witness would be bound to attend and be examined at the hearing or trial; and any party or witness, having made an affidavit to be used or which shall be used on any proceeding in the cause or matter, shall be bound on being served with such subpoena to attend before such officer or person for cross-examination.' 21. Evidence taken subsequently to the hearing or trial of any cause or matter, shall be taken as nearly as may be in the same manner as evidence taken at or with a view to a trial. . 22. The practice with reference to the examination, cross- examination, and re-examination of witnesses at a trial, shall extend and be applicable to evidence taken in any cause or matter at any stage. ^ 23. The practice of the Court with respect to evidence at a trial, ' See R. 5, ante. ^ A witness is not bound to attend an examiner, unless he has been duly- served with a subpoena. Stuart v. Balkis Co., 53 L. J., Ch. 791, per Chitty, J. ' It seems that the examiner may order any witness to be examined apart from the others, even though he be the agent or solicitor of one of the parties. In re West of Canada Oil Lands & Works Co. 46 L. J., Cli. 683, per Jessel, M. R. « (3328) CHAP, v.] EXAMINERS OF SUPREME COURT. 461 when applied to evidence to be taken before an officer of the Court or other person in any cause or matter after the hearing or trial, shall be subject to any special directions which may be given in any case. 24 No affidavit or deposition filed or made before issue joined in any cause or matter shall, w^itho'ut special leave of the Court or a Judge, be received at the hearing or trial thereof, unless within one month after issue joined, or within such longer time as may be allowed by special leave of the Court or a Judge, notice in writing shall have been given by the party intending to use the same to the opposite party of his intention in that behalf. 25. All evidence taken at the hearing or trial of any cause or matter may be used in any subsequent proceedings in the same cause or matter." § 507. It cannot fail to be noticed by any one who reads atten- tively the Rules just cited, that those numbered 5 and 7 are expressed in terms exceedingly wide: and as the powers conferred by them are capable of being applied in furtherance of oppressive and inquisitorial proceedings, it is incumbent on the judges to exercise extreme caution before making any order of an unusual character under either Rule, unless such order be obviously neces- sary for the purposes of justice.' In a recent case," where a defendant attempted to obtain, under rule 7, an order on a stranger to produce for inspection some documents, which were his property, and in which the applicant had no interest, the application was rightly regarded as vexatious, and was promptly refused. § 507a. The " officers of the Court " mentioned in rule 5 are barristers of at least three years' standing,^ appointed by the Lord Chancellor for five years, and removable by him.* They are called "Examiners of the Supreme Court;" they must take all the examinations ordered in the Chancery Division, unless the Court or a Judge otherwise directs^ ; and they may take the examinations in 1 Central News Co. v. East. News Tel. Co., 53 L. ,T., Q. B. 236, per Ct. of App. '^ Id. 3 Rules of Sup. Ct., made 4 Feb., 1884, Ord. XXXVII., R. 40. * Id. R. 40. » Id. R. 39. (3329) 4G2 EXAMINATIONS UNDER NEW RULES. [fART II. any cause or matter clepeuding either in the Queen's Bench Division, or in the Probate, Divorce, and Admiralty Division, if the Court or a Judge so directs.' The examinations, unless the Court or a Judge entrusts the inquiry to one particular examiner,^ are distributed by the principal clerk to the registrars of the Chancery Division among the whole body, " according to regular and just rotation, and in such manner as to keep secret from all persons the rota or succession.'^ " They are to give appointments in writing, specifying the place and time, not more than seven days in advance, ''at which, subject to any application of the parties, the examina- tion shall be taken;*" they are to regard the convenience of the witnesses, and all the circumstances of the case; ^ and, subject to such adjournments as they shall think reasonable or just, they are to proceed de die in diem ;'^ they may, with like consent, ex- amine persons not named in the order; ' and, when the examination is completed, they must under their hands certify on the original depositions the number of hours or days employed, and the fees received.* § 508. It does not fall within the scope of this work to furnish § 473 minute directions as to the course to be pursued by parties, who seek under these Acts or Rules, either for an order to examine wit- nesses at home, or for an order for a commission, when the witnesses are abroad; but a few of the more important decisions may briefly be noticed. The court or judge, — for applications of, this nature may generally be made to either," — will not, except in a case of urgency, to prevent the defeat of justice,'" make an order either for the examination of witnesses, or for a commission, uyitil after issue lias been joined; for before that step has been taken it cannot well be ascertained what witnesses are material, neither is it easy to discover how a false witness can be indicted for 1 Id. K. 39. 2 Id. R. 49. ^ Id. RR. 41, 42. * Id. R. 44. ^ Id. R. 4.5. « Id. R. 45, as amended by Rules of Sup. Ct., Oct., 1884, R. 7. ' Id. R. 46. « Id. R. 47, as amended by Rules of Sup. Ct., Oct., 1884, R. 8. » See ante, g 502, n. *. " Finney v. Beesley, 17 Q. B. 86; Stone v. Stone, 31 L. J., Pr. & Mat. 136; Fischer v. Hahn, 13 Com. B., N. S. 659; 32 L. J., C. P. 209, S. C. See Braun V. Mollett, 16 Com. B. 514; Brown v. Brown, 33 L. J., Pr. & Mat. 203. (3330) CHAI'. v.] CONTENTS OF ORDERS FOR COMMISSIONS. 463 perjury.' An order, however, may be made prospectively, with reference to a new trial, in case the verdict already obtained should beset aside;" and if the witness reside beyond the juris- diction of the court, the application should be made as soon as possible after issue joined.^ § 509. The affidavit in support of the motion should, — except I 474 under special circumstances,* — name at least some of the witnesses proposed to be examined, or otherwise describe who they are;'' though it is certainly unnecessary to state the names of them all,*^ and possibly the court would not require any of them to be specified, in a case where the pleadings clearly showed that the examination of witnesses was necessary.' The affidavit should also state that the witnesses are material and necessary,^ though it need not, in general, add, either that their evidence is admissible, or that the application is made bona fide,^ or that the party moving has a good case on the merits; '" but if the granting the commission would necessarily occasion great delay, and if the adverse affidavits were to show grounds for assuming that the witness would not be material 1 Monde] v. Steele, 8 M. & W. 300 , 9 Dowl. 812, S. C. ; Clutterbiick v. Jones, 6 Dowl. & L. 251, per Patteson, J., Dye v. Bennett, 1 L. M. & P. 92, n. a ; Shaw v. Shaw, 31 L. J , Pr. & Mat. 95 ; 2 Swab. & Trist. 642, S. C. "^ Hall V. Rouse, 4 M. & W. 27, per Parke, B. '^ Brydges r. Fisher, 4 M. & Sc. 458; Steuart v. Gladstone, b. R., 7 Ch. D. 394, per Fry, J , 47 L. J., Ch. 154, S. C. * Cow V. Kinnersley. 7 Scott, N. R. 892 ; 6 M. & Gr. 981 ; 1 Dowl. & L. 906, S. C, where the defendant, who required the commission, was an executri.K, and was ready to bring the amount claimed into court to abide the event. ^ Gunter v. McTear, 1 M. & W. 201 ; 4 Dowl. 722, S. C. nom. Guuter v. McKear : Beresford v. Easthope, 8 Dowl. 294 : Dimond v. Vallance, 7 Dowl. 590. In Boyce?;. Rusboro', 2 Ir. Law R., N. S. 266, where a commission was applied for to examine witness in Canada, and the affidavit in support of the motion did not give the names, descriptions, and residences of the witnesses ; the court, in directing the commission to issue, made an order that the opposite side should be furnished with these particulars within a reasonable time. « Nadin v. Bassett, L. R., 25 Ch. D. 21, per Ct. of App. ; 53 L. J., Ch. 253, S. C. ' Carbonell v. Bessell, 5 Sim. 636 ; Rougemont v. Royal Ex. Ass. Co., 7 Ves. 304 ; M'Hardy v. Hitchcock, 11 Beav. 93. « Norton v. Melbourne, 3 Bing. N. C. 67 ; 3 Scott, 398 ; 5 Dowl. 181, S. C; Dye V. Bennett, 1 L. M. & P. 92 ; Armour r. Walker, L. R. 2") Ch. D. 673. 9 Langen v. Tate. L. R., 24 Ch. D. 522, 53 L. J., Ch. 361, S. C. '» Baddeley i'. Gilmore, 1 M. & W. 55 ; Tyr. & Gr. 369, S. C. ; Westmore- land V. Huggins, 1 Dowl. N. S. 800. (3331) 4G4 ON WUAT AFFIDAVITS COMMISSIONS GRANTED. [pART II. or necessary/ or if, for any other special reason, the court should be of opinion that the granting of the application would tend to defeat the ends of justice,' then, in the exercise of its discretion, it would probably not be satisfied, unless the affidavit in support of the motion should point out, not only in what manner the evidence would be material, but also that it would be admissible ; ^ and if there were reason to believe that the application was made by the defendant for a sinister motive, it would either be refused, or, at least, the applicant would be ordered to bring the money in dispute into court.* In one case, where the defendant moved for a com- mission to examine witnesses in New Zealand, the court refused to interfere, unless an affidavit could be produced from his solicitor, showing that the evidence to be given by the persons proposed to be examined was material and necessary to the defence of the action.^ The affidavit must further disclose, either that the wit- ness is out of the jurisdiction of the court,*^ or that he will be so at the time of the trial, being about to leave the country;' or that he is in such a precarious state of health as to render it highly probable that he will be unable to attend the trial.^ § 510. Although the judges are empowered by these Rules § 475 to grant commissions to examine parties to the record who are resident abroad," — for such persons are now, by virtue of Lord 1 Dye V. Bennett, 1 L. M. & P. 92 j Langen v. Tate, L. R. 24 Ch. D. 522 ; 53 L. J., Ch. 301, S. C. 2 In re Boyce, Crofton v. Crofton, li, R., 20 Cli. D. GTO; 51 L. J., Ch. 660, S. C; In re The Imper. Laud Co. of Marseilles, 37 L. T., N. S. 589; Berdan V. Greenwood, L. R., 20 Ch. D. 704, n.; a.s explained by Cotton, L. J., in Armour n. Walker, L. R., 25 Ch. D. 070. Lawson v. Vacuum Brake Co., L. R., 27 Ch. D. 137, per Ct. of App. ^ Lloyd V. Key, 3 Dowl. 253, per Parke, B. ; I>ane i'. Bagshaw, 16 Com. B. 576. * Sparkes v. Barrett, 5 Scott, 402. , ^ Healey v. Young, 2 Com. B. 702 ; Bany v. Barclay, 15 Com. B., N. S. 849. « Norton v. Melbourne, 3 Bing. N. C. 67 ; 3 Scott. 398 ; 5 Dowl. 181, H. C. 7 Pirie i\ Iron, 8 Bing. 143 ; 1 M. & Sc. 223 ; 1 Dowl, 2.52, S. C. « Abraham r. Newton, 8 Bing. 274 ; 1 Dowl. 200 : 1 M. & Sc. 384, S. C, nom. Abraham v. Norton ; Pond v. Dimes, 3 M. Post, § 527a. 2 Mercier v. Cotton, L. R., 1 Q. B. D. 442, per Ct. of App. ; 46 L. J., Q. B. 184, S. C. •^ See Acheson v. Henry, I. R., 5 C. L. 496; Gourley v. Plimsoll, 42 L. J., C. P. 244; 8 Law Rep., C. P. 362, S. C. * Disney v. Longbourne, 45 L. J., Ch. 532, per Jessel, M. R.; L. R., 2 Ch. D. 704, S. C. See Martin v. Hemming, 10 Ex. R. 378; Forshaw v. Lewis, id. 716; Croomes v. IMorrison, 5 E. & B. 984 ; Morris v. Parr, 6 B. & S. 203. See, however, Harbord v. Monk, L. R., 9 Ch. D. 616, per Jessel, M. R., as to the practice in the Chancery Division. (3341) 474 INTEKROGATORIES IN CASE OF CORPORATIONS. [PAKT 11. provides, that, " if any party to a cause or matter be a body corpo- rate or a joint stock company, whether incorporated or not, or any other body of persons, empowered by law to sue or be sued, whether in its own name or in the name of any officer or other person, any opposite party may apply for an order allowing him to deliver interrogatories to any member or officer^ of such corporation, com- pany, or body, and an order may be made accordingly." § 524a. In acting under this last rule the judge should be satis- tied that the member or officer sought to be inteiTogated is likely to be able to give discovery ; but he is not bound at that stage of the proceedings to consider the propriety of the proposed interro- gations." When interrogatories have been delivered to a member under this rule he cannot refuse to file his affidavit in answer until he has been paid his taxed costs.'* Neither can a town clerk, who has been put forward as a public officer to answer interrogatories on behalf of a municipal corporation, claim exemption from answer- ing on the ground of privilege as being also the solicitor to the cor- poration.* The establishment of the above rule has been productive of much good, for it has put a stop to the costly and vexatious practice which used to prevail in equity suits of making individual members and officers of corporate bodies nominal defendants for the mere purpose of discovery.^ Now, if such a course were taken, the judge would strike out the name of the formal defendant, and grant him his full costs.** § 524b. It must also be borne in mind, that the above rule only enables parties to interrogate oppos/fe parties, and consequently one defendant cannot avail himself of it for the purpose of interrogating another co-defendant.' ' See Rep. of Costa Rica v. Erlanger, L. R., 1 Ch. D. 171, per Ct. of App. '^ Berkeley v. Standard Discount Co., L. R., 9 Ch. D. 643, per Malins, V.-C; =* Berkeley v. Standard Discount Co., L. R., 13 Ch. D. 97, per Ct. of App.; 49 L. J., Ch. 1, S. C; overruling S. C, L. R., 12 Ch. D. 295, per Fry, J.; and 48 L. J., Ch. 797. * Swansea, May. of, r. Quick, 49 L. J., C. P. 157; L. R., 5 C. P. D. 106, S C. nom. Swansea, May. of, t?. Quirk. * Wilson V. Church, L. R., 9 Ch. D. 552, per Jessel, M. R. « Id. ' Molloy V. Kilby, L. R., 15 Ch. D. 162, per Ct. of App. (3342) CHAP, v.] COSTS OF NEEDLESS INTERROGATORIES. 475 § 524c. It is almost needless to add that a guardian ad litem to a lunatic defendant is not a " party " within the meaning of the rule, and therefore cannot be compelled to answer interrogatories.* § 525. As the liberty granted by the first clause in Rule 1 was likely to degenerate into licence, and instead of aiding the investi- gation of truth, to heap up what lawyers love to call with selfish tautology " costs, charges, and expenses," a remedy for this antici- pated abuse has been devised by Rule 3, which is thus expressed: — " In adjusting the costs of the cause or matter, inquiry shall, at the instance of any party, be made into the propriety of exhibiting such interrogatories, and if it is the opinion of the taxing officer or of the court or judge, either with or without an application for inqiairy, that such interrogatories have been exhibited unreasonably, vexa- tiously, or at improper length, the costs occasioned by the said interrogatories and the answers thereto shall be paid in any event by the party in fault." § 526. Whether these provisions will prove effective or not re- mains to be seen, but he must be a sanguine reformer who can await the result of the experiment without some apprehension. The question "quis custodiet custodes?" forces itself upon the memory, and the discretion of a taxing officer, — subject though it may be to the costly control of a judge, — will scarcely afford a very safe protection to the suitor against the danger of interrogatories being exhibited '• unreasonably, vexatiously, or at improper length." § 527. Three more attempts to keep within due bounds the powers entrusted to suitors by Rule 1 have been embodied in other rules of the same Order. First, it is provided by Rule 25, that " in every cause or matter the costs of discovery, by interrogatories or otherwise, shall, unless otherwise ordered"^ by the court or a judge, be secured in the first instance as provided by Rule 26 "; and then, under that Rule, every party seeking discovery must, before taking ' Ingram v. Little, L. R., 11 Q. B. D. 251. See, also, Ord. XVIII, and post, § 1800. ■^ See A. Intre Smith; Smith v. Went, 50 I.. T. Rep., N. S. 382; Burr v. Hub- bard, 76 L. T. 77; W. N. 1883 p. 198; and Henderson r. Ripley, 76 L. T., 388; W. N. 1884, p. 85, as to when the court will relax the Rule. (3343) 476 DEPOSIT BEFORE DISCOVERY — SCANDALOUS INTERGTS. [PAEr 11. any step, pay into court to a separate account in the action a sum of at least 5Z., and this sum will only be allowed as part of his costs where the discovery appears to the judge, or the court, or the taxing officer, to have been reasonably asked for. The discretionary power entrusted to the judge of dispensing with this preliminary payment, should, in the interests of the poorer suitors, be cautiously exer- cised; and the mere fact of the solicitors on both sides consenting to waive the deposit, so far from depriving the judge of his right to withhold such an order if he thinks fit, would, in most cases, be an additional reason why he should determine to form his own inde- pendent judgment on the matter.^ § 527a. The next attempt made to remedy what may justly be called the abuse of discovery will be found in Rule 6, which pro- vides, that "any objection to answering any one or more of several interrogatories on the ground that it or they is or are scandalous or irrelevant, or not bona fide for the purpose of the cause or matter, or that the matters inquired into are not sufficiently material at that stage, or on any other ground, may be taken in the affidavit in answer." Rule 7 lastly provides, that " any interrogatories may be set aside on the ground that they have been exhibited unreasonably or vexatiously, or struck out on the ground that they are prolix, oppressive, unnecessary, or scandalous; and any application for this purpose may be made within seven days after service of the interrosratories." ^ § 528. The party who applies to the court to strike out interro- gatories under these last rules must — unless he can show that the whole of them are either scandalous or irrelevant, or not put bona fide — specify the particular questions to which he objects, and the grounds of his objection.^ Next, before the court will interfere, it must be satisfied not only that the objection is a reasonable one, but that it applies to the interrogatory itself, and rests on some ^ Astet'. Stumore, 53 L. J., Q. B. 82, per Ct. of App.; L. K., 13 Q. B. D. 326, S. C. 2 See Gay r. Labouchere, L. R., 4 Q. B. D. 206; 48 L. J., Q. B. 279, S. C. =* Allhusen v. Labouchere, L. R., 3 Q. B. D. 654, per Ct. of App.; 47 L. J., Q. B. 819, S. C. (3344) CHAP, v.] WHAT INTERROGATOKIES CAN BE STRUCK OUT. 477 ground of a similar nature to those enumerated in the rule.^ A relevant interrogatory, therefore, cannot be struck out by a judge on the ground that the matter inquired after relates to an indictable offence, but the remedy of the party interrogated in such a case is to decline to answer, on the ground that such answer may tend to criminate him.^ Neither can the rules be relied on for the purpose of excluding interrogatories on the ground that they seek discovery of the facts on which the opposite party relies, though all questions will be struck out which are put with the view of dit- covering the evidence by which such facts are intended to be established.'^ When the facts relied on consist of conversations, the party interrogated may be required to give their general effect, but not to set out their details.* § 528a. When a judge has exercised his discretion under these rules, the Lords Justices will not readily entertain any appeal, unless it be clear that the decision rests on a wrong j^rincijjle in which event they are bound to interfere so that the right doctrine may in future be understood.'^ It may not at all times be an easy task for a judge to determine in what manner to deal with interro- gatories, when some of them are objectionable and others are free from objection. This much, howevei', may perhaps be safely laid down, that, in such a case, the objectionable questions should alone be struck out, unless they be so intermingled with the others as to render it difficult to separate them, or unless they form a large majority of the interrogatories delivered. In either of these cases the judge may, as it seems, properly exercise his discretion by striking out the whole batch, and leaving the party to deliver new ones.^ Although any party improperly interrogated is empowered. 1 Fisher v. Owen, L. R., 8 Cli. D. 645, per Ct. of App.; 47 L. J., Ch. 681. S. C; Eade v. Jacob, 47 L. J., Ex. 74, 76, per Ct. of App.; L. 11., 3 Ex. D. 335, 337, S. C; The KacTnorshire, L. R., 5 P. D. 172. 2 Fisher t;. Owen, L. R., 8 Ch. D. 645, per Ct. of App.; 47 L. J., Ch. 681, S. C. ' Eadet'. Jacob, 47 L. J., Ex. 74, per Ct. of App.; L. R. 3 Ex. D. 335, S. C. See Johns v. James, L. R., 13 Ch. D. 370 ; and Att.-Gen. v. Gaskill L. R., 20 Ch. D. 519 ; 51 L. J., Ch. 870, S. C. * Id. 5 Fisher v. Owen, L. R., 8 Ch. D. 645, 652, 653, per Ct. of App. See Thorbum V. Crawford, per Ct. of App., 26 July, 1884. « Id. 652, per Jessel, M. R. (3345) 478 INTERROGATORIES TO BE ANSWERED BY AFFIDAVIT. [PART II, under Rule G, to apply to a judge to strike out the obnoxious ques- tions, be is not bound to take that course ; and if be neglects to do so, be may still refuse to answer any question wben a legal ground for sucb refusal exists.^ Tbe recent case of Lyell r. Kennedy,^ decided in tbe House of Lords, will serve to illustrate tbis proposi- tion. Tbere, tbe plaintiff baving been interrogated respecting bis knowledge, information, and belief upon matters relevant to tbe defendant's case, answered tbat be bad no personal knowledge of any of tbe matters, and tbat tbe only information be bad received with regard to tbem bad been derived from privileged communica- tions made to bim by bis solicitors or tbeir agents for tbe purposes of bis own case ; and be tben submittted tbat be was not bound to state bis belief on tbe subject, derived as it was from sucb com • munications, or to make any furtber answer. Tbe court under tbese circumstances held tbat tbe answer was sufficient. § 529. Order XXXI., — after furtber providing tbat all interroga- tories " shall be answered by affi lavit, to be filed within ten days or sucb other time as a* judge may allow," " and that such affidavit- may be in accordance with the Form given,* and shall, if exceeding ten folios, be printed, unless otherwise ordered by a judge,^ — goes on to declare, in Rule 10, that "no exceptions shall be taken to any affidavit in answer, but tbe sufficiency ** or otherwise of any sucb affidavit objected to as insufficient shall be determined by tbe coiu"t or a judge on motion or summons." Rule 11, tben provides, tbat ^ Fisher v. Owen, L. R., 8 Ch. D. 646, 654, per Cotton, L. J.; clearing up a doubt expressed in Saunders v. Jones, L. R., 7 Cli. D. 435. 2 L. R., 9 App. Cas. 81. '' R. 8. * R. 9, and Form 7, App. B., which, like Form 6, is all but valueless, being as follows : — " In the High Court of Justice, 18 [Here put the letter and ninnher.'] Division. Between A. B., plaintiff, and C. D., E. F., and G. H., defendants. The answer of the above-named E. F. to the interrogatories for his examina- tion by the above-named plaintiff. In answer to the .said interrogatories, I, the above-named E. F., make oath and say as follows : — '" See Webb. v. Bornford, 46 L. J., Ch. 288, per Hall, V.-C. ® The Court, under Rules 10 & 11. must consider the suffieieney in law, not the truth in fact, of the answer ; and in the event of insufficiency alone will a further answer be required ; Lyell v. Kennedy, 53 L. J., Ch. 937, per Ct. of App.; S. C. , L. R., 27 Ch. D. 1. A few such cases as this one would go very far towards inducing the Legislature to sweep away the whole law relating to Discovery and Interrogatories. (3346) CHAP, v.] INSUFFICIENT ANSWERS TO INTERROGATORIES. 479 " If any person interrogated omits to ansicer or answers insufficiently, the party interrogating may apply to the court or a judge for an order requiring him to answer, or to answer further, as the case may be. And an order may be made requiring him to answer, or answer further, either by affidavit or by viva voce examination, as the judge may direct." A summons under this rule, as under the rule authorising applications to strike out interrogatories, must specify the particular questions or parts of questions to which a further answer is required;' unless, indeed, in a case where all the prior answers are objected to as amounting to an abuse of the prac- tice of the court. '^ § 530. Although the omission to answer interrogatories, when delivered icithout leave under the first clause of Rule 1, is not in itself a contempt of court, but only entitles the interrogator to apply to the court for an order under the rule just cited, the dis- obedience of an order so obtained is a much more serious matter; for the party failing to comply therewith is not only liable to attachment, but he may, if a plaintifP, have his action dismisse'd, and if a defendant, have his defence struck out.^ § 531. It may be difficult to define a priori, what amounts to an g 434 insufficient answer, but it appears that in general the answers to interrogatories will be deemed insufficient, first, if they be not made categorically to each specific question ; * and next, if the parties interrogated rely on their personal ignorance of facts, of which they might fairly be presumed to have cognisance, without showing that they had done their best to obtain from their servants or agents the 1 Anstey v. North & South Woolwich Siibway Co., L. E., 11 Ch. D. 439; 48 L. J., Ch. 776, S. C. ; Chesterfield Colliery Co. v. Black, 24 W. N. 783. ' Furber v. King, 50 L. J., Ch. 496. * Rule 21 is as follows: " If any party fails to comply with any order to answer interrogatories, or for discovery, or inspection of documents, he shall be liable to attachment. He shall also, if a plaintiff, be liable to have his action dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating may apply to the court or a judge for an order to that effect, and an order may be made accordingly." See post, ^ 1808. * Chester v. Wortley, 18 Com. B. 239. (3347) 480 WHAT QUESTIONS ALLOWABLE IN INTERROGATORIES. [PART II. information required.' The same result, too, will follow, if, in addition to the information asked for, the answers contain in excess, either irrelevant or otherwise objectionable matter." The party, however, who complains of the insufficiency must apply promptly to the judge, for otherwise he will decline to interfere." The application should be ipaade by summons in chambers, and not by motion, and the particular answers objected to should be speci- fied/ It is also desirable, if not necessary, that at least in every case involving doubt, the application should be supported by affidavit, for the judges seem inclined to administer this branch of their jurisdiction with considerable caution.^ The order for an oral examination may be drawn up in general terms, and it is neither necessary nor convenient to specify the particular points on which the party is to be interrogated.^ When the oral examination takes place, it would seem, on principle, that the party should be allowed the assistance of counsel.^ When the answers to interrogatories are formally, but, as far as can be seen, not intentionally, defective, the proper course to pursue is to apply at chambers to have them amended ; for the court is reluctant to order further answers to be made, provided that the first be substantially sufficient.^ § 532. In considering what questions may under these Rules be | 482a asked on interrogatories, the courts should be guided, though not fettered, by the rules and principles which the old Courts of Equity used to act upon with respect to discovery." Judges must remember, that the right of discovery, as it formerly existed in the Court of 1 Bolckow V. Fisher, 52 L. J., Q. B. 12, per Ct. of App.; L. R., 10 Q. B. D. IGl, S. C. See Rasbotham ?;. Shropshire Union Ry. Co., L. R., 24 Ch. D. 110; 53 L. J., Ch. 327, S. C. 2 Peyton v. Harting, 43 L. J., C. P. 10; 9 Law Rep., C. P. 9, S. C. ^ Chester v. Wortley, 18 Com. B. 239. * Chesterfield v.- Baythorpe Colliery Co. v. Black, 24 W. R., 783, per V.-C. Hall. * Swift V. Nun, 26 L. J., Ex. 365. « Peyton v. Harting, 43 L. J., C. P. 10 ; 9 Law Rep., C. P. 9, S. C. ' Id. * Bender v. Zimmerman, 29 L. J., Ex. 244. » Fjev. Butterfield, 34 L. J., Q. B. 17; 5 B. & S. 829, S. C; Whateley v. Crowter, 5 E. & B. 712, per Ld. Campbell; Dalrymple i'. Leslie, L. R., 8 Q. B. D. 5; 51 L. J., Q. B. 61, S. C. (3348) CHAP, v.] WHAT QUESTIONS ALLOWABLE IN INTERROGATORIES. 481 Chancery, still exists in the High Coui't, except so far as it is modified by the Judicature Acts and the General Orders; and con- sequently, that a party has still a right to exhibit interrogatories not only for the purpose of obtaining from his opponent information respecting material facts which are not within his own knowledge and are within the knowledge of the party interrogated, but also for the purpose of obtaining from the opponent admissions which will save the necessity of proving the facts admitted.' A defendant, therefore, has been held bound to give his version of a material conversation between himself and the plaintiff's solicitor, as also to answer interrogatories respecting the existence of a right of way claimed by the plaintiff and disputed by himself." So, also, in an action for the recovery of land upon a legal title, which is analogous to the old action of ejectment, a plaintiff has a right to interrogate the defendant, or to obtain admissions from him as to the title upon which he the plaintiff himself relies.^ But, on the other hand, a tenant cannot be compelled by his landlord to answer interroga- tories, where the answer would tend to show that he had incurred a forfeiture of his lease by reason of his having underlet the pre- mises.* Nor will a defendant, in an action of libel, be required to give the substance of letters written by him, when he has no copies and avers that he cannot recollect the exact language he used.^ Indeed, as a general rule, a party cannot inquire into facts which relate exclusively to the case of his adversary, although he will occasionally be allowed to do so, when he makes a claim as the representative of a deceased person, and the defence setup consists of transactions said to have taken place with that person, and to be exclusively within the knowledge of the defendant.^ A party may 1 Att.-Gen. v. Gaskill, L. R., 20 Ch. D. 519, per Ct. of App.; 51 L. J., Ch. 870, S. C. 2 1(1 3 Lyell V. Kennedy, L. E., 8 App. Cas. 217; and 52 L. J., Ch. 385, per Dom. Proc, overruling S. C, 51 L. J., Ch. 409, per Ct. of App.; L. R., 20 Ch. D. 484, S. C. * Pye V. Butterfield, 34 L. J., Q. B. 17; 5 B. & S. 829, S. C; Bp, of Cork V. Porter, I. R. 11 C. L. 94. See, also, Eade v. Jacob, 47 L. J., Ex. 74, per Ct. of App.; L. R., 3 Ex. D. 335, S. C. * Dalrymple v. Leslie, L. R., 8 Q. B. D. 5; 51 L. J., Q. B. 61, S. C. « Hills V. Wates, 9 Law Rep., C. P. 688; 43 L. J., C. P. 380, S. C. ; Hawkins I'. Carr, and Parsons v. Carr, 35 L. J., Q. B. 81 ; 1 Law Rep., Q. B. 89; and 6 B. & S. 995, S. C; Eade v. Jacob, 47 L. J., Ex. 74, per Ct. of App.; L. R., 3 Ex. D. 337, S. C. (3349) 482 WHAT QUESTIONS ALLOWABLE IN INTERROGATORIES. [PART II. also ask any questions, the answers to which will advance his own case, even though they may also disclose his opj:)onent's case.' For instance, in an action on a policy of insurance on a cargo, claiming for a total loss, if the statement of defence only denies the policy, the interest, and the loading, the plaintiff cannot be interrogated as to the several matters which these traverses will require him to prove; but if there be also a denial of the loss, interrogatories may be tendered with respect to the amount of damage; and if the defendant were further to allege that the sailing of the vessel had been unreasonably delayed, the plaintiff might be questioned with respect to that fact." § 533. On the same ground, if an action for negligence be ? 4S2a brought against a surveyor or solicitor, the defendant may be asked what steps he has taken to perform his duty;^ and if a valuer has been employed to put a price on the goodwill of a business, he may, for the purpose of establishing want of skill, be questioned as to the basis of his valuation.* So in an action for seduction, a defen- dant may be interrogated with the view of obtaining from him an admission of his immoral conduct, though no question can be asked him with respect to his means or property.^ So, where the plaintiff had brought an action for money had and received, and his right to recover rested on the assumption that the defendant had, in selling certain property to him, falsely professed to act as broker for a third party, the Court allowed interrogatories to be delivered to the defendant, requiring him to answer whether he had acted in the transaction as principal or agent, and, if as agent, to name his principal."^ So, where, to an action for wrongful dismissal brought by the manager of a business against his employer, the statement of defence alleged in general terms acts of misconduct on the part of 1 Bayley r. Griffiths, 31 L. J., Ex. 477; 1 H. & C. 429, S. C; Goodman v. Holroyd, 15 Com. B., N. S. 839; Stewart v. Smith, 2 Law Rep., C. P. 293. 2 Zarifi V. Thornton, 2(5 L. J., Ex. 214. nVhateley r. Crowter, 5 E. & B. 709. * Turner v. Goulden, 9 Law Rep., C. P. 57; 43 L. J., C. P. 60, S. C. 5 Hodsoll V. Taylor, 43 L. J., Q. B. 14; 9 Law Rep., Q. B. 79, S. C. « Thol V. Leash, 10 Ex. R. 704. See, also. Blight v. Goodliffe, 18 Com. B., N. S. 757. (3350) CHAP, v.] WHAT QUESTIONS NOT ALLOWABLE IN INTERROGATOllIES. 483 the plaintiff justifying his dismissal, the court held that the plaintiff was at liberty to exhibit interrogatories, which in substance asked the defendant, not indeed to state the evidence he was about to adduce, but to specify the acts of misconduct on which he relied.' This last case illustrates the principle, that, whenever a piiramons might be taken out for better particulars, the same information may be obtained by the aid of an interrogator}." It means no more than this; nor will the court allow the use of interi'ogatories as an in- direct mode of seeing the adversary's brief, and of ascertaining the details of the evidence on which he is about to rely.^ § 534. When a party, on being interrogated as to whether he ? 482ij had in his possession any deeds relating to the lands in dispute, answered on oath that he had, but that such deeds were exclusively the evidences of his own title to the property, and did not show any title in his opponent, the court held that he could not be com- pelled to state the contents of the documents, or to describe them, but that his oath as to their efPect must be deemed conclusive.* If prima facie evidence of the loss of a deed be made out by aifidavit, the party supposed to have executed the instrument may be in- interrogated de bene esse as to its contents.^ Although interroga- tories as to the means by which a defendant proposes to establish his title to an hereditament are not admissible, those seeking only to ascertain the character of his title, and the quality of his pos- session, will, it is said, be allowed.*^ Again, a plaintiff seeking to recover land may interrogate the defendant as to whether he is not really defending the action on behalf of a third person; for an affirmative answer to such a question would go far towards making the declarations of such third person admissible in evidence.^ § 535. It may be laid down as a general rule, that no party will § 482c ' Saunders v. Jones, L. R., 7 Ch. D. 435, per Ct. of App. ; 47 L. J., Ch. 440, S. C; Lyon v. Tweddell, L. R., 13 Ch. D. 375. '^ Benbow v. Low, 50 L. J., Ch. 35, per Ct. of App. ^ Id. * Adams v. Lloyd, 3 H. & N. 351. ° Wolverhampton New Waterw. Co. r. Hawksford, 5 Com. B., N. S. 703. « Towne v. Cocks, 43 L. J., Ex. 41; 9 Law Rep., Ex. 45, S. C. ' Sketchley v. Conolly, 2 New R. 23, per Q. B. 10 LAW OF EVID. — V. II. (3351) 484 WHAT QUESTIONS NOT ALLOWABLE IN INTERROGATORIES. [PART II, be suffered to expose his adversary to fishing interrogatories, or to require him to declare on oath how he intends to shape his case.' For example, in an action of trover by the trustee of a bankrupt, the plaintiff could not be compelled to answer interrogatories for the purpose of discovering what case he intends to set up at the trial." The defendant, too, in an action of slander will not, — except under very special circumstances, precluding redress by other means,' — be forced to admit, in answer to interrogatories, the precise words he uttered, and when, where, and to whom he spoke them.* Neither can the defendant, in an action for negligence, interrogate the plaintiff as to how the accident happened, or what was the extent of the injury, or what was the amount of the medical charges.^ Still less will a judge, except under very special circumstances,'' permit a defendant, who admits a breach of con- tract, to interrogate the plaintiff respecting the damage he has sustained, with the view of paying money into court.' Nor, as it seems, will interrogatories be allowed, when the interrogator has ample means of obtaining from his own agents the information which he professes to seek from his opponent,^ or when the object ' Edwards v. Wakefield, 6 E. & B. 462; Moor v. Eoberts, 26 L. J., C. P., 216; 2 Com. B., N. S. 671, S. C. ■'' Edwards v. Wakefield, 6 E. & B. 462. See, also, Finney v. ForAvard, 35 L. J., Ex. 42; 1 Law Eep., Ex. 6; and 4 H. & C. 33, S. C. But see Derby Bk. V. Luujsden, 5 Law Rep., C. V. 107; 39 L. J., C. P. 72, S. C. =* Atkinson v. Fosbroke, 35 L. J.. Q. B. 182; 1 Law Rep., Q. B. 628; 7 B. &S. 618, S. C; Greenfield v. Reay, 45 L. J., Q. B. 81; 10 Law Rep., Q. B. 217, S. C^ See O'Connell v. Barry, I. R. 2 C. L. 648. Sed qu. SStern'r. Sevastopulo, 2 New R. 329; 32 L. J., C. P. 268; 14 Com. B., N. S. 737, S. C; Tupling i;. Ward, 30 L. J., Ex. 222; 6 H. & N. 749, S. C; Edmunds v. Greenwood, 4 Law Rep.. C. P. 70; 38 L. J., C. P. 115, S. C. See Hill V. Campbell, 44 L. J., C. P. 97; 10 Law Rep., C. P. 222, S. C; Fitz- gibbon V. Greer, I. R., 9 C. L. 294. But see, also, M'Loughlin v. Dwyer, I. R., 9 C. L. 170. ^ Peppiatt V. Smith, 3 H. & C. 129; 33 L. J., Ex. 239, S. C. But see Wright V. Goodlake, 34 L. J., Ex. 82; 3 H. & C. 540, S. C. « See Home v. Hough, 43 L. J., C. P. 70; 9 Law Rep., C. P. 135, S. C. ' Jourdain v. Palmer, 35 L. J., Ex. 69; 4 H. & C. 171; and 1 Law Eep., Ex. 102, S. C, commenting on Wright v. Goodlake, 34 L. J., Ex. 82; 3 H. & C. 540, S. C. See Dobson r. Richardson, 37 L. J., Q. B. 261; 3 Law Rep., Q. B. 778; and 9 B. & S. 516, S. C. « Bird V. Malzy, 1 Com. B., N. S". 308. But see Rew v. Hiitchins, 10 Com. B., N. S. 837, per Erie, C. J. (3352) CHAP. V, ] AFFIDAVIT IN SUPPORT OF PRELIMINARY DISCOVERY. 485 is to contradict a written -instrument,' or to gain some tricky ad- vantage not dependent on real information, or to heap up needless costs." Moreover, it has been established as a general rule, that the party interrogated is not bound to disclose any information, which he may have obtained for the purposes of the litigation in which he is engaged.^ § 536. It may further be laid down with respect to interrogatories, g 4S2t) first, that where a party interrogated under Rule 1 of Order XXXI. admits his possession of documents, he cannot be attached for refusing to set forth their contents, but his opponent must apply for an order to inspect them, under Rule 15 of the same Order;* secondly, that interrogatories as to documents are not limited to such as are in the possession or power of the party interrogated, but extend to all documents, "relating to the matter in question," which he has ever had in his possession;^ thirdly, that a plaintiff may be ordered to answer interrogatories, though he be a foreigner resident abroad;'' fourthly, that where an application for leave to deliver interrogatories is necessary,' such application, — pro- vided it be made bona fide,^ and be supported by an affidavit disclosing special circumstances," — cannot be resisted on an affi- davit that the questions, if answered, may tend to criminate the party interrogated,'" or may expose him to a forfeiture of his estate;" 1 Moor V. Roberts, 26 L. J., C. P. 246; 2 Com. B., N. S. 671, S. C. 2 Bechervaise v. Gt. West. Ry. Co., 6 Law Rep., C. P. 36; 40 L. J., C. P. 8, S. C. 3 Phillips V. Routh, 7 Law Rep., C. P. 287; 41 L. J., C. P. 111. * See Scott v. Zygomala, 4 E. & B. 483; Herschfield v. Clarke, 11 Ex. R. 712; and post, ? 1787. ^ Lethbridge v. Cronk, 44 L. J., C. P. 381. « Pohl V. Young, 25 L. J., Q. B. 23. ^ See ante, § 522. » Baker v. Lane, 34 L. J., Ex. 57; 3 H. & C. 544, S. C, as explained away in Bickford v. D'Arcy, 35 L. J., Ex. 202; 4 H. & C. 540, S. C. 9 Villeboisnet v. Tobin, 38 L. J., C. P. 146; 4 Law Rep., C, P. 184, S. C; , Inman v. Jenkins, 39 L. J., C. P. 258; 5 Law Rep., C. P. 738, S. C. 1" Osborn v. London Dock Co., 10 Ex. R. 698, noticed post, ? 1466; M'Fadzen V. May. & Corp. of Liverpool, 3 Law Rep., Ex. 279; 37 L. J., Ex. 19.3, S. C; Bartlett v. Lewis, 31 L. J., C. P. 230; 12 Com. B., N. S. 249, S. C; Goodman V. Holroyd, 15 Com. B., N.. S. 839; Simpson v. Carter, 30 L. J., Ex. 224, in n. 7. But see cases cited ante, p. 464, n. *, as to actions for defamation. " Chester v. Wortley, 17 Com B. 410; Bickford r. D'Arcy, 35 L. J., Ex. 202; 1 Law Rep., Ex. 354; and 4 H. & C. 534, S. C. See Pye v. Butterfield, 34 L. J., Q. B. 17, cited ante, § 532. (3353) 486 INTERROGATORIES IN COUNTY COURTS. [PART II. fifthly, that when a party submits to answer interrogatories he must answer fully; ' sixthly, that the rule under discussion extends equally to real and nominal parties;" and lastly, that it does not apply to criminal proceedings, or to actions for penalties.^ § 537. As it is still necessary in certain events * to obtain the leave of the court or a judge before delivering interrogatories, it may be mentioned, as a guide for the exercise of judicial discretion, that, under the old law,^ the party proposing to interrogate, or his solicitor or agent, was obliged to file an affidavit, stating his belief that the party, whether plaintiff or defendant, would derive material benefit in the cause from the discovery sought, that there was a good cause of action or defence on the merits, and, if the applicant Avas a defendant, that the discovery was not sought for the purpose of delay.^ § 538. As answers to interrogatories under the Enles of 1883, — like those which preceded them, — were intended as substitiites for the old proceedings in Chancery to compel discovery, they are equally admissible in evidence with these proceedings. The party, at whose instance they are taken, is empowered to use them, either as primary evidence of admissions made by his opponent, or as furnishing matter for cross-examination, and, if necessary, for con- tradiction, should his opponent come forward as a witness on his own behalf, and make statements inconsistent with what he may have previously sworn. § 539. In the County Courts the rules relating to interrogatories are as follows: — Order XIII. of the Rules of 1875 provides, by K. 6, ' Elmer v. Creasy, 9 Law Rep., Ch. 69; Gt. West. Coll. Co. r. Tucker, 9 Law Rep., Ch. 376, per Ct. of App. 2 M'Kewan v. Rolt, 4 H. & N. 738; Mason r. Wythe, 3 Fost. & Fin. 153, per Keating, J. » Hummings r. Williams. 52 L. J., Q. B. 273. * See ante, ? .'i22. M7 & 18 v., 0. 125, I 52. Now repealed by 46 & 47 V., c. 49. « See May r. Hawkins, 11 Ex. R. 210; O.xlade v. N. East. Ry. Co., 12 Com. B., N. S. 3.50; Kingsford v. Gt. West. Ry. Co., 16 Com. B., N. S. 761; 33 L. J., C. P. 307, S. C. (3354) CHAP, v.] INTERROGATORIES IN COUNTY COURTS. 487 that, "where a parly desires to interrogate any party he shall apply to the registrar for leave to deliver interrogatories, and upon making such application he shall file an affidavit,' made by himself only, or by himself and his solicitor or agent, if any, or by leave of the registrar by his solicitor or agent only, stating that the deponent believes that the party proposing to interrogate will derive material benefit in the action from the discovery which he seeks, and that there is good canse of action or defence upon the merits. And upon such application the registrar shall make an order, according to the form^ in the schedule, that the applicant may, within a time to be Qamed in such order, deliver to the party to be interrogated interrogatories in writing upon any matter as to which the applicant seeks discovery, and shall in such order require the party interro- gated to answer the questions in writing by affidavit, and file such answers within such time to be appointed by the registrar, as shall enable the party making the application to use the answers so re- tm'ned as evidence at the trial." § 540. Rule 7 provides, that "where a party served with the ^ Form 57 is as follows : — "We, A. B , of the above-named plaintiff [or tkiendant], and L. M. of , solioitoi- in this cause for the said plaintiff [or defendant], make oath and say, first, — And I the said A, B. for myself say, — 1. That I believe that I shall derive material benefit in this cause from the discovery which I seek by the interrogatories which I require to be delivered herein. 2. That I believe that I have a good cause of [or defence to this] action on the merits. And I the said L. M. sa3% — 3. That the plaintiff [or defendant] will derive material benefit by the dis- covery which he seeks by interrogatories. 4. That I believe that the plaintiff [or defendant] has a good cause of [or defence to this] action on the merits." ^ Form 285 of the Cy. Ct. Rules, 1876, is as follows ; — "Upon reading the affidavit of I do order that the be at liberty to deliver to the or his solicitor, on or before the day of 18 interrogatories in Avriting upon the matters as to which discovery is sought in this action, and that the do, on or before the day of 18 , answer the questions in vrriting by affidavit, and return such answers to me for filing. Dated this day of Registrar or Judge." (3355) 488 INTERROGATORIES IN COUNTY COURTS. [PART II. order shall object to answer the interrogatories, he shall file an affidavit stating his grounds for objecting, and that he will be pre- pared to show cause to the court at the return- day against his being required to answer them, but where it is only some of the interro- gatories he objects to answer, he may include in his affidavit both his replies and his objections." § 541. Independent of these rules, the County Court, by virtue of § 53 of the Common Law Procedure Act, 1854,' may, in case any party omits to answer sufficiently any written interrogatories, direct him to be orally examined either before itself or the registrar, as to such points as it may direct ; and it may also command the attendance of the party for the purposes of the examination, and the production of documents, and may impose such terms as to costs or otherwise as shall seem just In the event of the registrar being directed to take the examination, either he or his clerk must transcribe the answers given by the party, he must himself read over the answers so transcribed, the party must then sign his name at the foot thereof, and finally the document must be filed by the registrar as the deposition of the party.^ § 542. Rule 8 of Order XIII. farther provides, that " where the party required to answer interrogatories shall successfully show cause against an order requiring him to answer them, the judge may direct the action to proceed, or to be adjourned if he thinks fit, and upon terms as to costs ; but if the party objecting shall not show sufficient cause for his objection, the judge may order the interroga- tories to be then and there answered viva voce in Court, or may adjourn the action, and make an order for the answering of the interrogatories by such time, and for the payment of such costs as may have been incurred through the delay, as he may think fit." § 542a. The County Court Rules, 1883, substantially adopting an Order of the Supreme Court,^ have provided by Rule 11, that "any ' 17 & 18 v., c. 125, I 53, is now repealed, but its repeal does not affect its extension to the Cy. Cts. by ord. of Council, 18 Nov. 1867. See 46 & 47 v., c. 49, ? 5, subs. (e). ■■^ Ord. xiv. of Cy. Ct. Rules, 1875, r. 7. ^ See post, | 731. (3356) CHAP. V.J ACTIONS FOR PERPETUATING TESTIMONY. 489 party may, at the trial of an action or issue, use in evidence any one or more of the answers of the opposite party to interrogatories without putting in the others; Provided always that in such case the judge may look at the whole of the answers, and if he shall be of opinion that any other of them are so connected with those put in that the last-mentioned answers ought not to be used without them, he may direct them to be put in." § 542b. It may here be noticed that the High Court has no power to order interrogatories to be delivered to a respondent in a Parlimentary Election Petition.' Neither can an order be made against the sitting member for the inspection and discovery of documents." But independent of the Rules of the Supreme Court, 1883, which do not apply to the case,^ the practice in the Divorce Division is to allow interrogatories, and that practice has recently been followed in a suit for nullity of marriage.* § 543. Before courts of law were empowered to issue commis- ^ 48S sions for themselves, it was often necessary to institute proceedings in Chancery as auxiliary to an action at law ; and in such cases, recourse was had to what was called " an action for perpetuating testimony." § 544. The Legislature, considering that the benefits derivable § 489 from this mode of proceeding might with advantage be extended, passed two Acts for that purpose, one in the year 1842;^ and the other in 1858. The earlier Act is now repealed, but its provisions have been substantially embodied in Order XXXVII. R. 35, of the Rules of the Supreme Court, 1883. '^ That rule provides, that "any person who would, under the circumstances alleged by him to exist, become entitled, upon the happening of any future event, to any honour, title, dignity, or office, or to ' any estate ' ' See 31 & 32 V., c. 125, ?? 2 & 26 ; and In re Wallingford Petition, 49 L. J., C. P. 681 ; S. C. nom. Wells r. Wren, L. R., 5 C. P. D. 546. ''^ Moore 1'. Kennard, Salisbury Elect. Pet., L. E., 10 Q. B. D. 200 ; 52 L. J., Q. B. 285, S. C. '' See Ord. LXVIII. * Euston v. Smith, L. R., 9 P. D. 57. ^ 5 & 6 V , c. 69; repealed by 46 & 47 V., c. 49. ® Proceedings under this rule should be jealously watched, Campbell r. E. of Dalhousie, 1 Law Rep., H. L. Sc. 462. ' See Re Stoer, L. R., 9 P. D. 120, per Ct. of App. C3357) 490 ACTIONS FOR PERPETUATING TESTIMONY. [pART II, or interest in any property real or personal, the right or claim to which cannot by him be brought to trial before the happening of such event, may commence an action to perpetuate any testimony which may be material for establishing such right or claim." The other statute relating to this subject, which is called " The Legitimacy Declaration Act, 1858," ' ia still in force, and it empowers the Divorce Division of the High Court, on the petition of certain persons specially interested, to make decrees declaratory of the legitimacy or illegitimacy of any such petitioner, or of the validity or invalidity of the marriage of his parents, or grandparents, or of his own marriage, or of his right to be deemed a natural- born subject. § 545. In entertaining an action to perpetuate testimony, — ^ 490 which action must have " been commenced for the purpose," or no witness will be allowed to be examined,^ — the court will compel the defendant to appear and answer,^ provided he be shown to have an interest in contesting the plaintiff's claim in the subject of the proposed evidence -, * and the cause being brought to issue, the witnesses will, it is presumed, be examined orally before one of the examiners of the court, in accordance with the practice established for ordinary actions under Ord. XXXVII. E. 5,^ The depositions will then be taken down, signed, authenticated, and transmitted to the Central Office, in the same manner as in other cases,^ though no relief being prayed, the action must not be set down for trial.' The court will not, in general, admit the depositions as evidence,^ except in support of an action, nor then, unless it be proved that the witnesses are dead, or otherwise incapable of attending to be ex- amined."* So, if a witness in imminent danger of death has ' 21 & 22 v., c. 93, §n. 2; extended to Ireland by 31 & 32 V., c. 20, Ir. ■-'Old. XXXVII., R. 37. ^ See Ellice v. Roupell, 2 New R. 3, per Romilly, M. R.; id. 150, S. C; and 32 Beav. 299, 308, & 318, on other points. * Mitf. PI. 63. •'' See Litton v. Murphy, 1 L. R., Ir. 301, which case was decided on the corresponding Irish order, Ord. xxxvi., r. 6. ^ Ord. XXXVII.. RR. 12, 16. ' Ord. XXXVII., R. 38. "* In cases where the Crown has an interest, the Att.-Gen. may be made defendant, and no objections can then be taken to the depositions on the ground that the Crown was not a party to the action, Ord. XXXVII., R. 36. '-• 1 Smith's Cli. Pr. 769; Morri.son v. Arnold, 19 Ves. 670. See Att-Gen. v. Ray, 2 Hare, 518. (3358) CHAP, v.] VIVA VOCE TESTIMONY, IIOW PROVED. 491 been examined de bene esse under the authority of the ecclesi- astical courts, the deposition cannot be read, unless proof be given that the witness has since died, or is too ill to be again examined at the hearing of the cause.' § 546. It was stated in the last chapter, that if a witness, besides ? 'tSl being examined on interrogatories, should testify at the trial of a cause, either party, on any subsequent trial respecting the same subject, provided the witness be then incapable of attending, may rely, at his option, either on the deposition, or on the previous viva voce testimony;- and it may be here observed,^ that what such witness has orally testified may be proved, either by any person, who will swear from his own memory,^ or by notes taken at the time by any person, who will swear to their accuracy,^ or possibly, from the necessity of the case, by the judge's notes.^ This last mode of proof, however, is open to very grave, if not insuperable, objections, as such notes form no part of the record, nor is it the duty of the judge to take them, nor have they the sanction of his oath to their accuracy or completeness.' How far it may be neces- sary to prove the j^recise words spoken, does not clearly appear. Lord Kenyon mentions a case, where the evidence of a witness was rejected, " as he could not undertake to give the words, but merely to swear to the effect of them; " ^ and the same precision has, on several occasions, been deemed requisite in America;'* but on the other hand, it has been urged with much force,'" that to insist upon ' Weqnelin v. Wequelin, 2 Curt. 263. "^ Tod. V. E. of Winchelsea, 3 C. & P. 387, per Ld. Tenterden, ante, ? 400. ^ Gr. Ev. ?i 166, ia part. * Strutt ('. Bovingdon, 5 Esp. 56, per Ld. Ellenborougli; May. of Doncaster V. Day, 3 Taunt. 262: R. v. Jolliffe, 4 T. R. 290, per Ld. Kenyon. ^ May. of Doncaster v Day, 3 Taunt. 262. « Id. 262, per Sir. J. Mansfield. ' Conradi v. Conradi, 1 Law Rep., P. ^ D. 514, per Wilde, J. O. ; Miles v. O'Hara, 4 Binn. 108; Foster v. Shaw, 7 Serg. & R. 156; Ex parte Learmouth, 6Madd. 113. 8 R. V. Jolliffe, 4 T. R. 290. 3 U. S. V. Wood, 3 Wash. 440; Foster 'v. Shaw, 7 Serg. & R. 163; Wilbur V. Selden, 6 Cowen, 165; Com. v. RicTiards, 18 Pick. 434. 1" Gr. Ev. g 165. (3359) 492 VIVA VOCE TESTIMONY, IIOW PROVED. [PART II. strict accuracy, goes, in effect, to exclude this sort of evidence alto- gether, or to admit it only in cases, where the particularity and minuteness of the witness's narrative, and the exactness with which he undertakes to repeat every word of the deceased's testimony, ought to excite just doubts of his own honesty, and of the truth of his evidence.' § 547. Perhaps, therefore, on occasions when nothing of import- §492 ance turns on the precise expressions used, it will be considered sufficient if the witness can speak with certainty to the substance of what was sworn on the former trial. Even on indictments for perjury it is not necessary to state the entire examination, but it will suffice to narrate, with accuracy, the whole of that portion of the evidence which relates to the point on which the perjury is assigned, provided the witness can further swear that he heard the whole examination, and that nothing was subsequently said to qualify the original statement.^ Unless he can do this his evidence cannot be received; ^ and as the same rule must apply to the proof of the testimony of a deceased witness, it follows that if the person who heard him give his evidence can only state what was said on the examination in chief, without also giving the substance of his answers in cross-examination, or, at least, positively swearing that nothing escaped the witness, which could vary or qualify the first statement, his evidence will be inadmissible." § 548. When depositions are tendered in evidence as secondary | 493 proof of oral testimony, they are, of course, open to all the objec- tions which might have been raised, had the witness himself been personally present at the trial. Leading and other illegal questions are therefore constantly suppressed, together with the answers to them; and this, too, whether the testimony has been taken viva ' See Cornell v. Green, 10 Rerg. & R. 14, 10; Miles r. O'Hara, 4 Binu. 108; Catonr. Lenox, 5 Kand. 31, 36; Jackson r. Bailey, 2 Johns. 17. 2 R. V. Rowley, 1 Moo. C. C. Ill; R v. Dowlin, Pea. R. 170. 2 R. r. Jones, Pea. R. 38. * Wolf v. Wyetb, 11 Serg. & R. 149. (3360) CHAP, v.] DEPOSITIONS OPEN TO WHAT OBJECTIONS. 493 voce or by written interrogatories.* But a party cannot repudiate an answer which has been given to an illegal question put on his own side;' and in all cases where objections are taken to interrogatories on the ground of their being couched in a leading form, the judge is vested with a wide discretion as to how much, if any, of the de- positions returned he will in consequence strike out.'' Where a witnes.-=, on being examined upon interrogatories in a foreign country, stated in one of his answers the contents of a letter which was not produced, that part* of the deposition was suppressed at the trial, though it was urged, that as the witness was beyond the jurisdiction of the court, no means existed for compelling the production of the letter.^ "We have no power," said Chief Justice Tindal, "to compel the witness to give any evidence at all; but if he does give an answer, that answer must be taken in relation to the rules of our law on the subject of evidence." ^ § 549. In another case, a witness, with the view of showing that § 494 the defendants had used due diligence to obtain the answer of a party to a bill in Chancery, stated on interrogatories, that, as their agent, he had written to the party; and he then went on to describe the contents of the letter and of the reply, though he produced neither. At a subsequent trial this deposition was tendered in evidence and the court, while rejecting the answers which stated what the letters contained, admitted that part of the deposition which proved that the witness had written a letter to the party in question; for had th6 witness been himself present in court he might have been examined thus far, in order to prove that the de- fendants through him had used some exertion to procure the party's answer.' Again, depositions have been admitted, though the wit- ness on his examination had refreshed his memory with some papers, ' Hutchinson v. Bernard, 2 M. & Kob. 1. * Id. '' Small V. Nairne; 13 Q. B. 840. * In ^\^leeler v. Atkins, 5 Esp. 240, Ld. Ellenborough is reported to have held, under similar circumstances, that either the letter must be produced, or the whole interrogatory abandoned. But this case is clearly not law. See per Ld. Denman, in Small v. Faime, 13 Q. B. 844. * Steinkeller v. Newton, 9 C. & P. 319, per Tindal, C. J. ^ j^ ' Tufton V. Whitmore, 12 A. & E. 370. (3361) 494 NO DEGREES IN SECONDARY EVIDENCE. [pART 11. which he alleged were partly in his handwriting and partly not, but which he refused to allow the commissioners to see upon the ground that they were private memoranda; for, as it was a matter for the discretion of the commissioners, whether they would permit the witness to refer to papers during his examination, the learned judge, at the trial, presumed that they had exercised their discretion with propriety.' § 550. Another general rule, which governs the production of 'i 4i»5 secondary evidence, whether of documents or of oral testimony, is, that the law recognises no degrees in the various kinds of such evi- dence." If, therefore, a deed be lost, or be in the hands of the adversary, who after due notice refuses to produce it, the party seekino- to give evidence of its contents may at once have recourse to parol testimony, though it be proved that he has in his posses- sion a counterpart, a copy, or an abstract of the document.'' So, if it be necessary to prove the former testimony of a deceased witness, any person who heard him examined may be called, though a clerk or a shorthand- writer may have taken down his evidence word for word.* § 551. This rule, of course, does not mean that the mere memory g 495 of a witness, who has read a deed, is entitled to equal weight with au authenticated copy of the same instrument ; for in many cases a jury would properly regard such evidence with distrust, and if it should appear that more satisfactory proof was intentionally with- held, their distrust might amount to absolute incredulity, but the ' Steinkeller r. Newton, 2 M. & Rob. 372,. per Tindal, C. J. ■' Doe V. Ross, 7 M. & W. 102 ; 8 Dowl. 389, S. C.-, Hall v. Ball, 3 M. & Gr. 242 ; 3 Scott, N. R. 577, S. C; Brown r. Woodman, 6 C. & P. 206, per Parke, B. ; Jeans v. Wheedon, 2 M. & Rob. 486, per Cresswell, J. ^ Cases in last note; also, Sugden v. Ld. St. Leonards, L. R., 1 P. D. 154 ; 45 L. J., P. D. & A. 1 & 49, S. C; Brown v. Brown, 27 L. J., Q. B. 173; 8 E. & B,876, S. C; In re Brown, 27 L. J., Pr. & Mat. 20 ; 1 Swab. & Trist, 32, S. C; and In re Gardner, 27 L. J., Pr. & Mat. 55 ; 1 Swab. & Trist. 109, S. C; in whicb cases oral evidence of the contents of a lo.st will was admitted. See Johnson v. Lyford, 37 L. J., Pr., & Mat. 65 ; 1 Law Rep., P. & D. 546, S. C; also, ante, ^^ 436. * Jeans r. Wheedon, 2 M. & Rob. 486, per Cre.sswell, J. See R. v. Chris- topher, 4 Co.\-, 96 ; 1 Den. 533 ; 2 C. & Kir. 994, S. C. . (3362) CHAP, v.] COPIES OF PUBLIC DOCrMP]NTS. 495 rule simply applies to the legal admissibility of the evidence, and is founded on the inconvenience that could not fail to arise in the administration of justice, if the degrees of secondary evidence were strictly marshalled according to their intrinsic weight, and if parties were consequently driven, before they could have recourse to parol testimony, to account for all secondary evidence of superior value, the very existence of which they might have no means of ascer- taining. § 552. In considering the practical efPect of this rule, care must ? 49f; be taken to exclude from its ojyeration those cases in which the law has expressly substituted, in the place of primary proof, some particular species of secondary evidence. Thus, for instance, where the contents of public records and documents are to be proved, examined copies, and, in some cases, office or certified copies, are, on grounds of general convenience, considered admis- "sible;' and such copies, though in strictness secondary evidence, part.ake so much of the character of primary proof, that so long as it is possible to produce them, other inferior degrees of secondary evidence cannot be received.^ Parol testimony, therefore, can only be admitted, on proof, first, that the public record or document has itself been lost or destroyed, for otherwise a copy might be obtained; and, secondly, that such copy, if any has been taken, is no longer under the control of the party. re- lying upon less satisfactory evidence.^ In like manner, if a witness has been examined before a magistrate or coroner under such cir- cumstances, that these officers respectively have, in pursuance of their duty, taken down his statement in writing, parol evidence of his examination cannot be given in the event of his death, so long as the deposition itself can be produced; for the law, having constituted the deposition as the authentic medium of proof, will not permit the admission of any inferior species of evidence. If, indeed, it can be shown that the deposition is lost or destroyed, or is in the ' Ante, ^ 439, and post, ?? 1534, 1545, 1598, et seq. " Doe V. Ross, 7 M. & W. 106, per Ld. Abinger. ' Thurston v. Slatford, 1 Salk, 214, 285; Macdougal j'. Young, Ry. & M. 392; 1 Ventr.,257. (3363) 496 COPIES OF COPIES INADMISSIBLE. [PART II. possession of the opposite party, who after notice refuses to produce it, the statement of a witness who was present at the examination will then be admissible, as Avell as a copy of the deposition.' § 553. The rule which includes in one legal category every ? 497 species of secondary proof, by no means opens a door to all sorts of evidence, however loose, which a party chooses to tender." The contents, therefore, of a written instrument which is lost cannot be proved by means of a copy, until it be shown that such copy is accurate; and if, as frequently happens, a party to the suit has himself made a copy of a letter which he has sent to his adversary, this copy, should the adversary refuse to produce the letter after notice, cannot be read in evidence, unless the party who made it can swear to its accuracy, or some other witness can be called who has compared it with the original.^ Neither can a document, — excepting in a very few cases by statutory authority, — be proved by the production of the copy of a copy,* for such evidence would be rejected on the broad ground which renders hearsay evidence inadmissible. The opponent would have a right to object that, assuming the second copy to correspond exactly with the first, the first must be produced and proved to have been compared with the original, or otherwise there would be nothing to show that the second copy and the original were identical. Such evidence would in fact be but the shadow of a shade. 1 See 2 Russ. C. Sc M. 895; R. v. AVykle, 6 C. & P. 380. ^ Everingham v. Roundell, 2 M. & Rob. 138, per Alderson, B. ^ Fisher v. Samuda, 1 Camp. 193, per Ld. Ellenborough. But see Waldy V. Gray, 20 Law Rep., Eq. 238, 250, per Bacon, V.-C. * Liebman v. Pooley, 1 Stark. R. 167, per Ld. Ellenborough; Everingham V. Roundell, 2 M. & Rob. 138. (3364) CHAP. VI. J EVIDENCE ADDRESSED TO THE SENSES. 497 CHAPTER VI. EVIDENCE ADDRESSED TO THE SENSES. § 554. The first degree of evidence, and that which, though I 498 open to error and misconception, is obviously most satisfactory to the mind, is afforded by our own senses.' " Believe half what you yourself see, and a twentieth part of what you hear from others," is a maxim, which reflects severely upon human intelligence and veracity, but which, nevertheless, is founded in the main upon the experience of life, and marks the vast distinction that obtains between a knowledge of facts derived from actual perception, and the belief of the existence of facts resting on information. In judicial proceedings, the judge or jury can seldom act entirely upon evidence of this description, though, when pregnancy is pleaded, a jury of matrons is empowered to decide the issue upon examination of the person of the prisoner;" but in a vast number of instances, especially where the fact in dis-pute is sought to be proved by circumstantial evidence, the verdict will be found to rest materially upon matter submitted to the ocular inspection of the jury. Thus, if a prisoner be indicted for stealing corn, and one of the circumstances tending to establish his guilt be his possession of wheat apparently resembling a quantity from which a portion has been recently taken, it is evident that a comparison by the jary of the wheat found upon the prisoner with a sample of that belonging to the prosecutor, will be more satisfactory than if its identity be sworn to by a witness, who, out of court, has examined the two lots. It is true that the jury may come to an ' " Segnius irritant animos demissa per aurem, Quam quai sunt cculis subjecta fidelibus, et quee Ipse sibi tradit spectator." — HoR. Ars Poet. 1, 180. So, also, in Shakespeare's " Rape of Lncrece," we read, — " To see sad sights moves more than hear them told, For then the eye interprets to the ear." 2 Baynton's case, 14 How. St. Tr. G30, 631, G34; 1 Hale, 368, 2 id. 413; R. r. Wycherley, 8 C. & P. 262. By this last case it appears, that the matrons may, in addition to their personal inspection, hear the evidence of a snrgeon, but in that event he must be examined as a witness in open court. See Lady Essex's case, 2 How. St. Tr. 802. (336.-)) 498 I'llODUUTION OF ARTICLES FOR IDENTIFICATION. [PART II. erroneous conclusion in such a case; for either the witnesses, who state that the two parcels of wheat produced were respectively taken from the prisoner and the prosecutor, may intentionally or accidentally assert what is not true, or the jurors themselves may be mistaken in assuming the identity of the grain. Still, both these sources of error will equally exist, in the event of a witness being called to state the I'esult of his previous examination of the tjvo samples. And this last course will be farther open to the objection, that such a witness may with little danger tell a fabri- cated story, since examination as to mere matters of opinion is almost necessarily inconclusive, and consequently the jury run the additional risk of being misled by his fraudulent testimony. § 555. These observations apply to all cases, in which the guilt ? 49S or innocence of a prisoner depends upon the idenilfy or comparison of two articles found in different places; as, for example-, the wadding of a pistol with portions of a torn letter found on the person of the accused, or the fractured bone of a sheep Avith mutton found in his house, or fragments of dress with his rent garment, or damaged property with the instrument by which the damage is supposed to have been effected. In all these, and the like cases, it is highly expedient, if possible, to produce to the court the articles sought to be compared; and although the law, in demanding the production of the best evidence, does not ex- pressly require that this course should be adopted, but permits a witness to testify as to his having made the comparison, without first proving that the article cannot be produced at the trial, their non-production, when unexplained, may often generate a suspicion of unfairness, and will always furnish an occasion for serious com- ment.' In illustration of this subject, reference may be made to an old case. A boy having found a diamond, took it to a jeweller, who refused to return it to him. An action of trover was brought, and as the jeweller declined to produce the diamond at the trial, the judge directed the jury to presume that it was of the finest water, and they found accordingly.^ So, in the case of "Wood v. ^ See ante, ? 117. " Armory i: Delamirie, 1 Str. 504; 1 Smith, L. C. 301, S. C. (3366) CHAP. VI.] SKILLED WITNESSES AIDING THE JURY. 499 Peel/ where the point at issue was whether the plaintiff's horse " Running Rein," who had won the Derby in 1844, was foaled by Mab in 1841, the production of the horse, in order to test the accuracy and credit of the witnesses who had sworn to its identity, was considered so material, that the plaintiff, being unable to comply with an order of the court to produce it, submitted very prudently to a nonsuit, rather than run the almost inevitable risk of a verdict in favour of the defendant. § 556. In many cases of this nature it will be advisable, in ^ ^^^ order to guide the jury to a right decision, that persons conversant with the articles produced should be examined as to their opinion respecting the proof of identity. For instance, if the question be whether two samples of wine be drawn from the same bin, or two pieces of cloth be the produce of the same loom, or two coins be struck in the same die, it is important that a wine-merchant, a clothier, or an officer of the Mint,^ should respectively be called, in order to furnish the court with suggestions founded on practical experience; because, in such inquiries, a jury composed of persons perhaps but little acquainted with these matters, can scarcely, without some extrinsic aid, be enabled to form a correct judgment respecting them. Still, even here the articles should be produced^, that the jury may test the accuracy of the opinions expressed by the witnesses, and may perceive that the reasons, upon which those- opinions are founded, correspond with the actual state and condition-, of the articles themselves. § 557. Though evidence addressed to the senses, if judiciously § 5or employed, is obviously entitled to the greatest weight, care must be taken not to push it beyond its legitimate extent. The minds of jurymen, especially in the remote provinces, are grievously open to prejudices, and the production of a bloody knife, a bludgeon, or a burnt piece of rag, may sometimes, by exciting the passions, or 1 Ex. Middx. Sittings after T. T., 1844, cor. Alderson, B., MS. '^ 24 & 25 v., c. 99, § 29, provides, that, in order to prove coin to be counterfeit, it shall not be necessaiy to call any raoneyer or other officer of the Mint, but that it shall be sufficient to prove that fact by the evidence of any other credible witness. 11 LAW OF EVID.— V. II. (3367) 500 ABUSE OF EVIDENCE ADDRESSED TO THE SENSES. [PART 11. enlisting the sympathies of the jury, lead them to overlook the necessity of proving in what manner these articles are connected •with the criminal or the crime; and they consequently run no slight risk of arriving at conclusions, which, for want of some link in the evidence, are by no means warranted by the facts proved. The abuse of this kind of evidence has been a fi-uitful theme for the satirist; and many amusing illustrations of its efPect might be cited from our best authors. Shakespeare makes Jack Cade's nobility rest on this foundation ; for Jack Cade having asserted, that the eldest son of Edmund Mortimer, Earl of March, " was by a beggar woman stolen away," " became a bicklayer when he came to age," and was his father; one of the rioters coniirms the story, by saying, " Sir, he made a chimney in mv father's house, and the bricks are alive at this day to testify it; therefore deny it not." ' Archbishop Whately, — who makes use of the above anecdote in his diverting "Historic Doubts relative to Napoleon Buonaparte," — • adds, " Truly this evidence is such as country people give one for a story of apparitions; if you discover any signs of incredulity, they triumphantly show the very house which the ghost haunted, the identical dark corner where it used to vanish, and perhaps even the tombstone of the person whose death it foretold."^ So, in the interesting story of '' The Amber Witch," the poor girl charged with witchcraft, — after complaining that she was the victim of the sheriff, who wished to do "wantonness with her," — added, that he had come to her dungeon the night before for that purpose, and had struggled with her, " whereupon she had screamed aloud, and had scratched him across the nose, as might yet be seen, wherupon he had left her." To this the sheriff replied, " that it was his little lap-dog, called Below, which had scratched him, while he played with it that very morning," and having produced the dog, the court were satisfied with the truth of his explanation.^ § 558. Turning once more to matters of graver import, it may g 502 be observed that in causes, either relating to disputed rights of way, ^ Sec. Part of Hen. 6, act 4, scene 2. 2 p. 28, 6th ed. ^ Amber Witch, translated by Lady Duff Gordon, p. 78 — 80. (3368) CHAP. VI.] ORDER TO VIEW THE SPOT IN DISPUTE. 501 or involving some question which depends on the relative position of places, it is often desirable that the jury should have an oppor- tunity of viewing the spot in controversy; ' since the knowledge derived by these means is far more satisfactory than any obtainable by the mere examination of maps and plans, which are often inac- curate and obscure, and may perhaps have been prepared with an express view to mislead. The attention of the Legislature having been drawn to this subject, a clause was inserted in the Jury Act of 1825,^ which enacts in substance, that when in any case, either civil or criminal, or on any penal statute, depending in one of the superior courts of law, it shall appear proper that some of the jurors shall have a view of the place in question, in order to their better understanding the evidence that may be given at the trial, the court or a judge may order that a writ shall be drawn up for such purpose. As the machinery under this statute was needlessly cum- brous, a provision was introduced into the Common Law Procedure Act of 1852,^ to simplify the practice by substituting a rule for a view in the place of the old writ ; and the judges, in order further to facilitate the mode of procedure, subsequently passed a resolu- tion, that "the rule for a view may, in all cases, be drawn up by the officer of the court, on the application of the party, without a motion for that purpose." * § 559. Still, as the Act of 1825 speaks merely of viewing "the § 503 place in question," a view could seldom be granted by the court. ' For an early instance of this practice, see Mossam ii Ivy, 10 How. St. Tr. 562, 631 ; a case tried in 1684. ''6G.4, c. 50, U 23&24. ^ 15 & 16 v., c. 76, ^ 111, enacts, that "a writ of view shall not be neces- sary or used ; but whether the view is to be had by a common or special jury, it shall be sufficient to obtain a rule of the court or judfje's order, directing the view to be had ; and the proceedings upon the rule for a view shall be the same as the proceedings heretofore had under a writ of view ; and the sheriflf, upon request, shall deliver to either party the names of the viewers, and also shall return their names to the associate, for the purpose of their being called as jurymen upon the trial." See, also, 34 & 35 V., c. 65, § 38, Ir., as to the Irish practice; and Eeg. Gen. 24 V., r. 75, 6 H. & N. xiii., as to the practice on the Revenue side of the Queen's Bench Division. * Reg. Gen., H. T., 1853, r. 48. As to what the aftldavit in support of the application must contain, and as to costs, see id., r. 49, cited 1 E. & B. App. xi. (3369) 502 ORDER TO INSPECT PROPERTY IN DISPUTE, [PART II. except m actions of a local nature, such as ejectment, trespass quare claiisum fregit, waste, and nuisance; and Mr. Baron Parke even lield that the enactment was inapplicable to a case, where an action was "brought to recover the value of work done to the defendant's house, and the defence rested on the alleged bad quality of the work.^ The construction thus put upon the Act proved very clearly that the Superior Courts possessed no adequate powers for ordering a view even in the case of a house ; and the Common Law Commissioners were not slow to perceive, that in numerous other cases an inspection of chattels before trial, either by the party, his witnesses, or the jury, might be of great advantage, — as, for example, when the quality or construction of machinery, or the condition, value, or identity of goods was in dispute.^ Accord- ingly, they recommended in their second Report, that the Superior Courts of Common Law should be intrusted with additional powers for ordering the inspection of premises and chattels, and their recommendation was carried out by § 58 of the Common Law Pro- cedure Act, 1854.^ § 560. As that section is now repealed,* it is needless here to set § 504 out its provisions; and the more so as the law on the subject is at present governed by the Rules of the Supreme Court, 1883, which in Ord. L. provide as follows : — R. 3. " It shall be lawful for the court or a judge, upon the application of any party to a cause or matter, and upon such terms as may be jiist, to make any order for the detention, preservation or insiiection of any x)roperty 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 the purposes aforesaid to authorise any j^^^sons 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 authorise any samples to be taken, or any observation to be made or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence." R. 4. "It shall be lawful for any judge, by whom any cause or 1 Stones V. Menhem, 2 Ex. R. 382. "^ 2d Rep. p. 37. 8 17 & 18 v., c. 125. ♦ 46 & 47 V., c. 49. (3370) CHAP. VI.] ORDER TO INSPECT PROPERTY IN DISPUTE, 503 matter may be heard or tried with or without a jury, or before whom any cause or matter may be brought by way of appeal, to inspect any property or thing concerning which any question may arise therein." R. 5. " The provisions of Rule 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." R. 6 next provides, that an application for an order under R. 3 may be made to the court or a judge by any party. " If the appli- cation be by the plaintiff, it may be made after notice to the defendant at any time after the issue of the writ of summons, and if it be by any other party, then on notice to the plaintiff, and at any time after appearance by the party making the application." § 561. The Irish Act of 16 *& 17 V., c. 113, contains a clause, I 504 a which, though quite sufficiently wordy, attains some of the objects aimed at by the English Rules; for § 47 provides, that "in any case in which it shall appear to the court or a j tidge, that it would be necessary, for the purpose of ascertaining the truth of any matter in dispute between the parties in the action, that an inspec- tion or examination of any premises or chattels in the possession or power of either party, and in respect of which, or some right or injury connected with which, the said action shall be brought, should be had by the opposite party, his attorney, agent, witnesses, or by the jury, it shall be lawful for such court or judge to order that the party, in whose possession or power the same shall be, shall permit an inspection and examination of the said premises or chattels by the jury, or by such person or persons on behalf of the party applying, and at such times and under such regulations, as to the said court or judge shall seem fit." The Patents, Designs, and Trade Marks Act, 1883,' which extends equally to England and Ireland, recognises the same principle; and, under § 30 of that statute, either party may, in an action for the infringement of a 1 46 & 47 v., c. 57. (3371) 504 POWER TO ORDER A VIEW, [PART II, patent, obtain such an order for an inspection' as the court or a judge may think tit to grant. § 562. All these powers to order views of places or inspection of g 505 property, whether granted by statute or rule, give to the courts and judges, by implication, authority to order all things ancillary to the view or inspection required. Where, therefore, a wall had recently been erected in a mine, so as to obstruct a complete inspection of the workings, the court, on a question of encroachment, ordered the removal of such obstruction.^ § 564. The Admiralty Court Act, 1861,-^ contains in § 18 an § 505u enactment on the same subject, which enables any party to apply to that Court "for an order for the inspection by the Trinity Masters or others appointed for the trial of the cause, or by the party himself or his witnesses, of any ship or other personal or real property, the inspection of which may be material to the issue of the cause; and the court may make such order in respect of the costs arising thereout as to it shall seem fit." * § 565. Under the Rules of the Supreme Court, 1883, " where any cause or matter, or any question in any cause or matter, is re- ferred to a Referee, he may, subject to the order of the court or a judge," (among other things) "have any inspection or view, either by himself or with his assessors, if any, which he may deem expedient for the better disposal of the controversy before him." * § 566. These are admirable provisions so far as they extend, but § 506 as a question of policy it will scarcely admit of a doubt, that the power of granting a view, or inspection, which, — except in the special cases of County Courts,^ Barmote Courts^ and Courts- 1 See Vidi i\ Smith. 3 E. & B. 9G9, 974; Patent Type Found. Co. v. Lloyd, H. & N, 192; Patent Type Found. Co. v. Walter. 1 V. John. 727. 2 Bennett v. Griffiths, 3 E. & E. 407. * 24 & 25 v., c. 10. See, also, 30 & 31 V., c. 114, I 66, Ir. * See The Germania, 37 L. J., Adm. 59. * Ord. XXXVI. , R. 48. « Cy. Ct. Rules, 1875, Ord. XI. ^ See 14 & 15 v., c. 94, 1 Sch., g§ 22—28, and 2 Sch. Form. (3372) CHAP. VI.] POWER TO ORDER A VIEW. 505 martial,' — is at present confined, both in England and in Ireland, to the judges of the Supreme Court, and to proceedings in one or other of the Divisions of that Court, might with great advantage be extended to every court of record. It must also be borne in mind that, as the law now stands, the New Rules, cited in § 560, simply apply to cicil proceedings ia the Supreme Court," and consequently, in all criminal proceedings, the practice respecting views still rests on the inadequate provisions of the Acts of 1825 and 1852.^ It further deserves consideration, whether it be not expedient to empower the presiding judge at any trial to order a view, even after the evidence may have been heard,* if in his opinion such a step is necessary for the purposes of justice. 1 44 &45 v., c. 58, | 53, subs. 7. ^ Rules of Sup. Ct., 1883, Ord. LXVIII., E. 1. 3 6 G. 4, c. 50, U 23 and 24 ; 15 & 16 V., c. 7G, | 114, both cited ante, p. 501. *In R. V. Martin, 1 Law Rep., C. C. 378; 12 Cox, 204; 41 L. J., M. C. 113, S. C. ; the Court of Crim. Appeal is reported to have held, that the Deputy Assistant Judge for the Middlesex Sessions, on the trial of a misde- meanor, was empowered to allow the jury to have a view of the premises in question, after he had summed up the evidence to them. In this case, how- ever, there was no argument heard, and the attention of the judges was not directed to any of the statutes on the subject. (3373) 506 EXPLANATION OF HEARSAY. [PART II. CHAPTER VII. HEARSAY. § 567.' As evidence afforded by our own senses is seldom at- § 507 tainable in judicial trials, the law is satisfied with requiring the next best evidence, namely, the testimony of those who can speak from their own personal knowledge. It is not requisite that the witness should have personal knowledge of the main fact in con- troversy ; for this may not be provable by direct testimony, but only by inference from other facts shown to exist. But it is requisite that, whatever facts the witness may speak to, he should be confined to those lying within his own knowledge, whether they be things said or done, and should not testify from informa- tion given by others, however worthy of credit they may be. For it is deemed indispensable to the proper administration of justice, — first, that every witness should give his testimony under the sanction of an oath, or its equivalent, a solemn aifirmation, — and secondly, that he should be subject to the ordeal of a cross- examination by the party against whom he is called, so that it may appear, if necessary, what were his powers of perception, his opportunities for observation, his attentiveness in observing, the strength of his recollection, and his disposition to speak the truth. But testimony from the relation of third persons, even where the informant is known, cannot be subjected to these tests ; for, as Mr. Justice Buller observes, "If the first speech were without oath, another oath that there was such speech makes it no more than a mere speaking, and so of no value in a court of justice ;"" besides, it is often impossible to ascertain through whom, or how many persons, the narrative has been transmitted, from the original witness of the fact. It is this, which constitutes that sort of second-hand evidence, termed hearsay ; a species of proof 1 Gr. Ev. g 98, in great part. ^ g j^ p 394, b. (3374) CHAP. VII.] HEARSAY INADMISSIBLE. 507 which, with a few exceptions that will be presently noticed, cannot be received in judicial investigations.' § 568. This rule of exclusion has been recognised as a funda- ? 508 mental principle of the law of evidence ever since the time of Charles the Second;- and so strictly is it enforced that it is even held applicable to cases, in which, if the declaration be rejected,' no other evidence can possibly be obtained; as, for example, where the declaration purports to be that of the only eye-witness of the transaction, and he is since dead.^ So, it has several times been held, where prisoners have been indicted for ravishing children, who were too young to be admissible witnesses, that statements made by the children to their mothers shortly after the offence ^ The rule excluding hearsay evidence, or rather the mode in which that rule is Irequently misunderstood in courts of justice, is amusingly caricatured by Mr. Dickens in his report of the case of Bardell t\ Pickwick, p. 367: — " ' I believe you are in the service of Mr. Pickwick, the defendant in this case. Speak up if you please, INIr. Weller.' " ' I mean to speak up, sir,' replied Sam. ' I am in the service o' that 'ere gen'l'man, an wery good service it is.' . '■ ' Little to do, and j)leuty to get, I suppose ? ' said Serjeant Buzfuz, with jocularity. " ' Oh quite enough to get, sir, as the soldier said ven they ordered him three hundred and fifty lashes,' replied Sam. " ' You must not fell us tvhat the soldier, or any other man, said, sir,' interposed the judge, ' iVs not evidence.'' " ' Wery good, my lord,' replied Sam." ^ One of the earliest cases in which the rule was acted uiion, is Sampson v. Yardley, 2 Keb. 223, PL 74, 19 Car. 2. ^ 1 Ph. Ev. 209. In Scotland the rule is otherwise; evidence on the relation of others being admitted, where the relator is since dead, and would, if living, have been a competent witness. — 1 Dickson, Ev. 66, 67; Dysart Peer., L. R., 6 App. Gas. 489. In this last case the extent of the rule and the exceptions to which it is subject, are discus.sed at some length. It seems that even where the relation has been handed down to the witness at second hand, and through several successive relators, each only stating what he received from the inter- mediate relator, it will still be admissible, if the original and intermediate relators are all dead, and would have been comjieteut witnesses if living. Tait, Ev. 430, 431 ; but see 1 Dickson, Ev. 70. The reason for receiving hear- say evidence in cases, where, as is often the case in Scotland, the judges deter- mine upon the facts in dispute, as well as upon the law, is stated and vindicated by Sir J. Mansfield, in the Berkeley Peer., 4 Camp 415. It is observable, that, according to the practice of the English courts, hearsay evidence is often admitted and acted upon iu affidavits, which are submitted to the judges only. (3375) 508 HEARSAY INADMISSIBLE. [pART II. was committed, could not be received in evidence.' So, also, a declaration, though made on oath, and in the course of a judicial proceeding, cannot bo received, if the litigating xmrties are not the same; because, ia such case, the party against whom the evidence is offered, has had no opportunity of cross examining the declarant. The deposition therefore of a pauper as to the place of his settlement, taken ex parte before a magistrate, will be rejected, though the pauper himself has since absconded or died." § 569. The rule will even exclude declarations of a deceased § 509 subscribing witness to a deed or will, in disparagement of the evidence afforded by his signature. In the case of Stobart v. Dryden,^ the admissibility of such declarations was strenuously urged on two grounds; first, that since the party offering the deed used the declaration of the witness, as evidenced by his signature to prove the execution, the other party might well be permitted to use any other declaration of the same witness, to disprove it; and, secondly, that such declaration was in the nature of a substitute for the loss of the benefit of a cross-exami- nation of the subscribing witness; by which either the fact con- fessed would have been proved, or the witness might have been contradicted, and his credit impeached. Both these grounds were overruled by the Court; the first, because the evidence of the handwriting in the attestation is not used as a declaration by the witness, but is offered merely to show the fact that he put his name there, in the manner in which attestations are usually ■ placed to genuine signatures; and the second, chiefly because of the mischiefs which would ensue, if the general rule excluding hearsay were thus broken in upon. For the security of solemn instruments would thereby become much impaired, and the rights 1 R. V. Brasier, 1 Lea. 199; 1 East, P. C. 443, S. C. ; R. t\ Nicholas, 2 C. & Kir. 246, per Pollock, C. B. '^ R. V. Nuneham Courtney, 1 East, 373; R. v. Ferry Frystone, 2 East, 54; R. V. Abergwilly, id. G3; Mima Queen v. Hepburn, 7 Cranch, 29G. 3 1 M, & W, 615, 623, 624, 627. (3376) CHAP. VII.] GROUNDS FOR EXCLUDING HEARSAY. 509 of parties under them would be liable to be affected at remote periods by loose declarations of the attesting witnesses, which could neither be explained, nor contradicted, by the testimony of the witnesses themselves. In admitting such declarations, too, there would be no reciprocity; for although the party impeaching the instrument would thereby have an equivalent for the loss of his power of cross examination of the living witness, the other party would have none for the loss of his power of re-examination. § 570.' The term hearsay is used with reference to what is done § 510 or written, as well as to what is spoken; and, in its legal sense, it denotes that kind of evidence which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person.^ That this species of evidence is not given upon oath, that it cannot be tested by cross examination, and that it supposes some better testimony, which might be adduced in the particular case, are not the sole grounds for its exclusion. Its tendency to protract legal investigations to an embarrassing and dangerous length, its intrinsic weakness,^ its incompetency to satisfy the mind as to the existence of the fact, and the frauds which may be practised with impunity under its cover, combine to support the rule that hearsay evidence is inadmissible.*. § 571. It cannot, however, be denied, that the rule excluding § 511 hearsay evidence, though in general admirably calculated for trials before popular tribunals, may in many instances work consider- able injustice. For example, on a question respecting the com- petency of a testator, the conduct of his family or relations taking the same precautions in his absence as if he were a lunatic, or his election in his absence to some high and responsible office, or the conduct of a physician who permitted him to execute a will, — all 1 Gr Ev. I 99, in great part. ^ 1 Ph. Ev. 185. ^ " Pluris est oculatus testis unus, quam auriti decern; Qui audiunt, audita dicunt, vui vident, plane sciunt." Plaut. Trucu, Act 2, sc. G, 1,8, 9. * Per Marshall, C. J., in Mima Queen v. Hepburn, 7 Cranch, 290, 295, 296 ; Davis V. Wood, 1 Wheat. 6, 8; R. v. Eriswell, 3 T. R. 707. (3377) 510 EXCLUSION OF HEARSAY SOMETIMES UNWISE. [PAKT II. these, when considered with reference to the matter in issue, are mere instances of hearsay evidence, mere statements, expressed in the language of conduct instead of the language of words; and, consequently, they are inadmissible in a court of justice, although in the ordinary transactions of life they would deservedly be con- sidered as cogent moral proof.' So, on a question of seaworthi- ness, the fact that a deceased captain, after examining every part of the vessel, embarked* in it with his family, — and, on a question respecting the loss of insured property, the fact that other underwriters have paid on the same policy,^ — cannot be received in evidence. On the same ground the fact, that, after the issuing of a fiat, certain creditors of the bankrupt returned to his assignees goods which they had received from the bank- rupt before he delivered other goods to the defendant, was, in an action of trover brought by the assignees, held inadmissible, as proof that an act of bankruptcy had been committed prior to the time when the goods came into the hands of the defendant;'^ and, — not to multiply instances,* — where a servant was indicted for per- jury, in saying that her deceased mistress had never had a child, declarations of the mistress were rejected as evidence for the Crown,^ although, in action of ejectment, where the same question was in issue, and the words charged as perjury were uttered, such evidence was admitted, as relating to a matter of pedigree.® § 572. In most of the instances given above, as illustrating the § 512 occasional inconvenience of the rule, the evidence rejected amounted to something more than the mere declarations of parties not ex- amined on oath, nor subjected to cross-examination; for these declarations ivere accompanied by acts done in confirmation of their sincerity, and as such, the evidence was, morally speaking, entitled to great weight. The law, however, will not on this account allow I Wright I'. Doe d. Tatham, 7 A. & E. 388, per Parke, B.; 4 Bing. N. C. 54, per Vaughan, J. * 7 A. & E. 387, 388. 3 Backhouse v. Jones, 6 Bing. N. C. 65; 8 Scott, 148, S. C. * See Gresham Hotel Co. v. Manning, I. R., 1 C. L. 125. s Heath's case, 18 How. St. Tr. 68, 76. 6 Annesley v. D. of Anglesea, 17 How. St. Tr. 1175, 1188. (3378) CHAP. VII. J DOE D. TATHAM V. WRIGHT. 511 any exception to be made in favor of hearsay; for although, if an act done be evidence per se, any declarations accompanying that act are, — as we shall presently see,' — admissible for the purpose of illustrating, qualifying, or completing it; yet, if the act be in its own nature irrelevant to the issue, and the declaration be inadmis- sible, the union of the two cannot render them evidence.^ § 573, This question was much discussed in the great case of ? 513 Doe. d. Tatham v. Wright,^ where the title to the property in dis- pute depended upon the competency of Mr. Marsden to make a will. The cause was tried four times, and as often debated in the Superior Courts, till at length in the House of Lords it was decided by all the judges, that letters addressed to a person, whose sanity is the fact in question, unless connected in evidence with some act done by him in relation thereto, are inadmissible to show that he was sane, though the writers were since dead, and the party addressed was treated in the letters as an intelligent man. A great majority of the learned judges also held upon that occasion, that the mere fact of finding such letters, many years after they were written, with the seals broken, in company with other papers bearing in- dorsements in the testator's handwriting, in a cupboard under his bookcase in his private room, was insufficient to raise an inference that they had been read, understood, or acted upon by him; since, — - although letters, found in such a situation, would no doubt be evi- dence against a party criminally accused or civally charged, because, on the tacit supposition that he was a man of sound mind, it would be presumed that he was cognizant of their 'contents;* — yet, to make such a supposition, where the capacity of the party was the matter in controversy, would be to argue in a circle. The reasoning, in fact, would proceed thus : — because the testator had sufficient ability to transact business, therefore the inference arises that he ' Post, ? 583, et seq. 27 A. &E. 361; 4 Bing. N. C. 498. See Gresham Hotel Co. r. Manning, I. R., 1 C. L. 125. »See 2 Russ. & Myl. 1; 1 A. & E. 3 ; 3 N. & M. 2G0 ; 7 A. & E. 313 ; 6 N. & M. 132; 4 Bing. N. C. 489, S. C. * See 7 A. & E. 369, per Gurney, B. ; id. 376, per Bosanquet, J.; 4 Bing. N. C. 531. ner Alderson, B. (3379) 512 SANITY NOT PROVABLE BY EVID. OF TREATMENT. [PABT II. read and understood the letters; and because he read and under- stood the letters, therefore the inference arises that he had sufficient ability to transact business.' § 574 Had the testator, in tlie case just put, indorsed these ^ .514 letters himself, or could any direct or positive evidence have been given to show that he had, whether by act, speech, or writing, manifested a knowledge of their contents, it is clear that the letters could not have been rejected, or in any way withdrawn from the consideration of the jury; for although they would then have been admitted solely on the technical ground that they explained and illustrated his conduct, no rule of law could have prevented theni from operating with fall effect upon the minds of the jury, as show- ing the unbiassed opinions of the writers, and in what manner the testator had been treated by them.^ § 575, When the ecclesiastical tribunals were courts of probate, g 515 they adopted a different rule from that established by the case of Doe d. Tatham v. Wright; and in questions respecting the mental capacity of a testator, they admitted, as evidence of treatment, letters written to him by his friends, without proof of any recog- nition on his part,'* — and, as evidence of opinion, letters written by his relatives even to other parties.* These decisions, however, are now, it is feared, of no importance, as the Probate Division is bound 1 See 7 A. & E. 391, per Parke, B.; 4 Bing. N. C. 545, per id.; id. .'SSI, per Alderson, B.; id. 502, 504, per Coleridge, J.; id. 525, 52G, per Patteson, J. The letters rejected in tliis case were three. 1st. A letter of gratitude to the testator from a clergyman to whom he had formerly given preferment; 2nd. A letter of friendsliip from a relative, with whom the testator was proved to have corresponded three years afterwards ; 3rd. A letter advising the testator to direct his attorney to take steps in a transaction in a certain parish. This letter was indorsed by the attorney, who was long since deceased. Three of the judges considered that all the letters were admis.sible, six thought that the last was. The remaining judges, including Lds. Brougham, Lyndhurst, and Cottenham, held that all the letters were alike inadmissible. 2 7 A. & E. 325, per Ld. Denman; 4 Bing. N. C. 500, per Coleridge. J.; id. 530, per Alderson, B. ; id. 510, per Williams, J. ; id. 567, per Tindal, C. J. ^ Morgan v. Boys, per Sir H. Jenner, cited 7 A. & E. 337; Handley v. Jones, cited id. ; Waters v. Howlett, per Sir J. Nicholl, cited 1 A. & E. 8. * Wheeler v. Alderson, 3 Hagg. Ec. R. 574, 609, per Sir J. Nicholl. (3380) CHAP. VII.] HEARSAY AND ORIGINAL EVIDENCE — DISTINCTION. 513 to recognise the rules of evidence observed in the other Divisions of the High Court.' § 576.^ In considering this branch of the law of evidence, care § 51( must be taken to distinguish clearly between hearsay evidence and that which is deemed original. For it does not follow that, because the writings or words in question are those of a third person not under oath, they are therefore to be considered as hearsay. On the contrary, it often happens that the very fact in controversy is, whether certain things were written, or spoken, and not whether they were true ; and at other times the oral or written statements tendered in evidence may prove to be the natural or inseparable concomitants of the principal fact in controversy.^ In either of these cases it is obvious that the writings or words are not within the meaning of hearsay, but are original and independent facts, admissible in proof of the issue. Thus, if the question be whether a party has acted prudently, wisely, or in good faith, the informa- tion on which he acted, whether true or false, is original and material evidence. This * is often illustrated in actions for malicious pro- secution,^ or libel ; ^ as also in cases of agency and of trusts. For example, in an action for malicious prosecution, when the plaintiff, — in order to show that the magistrate's leniency in admitting him to bail had been occasioned, not by the intercession of the defendant, but by the receipt of a letter said to have come from a judge, — tendered such letter in evidence, it was held to be admissible, without proof that it was written by the judge's authority; and, in the same case, an affidavit sworn by a clerk of the prosecutor's solicitor, which stated that means had been taken on the part of the prosecutor to prevent a person from becoming bail for the plaintiff, was likewise admitted as original evidence, without the clerk's being 1 20 & 21 v., c. 77, I 33 ; 20 & 21 V.. c. 79, ? 38, Ir. ; Sapr. Ct. of Jud. Act, 1873, 3G & 37 v., c. 66, ^ 16 ; Supr. Ct. of Jud. Act, 1875, 38 & 39 V., c. 77, ^ 18. ^ Gr. Ev. ^ 100, in great part. » Bartlett v. Delprat, 4 Mass. 702, 708 : Du Bost v. Beresford, 2 Camp 512. ♦ Gr. Ev. § 101, in part. * Ravenga v. Mackintosh, 2 B. & C. 693. ® Coleman v. Southwick, 9 Johns. 45. (3381) 514 REPLIES AND GENERAL REPUTE WHEN ORIGINAL EVID. [pART 11. called to prove by whose instructions he had made the afi&davit.' So, the replies given to inquiries made at the residence, either of an absent witness, or of a bankrupt, denying that he was at home, are original evidence, without examining the persons to whom the in- quiries were addressed ; because the testimony of the parties inquiring is sufficient to establish the denial, which is the only material fact. ^ § 577.^ Not only does this doctrine apply, whenever the fact that ? '''I? a certain communication was made, and not its truth or falsehood, is the point in controversy ; * but it extends also to those cases, where the truth of the facts in dispute will be inferred from the existence of another fact which is under investigation. Upon these grounds it is considered that evidence of general re2Jutation, re- puted ownership, public rumour, general character, general noto- riety, and the like, though composed of the speech of third persons not under oath, is original evidence and not hearsay; the imme- diate subject of inquiry being the concurrence of many voices, which raises a presumption that the fact in which they concur is true." § 578. Thus, it has frequently been decided that, except in peti- ^ 517 tions for damages by reason of adultery, and in indictments for bigamy, where strict proof of marriage is required,® general rejjuta- Hon is admissible to establish the fact of parties being married. In most of the cases, the marriage has been proved by evidence of certain specific facts, such as the parties being received into society as man and wife, being visited by respectable families in the neigh- 1 Taylor v. AVillans, 2 B. & Ad. 845. - Crosby v. Percy, 1 Taunt. 364 ; Key v. Shaw, 8 Bing. 320 ; Morgan v. Morgan, 9 id. 359 ; Svininer v. Williams, 5 Mass. 444 ; Pelletreau v. Jackson, 11 Wend. 110, 123, 124 ; Phelps v. Foot, 1 Conn. 387. Where it is necessary to show, not only that diligent search has been made for the witness, but that he is actually absent, such evidence is not admissible. See ante, ^g 475, 517. » Gr. Ev. ? 101, in part. * Whitehead v. Scott, 1 M. & Rob. 2 ; Shott v. Strealfield, id. 8. ^ Foulkes V. Sellway, 3 Esp. 236 ; Jones v. Perry, 2 id. 482 ; B. N. P. 296, 297 ; Oliver v. Bartlett, 1 B. & B. 269 ; Gurr v. Rutton, Holt, N. P. R. 327. ^ See ante, § 172. ; (3382) CHAP. VII.] GENERAL NOTOKIETY WHEN ORIGINAL EVIDENCE. 515 bourhood, attending church and public phices together, and other- wise demeaning themselves in public, and addressing each other, as persons actually married.' Still, though some of these circum- stances are receivable, as amounting to acts of admission by the parties themselves, those, which are merely evidence of the treat- ment of the parties by third persons, cannot be admissible on any principle that would not equally include the declarations of strangers. The acts, like the words, merely show the opinion entertained by persons not called as witnesses; and though it may be said, that what a person does is usually better evidence of his opinion than what he says, yet this is an observation which goes rather to the weight than to the admissibility of the evidence. Accordingly, general evidence of reputation in the neighbourhood, even when un- supported by facts, or when partially contradicted by evidence of a contrary repute,^ will be receivable in proof of marriage; and in one case it was decided, after verdict, that the uncorroborated state- ment of a single witness, who did not appear to be related to the parties, or to live near them, or to know them intimately, but who asserted that he had heard they were married, was sufficient, prima facie, to warrant the jury in finding the marriage, the adverse party not having cross examined the witness, nor controverted the fact by proof.^ § 579. Upon somewhat similar grounds, it has been held, that, on § 517 a prosecution for conspiring to procure large meetings to assemble for the purpose of inspiring terror in the community, a witness might be called to prove that several persons, who were not ex amined at the trial, had complained to him that they were alarmed at these meetings, and had requested him to send for military as- sistance;^ and, on a question whether a libellous painting was ^ Kay V. Duchesse de Vienne, 3 Camp. 123; Hervey v. Hervey, 2 W. Bl. 877; Birt v. Barlow, 1 Doug. 174; Read r. Passer, 1 E.sp. 214; Leader v. Barry, id. 353; Doe v. Fleming, 4 Bing. 266; Goodman v. Goodman, 28 L. J., Ch. 1; Smiths. Smith, 1 Pliillim. R. 294; Hammick v. Bronson, 5 Day, 290, 293; In re Taylor, 9 Paige, 6. 2 Lyle V. Ellwood, 19 Law Rep., Eq. 98, per Hall, V.-C; 44 L. J., Ch. 164, S. C; Collins?). Bishop, 43 L. J., Ch. 31, pes Malins, V.- C. ^ Evans v. Morgan, 2 C. & J. 453. * R. V. Vincent, 9 C. & P. 275; Redford v. Birley, 3 Stark. R. 88—91. 12 LAW OF EVID.— -V. II. (3383) 516 EXrRKSSIONS OF BODILY OR MENTAL FEELINGS. [I'AET II. made to represent a certain individual, the declarations of spectators, while looking at the picture in tbe exhibition, have been admitted in evidence.' § 580.^ Whenever the bodily or mental feelings of an individual § 518 are material to be proved, the usual expressions of such feelings, made at tbe time in question, are also original evidence. If they were tbe natural language of tbe affection, whether of body or mind, they furnish satisfactory evidence, and often the only proof, of its existence. And the question whether they were real, or feigned, is for tbe jury to determine. Thus, tbe representations by a sick person of tbe nature and efiects of tbe malady under which he is labouring, are receivable as original evidence, whether they be made to the medical attendant, or to any other person, though the former are naturally entitled to greater weight than tbe latter, inasmuch as a physician is far more capable than a man unacquainted with the symptoms of diseases, of forming a correct judgment respecting the accuracy of the statements.'' This doctrine has been carried to ^ such an extent that, in an action by tbe husband upon a policy of insurance on the life bis wife, where tbe question related to the state of her health at the time when tbe policy was effected, a wit- ness for the defendants was allowed to state the result of a conver- sation she bad bad with the deceased, shortly after the surgeon who was consulted in effecting tbe insurance had given a certificate of her health, in which conversation the deceased had expressed an apprehension that she should only live a few days, and had added that she had not been well from a time preceding her being ex- amined by the surgeon. The court held that tbe conversation was admissible, notwithstanding tbe general rule which at that time ex- cluded the declaration of a wife as against her husband; * and tbe more especially so, as tbe surgeon had been first called by tbe ^ Du Bost V. Beresford, 2 Camp. 512, per Ld. Ellenborough. 2 Gr. Ev. ? 102, in part. * Aveson v. Ld. Kinnaird, 6 East, 188; R. v. BLandy, 18 How. St. Tr. 1135—1138; Gardner's Peer., 79, per Copley, Att.-Gen. ; Grey v. Young, 4 M'C. 31; Gilchrist v. Bale, 8 Watts, 355. See Witt v. Witt and Klind- worth, 3 Swab. & Trist. 143, where Sir C. Cresswell rejected letters written by a patient to a medical man describing his symptons. Sed qu. * See, now, 16 & 17 V., c. 83. (3384) CHAP. VII.] EXPRESSIONS OF BODILY OR MENTAL FEELINGS. 517 plaintiff, and bad admitted that he had formed his opinion respect- ing her health, principally from the satisfactory answers which she had given to his inquiries.* § 581. So, on a trial for murder by poisoning, statements made ? 519 by the deceased in conversation shortly before he took the poison, have been received in evidence for the purpose of proving the state of his health at that time;" and, on the same ground, it has frequently been held, in actions or indictments for assault, that what a man has said about himself to his surgeon was evidence to show what he suffered by reason of the assault.^ So, on an indict- ment for highway robbery, the fact that the prosecutor, a few hours after the attack made upon him, complained to a constable that he had been robbed, will perhaps be admissible; though the witness cannot be further asked whether, on making the complaint, the prosecutor mentioned the name of the prisoner.* It would seem, also, that, in prosecutions for rape, proof that the woman shortly after the injury complained that a dreadful outrage had been perpetrated upon her, would in the event of her death, be receivable as independent evidence;^ and if the prosecutrix were called as a witness, such complaints would a fortiori be admissible as tending to confirm her credit.® In no case, however, can the particulars of the- complaint be disclosed by witnesses for the Crown, either as original, or as confirmatory evidence, but the details of the statement can only be elicited by the prisoner's ' Aveson r. Ld. Kinnaird, 6 East, 188. ^ E. V. Johnson, 2 C. & Kir. 354, per Alderson, B. ; R. r. Blandy, 18 How. St. Tr. 1135-1138. ^ Aveson v. Ld. Kinnaird. G East, 198, per Lawrence, J. ; 11. v. Guttridge, 9 C. & P. 472, per Parke, B. * R. V. Wink, 6 C. & P. 397; commented upon by Cresswell, J., in R. v. Osborne, C. & Marsh. 624. ^ E. V. Megson, 9 C. & P. 420, per Rolfe, B. ; R. r. Osborne, C. & Marsh. 624, per Cresswell, J.; R. v. Lunny, 6 Cox, 446, per Monahan, C. J. In R. v. Guttridge, 9 C. & P. 471, where a prosecutrix ibr a rape was absent from the trial, Parke, B., rejected proof of her complaint, apparently on the ground that it was only confirmatory evidence. « R. V. Megson, 9 C. & P. 420; R. v. Clarke, 2 Stark. R. 241; 1 East, P. C. 444, 445; 1 Hale, 633; R. v. Wood, 14 Cox, 46, per Bramwell, L. J. (3385) 518 MUTUAL demf:axour of husband and wife. [part ii. council on cross-examination.' It is difficult to see upon wbat principle this rule is founded, -where the complaint is offered as confirmatory evidence; because, if witnesses were permitted to relate all that the prosecutrix had said in making her original complaint, such evidence would furnish the best test of the accu- racy of her recollection, when she was sworn to describe the same circumstances at the trial.^ § 582. Again, in petitions for damages on the ground of adul- ? 520 tery,^ if it be material, with the view of increasing or diminishing the damages, to ascertain upon what terms the husband and wife lived together before the seduction, their language and deportment towards each other, their correspondence together, and their con- versations " and correspondence with third persons, are original evidence.* But, to guard against the abuse/ of this rule, it must be proved by some evidence independent of the date appearing on the face of the letters,'' that they were written by the wife to the husband prior to any suspicion of misconduct on her part, and when, consequently, no grounds existed for imputing collusion.'* It is not, however, necessary, in the absence of other suspicious circumstances, to explain why the husband and wife were living apart at the time when the letters were written," though of course it is expedient that such explanation should, if possible, be given. 1 R. V. Walker, 2 M. & Rob. 212, per Parke, B. ; R. v. Osborne, C. & Marsh. 622; R. V. Quiglej, Ir. Cir. R. 677, i)er Torrens, J. But see R. v. Wood, 14 Cox, 46, per Bramwell, L. J. 2 See R. V. .Walker, 2 M. & Rob. 212. ^ See 20 & 21 V., c. 85, ? 33. * Trelawney v. Coleman, 2 Stark. R. 191; 1 B. & A. 90, S. C; Willis v. Bernard, 8 Bing. 376; Winter v. Wroot, 1 M. & Rob. 404, per Ld. Lyndhunst; Gilchrist v. Bale, 8 Watts, 355. = Trelawney v. Coleman, 2 Stark. R. 193, per Holroyd, J.; Houlistou v. Snnth, 2 C. & P. 24, per Best, C. J. This last case was an action for board and lodging supplied to a wife, while living separate from her husband in consequence of his cruelty, and letters, purporting to be written by the wife, were tendered by the husband to rebut this charge, but were rejected on the ground that no proof was given, beyond their date, of the time when they were sent. • See ante, ? 170. « Edwards u. Crock, 4 Esp. 39, per Ld. Kenyon; Trelawney v. Coleman, 1 B. & A. 90; Wilton v. Webster, 7 C. & P. 198, per Coleridge, J. See Wynd- ham's Divorce Bill, 3 Macq. Sc. Ca., H. of L. 54. ^ Trelawney v. Coleman, 2 Stark. 181; 1 B. & A. 90, S. C. (3386) CHAP. VII.] DECLARATIONS WHEN ADMISSIBLE AS RES GESTAE. 519 § 583.1 Certain other declarations and acts are admitted as § 521 original evidence, being distinguished from hearsay by their con- nexion with the principal fact under investigation. The affairs of men consist of a complication of circumstances, so intimately interwoven as to be hardly separable from each other. Each owes its birth to some preceding circumstance, and in, its turn becomes the prolific parent of others; and each, during its existence, has its inseparable attributes, and its kindred facts, materially affecting its character, and essential to be known, in order to a right under- standing of its nature. These surrounding circumstances may always be shown to the jury along with the principal fact, pro- vided thdy constitute parts of what are termed the res gestoe; and whether they do so or not must in each particular case be deter- mined by the judge in the exercise of his sound discretion, accord- ing to the degree of relationship which they bear to that fact. ^ Thus, on the trial of Lord George Gordon for treason, the cry 'of the mob, who accompanied the prisoner on his enterprise, was re- ceived in evidence, as forming part of the res gestse, and showing the character of the principal fact. ^ So, on an indictment for man- slaughter, a statement, made by the deceased immediately after he was knocked down, as to how the accident happened, has been held admissible;'* and similar evidence has been received by Lord Holt in an action brought by a husband and wife against a defendant for wounding the wife. ^ § 584. So, also, where a person enters upon land in order to take ? 521 advantage of a forfeiture, to foreclose a mortgage, to defeat a dis- seisin,^ or the like; or changes his actual residence, or domicil,' or is upon a journey, or leaves his home, or returns thither, or remains ^ Gr. Ev. I 108, in great part. * Per Parke, J., in Rawson r. Haigli, 2 Bing. 104 ; Ridley r. Gj'de, 9 Bing. 349, 352 ; Pool v. Bridges, 4 Pick. 379 ; Allen v. Duncan, 11 Pick. 309. 3 21 How. St. Tr. 514, 529. * R. V. Foster, 6 C. & P. 325, per Park and Patteson, Js., and Gurney, B. This case has been questioned by Cockburn, C. J., in R. v. Bedingfield, 14 Cox, 341, and in a subsequent pamphlet on the subject which was published by his lordship. Sed qu. ; and see the author's letter to the Chief Justice in reply to the pamphlet, published by Messrs. Maxwell in 1880. * Thompson v. Trevanion, Skin. 402. « Co. Lit. 49 b, 245 b ; Robison v. Swett, 3 Greenl. 316 ; 3 Bl. Com. 174, 175. ' Brodie v. Brodie, 2 Swab. & Trist. 259. (3387) 520 DOCTRINE OF RES GEST^. [PAET ir. abroad, or secretes himself ; or, in fine, does, or suffers, any other act material to be understood ;' his declarations made at the time of the transaction, and expressive of its character, motive, or object, are regarded as "verbal acts, indicating a present purpose and in- tention," and are therefore admitted in proof, like any other material facts/ So, upon an inquiry as to the state of mind, sentiments, intentions, or opinions of a person at any particular period, his con- temporaneous declarations are admissible as parts of the res gestae,^ though evidence of this nature is seldom entitled to much weight.* Again, in a suit for enticing away a servant, his statement at the time of leaving his master will be. received, as tending to show the motive of his departure ;^ and where an action of trover was brought against the assignees of a bankrupt, and it appeared that the plaintiff, at the recommendation of the bankrupt, had sent some goods to a dyer, and had told him that the bankrupt would call and give direc- tions about them, it was held that these directions should have been submitted to the jury on behalf of the assignees, as affording some evidence of a dealing with the goods, if not of the consent of the true owner to such dealing.^ § 585. So extensive is this rule in its operation, that to a I 522 certain degree it even overrides the general provision of law, which precludes a party's declarations from being evidence for > Parrott v. Watts, 47 L. J., C. P. 79. * Bateman v. Bailey, 5 T. R. 512, and the observations of Mr. Evans npon it, in 2 Poth., Obi., App. No. xvi., | 11 ; Rawson r. Haigh, 2 Bing. 99 ; 9 Moore, 217, S. C. ; Vacher v. Cocks, M. & M. 353, per Ld. Tenterden ; Smith V. Cramer, 1 Bing. N. C. 585 ; Doe v. Arkwright, 5 C. & P. 575, per Parke, B. ; Lord V. Colvin, 4 Drew. 366 ; Gorham v. Canton, 5 Greenl. 266 ; Thorndike V. City of Boston, 1 Mete. 242; Lund v. Tyngsborough, 9 Cush. 37, 43. In R. V. Edwards, 12 Cox, 230, Quain, J., carried the law to its extreme limit, for, on a trial of wife murder, he allowed a witness to state what the wife had said about her husband a week before her death, on bringing to the cottage of the witness an axe and carving knife to be taken care of Sed qu. as to this case. =* Barthelemy v. The People, &c., 2 Hill, N. Y. Rep. 248, 257. ■* Hodgson V. De Beanchesne, 12 Moo. P. C. R. 325, per Dr. Lushington, cited with approbation by Jessel, M. R., in Doucet v. Geoghegan, L. R., 9 Ch. D. 455; Haldane w. Eckford, L. R., 8 Eq. 631, per James, Ld. J.; and Doucet V. Geoghegan L. R., 9 Ch. D. 457, per id. ^ Hadley v. Carter, 8 New Hamps. 40. See, however, R. r. Wainwright, 13 Cox, 171, per Cockburn, C. J., and R. v. Pook, id. 172, note, per Bovill, C. J., et qu. ® Sharp v. Newsholme, 5 Bing. N. C. 713. (3388) CHAP. VII.] WHAT DECLARATIONS FORM PART OF THE RES GEST.E. 521 himself; and, therefore, in an action for falsely representing the solvency of a stranger, whereby the plaintiffs weie induced to trust him with goods, statements by them at the time when the goods were supplied, that they trusted him in consequence of the repre- sentation, were received as evidence on their behalf;' and where a bailee was sued for loss by negligence, his declarations, con- temporaneous with the loss, have been held in America to be admissible in his favour, as tending to show the nature of the loss." In Lord George Gordon's trial, his counsel strove to carry this doctrine one step further; and witnesses having been called by the Crown to speak to a meeting that was held on the 29th of May, and to what fell from the defendant on that occasion, one of them was asked on cross-examination, what Lord George had said on the preceding night relative to the meeting, the object being to show thereby that his motives in convening and attending it were not criminal. The court, however, held that though the witness might be questioned as to the whole conversation that passed at the meeting, the private declaration of the defendant, whether subse- quent or precedent to that meeting, could not be given in evidence as explanatory of his intentions or conduct.^ § 580. In the practical application of this rule, two points de- ? ^-^ serve especial attention. The first is, that declarations, — though admissible as evidence of the declarant's knowledge or belief of the facts to which they relate, and of his intentions respecting them, — are no proof of the facts themselves; and, therefore, if it be necessary to show the existence of such facts, proof aliunde must be laid before the jury; and it seems that, in strict practice, this proof should be given in the first instance, before the court be called upon to receive evidence of the declarations. For example, the fact of insolvency must be established, before state- ments of the insolvent will be admitted to show that he was aware of his embarrassed circumstances.* Sometimes, under the law ^ Fellowcs V. Williamson, M. & M. 306, per Ld. Tenterden. See, also, Milne v. Leisler, 31 L. J., Ex. 257; 7 H. & N. 786, S. C. ^ Story, Bail. ^ 339; citing Tomkins v. Saltmarsh, 14 Serg. & R, 275; Beardslee v. Richardson, 11 Wend. 25. ^ 21 How. St. Tr. 542, 543. * Thomas v. Connell, 4 M. & W. 267, 269, 270; Craven v. Halliley, cited id. 270, per Parke, B. ; Vacher v. Cocks, M. & M. 353. (3389) 522 WHAT DECLARATIONS FORM PART OF THE RES GEST/E. [pART II. relating to bankrupts, the truth of the facts need not be proved, but it will suffice to show the bankrupt's belief. Thus, if the act of bankruptcy relied upon be an absenting with intent to delay creditors, a declaration by the bankiapt that he left home to avoid ' a writ will be admissible, though no evidence be given that any writ was actually out against him, because, in order to constitute this act of bankruptcy, neither writ nor pressure is in fact neces- sary.' Still, even in this case, the departure from home is a sub- stantive act, which must be proved by evidence independent of the declaration; and being an act in itself equivocal, the statement of the bankrupt, made during its continuance, is admissible to show the intention with which it was done.^ § 587. The second point deserving consideration is, that, al- § 524 though acts, by whomsoever done, are res gestae, if relevant to the matter in issue,^ yet if they be ivrelevant, declarations quali- fying or explaining them will, together with the acts themselves, be rejected. Thus, in an action against a town for injuries sus- tained through a defect in a highway, the declarations of a surgeon, since deceased, which were made at the time of his examining the plaintiff's wounds, have been rejected as evidence of the nature and extent of the injuries; for, in such a case as this, the fact of the surgical es:amination would itself have been immaterial, and the declarations were no more than the mere hearsay ex- pression of a professional opinion.* On the non attention to this rule was founded one of the main fallacies in Wright v. Doe d. Tatham. There, on an issue respecting the sanity of a testator, letters written to him, and found among his papers after his death, were oflfered in evidence; and it was contended that the writing of a letter was an act done> that the contents of the letter were declarations accompanying that act, and that an opinion, though not evidence per se, was yet evidence when embodied in an act. To this it was answered by Mr. Justice Coltman, that, if the 1 Rouch V. Gt. West. Ry. Co., 1 Q. B. 51, G2, 63; 4 P. & D. 686, S. C. ; New- man V. Stretch, M. & M. 338, per Parke, J.; Ex parte Bamford, 15 Ves, 449; Robson V. Rolls, 9 Bing. 648. ^ Rouch V. Gt. West. Ry. Co., 1 Q. B. 63. 3 Wright V. Doe d. Tatham, 7 A. & E. 355, per Parke, B. * Lund V. Tyngsborough, 9 Cush. 37. (3390) CHAP. VII.] WHAT DECLARATIONS FORM PART OF THE RES GEST^. 523 letter was admissible on this ground, it must be either because the act done is evidence by itself, or because the opinion was evidence. Where an act done is evidence per se, a declaration accompanying that act may well be evidence, if it reflects light upon or qualities the act. But where the act is in its own nature irrelevant to the issue, and where the declaration per se cannot be received, no case has yet established that the union of the two will render them admissible.^ § 588. In all these cases the principal points of attention are, ? 525 whether the circumstances and declarations offered in proof were so connected with tlie main fact under consideration, as to illus- trate its character, to further its object, or to form, in conjunction with it, one continuous transaction. It was at one time thought necessary that they should be contemporaneous with it;" but this doctrine has of late years been rejected, and it seems now to be decided, that, although concurrence of time must always be con- sidered as material evidence to show the connexion, it is by no means essential."' Thus, what a bankrupt said immediately on his return home, as to the place where he had been, and his motive in going, has been held admissible;* and in Ridley v. Gyde,'' where the disputed act of bankruptcy was a fraudulent transfer, a declaration by the bankrupt, in which he gave a false account of the matter, was received in evidence, though made nearly a month after the transfer had taken place. In that casej the creditor, with whom the conversation was held, had pressed for payment of his debt immediately before the transfer, and had been promised security for the following day; but, instead of 1 Wright V. Doe d. Tatham, 7 A. & E. 361, ante, ^ 572. ^ This seem.'? still to be the law in America. Thus, in Enos v. Tuttle, 3 Conn. R. 250, Hosmer, C. J., observed, that declarations, to become part of the res gestae, " must have been made ai the time of the act done, which they are supposed to characterise, and have been well calculated to unfold the nature and quality of the facts they were intended to explain, and so to harmonise with them, as obviously to constitute one transaction." ^ Rouch V. Gt. West. Ry. Co., 1 Q. B. 60, 61; 4 P. & D. 686, S. C. * Bateman v. Bailey, 5 T. R. 512; recognised by the Court in Rouch v. Gt. West. Ry. Co., 1 Q. B. 61. * 9 Bing. 349; 2 M. & Sc. 448, S. C. In this case, Gaselee, J., differed from the rest of the court, but the opinion of the majority was coutirmed and recognised in Rouch v. Gt. West. Ry. Co., 1 Q. B. 61. (3391) 524 NARRATIVES OF PAST EVENTS INADMISSIBLE, [PAET II. keeping his word, the bankrupt had transferred his property to a relative, and had absconded. Under these circumstances the coiu't, considering that the statement was a mere resumption of the conversation which was had at the first interview, adopted the rule which Mr. Justice Park had laid down in Rawson v. Haigh,' " that it is impossible to tie down to time the rule as to the declarations," and that, if connecting circumstances exist, a decla- ration may, even at a month's interval, form part of the whole res gestae. So, where a trader had absented himself from home during the latter half of February and the commencement of March, two letters written by him on the IGth of January, in which he had asked for time on some bills of exchange payable in February, were admitted in evidence, as tending to throw light on the cause of his absence.^ § 589.^ Still, an act cannot be varied, qualified, or explained, § 526 either by a declaration which amounts to no more than a mere narrative of a j^cist occurrence, or by an isolated conversation held, or an isolated act done, at a later period.^ Thus, the schedule of an insolvent, delivered four months after his execution of a deed of assignment, has been rejected, when tendered by the assignees as evidence that the indenture was executed with intent to peti- tion;^ and where a creditor called upon a bankrupt in the morn- ing, and being told that he was out, paid a second visit in the evening of the same day, when the bankrupt made a statement respecting his absence in the morning, Mr. Baron Parke held that this statement was inadmissible, for the purpose of showing that the bankrupt had intentionally denied himself to his creditors, it being too remote in point of time from the absence which it purposed to explain.'^ This last case can scarcely be reconciled with Bateman v. Bailey,^ and possibly it would now be considered as laying down the rule somewhat too strictly; but whatever may » 2 Bing. 104; 9 Moore, 217. S. C. 2 Smith V. Cramer, 1 Bing. N. C. 585; 1 Scott, 541, S. C. 3 Gr. Ev. ? 110, slightly. ♦ Hyde v. Palmer, 3 B. & S. 657; 32 L. J., Q. B. 126, S. C. * Peacock v. Harris, 5 A. & E. 449, 454. fi Lees V. Marton, 1 M. & Rob. 210. ' 5 T. K. 512, cited ante, ? 588, n. *. (3392) CHAP. VII.] ACTS AND DECLARATIONS OF CONSPIRATORS. 525 be the precise limits of the rule, — if any can be assigned, — it is perfectly clear that declarations made, or letters written, during absence from home, explanatory of the motive of departure, are admissible as original evidence, since the departure and absence are very properly regarded as one continuing act.' § 590.'-' The same principles apply to the acts and declarations I 527 of one of a company of conspirators, in regard to the common design as affecting his fellows. Here, a foundation should first be laid by proof, sufficient, in the opinion of the judge, to establish prima facie the fact of conspiracy between the parties, or, at least, proper to be laid before the jury, as tending to establish such fact. The connexion of the individuals in the unlawful enterprise being thus shown, every act and declaration of each member of the con- federacy, in pursuance of the original concerted plan, and with reference to the common object, is, in contemplation of law, the act and declaration of them all ; and is, therefore, original evidence against each of them.^ § 591. Sometimes, for the sake of convenience, the acts or I 528 declarations of one are admitted in evidence before sufficient proof is given of the conspiracy ; the prosecutor undertaking to furnish such proof in a subsequent stage of the cause. But this mode of proceeding rests in the discretion of the judge, and in seditious or other general conspiracies is seldom permitted, except under particular and urgent circumstances ; for, otherwise, the jury might be misled to infer the fact itself of the conspiracy from the 1 Rouch V. Gt. West. Ry. Co., 1 Q. B. 51, 61 ; 4 P. eSc D. 686, S. C; Rawson V. Haigh, 2 Bing. 99, 104 ; 9 Moore, 217, S. C. ■■' Gr. Ev. I 111, in great part 3 R. V. Stone, 6 T. R. 528, 529 ; 25 How. St. Tr. 1267, 1277, 1313, S. C. ; American Fur Co. v. IT. S., 2 Pet. 358, 365; Crowninshield s case, 10 Pick. 497 ; U. S. V. Gooding, 12 Wheat. 469 ; Com. v. Eberle, 3 Serg. & R. 9. In R. V. M'Kenna, Ir. Cir. Rep. 461, Pennefather, C. J., thus laid down the law : — "It is necessary to prove the existence of a conspiracy, and to connect the prisoner with it in the first instance, where you seek to give in evidence against him in the declaration of a co-conspirator ; and having done so, you are then at liberty to give in evidence against the prisoner acts done by any of the parties, whom you have connected with the conspiracy ; but when a party's own declarations are to be given in evidence, such preliminary proof is not requisite, and you may, as in any other offence, prove the whole case against him by his own admissions." (3393) 526 ACTS AND DECLARATIONS OF CONSIPRATORS. [PART II. declarations of strangers. Still, as a conspiracy need not be estab- lished by proof which actually brings the parties together, but may be shown, like any other fact, by circumstantial evidence, the de- tached acts of the different persons accused, including their written correspondence, entries made by them, and other documents in their possession relative to the main design, will sometimes from necessity be admitted, as steps to establish the conspiracy itself. On this subject it is difficult to establish a general inflexible rule, but each case must, in some measure, be governed by its own peculiar circumstances.' § 592.^ It makes no difference at what time the party accused ^ 529 is proved to have entered into the conspiracy or combination ; because every one, who agrees with others to effect a common illegal purpose, is generally considered in law as a party to every act, which either had before been done, or may afterwards be done, by the confederates, in furtherance of the common design.^ One or two individuals may have concocted the scheme, but all who afterwards join in carrying it out are equally guilty with the originators ; * at least, if any evidence be forthcoming from which their adoption of the previous acts of the association can reason- ably be inferred.'^ Neither does it matter whether the acts were done, or the declaration made, in the jyresence or in the absence oi the accused, but everything said or done by any one of the con- spirators or accomplices in furtherance of the common object, is evidence against each and all of the parties concerned, whether they were present or absent, and whether or not they were individually aware of what was taking place.'' Thus, the cries of a mob, with whose proceedings the prisoner is connected, though made in his absence, are admissible against him, as explanatory of the objects which he, in common with the multitude, had in view ; ' and I See R. I'. Blake, G Q. B. 126 , Ford r. Elliot, 4 Ex. R. 78. ^ Gr. Ev. ^ 111, in part. ^ R. V. Watson, 32 How St. Tr. 7, per Baj-ley, J. * R. r. Murphy, 8 C. «& P. 311, per Coleridge, J. * R. V. O'Connell, Arm. & T. 813, 814, per Pennefather, C. J. « R. V. Brandreth. 32 How. St. Tr. 857. 858. ^ R. V. Ld. Geo. Gordon, 21 How. St. Tr. 535, 536 ; cited by Buller, J., in R. V. Hardy, 24 How. St. Tr. 452. See R. v. Petcherini, 7 Cox, 79. (3394) CHAP. VII.] ACTS AND DECLARATIONS OF CONSPIRATORS. 527 expressions used by persons going to a meeting convened by the defendant, are receivable on similar grounds.' In O'Connell's case, where the defendants were charged with summoning monster meet- ings for illegal purposes, papers publicly sold at these meetings, and supporting the views of the defendants, were received in evidence, though no proof was given connecting the defendants with the persons selling the papers." § 593. Care, however, must be taken to distinguish between ? 530 declarations, which are either acts in themselves purporting to advance the o])jects of the criminal enterprise, or which accom- pany and explain such acts, and those statements, whether written or oral, which, although made during the continuance of the plot, are in fact a mere narrative of the measures that have already been taken. These last statements are, as before explained,^ inadmissible. The distinction here referred to may be well illus- trated by the case of Hardy, who was prosecuted for high treason, There, a letter, written by a co-conspirator to a private friend unconnected with the plot, which gave an account of the pro- ceedings of a society to which the wi'iter and the defendant were proved to have belonged, and which enclosed several seditious songs stated to have been composed by the writer, and sung by him at a meeting of the society, was rejected on the ground that it was not a transaction in support of the conspiracy, but merely a relation of the part which the writer had taken in the plot, and, as such, only admissible against himself.* A second letter was then offered in evidence, which was written by another co-conspi- rator to a delegate in the countrj'-, describing the events that had occurred in London, and encouraging him thereby to proceed in the criminal business in which he was engaged ; and as this letter was considered by the court as an act done in furtherance of the 1 R. V. Hunt, 3 B. & A. 574 ; Redford v. Birley, 3 Stark. R. 85—88. 2 Arm. & T. 275—277. ' Ante, I 589. * 24 How. St. Tr. 451—453, per Eyre. C. J., Macdonald, C. B., and Hotham, B.; Buller and Grose, Js., diss. In R. v. Watson, 32 How. St. Tr. 352, Ld. Ellenborough observed that there was great weight in the arguments of Buller and Grose, Js. (3395) 52S NARRATIVES, DESCRIPTIONS, AND CONFESSIONS INADMISS. [PART II. plot, it was received against the defendant, though no evidence was given to show that it had ever reached the person for whose perusal it was intended.' § 594. The same distinction was drawn by the court in the case ? 531 of R. V. Blake," where the accused was indicted for conspiring with one Tye and others to defraud her Majesty of certain duties of customs. It appeared at the trial that Blake was a landing waiter, and Tye an agent for importers, at the custom-house ; and it was the duty of these persons respectively to make entries of the con- tents of cases imported, so as to be a check upon each other. It was shown that on thirteen occasions they had made false entries, in which they stated that certain packages contained smaller quantities than was really the fact. It was then proposed to put in evidence Tye's day-book, which contained entries in his hand- writing relative to the thirteen transactions, and showed the amount of duty actually paid by him. This book was found in Tye's counting-house, and the court held that it was clearly admissible, as containing entries made in furtherance of the con- spiracy. Tye's cheque book was next produced, for the purpose of showing by the counterfoil that Blake had received from him part of the moneys of which the customs had been defrauded in these transactions ; but the court rejected this evidence, on the ground that it was* no act done in pursuance of the plot, but was a mere statement as to the mode of distributing the plunder, after the fraud had been completed. Again, a conversation between two men, apparently returning from a meeting, which had been held within an hour before, and about half a mile distant from the spot where the men were, has been rejected, though offered as evidence, not only of the general nature of the meeting, but of the effect that was likely to be produced by the language there employed.^ In fine, the declarations of a conspirator or accomplice are receivable against his fellows, only when they are in themselves acts, or when 1 24 How. St. Tr. 473—477, per Macdonald, C. B., Hotham, B., Buller and Grose, Js. ; Eyre, C. J., dubit. 2 6 Q. B. 126. ^ R. V. O'Connell, Arm. & T. 257—259. See, also, R. v. Murphy, 8 C. & P. 305 ; R. V. Watson, 2 Stark. R. 141 ; 32 How. St. Tr. 349, 351, S. C. (3396) CHAP. VII.] PAPERS FOUND — UNPUBLISHED WRITINGS, 529 they accompany and explain acts, for which the others are respon- sible; but not when they are in the nature of narratives, descrip- tions, or subsequent confessions. § 595. On a somewhat similar principle, papers found, after the § 532 apprehension of a prisoner, on the person or at the lodgings of a co-conspirator, will be admissible or not against the accused, accord- ing as there is or is not evidence to show that they existed before he was taken into custody. If no such evidence can be given, the papers will be rejected, as the prisoner cannot be responsible for acts or writings, which possibly may not have existed until after the common enterprise was, so far as he was concerned, at an end ; ' but if the previous existence of the papers be established, either by direct proof, or by strong presumptive evidence, the objection to their admissibility can no longer prevail.^ § 598. The question how far unpublished writings upon abstract I 533 subjects, which, though of a kindred nature with the crime charged, have no direct relation to it, are admissible in evidence, may admit of some doubt. In the case of Algernon Sidney, a treatise containing speculative republican doctrines, which not only was unpublished and unconnected with the treasonable practices of which he was accused, but which appeared to have been composed several years before the trial, was, under the auspices of Judge JefFeries, admitted in evidence;^ but subsequent times have re- garded this trial as a judicial murder, and such proof would as- suredly be rejected at the present day. If, indeed, the papers were closely connected with the nature and object of the alleged crime, they would probably, though unpublished, be considered in strict law admissible, without any positive proof that they were intended to be used in furtherance of the design; and if such ' R. r. Hardy, 24 How. St. Tr. 718, 731. ^ R. V. Watsou, 32 id. 337—342, 347—350; 2 Stark. R. 140, 141, S. C. See R. I'. M'Cafferty, I. R., 1 C. L. 363. There, acts of insurrection committed after the arrest of the prisoner, but in consequence of instructions given by him before he was apprehended, were held to be admissible in evidence on a charge of conspiracy to raise rebellion. 3 9 How. St. Tr. 854—859; observed upon by Abbott, J., in R. v. Watson, 2 Stark. R. 147; and in Fost. C. L. 198. (3397) 530 DECLAKATIONS OF CO-TRESI'ASSERS. [PART II. proof could be given, they would doubtless be received.^ "Where conversations of co conspirators or accomplices are proved, the effect of the evidence will of course depend upon the surrounding circumstances, such as the fact and degree of the prisoner's atten- tion to what was said, and his approval or disapproval thereof." § 597. The declarations of co-trespassers in civil actions are g 534 governed by the same rules; that is, if several are jointly sued, the declarations of each, which constitute parts of the res gestae, are admissible against all; ^ while those which amount to mere admissions, or narratives of past events, can only be received against the party making them.* In one case,^ which was an action for false imprisonment, Mr. Baron Garrow admitted the declarations of co-defendant, showing personal malice, as evidence against the other defendants, though made in their absence, and several weeks after the act complained of; but the attention of the learned judge does not appear to have been drawn to the time when the words were spoken, and probably this case would not now be regarded as a safe precedent. "Where no common object or motive is imputed, as in actions for negligence, the declaration of each defendant is admissible against himself alone. *^ § 598.' This doctrine extends to all cases of jjariners/i«p. When- | 535 ever any number of persons are associated together in the joint prosecution of a common enterprise or design, as in commercial partnerships, and similar cases, the act or declaration of each member, in furtherance of the common object of the association, is the act or declaration of all. By the very act of association each partner is constituted the agent of the others, for all purposes ' R. V. Watson, 35 How. St. Tr. 354—361; 2 Stark. R. 141, S. C. 2 R. V. Hardy, 24 id. 703, per Eyre, C. J. ' See R. V. Hard wick, 11 East, 585, per Ld. Ellenborough; Powell v. Hodgetts, 2 C. & P. 432, per Garrow, B.; North v. Miles, 1 Camp. 389, per Ld. Ellenborough; Bowsher v. Calley, id. 391, n. per id.; 1 Ph. Ev. 204. * Daniels v. Potter, M. & M. 501, perTindal, C. J. 5 Wright V. Court, 2 C. & P. 232. « Daniels v. Potter, M. & M. 503, per Tindal, C. J. ^ Gr. Ev. ? 112, in part. (3398) CHAP. VII.] DECLARATIONS OF PARTNERS. 531 within the scope of the partnership concern;' unless, under the special circumstances of the case, an intention can be inferred by the jury, that a particular act should not be binding without the direct concurrence of each individual partner.'^ While the firm thus created exists, it speaks and acts only by the several members; but when that existence ceases by dissolution, the subsequent acts of the individual members are binding on themselves alone,' except so far as may have been otherwise agreed upon by the articles of association or dissolution,* or as the acts relate to the previous business of the firm.^ This last exception may be illustrated by the case of Pritchard v. Draper,"^ where Lord Brougham held, that the admission of one partner, as to the payment, subsequently to a dissolution, of a debt due to the firm, was admissible against the other partners. § 599. In the case just cited, the party making the admission § 536 was at the time, so far as the debt in question was concerned, jointly interested with the parties against whom his statement was tendered in evidence.^ Had not such been the case, the decision would probably have been the other way ; for whei'e a bill was filed to set aside a bond given to a banking firm on the ground of fraud, and it appeared that before the commencement of the suit, the partner, who originally managed the transaction, had retired from, the firm, had become a certificated bankrupt, and, according to his- 1 Sandilands v. Marsh, 2 B. & A. 673, 678, 679; E. v. Hardwick, 11 East,., 589; Fox v. Clifton, 6 Bing. 792; Nicholls v. Dowding, 1 Stark. R. 81; Hodenpyl v. Yingerhoed, Chitty, Bills, 627, n. q; Van Reimsdyk v. Kane, 1 Gall. 630, 635; Coit v. Tracy, 8 Conn. 268. Ante, ^ 185. 2 Latch V. Wedlake, 11 A. & E. 959, 965, 966. * "Wood V. Braddick, 1 Tannt. 105, per Sir J. Mansfield ; Petherick v.. Turner, cited id. ; Kilgour v. Finlyson, 1 H. Bl. 155. * Burton v. Issitt, 5 B. & A. 267; Bell v. Morrison, 1 Pet. 371. = Wood V. Braddick, 1 Taunt. 104. See Parker v. Morrell, 2 Phill. 453. ^ 1 Russ. & Myl. 191, 199, 200. See Loomis and Jackson v. Loomis, 3 Deane, Verm. R. 198, where it was held generally, that the admissions of one partner, made after the dissolution of partnership, in regard to the business of the firm previously transacted, are admissible as evidence against all the partners. ^ See and compare the observations of Ld. Cottenham, in Parker v. Morrell, 2 Phill. 464, 465; of the Reporter in S. C. 464, n. b; and of Cress-well,. J., in S. C. on issue tried at Nisi Prius, 2 C. & Kir. 603. 13 LAW OF EVID. — V. II. (3399) 532 ACKNOWLEDGMENT OF DEBT BY PARTNER. [PAET II. own admission, had long ceased to have any interest in the bond, the court held that the answer of this man, who had been made a defendant as executor of another partner, and who admitted the fraud, was not receivable in evidence against his co-defendants, the continuing partners.' § 600. It deserves notice, that neither a written acknowledgment § 537 of a partnership debt by one member of a firm, nor a written promise by him to pay it, nor even actual payment by him of the interest, or part payment of the principal due, whether made during the partnership, or after the dissolution,^ will take the case out of the Statute of Limitations, as against the other members;^ but this, — as will hereafter appear,^ — is owing to the salutary operation of Lord Tenterden's Act of 1828,^ as extended by the Mercantile Law Amendment Act of 1856.^ § 601. It is true that Lord Tenterden's Act, in the enactment ? 538 just referred to, speaks merely of joint contractors, and does not in terms mention paj'^?iers; and consequently here, — as in other cases where the language of the Legislature is in the remotest degree doubtful, — a distinction has been attempted to be drawn between these two classes of persons, and it has been contended that a sig- nature by one of several partners, using the name of the firm, will take the case out of the statute as to all the partners, in a transac- tion in which all are interested, because a partnership name is the name of each and every member of the firm. In the case where this subtle and forlorn point was raised, the court found it un- necessary to express an opinion upon it;' but as a ruling in its favour would manifestly fritter away the provisions of a very bene- ficial enactment, it is presumed that, if the objection should again be taken, the judges would not hesitate to negative its validity.^ I Parker r. IMorrell, 2 Phill. 453; 2 C. & Kir. 599, S. C. '^ Bristow V. Miller. 11 Ir. Law E. 461; Watson v. Woodman, 20 Law Eep., Eq. 721; 45 L. J., Ch. 57; S. C. ^ Jones V. Ryder, 4 M. & W. 32; Hopkins v. Logan, 5 id. 248, per Parke, B. * Post, ?| 744, 745. ^ 9 G. 4, c. 14, I 1. «19&20 v., c. 97, I 14. 7 Clark V. Alexander, 8 Scott, N. R. 160, 163. *See Bristow v. Miller, 11 Ir. Law R. 461. (3400) CHAP. VII.] DECLARATIONS OF AGENTS, WHEN ADMISSIBLE. 533 § 602.' The declarations of agents are admissible against their g 539 principals on grounds very similar to those which govern the declarations of co-partners. The principal constitutes the agent as his representative in the transaction of certain business. What- ever, therefore, the agent does in the lawful prosecution of that business, is the act of the principal; and as Mr. Justice Story ob- serves, " where the acts of the agent will bind the principal, there his representations, declarations, and admissions, respecting the subject matter, will also bind him, if made at the same time, and constituting part of the res gestae." ^ They are original evidence and not hearsay, and, not being regarded as verbal acts, they are receivable in evidence without calling the agent himself to prove them.^ Still, the admission of the agent cannot always be assimi- lated to the admission of the principal. The party's own admis- sion, whenever made, may be given in evidence against him: but the admission or declaration of his agent binds him only when it is made during the continuance of the agency, in regard to a transaction then depending, et dum fervet opus.* When the agent's right to interfere in the particular matter has ceased, the principal can no longer be affected by his declarations, any more than by his acts, but they will be rejected in such case as mere hearsay.^ § 603. Thus, when a horse-dealer, or livery-stable keeper, em- i 539 ploys a servant to sell a horse, any statement made by him respect- ing the horse at the time of sale, even though it amount to a warranty of soundness,** which the servant has been really ordered > Gr. Ev. § 113, in part. 2 Story, Agen. § 134. * Doe v. Hawkins, 2 Q. B- 212. * See Kirkstall Brewery Co. v. Furness Ry. Co., 9 Law Rep., Q. B. 468; 43 -L. J., Q. B. 142, S. C; Re Devakx Prov. Gold Min. Co., L. R., 22 Cli. D. 593; 52 L. J., Ch. 434, S. C. s Fairlie v. Hastings, 10 Ves. 123, 126, 127, per Sir W. Grant; Garth v. Howard, 8 Bing. 451; Langhorn v. Allnutt, 4 Taunt. 519, perGibbs, J.; Betham V. Benson, Gow, R., 45, per DalLis, C. J.; Mortimer r. M'Callan, 6 M. & W. 58, 69, 73; R. v. Hall, 8 C. &. P. 358, per Littledale, J.; The Mechanics' Bk. of Alexandria v. Bk. of Columbia, 5 Wheat. 336, 337; Hannay v. Stewart, 6 Watts, 487, 489; Stockton v. Demuth, 8 Watts, 39; Stewartson v. Watts, id. 392; Baring v. Clark, 19 Pick. 220; Bk. of Monroe t'. Field, 2 Hill, R. 445; Story .Agen. ?? 134, 137. « Brady v. Tod, 30 L. J., C. P. 224, per Erie, C. J. But the servant of a (3401) 534 DECLARATIONS OF AGENTS, WHEN ADMISSIBLE. [PAKT II. not to give, will, as it seems, bind the master; ' but the servant's declarations or acknowledgments at any other time, whether made to the purchaser or to a stranger, will not be received.^ So, if a letter written by an agent form the whole or part of an agreement, which by the course of his business he was authorised to make, it will be admissible against the principal; but if it be offered as proof of the contents of a pre-existing contract, or if it contain an account of transactions already performed, it will probably be re- jected, though addressed to the principal himself;'' unless the principal has replied to it, or has otherwise adopted or acted upon it, in which case the agent's letter will be received as explanatory of the principal's conduct.* § 604. The law upon this subject has been well explained by Sir ? 540 William Grant, in the case of Fairlie v. Hastings.^ " As a general proposition," said he, " what one man says, not upon oath, cannot be evidence against another man. The exception must arise out of some peculiarity of situation, coupled with the declarations made by one. An agent may undoubtedly, within the scope of his authority, bind his principal by his agreement; and in many cases by his acts. What the agent has said may be what constitutes the agreement of the principal; or the representations or statements made may be the foundation of, or the inducement to, the agree- ment. Therefore, if writing is not necessary by law, evidence must be admitted to prove that the agent did make the statement or re- presentation. So, with regard to acts done, the words with which those acts are accompanied frequently tend to determine their private owner, intrusted to sell a horse, not at a fair or public mart, but on some one particular occasion, has no implied authority to bind his master by a warranty, id. 223; S. C. nom. Brady v. Todd, 9 Com.. B., N. S. 592. See Miller v. Lawton, 3 New R. 430; 15 Com. B., N. S. 834, S. C. 1 Howard v. Sheward, 36 L. J., C. P. 42; 2 Law Rep., C. P. 148, S. C. ^ Allen V. Denstone, 8 C. & P. 760, per Erskine, J. ; Helyear v. Hawke, 5 Esp. 72, per Ld. EUenborough. See, also, Peto v. Hague, 5 Esp. 134, per Ld. Ellenborough; Gt. West. Ry. Co. v. Willis, 34 L. J., C. P. 195; 18 Com. B., N. S. 748, S. C. ^ Fairlie v. Hastings, 10 Ves. 128; Langhom v. Allnutt, 4 Taunt. 511; Kahl V. Jan-sen, id. 565; Reyner v. Peanson, id. 662. * Coates V. Bainbridge, 5 Bing. 58. * 10 Ves. 126, 127. (3402) CHAP. VII.] DECLARATIONS OF AGENTS, WHEN ADMISSIBLE. 535 quality. The party, therefore, to be bound by the act, must be affected by the words. But, except in one or the other of those ways, I do not know how what is said by an agent can be evidence against his principal. The mere assertion of a fact cannot amount to proof of it; though it may have some relation to the business, in 'which the person making that assertion was employed as agent- * * * The admission of an agent cannot be assimilated to the admission of the principal. A party is bound by his own admis- sion; and is not permitted to contradict it. But it is impossible to say that a man is precluded from questioning or contradicting any- thing any person has asserted as to him, respecting his conduct or his agreement, merely because that person has been an agent of his. If any fact, material to the interest of either party, rests in the knowledge of an agent, it is to be proved by his testimony, not by his mere assertion." § 605. As the rule admitting the declarations of the agent is ? 541 founded upon his legal identity with the principal, they bind only so far as the agent had authority to make them.' The declarations, therefore, and acts of an agent cannot bind an infant, because an infant cannot appoint an agent; and, consequently, if an infant, even by letter of attorney, appoints a person to make a lease, he will not be bound thereby, neither will his ratification bind him; but the lease of an infant to be good, must be his own personal act.'"' When, however, the principal is of full age, and the authority is express, he will be bound by the declarations and acts of his agent, and no difficulty can well arise in applying this rule; but questions of much nicety will often occur, where power to make an admission is sought to be inferred by implication from an authority to do a certain act. A few examples may furnish some guide upon this subject. Thus, where a wife is authorised, in her husband's ab- sence, to carry on the business of his shop, her admissions, made on application to pay for goods previously delivered at the shop, will ' See Faussett v. Faussett, 7 Ec. & Mar. Cas. 93—95; Hogg v. Garrett, 12 Ir. Eq. R. 559. 2 Doe V. Roberts, 16 M. & W. 778, 780, 781, per Parke, B. See Hargrave V. Hargrave, 12 Beav. 408. (3403) 536 THREE CLASSES OF DECLARATIONS ORIGINAL EVIDENCE. [PAKT II. be received iu evidence against the husband;' but her acknowledg- ments of an antecedent contract for the hire of the shop, or her agreement to make a new contract for the future occupation of it, will be rejected, as it cannot be necessaiy that the wife should have this extensive power of binding her husband, for the mere purpose of conducting the business of the shop.^ So, if goods were de- posited with a pawnbroker in the ordinary course of his business, a declaration of the shopman that his master had received the goods, would probably be admissible against the master, because it might well be assumed that the shopman was authorised to answer any in- quiries respecting the goods, made by persons interested in them; but if the admission related to a transaction unconnected with the immediate business of the shop, — as, for instance, if it referred to the loan of several hundred pounds on a single pledge at live per cent, interest, — it would not be received.^ Again, although the solicitor of a judgment creditor may fairly be assumed to have acted as his client's agent in directing the issue of a li. fa., because the taking such a step might be essentially necessary for the benefit of the client, yet the law would not consider that he was acting within the scope of any implied authority, were he to give to the sheriff special instructions to seize particular goods.* § 606.^ The foregoing observations will have shown that there ? 542 are three classes of declarations, which, though usually treated under the head of hearsay, are, in truth, original evidence; the first class consisting of cases where the fact that the declaration was made, and not its truth or falsity, is the point in question; the second including expressions of bodily or mental feelings, where the existence or nature of such feelings is the subject of inquiry; and the third embracing all other cases, where the de- claration offered in evidence may be regarded as part of the res gestce. All these classes are involved in the principle of the last, and have been separately treated merely for the sake of greater distinctness. 1 Clifford V. Burton, 1 Bing. 192; 8 Moore, 16, S. C. ^ Meredith v. Footner, 11 M. & W. 202. ' Garth v. Howard, 8 Bing. 451. * Smith V. Keal, L. R., 9 Q. B. D. 340, per Ct. of App.; 51 L. J., Q. B. 487, S. C, in court below, noni. Keal v. Smith. • * Gr. Ev. ^ 123, in great part. (3404) CHAP. VIII,] SIX EXCEPTIONS TO RULE REJECTING HEARSAY. 537 CHAPTER VIII. MATTERS OF PUBLIC AND GENERAL INTEREST. § 607.' Having illustrated the nature of hearsay evidence, shown I 543 the reasons on which it is generally excluded, and explained the distinction between such evidence and that which is original^ it will next be convenient to consider the cases in ichich the rule re- jecting hearsay has been relaxed. These cases may be conveniently divided into six classes: — first, those relating to matters of public and general interest ; secondly, those relating to pedigree ; thirdly, those relating to ancient possession; fourthly, declara- tions against interest; — fifthly, declarations in the course of ofifice or business; and lastly, dying declarations. It will be observed, that these exceptions, which are allowed only on the ground of the assumed absence of better evidence, and, as it were, from necessity, meet most of the inconveniences that would result from a stern and universal application of the rule, and thus remove the principal objections which have been urged against it. The exceptions will now be discussed in their order. § 608. And first, the admissibility of hearsay evidence respect- § 544 ing matters of public and general interest, appears to rest mainly on the following grounds: — that the origin of the rights claimed is usually of so ancient a date, and the rights themselves are of so undefined and general a character, that direct proof of their existence and nature can seldom be obtained, and ought not to be required; that in matters, in which the community are in- terested, all persons must be deemed conversant; that as common rights are naturally talked of in public, and as the nature of such rights much lessens the probability, if it does not exclude the possibility, of individual bias, what is dropped in conversation respecting them may be presumed to be true; that the general interest which belongs to the subject would lead to immediate contradiction from others, if the statements proved were false; 1 Gr. Ev. ?i 127, in part. (3403) 538 MATTERS OF PUBLIC AND GENERAL INTEREST. [PAET II. that reputation can hardly exist Avithout the concurrence of many parties unconnected with each other, who are all more or less interested in investigating the subject; that such concm-rence furnishes strong presumptive evidence of truth; and that it is this prevailing current of assertion which is resorted to as evidence, for to this every member of the community is supposed to be privy, and to contribute his share.* § 609." In speaking of matters of public and general interest, the I 545 terms " public " and " general " are sometimes used as synonyms, meaning merely what concerns a multitvide of persons.^ But, in regard to the admissibility of hearsay testimony, a distinction has been taken between them; the term inihlic being strictly applied to that which concerns every member of the state; and the term general being confined to a lesser, though still a considerable, portion of the community. This distinction should be carefully attended to, because in matters strictly public, such, for example, as a claim of highway or a right of ferry, reputation from any one appears to be receivable ; and although declarations would be almost worthless, unless made by persons who, by living in the neighbourhood, or by frequently using the road or feny, or the like, are shown to have had some means of knowledge; yet, the want of such proof of their connexion with the subject in question seems to affect the value only, and not the admissibility, of the evidence. If, however, the right in dispute be simply general; that is, if those only who live in a particular district, or adventure in a particular enterprise, are interested in it, hearsay from per- sons wholly unconnected with the place or business would be not only valueless, but probably altogether inadmissible.* 1 Wright V. Doe d. Tatham, 7 A. & E. 360, 361, per Coltman, J.; S. C. 4 Bing. N. C. 528, per Alderson, B. ; Moorwood v. Wood, 14 East, 239, n., per Ld. Kenj'on; Weeks v. Sparke, 1 M. & Sel. 686, per Ld. Ellcnboroiigh; Berkeley Peer., 4 Camp. 415, 416, per Sir J. Mansfield; R. v. Bedfordshire, 4 E. & B. 542, per Ld. Campbell, adopting almost the language above em- ployed. 2 Qj.. Ev. ? 128, in part. 3 Pirn V. Cnrrell, 6 M. & W. 234. * Crease v. Barret, 1 C. M. & E. 929, per Parke, B. By the Roman law, reputation, or common fame, seems to have been admissible in evidence in all cases; but it was not generally deemed sufficient proof, and, in some cases, (3406) CHAP. VIII.] MATTERS OF PUBLIC AND GENERAL INTEREST. 539 § 610. Thus, if a dispute were to arise respecting the existence § 546 of a local custom, in which all the tenants of a manor were inte- rested, evidence of reputation would be admissible, not only from any deceased tenant, but from any deceased resident within the manor; for it might fairly be presumed that the residents, being persons conversant with the neighborhood, would be acquainted with the local customs.^ So," where the question was whether Nottingham Castle was within the hundred of Broxtowe, certain ancient orders, which were made by the Justices at the Quarter Sessions for the county, and in which the castle was described as being within that hundred, were held admissible evidence of reputation ; the justices, though not proved to have been residents within the county or hundred, being presumed, from the nature and character of their offices alone, to have had sufficient acquaintance with the subject in dispute, to make the statements in their order admissible.^ not even semiplena jyrobaiio, unless corroborated; nisi aliis ndminiculis adjuvetur. 1 Masc. de Prob., Concl. 171, n. 1; Concl. 183, n. 2; Concl. 547, n. 19. It was held sufficient, plena probaiio, wherever, from the nature of the case, better evidence was not attainable; ubi a communiter accident ibus, prohatio difficilis est, fama plenam solet probationem facere; ut in probatione filitionis. But Mascardus deems it not sufficient, in cases of pedigree within the memory of man, which he limits to fifty-six years, unless aided by other evidence — tunc nempe non sufficeret publica vox et fama, sed una cum ipsd dcberet iractaius et nominatio probari, vel alia adminicula urgent ia adJdberi. 1 Masc. de Prob., Concl. 411, n. 1, 2, 6, 7. ' Ld. Dunraven v. Llewellyn, 15 Q. B. 809, per Parke, B. See "Warrick v. Queen's Coll., Oxford, 40 L. J., Ch. 785, 788, per Ld. Hatherley, C. The actual discussion of the subject in the neighbourhood, was a fact also relied on, in the Roman law, in cases of proof by common fame. " Quando testis vult probare aliquem scivisse, non videtur sufficere, quod dicat ille scivit quia erat vicinus; sed debet addere, in vicinia hoc erat cognitum per famam, vel alio modo; et ideo iste, qui erat vicinus, potuit id scire." 2 Henoch, de Prses. lib. 6, Prses. 24, n. 17, p. 772. See, also, 1 INIasc. de Prob. 389, 390, Concl. 395, n. 1, 2, 19, 9, where the law is thus laid down: — "Coufines pro- bantur per testes. Verum scias velim, testes in hac materia, qui vicini, et circum ibi habitant, esse magis idoneos quam alios. Si testes non sentiant commodum vel incommodum immediatum, possint pro sua communitate deponere. Licet hujusmodi testes sint de universitate, et deponant super confinibus suae universitatis, probant, dummodum prsecipuum ipsi commodum non sentiant licet inferant commodum in universum. ' ' ^ Gr. Ev. § 129, in part. ' D. of Newcastle v. Broxtowe, 4 B. & Ad. 273. (3407) 540 DECLARANT MUST HAVE COMPETENT KNOWLEDGE. [PART II. § 611. Again, wlieii the question related to the custom of min- § 545 ing in a particular district, persons, under whose estates the minerals lay, with respect to which the custom was said to exist, were held to bo sufficiently connected with the subject to make their declarations evidence, as they were more likely than others living at a distance to become adventurers, and consequently to be subjected to the operation of the custom.' But where the point at issue was, whether the City of Chester anciently formed part of the County Palatine, an old document, purporting to be a decree of certain law officers and dignitaries of the Crown, not having authority as a Court, was held inadmissible as evidence of repu- tation, because those personages had no peculiar knowledge of the subject, excepting what they derived in the course of that un- authorised proceeding.^ Hence it appears that comijetent knoicledge in the declarant is an essential pre-requisite to the admission of his testimony; and although all the Queen's subjects are presumed to have that knowledge, in some degree, where the matter is of public concernment, yet, in other matters, which are not strictly public, though they are interesting to many persons, some particular evidence of such knowledge is generally required. § 612. If the quality of the hearsay itself raises a natural § 547 inference that it was derived from persons acquainted with the subject, the courts will not require independent proof of that fact; and, therefore, where the question turned on a manorial custom, depositions, purporting to have been made by copy- holders in an ancient suit between a former lord and a person claiming admission to a copyhold, were admitted in evidence without proof that the persons making them were either copy- holders, or were otherwise acquainted with the customs of the manor; for the court assumed that such persons would not have been brought forward as witnesses, had they been ignorant of the subject.^ So, an ancient unsigned customary of a manor, which ^ Crease v. Barrett, 1 C. M. & R. 919, 928—930. ^ Rogers v. Wood, 2 B. & Ad. 245, 256, recognised by the Ct. of Ex. in Crease v. Barrett, 1 C. M. «& R. 928, 929. See, also, Evans v. Taylor, 7 A. & E. 617, 626, 627. But see Freeman v. Read, 32 L. J., M. C. 226; 4 B. & S. 174, S. C. 2 Freeman v. Phillipps, 4 M. & Sel. 486. (3408) CHAP. VIII.] EXAMPLES OF MATTERS OF PUBLIC INTEREST. 541 purported to be ex assensu omnium tenentium, and wliicli had been handed down with the court rolls from steward to steward, was received as evidence to prove the course of descent within the manor.' But where, in order to prove the boundaries of a manor, an ancient survey was produced from the proper custody, which purported to have been made in the time of Queen Elizabeth by a deputy surveyor appointed by the Crown, and to have been founded on the presentments of certain tenants of the manor, whose names were appended to it, the court rejected the docu- ment, on the ground that no proof had been given that the dejDuty surveyor had any authority to institute the inquiry ; and, stripped of this authority, he not only had no right to make any kind of return, but the presumption that he did make one fell to the ground. The paper might have been written by any clerk idling in the office where it was found, from his own imagination, or compiled, possibly, by some interested person in furtherance of a sinister object of his own." § 613. It may be here expedient to enumerate a few of the ? 548 principal questions, which have been deemed to involve matters of public or general interest, and to contrast these with some others, which the courts have considered to be of too private a nature, to allow of their being illustrated by evidence of reputa- tion. Thus, on the one hand, liearsay,^~or, in other words, evi- dence of reputation, — has been admitted, where the question related to a right of common existing by immemorial custom,'' a feeding per cause de vicinage resting on a similar foundation,* a parochial ^ or other district modus,® a manorial custom,' a custom of mining 1 Denn v. Spray, 1 T. R. 466, 473. See Chapman v. Cowlan, 13 East, 10. 2 Evans v. Taylor, 7 A. & E. 617, 626, 627. See, also, D. of Beaufort v. Smith, 4 Ex. R. 450 ; Daniel v. Wilkin, 7 Ex. R. 429. But see Freeman v. Read, 32 L. J., M. C. 226 ; 4 B. & S. 174, S. C; Smith v. Ld. Brownlow, 9 Law Rep., Eq. 241 ; D. of Devonshire v. Neill, 2 L. R. Ir, 132. 160—162, per Palles, C. B. ^ Weeks ?). Sparke, 1 INI. & Sel. 679 ; explained in Ld. Dunraven v. Llewellyn, 15 Q. B. 811, 812. * Prichard v. Powell, 10 Q. B. 589 ; explained in Ld. Dunraven v. Llewellyn, 15 Q. B. 812. 5 Moseley v. Davies, 11 Price, 162 ; White v. Lisle, 4 Madd. 214,224, 225 ; Short V. Lee, 4 Jac. & W, 464, 473. 6 Rudd V. Wright, 1 Ph. Ev. 240. ' Doe v. Sisson, 12 East, 62. (3409) 542 EXAMPLES OF MATTERS OF PUBLIC INTEREST. [ PART II. in a particular district,* a custom of a corporation to exclude foreic^ners from trading within a town,' the limits of a town,^ the extent of a parish,* the boundary between counties, parishes, hamlets, or manors,^ or even between a reputed manor, — that is, an estate which from some intervening defect has ceased to be an actual manor, — and the freehold of a private individual,*^ or between old and new land in a manor,' a claim of tolls on a public road,^ the fact whether a road was public or private,^ a prescriptive liability to repair sea-walls,'" or bridges," a claim of highway,'" a rio-ht of ferry, '^ the fact whether land on a river was a public landino-.place or not," the existence and rights of a parochial chapelry,'^ the jurisdiction of a court, and the fact whether it was a court -of record or not,'^ the existence of a manor," a prescrip- tive right of toll on all malt brought by the west country barges to London,'^ a right by immemorial custom, claimed by the deputy day meters of London, to measure, shovel, unload and deliver all oysters brought by boat for sale within the limits of 1 Crease v. Barrett, 1 C. M. & K. 919, 928—930. "^ Davies v. Morgan, 1 C. & J. 587, semble. •■' Ireland v. Powell, cited Pea. Ev. 16, per Cliambre, J., and recognised by Williams, J., in R. v. Bliss, 7 A. & E. 555. < R. V. Mytton, 2 E. & E. 557 ; S. C. nom. Mytton v. Thornbury, 29 L. J. , M. C. 109. * Nicbolls t'. Parker, 14 East, 331, n.; Brisco r. Lomax, 8 A. & E. 198; 3 N. & P. 388, S. C; Evans v. Rees, 10 A. & E. 151 ; 2 P. & D. 627, S. C; Plaxton V. Dare, 10 B. & C. 17 ; 5 M. & R. 1, S. C; Thomas v. Jenkine, 6 A. & E. 525 ; 1 N. & P. 588, S. C. " Doe V. Sleeman, 9 Q. B. 298. '' Barnes v. Mawson, 1 M. & Sel. 81. ^ Brett V. Beales, M. & M. 416, 418, per Ld. Tenterden. 8 R. V. Bliss, 7 A. & E. 555, per Williams, J. '" R. r. Leigh, 10 A. & E. 398, 409, 411. The mere fact that each frontager has always repaired the sea wall in front of his land is not, in itself, sufficient evidence of a prescriptive liability to maintain the wall. Hudson v. Tabor, L. R., 2 Q. B. D. 290, per Ct. of App.; 46 L. J., Q. B. 463, S. C. '" R. V. Sutton. 8 A. & E. 516 ; 3 N. & P. 569, S. C. J2 Crease v. Barrett, 1 C. M. & R. 929, per Parke, B. ; Reed r. Jackson, 1 East. 355. '' Pim. v. Curell, 6 M. & W. 234. " Drinkwater v. Porter, 7 C. & P. 181, per Coleridge, J. '5 Carr v. Mostyn, 5 Ex. R. 69. i« Goodtitle v. Dew, Pea. Add. Cas. 204. •' Steel r. Prickett, 2 Stark. R. 466, per Abbott, C. J.; Curzon v. Lomax, 5 Esp. 60, per Ld. Ellenborough. 18 City of London v. Gierke, Carth. 181 ; D. of Beaufort v. Smith. 4 Ex. R. 450. (3410) CHAP. VIII.] EXAMPLES OF MATTERS NOT OF PUBLIC INTEREST. 543 the port of London,' a claim by the lord of a manor to all coals lying under a certain district of the manor,^ a claim of heriot custom in respect of freehold tenements within a manor held in fee-simple,^ a custom of electing churchwardens by a select com- mittee,* and a prescriptive right to free warren as appurtenant to an entire manor. ^ § 614. On the other hand, evidence of reputation has been re- I 549 jected, where the question was, what usage had obtained in elect- ing a schoolmaster to a grammar school,^ whether the sheriff of the county of Chester, or the corporation of the city of Chester, was bound to execute criminals,^ whether certain tenants of a manor had iirescriptive rights of common for cattle levant and couchant,^ what were the boundaries of a waste over which many of the tenants of a manor claimed a right of common appendant,'' whether the lord of a manor had a prescriptive right to all wreck within his manorial boundaries,'" whether the' plaintiff was ex- clusive owner of the soil, or had a right of common only," whether the land in dispute had been purchased by a former occupief", or was part of an entailed estate of which he had been tenant for life,'^ what patron formerly had the right of presentation to a living,'^ whether a farm modus existed, and what was its nature,'* 1 Laybourn v. Crisp, 4 M. & W. 320. ^ Barnes v. Mawson, 1 M. & Sel. 77, 81. In that case evidence was given of an uniform exercise of the right. •' Damerell v. Protheroe, 10 Q. B. 20. * Berry v. Banner, Pea. R. 156. s Ld. Carnarvon v. Villebois, 13 M. & W. 313. ^ Withnell v. Gartham, 1 Esp. 324, 325, per Ld. Keuyon. ^ R. V. Antrobus, 2 A. & E. 793—795. » See Ld. Dunraven v. Llewellyn, 15 Q. B. 791, 811, 812, overruling Weeks V. Sparke, 1 M. & Sel. 679; Williams v. Morgan, 15 Q. B. 782. See, also, and compare Warrick v. Queen's Coll., Oxford, 40 L. J. 785, 788, per Ld. Hatherley, C. ' Ld. Dunraven v. Llewellyn, 15 Q. B. 791. '» Talbot V. Lewis, 1 C. M. & R. 495; 5 Tyr. 1, S. C. As to what con- stitutes " wreck " distinguished from " flotsam," see Stackpoole v. The Queen, I. R., 9 Eq. 619. 1' Richards v. Bassett, 10 B. & C. 663, semble, per Littledale, J. ; sed qu. ^2 Doer. Thomas, 14 East, 323; 2 Smith, L. C. 432, S. C. " Per Ld. Kenyon, in R. v. Eriswell, 3 T. R. 723, questioning Bp. of Meath v. Ld. Belfield, 1 Wils. 215. " Wells V. Jesus College, 7 C. & P. 284, per Alderson, B. ; White v. Lisle, (3411) 544 PRIVATE PRESCRIPTIVE RIGHTS AND LIABILITIES. [PART 11. whetlier a party had a private right of way over a particular field,' whether the tenants of a particular manor had the right of cutting and selling wood,^ and what were the boundaries between two private estates.^ Where, however, it was shown by direct testi- mony, the admission of which was unopposed, that the boundaries of the farm in question were identical with those of a hamlet, evidence of reputation as to the hamlet boundaries was let in for the purpose of proving those of the farm; for though it was objected that evidence should not be thus indirectly admitted in a dispute between private individuals, the court overruled the objection, Mr. Justice Coleridge observing, that " he never heard that a fact was not to be proved in the same manner when subsidiary, as when it was the very matter in issue." * § 615. The question, whether evidence of reputation is admis- § ^^^ sible to prove or disprove a private prescriptive right or liability, is involved in some doubt.^ In the case of Morewood v. Wood, where a prescriptive right of digging stones on the lord's waste was claimed by the defendant, as annexed to his estate, and the lord offered evidence of reputation to prove that no such right existed, the Judges of the Court of King's Bench were equally divided on its admissibility; *' but, since in that case it is difficult to see how the public could have been interested in the matter, unless it had been shown, — which it was not, — that the rights of the commoners were infringed by the defendant's claim, such evidence would pro- bably at the present day be rejected.' It has, howeverj been deter- mined by the Court of Queen's Bench, that, on the trial of an 4 Madd. 214, 224, 225; Wright v. Riidd, cited 1 Ph. Ev. 241, per Ld. Lynd- hurst. See, however, Webb v. Petts, Noy, 44; Donnisou i\ Elsley, 3 Eag. & Y. 1.396, n.; and cases cited, 1 Ph. Ev. 241, n. 2. ' Semble, per Dampier, J., in Weeks v. Sparke, 1 M. & Sel. 691; and per Ld. Kenyon, in Reed v. Jackson, 1 East, 357. 2 Blackett v. Lowes, 2 M. & Sel. 494, 500, per Ld. Ellenborough. ^ Clothier v. Chapman, 14 East, 331, n. By the Roman law, the evidence of reputation seems to have been deemed admissible, even in matters of private boundary. Seel Masc. de Prob. 391, Concl. 396. * Thomas v. Jenkins, 6 A. & E. 525, 529; 1 N. & P. 588, S. C. See, also, Brisco V, Lomax, 8 A. & E. 198, 213; 3 N. & P. 383, S. C. 5 See Prichard v. Powell, 10 Q. B. 589. 6 14 East, 327, n. ' See ante, H 610, 611. (3412) CHAP. VIII.] DISTINCTION BETWEEN PUBLIC AND PRIVATE RIGHTS. 545 indictment against the inhabitants of a county for the non-repair of a public bridge, to wliich the defendants had pleaded that certain persons named were liable to repair the bridge ratione tenurse, evi- dence of reputation was admissible to support the plea.' In this case it was very properly considered that the fixing an individual with, or relieving him from, such a liability as the one in question, had a necessary tendency to abridge or increase the lia- bility of the whole neighbourhood," — and, moreover, that the ad- missibility of evidence of reputation, when tendered to disjorove a public liability or right, could not be governed by a difPerent prin- ciple from that which prevails, when such evidence is offered to establish the liability or right. ^ § 616.* The probable ^vant of competent knoivledge in the decla- ^ 551 rant is the reason generally assigned for rejecting evidence of reputation or common fame, in the matters of mere private right. " Evidence of reputation upon general points is receivable," said Lord Kenyon, " because, all mankind being interested therein, it is natural to suppose, that they may be conversant with the subjects, and that they should discourse together about them, having all the same means of information. But how can this apply to private titles, either with regard to particular customs, or private prescrip- tions ? How is it possible for strangers to know anything of what concerns only private titles ?" ^ It may not on all occasions be an easy matter to distinguish between public and private rights, and some few of the cases cited above in illustration of the subject, may possibly be considered to rest on somewhat doubtful reasoning. Still, the general rule of law cannot be disputed; namely, that if the matter in question be of a public or general nature, — that is, if it be interesting to the community at large, or even to a com- paratively small portion of the community, such, for example, as the inhabitants of a parish, a town, or a manor, — it falls within the exception by which evidence of reputation is admitted ; whereas, if 1 R. r. Bedfordshire, 4 E. & B. 535; overruling K. v. Wavertree, 2 M. & Rob. 353, and confirming R. v. Cotton, 3 Camp. 444. ^ See Prichard v. Powell, 19 Q. B. 599, per Patteson, J. ^ See Drinkwater v. Porter, 7 C. & P. 181, per Coleridge, J.; and post, § 620. * Gr. Ev. ^ 137, in part. * More wood v. Wood, 14 East, 329, n. (3413) 546 REPUTATION AS TO PARTICULAR FACTS INADMISSIBLE. [PAET II. it have no connexion with the exercise of any public right, or the discharge of any public duty, or with any other subject of general interest, it falls within the ordinary rule by which hearsay evidence is excluded. § 617.' The necessity for competent knowledge in the declarant I 552 may serve to explain and reconcile what is said in the books respect- ing the inadmissibility of rejyutation in regard to particular facts. Upon general points, as we have seen, such evidence is receivable, because of the general interest which the community have in them; but particular facts, not being equally notorious, may be misrepre- sented, or misunderstood, and may have been connected with other facts, by which, if known, their effect might be limited or explained. Reputation as to the existence of such particular facts is therefore rejected. Thus, if the question be whether a road be public or private, declarations of old persons since dead, that they have seen repairs done upon it, will not be admissible;^ neither can evidence be received that a deceased person planted a tree near the road, and stated at the time of planting it that his object was to show where the boundary of the road was when he was a boy.^ So, proof of old persons having been heard to say that a stone was erected, or boys whipped, or cakes distributed, at a particular place, will not be admissible as evidence of boundary;* and where the question was whether a turnpike stood within the limits of a town, though evi- dence of reputation was received to show that the town extended to a certain point, yet declarations, by old people, since dead, that formerly houses stood where none any longer remained, was re- jected, on the ground that these statements were evidence of a par- ticular fact.^ So, also, if the existence and amount of a parochial modus be in issue, hearsay evidence of the payment of a specific sum in lieu of tithes by a deceased occupier will be inadmissible; though general evidence of reputation, that it has always been ' Gr. Ev. § 138, in part. 2 Per Patteson, J., in R. v. Bliss, 7 A. «fe E. 552. •^ R. V. Bliss, 7 A. & E. 550. ♦ Per Coleridge, J., in R. v. Bliss, 7 A. & E. 556. ^ Ireland v. Powell, per Chambre, J., Pea. Ev. 16, cited by "Williams, J. in R. V. Bliss, 7 A. & E. 555. (3414) CHAP. VIII.] STATEMENTS BY PERAMBULATORS. 547 customary to pay that sum for all the lands in the parish, will be received.' § 618. Again, where the question was whether a certain place ? 553 was parcel of a particular parish, an old book containing entries by a deceased churchwarden, not charging himself, but relating to the repairs of a chapel alleged to belong to the place in question, was held to be inadmissible;'" and the same ruling has prevailed, where entries in parish books, which recorded the fact that perambulations had taken a particular line, were tendered in evidence.'^ Still, it has been usual to admit evidence of what old persons, since de- ceased, who accompanied the perambulators, have been heard to say upon such occasions;* because the custom of perambulating parishes having long received high judicial sanction as a legitimate mode of recording boundaries,^ — and the fact of a perambulation having taken place being considered in itself evidence of the exer- cise of a right,"* — it follows that statements made by perambulators may be regarded as declarations accompanying acts, which, on grounds already explained,' will be admissible in evidence, provided they are not confined to particular circumstances.* § 619. The courts now hold, — contrary to a doctrine which for- ^ 554 merly prevailed," — that proof of the exercise of the right claimed within the period of living memory, is not an essential condition of the I'eception of evidence of reputation ; though, of course, the absence of such proof, in cases where the nature of the subject admits of its production, will materially afPect the value of hearsay ' Harwood v. Sims, Wightw. 112, more fully reported and explained' in Moseley v. Davies, 11 Price, 162, 1G9— 172; Chatfield v. Fryer, 1 Price, 253; Garnons v. Barnard, 1 Anstr. 298; 3 Eag. & Y. 380. S. C. ; Wells v. Jesus College, 7 C. & P. 284; Deacle v. Hancock, McClel. 8.5; 13 Price, 226, S. C. See, also, Crease v. Barrett, 1 C. M. & R. 919, 930; 5 Tyr. 458, 472, S. C. ^ Cooke r. Banks, 2 C. & P. 478, per Abbott, C. J. ^ Taylor v. Devey, 7 A. & E. 409, 414. * Weeks v. Sparke, 1 M. & Sel. 687, per Ld. Ellenborough, and 689, per Le Blanc, J. 5 Taylor v. Devey, 7 A. & E. 415. 8 Weeks v. Sparke, 1 M. & Sel. 687, 689. ^ Ante, U 583—588. 8 j pj^ y,^, o^. " Per Buller, J., in Morewood r. Wood, 14 East, 330, n. ; Weeks v. Sparke, 1 M. & Sel. 688, 689, per Le Blanc, J,, and 690, per Dampier, J. 14 LAW OF EVID. — V. II. (3415) 548 REPUTATION EVIDENCE AGAINST PUBLIC RIGHTS. [PART II. when received.' Neither is it necessary that the opinions of de- ceased persons, Avhich are tendered as evidence of common fame, should appear to rest on reputation derived from others, or should have been expressed in the course of a transaction relating to a question of reputation; and, therefore, on an issue whether or not a lane in a certain hamlet was a common highway, a paper signed by several inhabitants of the hamlet, since dead, stating that the lane was not a highway, was received as slight evidence of reputa- tion, although it had been drawn up at a public meeting, which had been convened for the sole purpose of considering the propriety of repairing the road, and although the opinions expressed in the docu- ment did not appear to have been founded on reputation received from others.'"* § 620.^ It may further be observed, that reputation is evidence § 555 as well against a public right as in its favour ; and this, too, whether the evidence consist of declarations which expressly negative the right, or set up an inconsistent claim, or simply omit all mention of the right on some occasion, when a notice of it might be reasonably expected. Thus, where the question was, whether a landing-place was public or private property, the declara- tions of ancient deceased persons, that it was the private landing- place of the party and his ancestors, were held admissible, the learned judge remarking, that no distinction could be drawn between the evidence of reputation to establish, and that to disparage, a public right.* So, where the object was to negative the existence of a particular manorial custom, the court was strongly inclined to hold,— though it became unnecessary to decide the point, — that an -ancient deed, made between the lord of the manor and a great , many of the copyholders, in which the latter claimed, and the former admitted and confirmed, what they mutually conceived to be 1 Crease r Barrett, 1 C. M. & R. 919, 930; 5 Tjt. 458, S. C; Ld. Dun- raven V. Llewellyn, 15 Q. B. 791, 809; E. v. Sntton, 8 A. & E. 52.'^, n. c ; Curzon v. Loraax, 5 Esp. 60, per Ld. Ellenborough ; Steel v. Prickett, 2 Stark. E. 46G, per Abbott, C. J. ; Eoe v. Parker, 5 T. R. 32, per Grose, J. 2 Barraclongh v. Johnson, 8 A. & E. 99, 108. 3 Gr. Ev. ? 140, in part. * Drinkwater v. Porter, 7 C. & P. 181, per Coleridge, J. (3416) CHAP. VIII.] DOCUMENTARY EVIDENCE OF REPUTATION — MAPS. 549 the immemorial customs of the manor, but which deed omitted all mention of the particular custom in question, was strong evidence of reputation to show that it did not exist at that day, and that the subsequent usage relied upon in support of it was referable to usurpation, and not to right.' § G21.- It will have been seen from several of the cases cited ^ ^^^^' in this chapter, that oral declarations are not the sole medium of proving traditionary reputation in matters of public and general interest ; and, ' indeed, the principle of the exception applies equally to documentai'y evidence, and to all other kinds of proof denominated hearsay. Thus deed,^ leases,* and other private documents have been admitted, as declaratory of the public matters recited in them. Even copies and abstracts of old deeds and wills' have occasionally been used for the same purpose, but these are not in themselves evidence of reputation, being merely admissible as secondary evidence of the original instruments. It follows, there- fore, that no such document can in strictness be received at all, without some proof being furnished of the former existence and present loss of the originals."^ § 622. How far majis, showing the boundaries of counties, I 557 towns, parishes, or manors, will be admissible, is a question respecting which some doubts exist. If such maps are not proved to have been prepared by persons who were deputed to make them by some one interested in the question, or who themselves appear to have had some knowledge of their own on the subject, iM. of Anglesey t).Ld. Hatherton, 10 M. & W. 218, 239—241, 244. See D. of Portland v. Hill, 2 Law Kep., Eq. 765. '•' Gr. Ev. 1 139, in part. •'' Curzon v. Lomax, 5 Esi). 60, per Ld. Ellenborough ; Brett v. Beales, M. & M. 416, per Ld. Tenterdcn. *Plaxtonr. Dare, 10 B. & C. 17; 1 M. &. R. 1, S. C. ; Barnes v. Mawson, 1 M. & Sel. 78, 79 ; M. of Anglesey v. Ld. Hatherton, 10 M. & W. 218 ; D. ^of Beaufort v. Smith. 4 Ex. R. 471, 472, per Parke, B. * See ShreAvsbury Peer., 7 H. of L. Cas. 11, 12 ; Braye Peer., 6 CI. & Fin. 757—767. ^ See and compare Doe r. Skinner, 3 Ex. R. 84 ; Doe v. Whitcombe, 6 Ex. R. 601 ; S. C. in Dom. Proc. 4 H. of L. Cas. 425; Perth Peer., 2 H. of L. Cas. 865 ; and D. of Devonshire v. Neill, 2 L. R. Ir. 132, 149, 167, per Palles, C. B. (3417) 550 MAPS — COURT ROLLS — PRESENTMENTS. [PART II. or who at least are shown to have been in some way connected with the district, so as to make it probable that they possessed the requisite information, they cannot be received, whatever their age or apparent accuracy may be/ If, however, proof be forth- coming that they have been either made or recognised by persons having adequate knowledge, they would seem, on principle, to be valid evidence of reputation. Accordingly, upon the trial of an indictment against a parish for the non repair of a highway, where, in order to show that the road in question was not within the parish, a map was produced which had been made some thirty years before by a surveyor, from information derived from an old parishioner, who had pointed out to him the boundaries, Mr. Justice Erskine held, that, if proof could be given of the old man's death, the map would be admissible as evidence of reputa- tion, though it came from the chest of the parish indicted.^ On another occasion, also, maps appear to have been received as public documents f but in an older case, where, in order to prove that the locus in quo vpas a highway, a copper-plate map, which purported on its face to have been taken by the direction of some former churchwardens, and which it was proposed to prove was generally received by the parish as authentic, was rejected by Ld. Kenyon, who observed, that " it would be equally improper to admit it, as to admit a plan taken by the lord of the manor, who might thereby crush and destroy the estate of his tenants."* It does not appear in this case that the map was an ancient one, or that the church- wardens, by whose direction it was drawn, were dead, and conse- quently the decision is of the less authority. § 623. Again, copies of court rolls, and especially presentments g 5G8 in manor courts,'^ stating the customs or boundaries of a manor, — depositions of conventionary tenants of a manor, taken in an ' Hammond v. Bradstreet, 23 L. J., Ex. 332, per Ex. Ch.; 10 Ex, R. 390, S. C. See Pipe v. Fulcher, 28 L. J., Q. B. 12 ; 1 E. & E. Ill, S. C. 2 R. V. Milton,! C. & Kir. 58. ' Alcock V. Cook, per Tindal, C. J., cited 1 Ph. Ev. 2.'51, n. 1. * Pollard V. Scott, Pea. R. 19. ^ Evans v. Rees, 10 A. & E. 151 ; Roe v. Parker, 5 T. R. 26 ; Arundell v. Ld. Falmouth, 2 M. & Sel, 441 ; Damerell v. Protheroe, 10 Q. B. 20. (3418) CHAP. VIII.] VERDICTS — JUDGMENTS — DECREES. 551 authorised inquiry, and representing the rights of the Icrd/ — and other similar documents, have been admitted as evidence of repu- tation;" though unless, it can be satisfactorily proved, or at least reasonably inferred, that the proceedings were conducted in a legal and regular manner, it will seldom be prudent to run the risk of a new trial by tendering such evidence.' § 624. It has often been said that verdicts of juries, and judg- I 559 ments, decrees, and orders of courts of competent jurisdiction, are evidence of reputation;^ and possibly, when juries were summoned de vicineto, and were consequently assumed to be acquainted with the subject in controversy,^ this may have been a correct mode of stating the ground on which verdicts were admitted; though it never could have been strictly accurate with respect to other judicial documents, and though it does not apply, at the present day, even to verdicts.'* Still, these documents, though not repu- tation, are as good evidence as reputation;' and whatever be the principle on which they are admitted, the rule has been established Ijy too many authorities to be now questioned,** that, in all cases, involving matters of public or general interest, wherein reputation is evidence, a verdict or a judgment upon the matter directly in issue, though pronounced in a cause litigated between strangers to the parties on the record, is also admissible; not as tending to prove any specific fact existing at the time, but as evidence of the most solemn kind, of an adjudication by a competent tribunal upon the state of facts and the question of usage at the time.' Thus, for example, where a public right of way was in question, 1 Crease v. Barrett, 1 C. M. & R. 919, 5 Tyr. 458, S. C; Freeman v. Philhpps, 4 M. & Sel. 486; Gee v. Ward, 7 E. & B. 509. '^ See Evans v. Taylor, 7 A. & E. 626, as explained in D. of Beaufort v. Smith, 4 Ex. R. 450; and Daniel v. Wilkin, 7 Ex. R. 429. 3 See R. V. Leigh, 10 A. & E. 411. * See post, ?i 1683. * Pim V. Curell, 6 M. & W. 254, per Alderson, B. * Evans v. Rees, 10 A. & E. 153, per Patteson & Coleridge, Js. ; Brisco v. Lomax, 8 A. & E. 212, per Patteson, J. ' Brisco V. Lomax, 8 A. & E. 211, per Littledale, J. ^ Evans v. Rees, 10 A. & E. 156, per Ld. Denman. ® Pim r. Curell, 6 M. & W. 266, per Ld. Abinger; D. of Devonshire v. Neill, 2 L. R. Ir 154, 155, per Palles, C. B.; Neill r. D. of Devonshire, L. R., 8 App. Cas 147, per Ld. Selborne, C, in Dom. Proc. S. C. (3419) 552 VERDICTS AND JUDGMENTS EVID. OF REPUTATION. [PART 11. the plaintiff was allowed to show a verdict, rendered in his own favour against a defendant in another suit, in which the same right of way was in issue;' and it matters not with respect to the admissibility, though it may as to the weight, of such evidence, that the judgment has been suffered by default, and, though of a very recent date, is not supported by any proof of execution or of the payment of damages;" or even that the verdict, where a verdict has been obtained, has not been followed up by any judgment or decree.^ Neither is it material whether the verdict be pronounced at Nisi Prius, or be the finding of a jury summoned under a com- mission from a Duchy Court, or any other special commission; provided it can be -pi-oved, or can be inferred from the circum- stances, that the inquiry was a lawful one. * § 625. If, when the record is produced, a direct issue appears § 5G0 to have been raised on the right or custum in controversy, the opponent will not be entitled to show that in fact no evidence was given on that issue; since the record is conclusive of the fact of such a finding, though not of its truth as between other parties.*^ If the record contains no direct issue on the custom, the party producing it must furnish some evidence to show that the custom was really in question; for, otherwise, the mere verdict would prove nothing. *" In the case of the Earl of Carnarvon v. Villebois, which was an action by the lord of a manor against a copyholder for trespassmg on. his free warren, an ancient judgment on a quo warranto information filed by the Attorney -General against a former lord, in which the defendant pleaded, and the Attorney-General confessed, a prescriptive title to the free warren as appurtenant to the manor, was received in evidence for the plaintiff, as being the judgment of a competent court upon a matter of a public nature, which concerned the Crown and the subject. The court observed, that " it was admissible on the same footing as an allowance before the Justices of Eyre, an inquisition post mortem, or an inquisition ' Eeed v. Jackson, 1 East, 355. See Petrie r. Nuttall, 11 Ex. R. 569. 2 Ld. Carnarvon v. Villebois, 13 M. & W. 313, 329, 332. See R. v. Bright- side Bierlow, 13 Q. B. 933. ■^ Brisco V. Lomax, 8 A. & E. 198; 3 N. & P. 338, S. C. * Id. ^ Reed v. Jackson, 1 East, 355. « Laybourn r. Crisp, 4 M. & W. 325, 326, per Ld. Abinger. (3420) CHAP. VIII.] DECREES AND ORDERS EVID. OF REPUTATION. 553 issuing out of the Court of Exchequer to ascertain the extent of the Crown lands." ' § 626. Decrees and orders of all conipetent tribunals stand upon ^ 561 the same footing as verdicts;^ and, therefore, orders of the com- missioners of sewers requiring landowners to repair sea-walls, will, on an issue respecting the liability of a party to make such repairs, be evidence as adjudications by a court of competent jurisdiction; and the fact that they have been duly executed and acted upon will be presumed, if they are of an ancient date. ^ To render decrees of the old Court of Chancery admissible, it is unnecessary to put in the depositions to which they refer; because, in equity, the judge must have collected the questions in dispute from the bill and anwer only.* Still, a decree, to be evidence, must be final; and mere inierlocutory orders, not involving any judgment upon the rights of the parties, cannot be received.^ So anxious are the courts to confine this species of evidence within strict limits, that they have rejected an award in a suit inter alios, though the cause was referred by order of the judge at Nisi Prius.*^ It seems scarcely necessary to add, that no mere claim to the possession of lands, not followed by judgment, will be admissible in evidence,^ nor can any verdict, judgment, decree, or order, be received, if it appear that the parties pronouncing it were acting without legal authority.** § 627. Although judgments and decrees, when tendered as I 562 evidence of reputation, must in general be proved either by pro- ducing the originals, or by examined, or now by office,^ copies, yet occasionally a copy of a less authentic character will be received, ' 13 M. & W. 313, 331, per Parke, B. 2 See Laybourn c. Crisp, 4 M. & W. 326, per Parke, B. ; D of Devonshire V. Neil], 2 L. R. Ir. 153, per Palles, C. B. ^ R. V. Leigh, 10 A. & E. 398, D. of Devonshire v. Neill, 2 L. R. Ir. 132, 152, 153. * Laybourn v. Crisp, 4 M. & W. 320, 326, 327. It seems tliat the deposi- tions may be read by the opposite party as his evidence, id. 5 Pim V. Currell, 6 M. & W. 234, 265—267. « Evans r. Rees, 10 A. & E. 151; 2 P. & D. 627, S. C. ; R. v. Cotton, 3 Camp. 444: Wenman r. Mackenzie, 5 E. & B. 447. ■ D. of Devonshire v. Neill, 2 L. R. Ir. 132, 165, 166, per Palles, C. B. 8 Rogers r. Wood, 2 B. & Ad. 245. , 9 Rules of Sup. Ct., 1883, Ord. XXXVII. , R. 4, cited post, § 1538. (3421) 554 Df:CLx\.IlATIONS 3IADE ANTE LITEM MOTAM. [pART II. provided it has been dealt with by the party against whom it is tendered, or by those through Avhom he claims, either as an authentic copy, in which case it will be admissible as secondary evidence or as a paper containing a true statement of the custom or other subject matter of reputation in dispute, in which case it will be received as primary proof. For instance, in Price v. Woodhouse,' which was an action of trespass by a copyholder against the lord of a manor, where the question at issue turned on the existence or non-existence of a particular manorial custom, two documents were tendered on behalf of the plaintifP. The first purported to be a copy of an old decree of the Court of Chancery in a suit between a copyholder and the lord, establishing the cus'tom, and the court held that, inasmuch as the document had been found among the papers of a former deceased lord, that fact furnished some evidence of its having been recognised as a true copy, and they conse- quently allowed it to be read as secondary evidence of the decree, proof having been given of an ineffectual search for the original. They added, however, that it was inadmissible as primary evidence, since the mere circumstance of its having been deposited among the papers of the deceased lord was not such a dealing with it as to be equivalent to an admission, upon the lord's part, that it con- tained a true account of the customs of the manor. The second document tendered in evidence was an office copy" of another decree, and as there was some evidence to show that this had been given to a witness by the lord as proof of the customs of the manor, the court regarded it in the light of an admission, and held that it was admissible as primary evidence of those customs. • § 028.^ It now becomes necessary to consider an important ? ^63 qualification of the exception under discussion, which is, that declarations, to be admissible as evidence of repidation, 7uust have (>een made before any controversy arose touching the matter to ivhich they relate; or, as it is usually expressed, a?i is allowed in favour of ancient documents when tendered in support of ancient possession. By the term " ancient documents," are meant documents /»ore f/iaii thirty years old; and as these often furnish the only attainable evidence of ancient possession, the law, on the principle of necessity, allows them to be read in courts of justice on behalf of persons claiming under them, and against persons in no way privy to them, provided that they are not mpre narratives of past events, but that thej purport to have formed a part of the act of ownership, exercise of right, or other transaction to which they relate. No doubt this species of proof deserves to be scrutinised with care; for, first, its effect is to benefit those who are connected in interest with the original parties to the documents, and from whose custody they have been produced; and next, the documents are not proved, but are only presumed to have consti- tuted part of the res gestae. Still, as forgery and fraud are, com- paratively speaking, of rare occurrence, and as a fabricated deed will, generally, from some anachronism or other inconsistency, afford internal evidence of its real character, the danger of ad- mitting these documents is less than might be supposed; and, at any rate, it is deemed more expedient to run some risk of occa- sional deception, than to permit injustice to be done by strict exclusion of what, in many cases, would turn out to be highly material evidence. On a balance, therefore, of evils, this kind of proof has for many years past been admitted, subject to certain qualifications, which will now be stated.' § 659. And first, care is especially taken to ascertain the g'enttiJK^- g 594 ness of the ancient documents produced; and this may in general ^ See 1 Ph. Ev. 27:?; 1 St. Ev. 67; Gr. Ev. ? 141; and Best, Ev. 615. (3448) CHAP. X.] LEGAL MEANING OF PROPER CUSTODY. 581 be shown, prima facie, by proof that they come from the x>^'(^P^^ custody? As this proof is by no means conliaed to documents tendered in support of ancient possession, but is required in most cases where deeds, papers, or writings are rendered admissible by any rule of law without strict proof of their authenticity, it becomes highly important to explain, with as much precision as possible, the legal meaning of the words " proper custody." The subject, therefore, will be illustrated in this place once for all, by a reference to the leading decisions which bear upon it ; and attention will first be drawn to the language used by Chief Justice Tindal in the House of Lords, while pronouncing the opinion of the judges in the important case of the Bishop of Meath v. The Marquis of Winchester.^ § 6G0. " Documents," said his lordship, " found in a place in • § 595 which, and under the care of persons with whom, such papers might naturally and reasonably be expected to be found, are precisely in the custody which gives authenticity to documents found within it; for it is not necesary that they should be found in the best and most 2yroper place of deposit. If documents continued in such custody, there never would be any question as to their authenticity; but it is when documents are found in other than their proper place of deposit that the investigation commences, whether it was reasonable and natural, under the circiimstances in the particular case, to expect that they should have been in the place where they are actually found; for it is obvious, that, while there can be only one place of deposit strictly and absolutely proper, there may be many and various, that are reasonable and probable, though differing in degree ; some being more so, some less ; and in those cases the proposition to be determined is, whether the actual custody is so reasonably and probably to be accounted for, that it impresses the mind with the conviction that the instrument found in such custody must be genuine. That such is the character and description of the custody, which is held ' See ante, § 432, et seq. ' 3 Bing. N. C. 200—202; 10 Bligli, 462—164 , S. C. See, also, Doe v. Samples, 8 A. & E. 154, per ratteson, J.; Doe r. Phillips, 8 Q, B. 158. (3449) 582 MEAMNG OF PROPER CUSTODY ILLUSTRATED. [PART II, sufficiently genuine to render a dociiment admissible, appears from all the cases." ' § 661. Tlius, on the one hand, old grants to abbeys have been ? 596 rejected as evidence of private rights, where the possession of them has appeared altogether unconnected with the persons who had any interest in the estate.^ So, a manuscript found in the Heralds' Office, eaumerating the possessions of a dissolved monastery,^ — a curious manuscript book, entitled the " Secretum Abbatis," pre- served in the Bodleian Library at Oxford, and containing a grant to an abbey,* — an old grant to a priory, brought from the Cottonian MSS. in the British Museum,^ — and two ancient writings, purport- ing respectively to be an endowment of a vicarage and aninspeximus of the endowment under the seal of a bishop, both of which had been purchased at a sale as part of a private collection of manu- Bcripts,'' — have been held to be inadmissible, the possession of the documents being unconnected with the interest in the property.^ So, also, as the registers of burials and baptisms are required by the Act of 52 G. 3, c. 146, §§ 1 & 5, to be kept by the clergyman of the parish either at his own residence or in the church, such registers, when produced from the house of the parish clerk, have, in the absence of all explanation on the subject, been rejected, as not coming from the proper custody.^ So, the courts have on several occasions refused to admit terriers, which have been found among the papers of a mere landholder in the parish,® because the legitimate repository for such documents would be either the registry ' For the American authorities, see Burr v. Gratz, 4 Wheat. 213, 221 ; Winn V. Patterson, 9 Pet. 663—675. Clarke v. Courtney, 5 Pet. 319, 344: Hewlett V. Cock, 7 Wend. 371, 374; Duncan v. Beard, 2 Nott & M'C. 400; Middleton r. Mass, id. 55. ' 3 Bing. N. C. 201, per Tindal, C. J. " I-ygon V. Strutt, 2 Anstr. 601. * Michell V. Ral)hetts, cited 3 Taunt. 91. ^ Swinnerton v. M, of Stafford, 3 Taunt 91. « Potts V. Durant, 3 Anstr. 789; 2 Eag. & Y. 432, S. C. ' Bp. of Meath v. M. of Winchester, 3 Bing. N. C. 201, per Tindal, C. J. 8 Doe V. Fowler, 19 L. J., Q. B. 15; 14 Q. B. 700, S. C. « Atkins V. Hatton, 2 Anstr. 386; 3 Gwill. 1406; 4 Wood's Decrees, 410 ; 2 Eag. «& Y, 403, S. C; Atkins v. Ld. Willoughby De Broke, 4 Wood's De- crees, 424. (3450) CHAP. X.] MEANING OF PROPER CUSTODY ILLUSTRATED. 583 of the bishop, the registry of the archdeacon, or the church chest.' lu the case of Eaudolph v. Gordon" this doctrine was cariiedto its extreme limit. There, the defendant, who was grandson of a former rector, produced a book, which purported to be the book of such rector; but as he did not show that he had found it among his grandfather's papers, or that it had come into his possession in a legitimate manner, it was rejected. § 662. On the other hand, the poor-house of a union has been § 597 considered not an improper repository for the documents of any parish within the union ;^ and an old chartulary of a dissolved abbey has been admitted, when found in the possession of the owner of part of the abbey lands, though not of the princqjal 2yro2yrietoi\* The strictly proper custody for such a document as this last would have been the Augmentation Office;'^ and as between the different proprietors of the abbey lands, it might naturally be supposed to have been deposited with the largest; still the court held, that its actual place of custody was one, where it might reasonably be ex- pected to be found.® So, an old book of a collector of tithes would be equally well authenticated, whether produced from the custody of the successor, or executor, of the incumbent, or from the hands of the successor of the collector.' So, also, an unproved will, more than thirty years old, disposing of real and personal estate, and pro- duced from the custody of a younger son of the testator, who, in common with his brothers, derived a benefit under it, has been ad- mitted, though it was contended that it should have been deposited in the ecclesiastical court of the diocese.^ 1 Armstrong!'. Hewett, 4 Price, 216; 3 Eag. & Y. 835, S. C; Potts v. Durant, 3 Anstr. 795; 3 Gwill. 1450, S. C. 2 5 Price, 312. See, also, Manby v. Curtis, 1 Price, 225. 3 Slater v. Hodgson, 2 Sess. Ca. 488; 9 Q. B. 727, S. C. * Bullen V. Michel, 2 Price, 399, 413; 4 Dow, 297; 4 Gwill. 1779; 3 Eag. & Y. 757. S. C. See, also, Mytton d. Thornbury, 29 L. J., M. C. 109; S. C. uom. K. V. Mytton, 2 E. & E. 557. ^ Per Lcl. Eedesdale, in Bullen v. Michel, 4 Dow, 321. « Bp. of Meath v. M. of Winchester, 3 Bing. N. C. 201, 202, per Tindal, C. J. ^ Id. ; referring to Jones v. Waller, 3 Gwill. 346. ® Doe V. Pearce, 2 M. & Rob. 240, per Coleridge, J. ; Andrew v. Motley, 12 Com. B., N. S. 526. (3451) 584 WHEN CUSTODY MUST BE PROVED BY KVIDEXCE. [PART II. § 6G3. "When an expired lease was produced from the custody of § 597 the lessor, and proof was given that he had received it from a former occupier of the demised premises, who had paid for several years the precise rent reserved by it, and who, subsequently to the expiration of the term, had procured it from two strangers who claimed no interest in it, the court held the deed to be admissible, without proof in what manner it had come into the hands of these strangers; because, by the act of giving it up to the occupier, they admitted his right to the possession of it, and were consequently presumed to have held it on his account.' Again, a case stated for counsel's opinion by a deceased bishop, respecting his right of pre- sentation to a living, has been admitted against a subsequent bishop of the same see, on a question touching the same right, though the paper was not found in the public registry of the diocese, but among the private family documents of the descendants of the former bishop.^ So, where a mortgagee in fee brought an action of ejectment, and the defendant's case was, that the mortgagor, his father; had, previously to the mortgage, conveyed the estate to trustees in settlement, reserving to himself only a life interest, the court permitted the son to put in the deed of settlement, it being more than thirty years old, though it was produced from among the papers of his late father, against whom its provisions were intended to operate; and though it was strongly urged that the trustees or their representatives were the parties entitled to its custody; and the more especially so, as by the deed having been permitted to remain with the settlor, he had been enabled to practise a fraud on the mortgagee.^ § 604. Some doubt exists whether the custody of a document ? 598 must be proved by a sworn witness, when it purports on its face to belong to the party who tenders it in evidence. In one or two set- tlement cases, the respondents have been permitted to produce old certificates, which purported to have been granted to them by the 1 Rees V. Walters, 3 M. &. W. .527. ^ Bp. of Meath v. M. of Winchester, 3 Biiig. N. C. 183, 202, 203. ' Doe, V. Samples, 8 A. & E. 151; 3 N. & P. 254, S. C. See, also, Bertie v. Beaumont, 2 Price, 307; Ld. Trimlestown r. Kemmis, 9 CI. & Fin. 774, 775. (3452) CHAP. X.] CORROBORATIVE PROOF OF ANCIENT DOCUMENTS. 585 appellants, without giving any account respecting their custody;' but in the case of Evans v. Rees, where, on a question of boundary, the plaintiff's counsel proposed to read certain manor-books without proving the custody whence they came, on the ground that they belonged to the lord, who was admitted to be the real plaintiff, the court held that they could not be read; Mr. Justice Coleridge ob- serving, that unless some witness" was sworn for the purpose of proving their custody, they might have been procured from a grocer's shop." If, however, the witness producing the document can swear that he received it from the representative of the person originally entitled to it, as a paper which had belonged to such person, this evidence will in ordinary cases be sufficient, without calling the representative himself to explain how he became possessed of the document.* § 665. An able writer on the law of evidence has urged, that in § -''^91^ order to render ancient documents admissible, proof, if possible, must be given of some act done with reference to them, and that, where the nature of the case does not admit of such proof, acts of modern enjoyment must at least be shown.* This doctrine, how- ever, would seem to be advanced in somewhat too bold a manner, and to be unsupported by the current of modern decisions; for although it is perfectly true that the mere production of an ancient document, unless supported by some corroborative evidence of acting under it, or of modern possession, would be entitled to little, if any, weight, still there appears to be no strict rule of law, which would authorise the judge in withdrawing it altogether from the con- sideration of the jury : — in other words, the absence of proof of possession affects merely the iveight, and not the admissibility, of the instrument.^ § 6G6 Thus, in Rogers v. Allen, where, in order to prove a ^ prescriptive right of fishery as appurtenant to a manor, ancient licences to fish in the locus in quo, which appeared on the court- 1 R. V. Ryton, 5 T. R. 259; R. v. Netherthong, 2 M. & Sel. 337. MO A. & E. 151, 154. 3 Earl V. Lewis, 4 Esp. 1, per Heath, J. See Doe v. Keeling, 11 Q. B. 884. * 1 Ph. Ev. 276, 278. ^ Malcomson v. O'Dea, 10 H. of L. Cas. 614, 015; Bristow v. Cormican, 3 App. Cas. 668, per Ld. Blackburn, in H. L. (I.). (3453) 586 PRESUMPTIONS IN FAVOUR OF ANCIENT DOCUMENTS. [PART II. rolls, and were granted by former lords in consideration of certain rents, were tendered in evidence, Mr. Justice Heath, after argument, held that they were admissible without any proof of the rents having been paid; but he added that, to givo them any iveujht, it must be shown that in latter times payments had been made under licences of the same kind, or that the lords of the manor had exer- cised other acts of ownership' over the fishery, which had been acquiesced in.'" So, in the case of the ]3uke of Bedford v. Lopes, Bart., which was an action brought to try the title to the bed of a river, after proof of a grant from Henry YIII., two counterparts of leases were produced from the Duke's muniment room, comprehend- ing the soil in question. No payment by a tenant was proved, nor any modern act of ownership; but Lord Denman admitted the instruments as coming from the right custody, observing that no circumstance in the case threw suspicion upon them, and that "the absence of other kinds of proof was mere matter of observation." ^ Again, in one of the numerous ejectments brought by Lord Egre- mont,^ it became necessary to show that the land in question had .been part of the estate of the lessor's ancestor, Sir William Wynd- ham; and in order to establish this fact, a document was produced from the muniment room of the property inherited from Sir William, which appeared to be a counterpart of a lease of this land made by him ; but it purported to be executed only by the lessee, and no proof was given of actual possession under it. The Court of Queen's Bench, after consulting with some of the other judges, held that this deed was admissible in evidence. § GG7.* Under the above qualifications, ancient documents are I 601 1 1 Camp. 309, 311; Malcomson v. O'Dea, 10 H. of L. Cas. 593, 616. ^ Cited in argument, 3 Q. B. G23. ^ Doe V. Pulman, 3 Q. B. 622, 026. See, further, Clarkson v. Wooclhouse, 5 T. R. 413, n., per Ld. Mansfield; 3 Doug. 189, S. C; Brett v. Beales, M. & M. 418. per Ld. Tenterdeu; Tisdall v. Parnell, 14 Ir. Law R., N. S. 123; Doe V. Passingham, 2 C. & P. 444, per Burrough, J. ; Rancliflfe v. Parkyns, 6 Dow, 202, per Ld. Eldon; McKenire v. Fraser, 9 Ves. 5; Jackson v. Blanshan, 3 Johns. 292, 297, 298; Crowder v. Hopkins, 10 Paige, 190; Jackson v. Luquere, SCowen, 221, 225; Jackson v. Lamb, 7 id. 431; Barr v. Gratz, 4 Wheat. 213, 221; Hewlett r. Cock, 7 Wend. 371, 373, 374. * Gr. Ev. I 144, in great part. (3454) CHAP. X.] PRESUxAIPTlOKS IN FAVOUR OF ANCIENT DOCUMENTS. 587 receivable as evidence that the transactions to which they relate actually occurred. And though they are usually spoken of as hear- say evidence of ancient possession, and, as such, are said to be admitted in exception to the general rule ; yet they seem rather to be parts of the res gestte, and therefore admissible as original evidence, on the principle already discussed.' An ancient deed, which has nothing suspicious about it, is presumed to be genuine without express proof, the witnesses being presumed dead ;" and, if found in the proper custody, and corroborated by evidence of ancient or modern corresponding enjoyment, or by other equivalent or explanatory proof, it will be presumed to have constituted part of the actual transfer of pi'operty therein mentioned ; because this is the usual course of such transactions. The residue of the transaction may be as unerringly inferred from the existence of genuine ancient documents, as the remainder of a statute may be made out from an existing torso, or a perfect skeleton from the fossil remains of a part. 1 Ante, I 583, et seq. ^ ^^^^^ | gy^ (3455) 688 DECLARATIONS AGAINST INTEREST, WHEN ADMISSIBLE. [PART II. G02 CHAPTER XI. DECLARATIONS AGAINST INTEREST. § 6G8.' A FOURTH EXCEPTION to the rule rejecting hearsay ? evidence is allowed in favour of declarations made by persons since deceased against their pecuniary or proprietary interest.'^ The ground upon which this evidence is received, is the extreme improbability of its falsehood. The regard which men usually pay to their own interests is considered a sufficient security against any wilful mis-statement, and affords also a reasonable inference that the declarations or entries were not made under any mistake of fact, or want of information on the part of the declarant. The danger of any fraud in the statement will be still less dreaded, if it be borne in mind, that the evidence is not receivable till after the death of the declarant, and that if the opponent can show that the statement was made with any sinister motive, it will at once be rejected. The ordinary tests of truth, afforded by the adminis- tration of an oath and by cross-examination, are certainly here wanting ; but their place is in some measure supplied by the cir- cumstances of the declarant ; and the inconveniences that would result from the exclusion of evidence, having such guarantees for its accuracy in fact and its freedom from fraud, are rightly con- sidered much greater in general, than any which are likely to be experienced from its admission.^ § 669. In order to render declarations against interest admis- § 6n:5 sible as such, it must appear, either by proof or by presumption,* that the declarant is dead;'' and the mere fact that he has ' Gr. Ev. ? 148, in great part. 2 Sussex Peer., 11 CI. & Fin. 103—114; Higham r. Ri-lgway, 10 East, 109; 2 Smith, L. C. 270, S. C. ; id. 281, n.; Short v. Lee, 2 Jac. & W. 464, 488, per Plumer, M. K. ^ 1 Ph. Ev. 294. * Doe v. Michael, 17 Q. P.. 27(5; ante, ? 198. ^ Phillips V. Cole, 10 A. & E. 106, 111, per Ld. Deniuan ; Spargo v. Brown, (3456) CHAP. XI.] DECLARANT MUST BE DEAD. 589 absconded abroad in consequence of a criminal charge, or that he is otherwise out of the power of the party to produce as a witness, will not be sufficient.' It would seem, also, from many of the cases, that the declarant must be shown to have had a competent, if not a peculiar, knowledge of the facts, which form the subject matter of the declaration ; - and, indeed, in the Sussex Peerage claim, the rule was so laid down.^ In all these cases, however, the " law " was " taken for granted ;" * and in Crease v. Barrett, where the question was expressly raised, the Court of Exchequer after argument held, " that it was not necessary that the deceased person should have his own knowledge of the fact stated, — that, if the entry charged himself, the whole of it became admissible against all persons, — and that the absence of such knowledge went to the weight, and not to the admissibility, of the evidence." ^ § 670. It was long a matter of doubt in Westminster Hall, I 604 whether the absence of all interest to misrepresent, coupled with peculiar knowledge in the declarant, would not render his declara- tions admissible after his death : ® but it is now fully determined, first, that the statement or entry must be against the interest of the person making it ; ^ and, secondly, that the interest must be of a pecuniary or proprietary nature.^ These points were decided 9 B. & C. 935 ; Smith v. Wliittingham, 6 C. & P. 78. See ante, § 641, and post, ? 703. ' Stephen r. Gwen.ap, 1 INI. & Rob. 120, per Alderson, J. ■^ Higham v. Ridgway, 10 East, 122 jier P.ayley, J.; ISIarks v. Lahee, 3 Bing. N. C. 419, per Tindal, C. J.; 420, per Park, J.; 421, per Vaughau, J.; Barker v. Ray, 2 Russ. 76, per Ld. Eldon ; Short v. Lee, 2 Jac. & W. 475, 488, 489, per Plumer, M. R. ^ 11 CI. & Fin. 112, per Ld. Brougham and Ld. Denman. * As to which, see per Ld. Denman in O'Connell ;;. The Queen, 11 CI. & Fin. 373. M C. M & R. 925 ; 5 Tyr. 464, 465, S. C. ^ See per Ld. Hardwicke in Glynn v. Bk. of England, 2 Ves Sen. 38 ; per Le Blanc, J., in Higham v. Ridgway, 10 East, 120, 121 ; per Bayley, J., in Gleadow v. Atkin, 1 C. & M. 424 ; per lid. Ellenborough in Roe v. Rawlings, 7 East, 290 ; and Daly v. Wilsoii, Milw., Ec. Ir. R. 658—660. ' Berkeley Peer., Pr. Min. 655, cited and confirmed in Sussex Peer., 11 CI. & Fin. 108, 109. * Sussex Peer., 11 CI. & Fin. 103 — 114 ; explained and acted upon by Ld. (3457) 590 ENTRY AGAINST PECUNIARY OR PROPRIETARY INTEREST. [PART II. in the Sussex Peerage case, where, in order to prove the marriage of the Duke of Sussex and Lady Augusta Murray, statements made by the clergyman, since deceased, who had married them at Rome, were tendered in evidence, on the ground that they were clearly against his interest, inasmuch as they related to an act which rendered him liable to prosecution while living, or which, at least, he believed to be illegal. Lord Chancellor Lyndhurst, in declaring his opinion that this evidence should be rejected, ob- served, " It is not true that the declarations of deceased persons are in all circumstances receivable in evidence, when in some way or other they might injuriously afPect the interest of the party making them. Nor is it true, that because, while living, a party would be excused from answering as to certain facts, his declarations as to those facts become evidence after his death. These are not corre- lative nor corresponding propositions." ' Lord Brougham also added, " To say, if a man should confess a felony for which he would be liable to prosecution, that therefore, the instant the grave closes over him, all that was said by him is to be taken as evidence in every action and prosecution against another person, is one of the most monstrous and untenable propositions that can be advanced.".^ § 671. The courts will not weigh with nice scales the amount § 605 of the pecuniary interest, but will admit every entry which, at the time when it was made, completehj charged the maker to any extent.^ But an incomplete charge will not be sufficient ; and, therefore, an entry in the following form, "April 4th. — A. came as a servant, to have for the half year 2Z.," was held to be inad- missible as a declaration "against interest, the court considering it merely as a memorandum of an agreement, which must be supposed to have been made on fair terms, and was, consequently, as much in favour of the maker's interest as against it. If the master had to pay for the services, the servant had to perform Denman in Davis v. Lloyd, 1 C. & Kir. 276. See, also, Smith v. Blakey, 2 Law Rep., Q. B. 326 ; 36 L. J., Q. B. 156 , 8 B. & S. 157, S. C; Massey v. Allen, 49 L. J., Ch. 76 ; L. R., 13 Ch. D. 558, S. C. 1 11 CI. & Fin. 110. * Id. Ill, 112. This case overrules Standen v. Standen, Pea. R. 45. * Orretti'. Corser, 21 Beav. 52 ; Richards v. Gogarty, I. R., 4 C. L. 300. (3458) CHAP. XI.] ORAL STATEMENTS — WRITTEN STATEMENTS. 591 them. Mr. Justice Coleridge observed, that " this was not an entry against the party's interest, unless the mere making of a contract be so; and if that were the case, the existence of a contract would be against the interest of both parties to it." ' § G7'2. It is now determined both with reference to this excep- I COS tion, and also to that which relates to declarations made in the course of duty or business,^ that the term " declaration " includes a mere oral statement, as well as a written memorandum.^ The former may indeed be entitled to less weight with the jury than the latter, but the law of England recognises no distinction between statements made by word of mouth, and those made in writing, except where the writing is by deed/ or is rendered necessary by some statute. §673. It is further clear that the term "declaration," as ap- §607 plied to the exception under discussion, embraces all tvritten statements, whether made at the time of the fact declared, or on a subsequent day,^ though the exception is most frequently exem- plified by entries in books of account. Where ® these are books of collectors of taxes, stewards, bailiffs, or receivers, which are subject to the inspection of others, and in which the entries are generally of money received, charging the party making them, the exception clearly applies.^ But private books, though exclusively retained within the custody of their owners, are also admissible on the same principle; for their liability to be produced in courts of law on notice or subpcena, and the chance of their contents be- coming known through accident, are deemed sufiicient security 1 R. V. Worth, 4 Q. B. 132, i:]9. ^ ^ ^ Buckley, 1.3 Cox, 293. '■" R. V. Birmingham, 31 L, J., M. C. 63; 1 B. & S. 763, S. C. See Stapylton r. Clough, 2 E. & B. 933; Fursdon v. Clogg, 10 M. & W. 572, 574—576; Sussex Peer., 11 CI. & Fin. 103—114. See, also, post, §708. In Smith i). Blakey, 8 B. & S. 164, Blackburn, J., is reported to have questioned this pro- position as being "too broadly stated," but the learned Judge cited no authority iu support of his view of the law, and his comment was a mere obiter dictum. * Bewley v. Atkinson, 49 L. J., Ch. 153, 161, per Thesiger, L. J. * Doe V. Turford, 3 B. & Ad. 898, per Parke, B. ; Short v. Lee, 2 Jac. & W, 475, per Plumer, M. R. ^ Gr. Ev. § 150, in great part. ' Barry t;. Bebbington, 4 T. R. 514; Goss v. Watlington, 3 B. & B. 132; Whitnash v. George, 8 B. & C. 556. (3459) 592 BALANCE OF DEBTOR AND CREDITOR ACCOUNT. [PART II. against fraud;' and as the entry is not admissible, unless it either charges the party making it with the receipt of money on account of a third person, or ack non-ledges the jjayment of money due to himself, it is considered, in either of these events, as suffi- ciently against his interest to be brought within the exception.^ § 674. No valid objection can be taken to the admissibility of an entry, which charges the person making it with receiving money from another, on the ground that such entry forms only a part of a general debtor and creditor account, the balance of tchich is in favour of the receicer;^ for, if an action were brought against the receiver by his employer, that part of the account which charged the receiver would be evidence against him, while the entries which showed his discharge, though not absolutely inad- missible for him, would, as compared with the entries against his interest, be entitled to very little weight;* and even if it were otherwise, the admission of the receipt of money would still be against his interest, as the balance in his favour would thereby be diminished to the extent of the sum admitted.^ Besides, a man is little likely to charge himself for the mere purpose of getting a discharge ; *^ and as almost all entries, which are tendered in evidence as being declarations against interest, are inserted in accounts containing items on both sides, the objection, if it were allowed to prevail, would strike at the very root of the exception under review.^ § 675. Whether an entry made by a party acknowledging the payment of money as due to himself, will be admissible as a declaration against interest, in cases, where such entry is the only evidence of the charge of which it shows the subsequent liquidation, ' Higham v. Ridgway, 10 East, 122, per Bayley, J. ; Roe v. Rawlings, 7 East, 291, per Ld. Ellenborough; Middleton v. Melton, 10 B. & C. 317.. 2 See Foster v. M'Mahon, 11 Ir. Eq. R. 287, 299—302. 3 Rowe r. Brenton, 3 M. & R. 267, 26H; Williams v. Geaves, 8 C. & P. 592, per PattesDn, J.; R. v. Worth, 4 Q. B. 134, per Coleridge, J.; Clark v. Wilmot, 1 Y. & C. Ch. R. 53. * See 2 Smith, L. C. 286. ^ See 8 C. & P. 594, per Ludlow, Serj . , arguendo. « See per Littledale, J., in Rowe v. Brenton, 3 M. & R. 268. ^ See per Ld. Tenterden, in id. (3460) I 608 609 CHAP. XI. J WHERE ENTRY IS SOLE EVIDENCE OF CHARGE. 593 is a question of more difficulty, and the authorities on the subject are highly conflicting. On the one hand, two Nisi Prius decisions may be cited, — namely, Doe i'. Vowles,' and Doe v. Burton," — which seem distinctly to negative the admissibility of such evidence. In the first case it became necessary to show that a mortgagee, through whom the plaintiff claimed, had repaired the premises in dispute; and for this purpose, the pdaintiff produced a receipted bill for the repairs, in the handwriting of a deceased carpenter? which had been found among the mortgagee's papers. An objec- tion was raised to the reception of this paper as not containing any statement against the interest of the carpenter; since, though it showed that his demand had been paid, it furnished the only evidence that such a demand had ever existed. Mr. Justice Littledale rejected the evidence, observing, that "the cases had gone quite far enough." In the other case the evidence tendered was of a similar nature, excepting only that, instead of being a bill and receipt, it was an entry in a deceased tradesman's book, showing that he had done certain work, and had been paid for it. Mr. Baron Gurney refused to admit this evidence, apparently relying on the authority of Doe v. Vowles. § 676. On the other hand, Lord Denman,^ Lord Wensleydale,^ ^ 610 and Sir George Jessel,^ appear, on separate occasions, to have ad- mitted such entries, and the last two very learned judges are stated to have expressly disapproved of Doe v. Vowles, saying that they thought it contrary in principle to Higham v. Eidgway.*^ On ex- amining, however, the case of Higham v. Ridgway, it scarcely seems to furnish a safe guide on the subject; for there it ivas proved by evidence aliunde, that the service charged for in the account had in fact been performed ; and although Lord Ellenborough first lays down the general doctrine, that "evidence was admissible upon the broad principle on which receiver's books have been admitted, — namely, that the entry made was in prejudice of the party making it,"'' — he afterwards, in two different parts of his judgment, ' 1 M. & Rob. 2G1. 2 9 C. & P. 254. ^ R. v. Hendon, cited arguendo, in 9 C. & P. 255. * R. r. Lower Heyford, cited 2 Smith, L. C. 283. 5 Taylor v. Witham and Witham v. Taylor, L. R., 3 Ch. D. 605; 45 L. J., Ch. 798, S. C. " 10 East, 109. ' Id. 117. (3461) 594 ENTRIES, WHEN EVIDENCE OF COLLATERAL MATTERS. [PART II. adverts to the fact, that the work, for which the charge was made, was proved to have been done by other evidence.' But still, — in- dependent of this case, — the view of the law taken by Lords Denman and Wensleydalo and the late distinguished Master of the Rolls will probably be upheld; for, although it may be urged that, while that part of an entry which is in the writer's own favour stands uncon- firmed, suspicions may be entertained that the whole statement is a fiction;^ an answer to this argument is found in the improbability that any tradesman would, without an assignable motive, fii'st enter a false claim on one side of his book, and then admit its having been satisfied on the other. Moreover, as the requiring corrobo- rative proof of the claim must tend to embarrass the trial by raising collateral issues, and as the very impossibility of obtaining such proof is often the sole cause, which renders it necessary to have recourse to the entry at all; it seems naturally to follow, that the admission of such entries ought on every ground, whether of justice or expediency, to be regarded as a less evil than their rejection. § 677. The case of Higham v. Ridgway,^ — though it throws but ^ ^^^ little light on the subject discussed in the preceding section, -^s highly important, as showing that entries may be received in evi- dence of collateral and independent matters, which, though forming part of the declaration, are not in themselves against the interest of the declarant. In that case, to prove on what day a child was born, the book of the accoucheur, who had attended the mother in her confinement, was produced, and as his charge for such attendance on a day specified was marked in the book as 2oaid, this entry was admitted as evidence of the date of the birth. Lord Ellenborough, in pronouncing judgment, observes, "It is idle to say that the word paid only shall be admitted in evidence without the context, whicli explains to what it refers: we must therefore look to the rest of the entry, to see what the demand was, which he thereby admitted to be discharged." * So. in Doe v. Robson,Hhe entry in a book of a deceased attorney of charges paid for a lease as drawn on a certain day, was held to be evidence that the lease was drawn on that day. ' 10 East, 117, 119. * 2 Smith, L. C. 283. ' 10 East, 109. * Id. 117. ' 15 East, 32. See, also. In the goods of Thomas, 41 L. J., Pr. & Mat. 32. (3462) CHAP. XI. J ENTRIES, WHEN EVIDENCE OF COLLATERAL MATTERS. 595 § 678.' In a later case," the judges, — while intimating an opinion, ^ oil that, if the point were res nova, it would be more reasonable to hold that the memorandum of a receipt of payment was admissible only to the extent of proving that a payment had been made, and on what account, thus giving it the effect only of a verbal proof of the same payment, — acknowledged that the authorities had gone beyond that limit, and that the entry of a payment against the interest of the party making it, had been held to have the effect of proving the truth of other statements contained in the same entry, and connected with it. In that case. A., B. & C. had made a joint and several promissory note for 300 Z., and a partial payment had been made by A., which was endorsed by the payee upon the note in these terms, — " Received of A. the sum of 280Z. on account of the within note, theSOOl. having been originally advanced to C." An action having been brought by A. to recover contribution from B. " as a co-surety," the court held that, as the payee was dead, the indorsement was admissible evidence of the whole statement contained in it, and was consequently evidence, not only of the payment of the money, but of the fact that C. was the principal debtor; leaving the effect of such proof to be determined by the- jury. § 679. Again, in the case of Marks v. Lahee,^ the plaintiff, in ? 612. order to prove a tender and refusal, offered in evidence two entries, which had been made by a deceased clerk of his attorney in the day-book of the oflfice. By the first, the clerk acknowledged the receipt of lOOZ. from his employer, for the purpose of making a tender to the defendant. The second entry was as follows : " Re Colnaghi, attending Mr. Lahee; tendering him 100/. for each of the plates, and the etching of the Queen separately ; when he de- clined to let me have the same, and said he had no objection to deliver up the impressions, upon the payment of the expenses of making them." An objection was taken to the admissibility of the second entry, on the ground that it did not charge the party making it^ but ^ Gr. Ev. § 152, in great part. ^ Davies v. Humphreys, 6 M. & W. 153, 166. See, also, Percival v. Nanson, 7 Ex. R. 1. 33 Bing jj. C. 408; 4 Scott, 137, S. C. 17 LAW OP EVID. — V. II. (3463) 596 ENTRIES NO PROOF OF INDEPENDENT MATTERS. [PART II, rather discharged him, as showing that he had fulfilled his duty; that the second entry must be taken by itself, because the first did not prove the tender; and being so taken, there was nothing to show that the clerk did not tender his own money ; in which case the entry contained nothing to charge him. The objection, how- ever, was overruled, and Chief Justice Tindal observed, that if an action had been brought by the employer against the clerk for money had and received, the entry would have been material evi- dence to show that he had received lOOZ., and had not disposed of it according to his instructions; so that it remained in his hands to be accounted for to the employer. In such an action the em- ployer could not have relied on the first entry alone; but must have further shown that the object, for which the money was placed in the clerk's hands, had not been attained.' The case of Stead v. Heaton^ caiTies this doctrine to the extreme verge of the law/ There, in order to establish the existence of a customary payment, two entries in the parish book were put in. The first stated the custom, and the second, which was written on the same page, was as follows: — " Received of Haworth, who this year disputed f/tts our ancient custom, but afterwards paid it, 8Z." The court held that both entries were admissible, the latter as charging the parish officers with receipt of the money, the former as immediately preceding the latter, and being referred to in it.* § 680. It must not be supposed from the preceding cases, that ^ 613 because a document contains entries against interest, it will be ad- missible in proof of independent matters, which appear as separate items unconnected with such entries, and which, consequently, need not be read in order to explain them.^ Such is not the law; and whatever doubts might once have been entertained on the subject,^ it is now finally determined, that if an account be rendered by a 1 3 Bing. N. C. 419. ^ 4 T. R. 669. See, also, May. of Exeter v. WaiTcn, 5 Q. B. 773. ' Per Alderson, B., in Knight r. Waterford, 4 Y. & C, Ex. E. 294. * See Miisgrave v. Emmerson, 10 Q. B. 326. ^ Per Ld. Lyndhurst, in Rudd v. Wright, cited 1 Ph. Ev. 314, 315; 4 Y. & C, Ex. R. 294. « Bullen V. Michel, 2 Price, 399. (3464) CHAP. XI.] ENTRIES NO PROOF OF INDEPENDENT MATTERS. 597 steward containing on one side items charging himself with the receipt of moneys, and on the other side items discharging him by showing how the moneys received had been disbursed, the dis- charging entries will not be admissible in evidence, unless they arQ necessary to explain the charging entries, or are expressly referred to by them.^ For instance, in the case of Knight v. The Marquis of Waterfor J," the accounts of a deceased steward were tendered in evidence, with the view of showing that former lords of the manor had been liable to pay poor-rates on the tithes. On one side of these accounts the steward acknowledged the receipt of rent for tithes from a tenant ; and on the other side was an entry in dis- charge of the former item, by allowing the tenant a certain sum for poor rates on the tithes. Mr. Baron Alderson rejected the second entry, on the ground that it was not directly connected with the first item, though made about the same time ; but his lordship added that, if the amount charged had been stated to be a sum less by the deduction of the opposite side of the account, it might then possibly have been admissible, on the authority of Stead v. Heaton. § 681.^ In order that declarations against interest should be re- l 614 ceived in evidence, it is not necessary, — as was formerly thought,* — that the declarant should have been competent, if living, to testify to the facts contained in the declaration.^ Neither is it material, so far at least as regards the admissibility of declarations, whether the matters stated therein are or are not provable by living witnesses who might have been called.*" Moreover, no objection can be taken to an account, in which a deceased agent charges himself with the receipt of money, on the ground that it does not appear by the account itself for whom the sums were received; provided it can be shown aliunde that they were in fact collected for a third person.^ 'Doe V. Beviss, 18 L. J., C. P. 128; 7 Com. B. 456, S. C; Whaley v. Carlisle, 17 Jr. Law R., N. S. 792. M Y. & C, Ex. R. 283, 294, 295. ' Gr. Ev. I 158, in part. * See per Bay ley, J., in Higham v. Ridgway, 10 East, 123. 5 Gleadow v. Atkin, 1 C. & M. 410, 423, 424 ; Short v. Lee, 2 Jac. & W. 489. « Middleton v. Melton, 10 B. & C. 317, 327, per Parke, J.; ante, I 641. ^ Rowe V. Brenton, 3 M. & R. 268—270. (3465) 598 ENTRIES AUTHORISED BY PARTIES CHARGED. [pART 11. § 682. To render accounts admissible as the declarations of a § 615 deceased person charging himself, it is not necessary that they should be in his handwriting, and should bear his signature; but they will be received in evidence, if they were written by him either wholly' or in part," though they were not signed ; or if they were signed by him, though they were written by a stranger.' Neither can any objection be raised to their admission, though they were neither written nor signed by the deceased, if either direct proof can be furnished that they were written by his autho- rised agent,* or if that fact can be indirectly established, as, for instance, by showing that the deceased subsequently adopted the accounts as his own, and delivered them in at an audit •^' nor does it signify in such a case, whether the party who actually wrote the accounts be alive or dead at the time of the trial, though, in the former event, his non-production may be matter of observation to the jury.^ But if no proof can be given that the account was either written, or signed, or authorised, or adopted, by the deceased person made chargeable thereby, it cannot be received ; and, therefore, where a rental, in which a deceased steward was debited with the receipt of certain payments, was written by a party since dead, styling himself clerk to such steward, the court refused to receive it as a declaration against the interest of the steward, as no parol evidence had been given to show that he ever employed the writer to make the entries ; and it was equally inadmissible as made against the interest of the clerk, because it did not purport to charge him.'' After the lapse of thirty years, the handwriting of the account need not be proved, provided the book containing it be produced from the proper custody.* ' Rowe V. Brenton, 3 M. & R. 2fi7— 2f59. ' * Doe r. Colcombe, C. & Marsh. 155, per Coleridge, J. » Doe r. Staco}', 6 C. & P. 139, per Tindal, C. J. ♦ Bradley r. James, 13 Com. B. 822. ^Doe V. Hawkins, 2 Q. B. 812; 1 G. & D. 551, S. C; Doe r\ Mobbs, C. & Marsh. 1 ; May. of Exeter ^. Warren, 5 Q. B. 773 ; Att.-Gen. v. Stephens, 1 Kay & J. 740, per Wood, V.-C. 6 2 Q. B. 217, per Patteson, J. ' Baron d© Rutzen v. Farr, 4 A. & E. 53 ; 5 N. & M. 617, S. C. 8 Wynne v. Tyrwhitt, 4 B. & A. 376 ; May. of Exeter v. Warren, 5 Q. B. (3466) CHAP. XI.] ENTRIES BY AGENTS — PROOF OF AGENCY. 59^ § 683.' Where the evidence consists of entries made by persons g 616 acting for others in the capacity of agents, stewards, or receivers, some proof of such agency is generally required, previous to their admission; but here a distinction has been taken, to the effect that, where the office is public and must exist, the law will presume that a person who acts in it has been regularly appointed; but that where it is merely private, some preliminary and independent evidence must in general be adduced of the existence of the office, and of the appointment of the particular agent or incumbent.* It seems that the mere antiquity of the book containing the entry affords no sufficient ground for dispensing with this preliminary proof, and therefore entries have been rejected for want of it, though apparently made as much as fifty, seventy, and even one hundred and sixty years before the trial.^ In Davies v. Morgan, where the entry bore date 1673, Mr. Baron Bayley, in rejecting it, observed, " The character of the evidence must be established before the entry is read; you cannot read it to show the position of the party making it; that must be proved aliunde."* So, in Short V. Lee, Sir Thomas Plumer said, with reference to a book seventy years old, which purported to have been kept by a tithe- collector named Beale, '• If the writings of persons not invested with the proper characters were received, nothing could be more dangerous to property. Suppose that Beale was not the person authorised to collect the tithes, but nevertheless had for some purpose made these entries ; then, if after his death the book purporting to be a collector's book was to be evidence to prove that he was collector, and his being collector was to prove the entries to be correct, the consequence would be, that the rights of the rector on the one hand, or those of the parishioners on the other, would be exposed to the greatest danger, and perhaps from the writings of a person having a contrary interest." ^ Still, if 773; Doe v. Michael, 17 Q. B. 276; Att.-Gen. v. Stephens, 1 Kay & J. 724, 740. 1 Gr. Ev. ? 154, in part. 2 Short V. Lee, 2 Jac. & W. 467, 468, 474, 475, per Plnnier, M. R. ^ Manby v. Curtis, 1 Price, 225; Short t>. Lee, 2 Jac. & W. 466, 467; Davies V. Morgan, 1 C. & .1. 590, 591. * 1 C. & J. 591. 5 2 Jac. & W. 467, 468. (3467) 600 DECLARATIONS AGAINST PROPRIETARY INTEREST. [PART 11. ancient books come from the proper repository, slight proof of the official character of the writer will usually be sufficient to warrant their admission; and if they contain strong internal evidence of their actually being what they purport to be, they may, it seems, ou that ground alone be submitted to the jury.' § C84. Under the head of declarations against proprietary I 617 interest, may be classed the statements made by persons while in possession of land, explanatory of the character of their posses- sion; and it is now well settled that such declarations, if made in disparagement of the declarant's title, are receivable, not only as original admissions against himself and all persons who claim title through him,^ bat also as evidence for or against strangers.* Whether in this latter event they are admissible in the lifetime of the declarant, or only in cases where his death can be proved, is a point which does not appear to have been distinctly decided. In most of the cases where the evidence has been received, the declarant was dead;* bat on two occasions, at least, the evidence was admitted, though the declarant was living.^ The only ground on which it can be contended that these declarations are receivable * Doe V. Thynne, 10 East, 206, 210; Brune v. Thompson, C. & Marsh. 36— 39, per Ld. Denman; May. of Exeter v. Warren, 5 Q. B. 773; Doe v. Michael, 17 Q. B. 276; Att.-Gen. v. Stephens, 1 Kay & J. 724, 740. See ante, § 612. 2 Ld. Triuilestown v. Keramis, 9 CI. & Fin. 780, 784, 785; Doe v. Pettett, 5 B. & A. 223; Doe v. Austin, 9 Bing. 41. . For the American authorities, see West Cambridge v. Lexington, 2 Pick. 536; Little v. Libby, 2 Greenl. 242 Rankin v. Tenbrook, 6 Watts, 388, 390; Jackson v. Bard, 4 Johns, 230, 234 Weidman v. Kohr, 4 Serg. & R. 174; Gibblehouse v. Strong, 3 Rawle, 437 Davies v. Campbell, 1 Iredell, 402; Crane v. Marshall, 4 Shepl. 27. 3 Carne V. Nicoll, 1 Bing. N. C. 430; 1 Scott, 466, S. C; Doe v. Langfield, 16 M. &W. 497; Doe v. Jones, 1 Camp. 367; Davies v. Pierce, 2 T. R. 53; Doe I'. Rickarby, 5 Esp. 4; Peaceable «. Watson, 4 Taunt. 16; Doe v. Coul- thred, 7 A. & E. 235; Garland v. Cope, 11 Ir. Law R. .514; Mountnoy v. Collier, 1 E. & B. 630; Gery v. Redman, L. R., 1 Q. B. D. 161; 45 L. J., Q. B. 267, S. C. * Carnev. Nicoll, 1 Bing. N. C. 430; 1 Scott, 466, S. C; Doe v. Jones, 1 Camp. 367; Davies v. Pierce, 2 T. R. 53; Peaceable v. Watson, 4 Taunt. 16; Doe r. Coulthred, 7 A. & E. 235; Doe v. Pettett, 5 B. &A, 223. * Walker v. Broadstock, 1 Esp. 458, per Thomson, B. ; Doe v. Rickarby, 5 Esp. 4, per Ld. Alvanley. In Papendick v. Bridgwater, 5 E. & B. 166, Walker V. Broadstock was denied to be law. (3468) CHAP. XI.] DECLARATIONS AGAINST PROPRIETARY INTEREST. GOl during the declarant's lifetime appears to be that they are state- ments accompanying the acts of possession, and as such consti- tuting part of the res gestae; but this argument proves too much, as the effect of it would be to let in all declarations of the occupier, whether in disparagement or in support of his title; an extension of the rule which, however consistent it may be with principle, is certainly not warranted by judical decisions.' The safest course therefore is to regard these declarations as merely receivable when the declarant is dead, in which case they become good primary evidence;" and further to consider that their admissibility depends on the simple ground that they are made against the interest of the declarant.^ § 685. It should here be remembered that possession is prima I 618 facie evidence of seisin in fee simple;* and, consequently, any declaration by the possessor that he is tenant in tail, or for life, or for years, or by sufferance, as it makes strongly against his own interest, may safely be received in evidence, on account of its probable truth.^ It matters not whether the declaration be made verbally,*^ or in writing,' or by deed,^ or by will, even though it be unproved," or in a statement of defence to an action,'" for the same 1 See Doe v. Wainwright, 8 A. & E. 700, 701. 2 Doe V. Langfield, 16 M. & W. 513, 514, per Parke, B. * See Phillips v. Cole, 10 A. & E. Ill, where Ld. Denman, in pronouncing the judgment of the court, observes, "It is clear that declarations of third persons alive, in the absence of any community of interest, are not to be re- ceived to affect the title or interests of other perons, merely because they are against the interests of those who make them." * Ante, § 123. ^ Chambers v. Bernasconi, 1 C. & J. 457, per Ld. Lyndhurst; Peaceable v. Watson, 4 Taunt. 17, per Sir J. Mansfield, C. J. ; Crease v. Barrett, 1 C. M. & K. 931; 5 Tyr. 473, S. C, per Parke, B. ; Doe v. Langfield, IG M. & W. 497. « Came v. Nicoll, 1 Bing. N. C. 430; 1 Scott, 466, S. C; Baron de Bode's case, 8 Q. B. 243, 244; R. v. Birmingham, 31 L. J., M. C. 63; 1 B. & S. 763, S. C; R. V. Exeter, 4 Law Rep., Q. B. 341; 38 L. J., M. C. 127; 10 B. & S. 433, S. C. ^ Doe V. Jones, 1 Camp. 367; R. v. Exeter, 4 Law Rep., Q. B. 341; 38 L. J., M. C. 127; & 10 B. & S. 433, S. C. 8 Doe V. Coulthred, 7 A. & E. 235; Garland v. Cope, 11 Ir. Law R. 514; Sly V. Sly, L. R., 2 P. D. 91; 46 L. J., P. D. & A. 63, S. C. 9 O'Sullivan v. Burke, I. R., 9 C. L. 105. 1" Ld. Trimlestown v. Kemmis, 9 CI. & Fin. 779, 780. (3469) 602 DECLARATIONS AGAINST PROPRIETARY INTEREST, [PART H. principle applies in all these cases; but it must relate to matters, either within the declarant's own knowledge, or on which he has himself formed an opinion; and therefore a statement of defence, narrating what the declarant has heard another person state re- specting his title, is not admissible to defeat his estate, at least if he does not add that he believes such statement to be true.' § 686. It is difficult to fix with precision how far these declara- I ^^^^ tions are admissible as evidence of the facts contained in them. They have been received to show the name of the landlord under whom," and the identity of the will under which,' the declarant held, the amount of rent that was paid,* the fact of the payment of rent,^ the extent of the tenement that was occupied," and the fact that it was freehold and not copyhold; ' and the courts seem now inclined to admit them, not only as proof of the interest which the declarant enjoyed in the premises, but as evidence of any fact which is not foreign to the statement against interests, and which forms sub- stantially a part of it.^ It appears that, in all these cases, it must be proved that the declarant was actually in possession of the land in question; since otherwise his declaration that he has a limited interest therein, may be regarded in the light rather of a statement in his own favour than of one against his interest.® Still, slight evidence on this head will, it seems, suffice;'" and, therefore, where a person was seen felling timber in a wood, this act of his, — though probably he was in fact a mere labourer, — was held to be a sufficient assertion of ownership to raise a presumption that he was 1 Ld. Trimlestown v. Kemmis, 9 CI. & Fin. 780, 784—786, by the Lds., confirming the unanimous opinion of the judges. ^ Peaceable v. Watsnn, 4 Taunt. 16; Holloway v. Eakes, cited by Buller, J., in Davies v. Pierce, 2 T. R. 55; Doe v. Green, 1 Gow, R. 227. =* Sly V. Sly, L. R., 2 P. D. 91; 46 L. J., P. D. & A. 63, S. C. * R. V. Birmingham, 31 L. J., M. C. 63; 5 B. & S. 763, S. C. 5 R. V. Exeter, 4 Law Rep., Q. B. 341; 38 L. J., M. C. 127; 10 B. & S. 433, S. C. 6 Mountnoy i-. Collier, 1 E. & B. 630. ' Doe V. Jones, 1 Camp. 367. 8 R. V. Birmingham, 31 L. J., M. C. 63; 1 B. & S. 763, S. C. 9 See Crease v. Barrett, 1 C. M. & R. 919, 931; 5 Tyr. 458, 473, S. C. >" La Touche v. Button, I. R., 9 Eq. 166. (3470) CHAP. XI.] STATEMENTS IN DISPARAGEMENT OF TITLE. 603 possessed of the fee, and, consequently, to let in any statement made by him as to who was the actual proprietor.' § 687. In applying this rule, care must be taken to distinguish § 620 between statements made by an occupier of land in disparagement of his own title, and such declarations as merely go to abridge or encumber the estate itself; since, though the former are receivable, the latter will be rejected. For instance, if an occupier state that he is only tenant for life, this after his death will be admissible evidence against a stranger: but if he admit that the property was intersected by a public highway, or that a neighbour had an ease- ment in the land in question, or that he himself was not entitled to common of pasture in respect of it, such admission will only bind himself and those who claim under him, and will be inad- missible to establish the highway or the easement as against his landlord or a stranger.^ The grounds for this distinction are obvious: for though it is scarcely possible to imagine any induce- ment, which will lead a person possessed of premises in fee to admit that he is only a tenant, many causes might induce a tenant to acknowledge the existence of an easement or a highway, which might be either not inconvenient, or even absolutely bene- ficial to him.^ So, a tenant, who was about to remove from one farm to another, might readily feel an interest in denying the exis- tence of rights attached to the former, with the view of increasing the value of those which belonged to the latter.* § 688. Entries contained in the books of deceased rectors or ^ 621 vicars have long been admitted as evidence in favour of their suc- cessors.^ The admissibility of this class of entries is regarded by ^ Doe V. Arkwright, 5 C. & P. 575, per Parke, J. 2 R. -y. Bliss, 7 A. & E. 550; Scholes v. Chad wick, 2 M. & Rob. 507, per Cresswell, J. ; Tickle v. Brown, 4 A. & E. 378, per Patteson, J. ; Papentlick r. Bridgwater, 5 E. & B. 166. ' See R. V. Bliss, 7 A. & E. 551, per Ld. Denman; Daniel v. North, 11 East, 375, per Le Blanc, J. * Papendick v. Bridgwater, 24 L. J., Q. B. 292, per Erie, J.; 5 E. & B. 16G, 182, S. C. * See Daly r. Wilson, Milw. Ec. Jr. R. 658—660; Young v. Clare Hall, 17 Q. B. 529. (3471) 604 ENTRIES IN BOOKS OF DECEASED RECTORS. [PART II. some persons as anomak)Us;' by some, as governed by the rule which admits the old leases, rent-rolls, surveys, &c. ;"' and by others, as falling within the principle of the present exception.^ Sir Thomas Plumer, in the case of Short r. Lee,* observed, that it Avas too late to argue upon the rule, or upon what gave rise to it; whether it was the cursus Scaccarii, the protection of the clergy, or the peculiar nature of property in tithes. " It is now," said he, " the settled law of the land. It is not to be presumed, that a jferson, Jiaving a temporary interest only, irill insert a false- hood ill his book, from xchich he can derive no advantage. Lord Kenyon has said, that the rule is an exception; and it is so; for no other proprietor can make evidence for those who claim under him, or for those who claim in the same right and stand in the same predicament. But it has been the settled law as to tithes, as far back as our research can reach. "We must therefore set out from this as a datum ; and we iuust not make comparisons between this and other corporations. No corporation sole, except a rector or vicar, can make evidence for his successor." The rule, however, extends to admit the books of ecclesiastical corporations aggregate,'^ and, as it would seem, those also of lay impropriators in fee; though these last would certainly be open to considerable suspicion, since a lay impropriator in fee, having a permanent interest to advance, might possibly be induced to make evidence for his heirs.*^ § 689. With respect to all these books, though the law admits | 622 them as evidence, juries will do well not to place implicit reliance on the statements they contain; for, in point of fact, the clergy, — like members of all other professions, — are, or at least have been, occasionally actuated by a strong esprit de corps, and the entries in their books evince not unfrequently what in some quarters would be considered as a commendable leaning in favour of the rights of the church. General observations have sometimes been " Outram v. Morewood, '). T. R. 123, per Ld. Kanyon. 2 Stobart v. Dryden, 1 M. & W. 617, per Parke, B. ' 1 Ph. Ev. 308, 309. * 2 Jac. & W. 477, 478. 5 Id. 476—479. ® Id. 479 — 480, and cases there cited. (3472) CHAP. XI.] INDORSEMENT OF PART PAYM, ON BONDS AND BILLS. 605 made respecting these books, which may seem to authorize the admission of any kind of statement contained in them. But such books will be rejected unless the entries contain receipts of money or ecclesiastical dues, or are, in other respects, apparently prejudicial to the pecuniary or proprietary interests of the makers.' And proof will be required, as in other cases, that the writer was authorized to receive the money stated, and that he is actually dead ; and further, that the document came from the proper custody.^ § 690. It remains only to notice a class of cases, which seems ? 623 to fall within the principle now under consideration more natu- rally than any other, though one eminent writer on the law of evidence has treated it in connexion with entries made in the course of business; '^ we allude to those cases where the indorse- ment by the payee of the payment of interest, or of part payment of the principal, on a bond, bill of exchange, or other negotiable security, used to be tendered in evidence by his representatives after his death, in order to bar the Statute of Limitations, or to rebut the presumption of payment that would otherwise have arisen from lapse of time. Now, it is obvious, that, although such indorsements, if made before the demand became stale or was affected by the Statute of Limitations, would be against the interest of the payee, inasmuch as they would prevent him from recovering the amount of the sums so indorsed; yet, if they were made at a subsequent period, the creditor would be under the influence of a far stronger countervailing interest; because, by admitting a partial payment, he would keep alive his right to recover the remainder of the debt. Hence, it became 'necessary to show at what time the indorsement was really made; for if it were made before the creditor's remedy was impaired by lapse of time, it was received; * if after that period, it was rejected.^ Still, 1 1 Ph. Ev. 303; Ward v. Pomfret, 5 Sim. 475. - jGresl. Ev. 224; Carrington v. Jones, 2 Sim. & St. 135, 145; Perigal v. Nicholson, Wightw. 63. ' M Ph. Ev. 330—335. *Searle v. Ld. Barrington, 2 Str. 826; S Mod. 278; 2 Ld. Ray. 1370; 3 Br. P. C. 593, S. C. ; Bosworth v. Cotohett, 1 Ph. Ev. 333. ^ Turner v. Crisp, 2 Str. 827; Glynn r. Bk. of England, 2 Ves. Sen. 38, 43; Briggs V. Wilson, 5 De Gex, M. & G. 12, 19, 20. (3473) 606 INDORSEMENT OF PART PAYMENT ON BONDS OR BILLS. [PART 11. the question remained, bow was the time to be proved? Might it be inferred from the instrument itself, or was it necessary to establish the fact by extrinsic evidence ? And on this difficult point much contrariety of opinion prevailed.' § 691. Having thus stated briefly the old law relative to this § 624 subject, it remains to be shown how it has been effected by statutable enactments. So far as notes, bills, and other writings subject to the operation of the Statute of Limitations,^ are con- cerned, the matter has been set at rest by Lord Tenterden's Act,^ which enacts in § 3, that " no indorsement or memorandum of any payment written or made upon any promissory note, bill of ex- change, or other writing, by or on behalf of the party to whom such payment shall be made, shall be deemed sufficient proof of such payment, so as to take the case out of the operation of the said statute." * An attempt was made a few years back to extend this salutary provision beyond its legitimate limits. An action was brought by the executor of the payee of a note against the maker, and the plaintiff, in order to defeat the Statute of Limitations, tendered in evidence a book, in which he himself, by the direction of the testator, had entered two payments of interest, as having been made to the testator by the defendant within the last six years. These entries were objected to, on one ground, among others, that their receipt in evidence would violate the spirit, if not the words, of the enactment just cited; but Sir John Jervis over- ruled the objection, and the Court of Common Pleas upheld his ruling.^ § 692, With respect to bonds and other specialties, the old doc- ? 625 trine of presumption of payment from lapse of time has been rendered nugatory by § 3 of 3 & 4 W. 4, c. 42, which enacts, that all actions of debt for rent upon an indenture of demise, all actions of covenant or debt upon any bond or other specialty, ^ See cases referred to, post, ?? 693 — 696. 2 21 J. 1, c. 16. =• 9 G. 4, c. 14. * As to the Irish Law, see 16 & 17 V., c. 113, U 20—24. 5 Bradley v. James, 13 Com. B. 822. (3474) CHAP XI.] INDORSEMENT OF PART PAYMENT ON SPECIALTIES. GOT and all actions of debt or scire facias upon any recognisance, &c., shall be commenced and sued within twenty years after the cause of such actions or suits ; while § 5^ contains a proviso, that, if any acknowledgment shall have been made, either by writing signed by the party liable by virtue of such indenture, specialty, or recognisance, or his agent, or by part payment or part satisfac- tion on account of any principal or interest being then due thereon," the person entitled to such action may bring it for the money remaining unpaid and so acknowledged to be due, within twenty years after such acknowledgment by writing, or part pay- ment or part satisfaction as aforesaid ; and the plaintiff may, by way of replication, state such acknowledgment, and that such action was brought within the time aforesaid in answer to a plea of the statute.^ As this Act contains no clause corresponding with § 3 of Lord Tenterden's Act, it seems clear that, — provided the point be properly raised by the pleading, — the acknowledgment of the debt afforded by the payment of interest or part payment of principal may, in the case of bonds and other specialties, be still proved in the same manner as formerly ; that is, by producing the document and showing that it bears indorsements of such pay- ments, even though these indorsements were written or adopted by the creditor himself, through whom the plaintiff claims. The only difference between the old and new law is, that, whereas this evidence was formerly admissible in answer to a plea of payment, it is now received in support of a replication setting up an acknow- ledgment by the defendant, where the original demand has been met by a plea of the statute. 1 See post, U 1090, 1091. 2 In Roddam v. Morley, 26 L. J., Ch. 438 ; 1 De Gex & J. 1, S. C, it was held that payment of interest on a bond by the tenant for life for certain land under the will of the obligor, prevented this statute from barring the action against the heirs and devisees in remainder, after the expiration of twenty years from the time of the bond becoming due. See Pears v. Laing, 40 L. J., Ch. 225, per Bacon, V.-C; 12 Law Rep., Eq. 41, S. C. But see Coope v. Cresswell, 2 Law Rep., Ch. App. 112; 36 L. J., Ch. 114, S. C, overruling S. C. as decided by Kindersley, V.-C; 35 L. J., Ch. 496; 1 Law Rep., Eq. 106, S. C; and Dickenson v. Teasdale, 1 De Gex, J. & S. 52 ; 32 L. J., Ch, 37, S. C. * As to the Irish Law, see 16 & 17 V., c. 113, U 20—24. (3475) 608 EXTRINSIC EVIDENCE OF DATE OF INDORSEMENT. [PAET 11. § 093. It becomes then important to solve the question whether ?^ (J26 it be, or be not, necessary to prove by evidence dehors the instru- ment itself, that the indorsement, vehich is put in for the purpose of establishing payment of interest, or part payment of principal, was written at a time when it was against the interest of the creditor to make it ; or, •in other words, that it was written before his right of action was barred by th.e statute ; and here, notwithstanding some apparent authorities to the contrary, it is submitted that this question must be answered in the affirmative. The principle of ad- mitting such indorsements in favour of parties in privity with the persons making them, is an anomaly in the law, which cannot be supported by any of the reasons whereon the admissibility of rectors' books is made to rest,' and which, so far as regards parol instru- ments, has been expressly reprobated by the Legislature." It is therefore not unreasonable to contend, that the courts should require strict proof of the time when the indorsements were really made, before they consent to admit them in evidence. In ordinary cases, the law may safely presume that a document was written at the time it bears date ; but an exception to this rule has been recog- nised,^ where, under the old law of bankruptcy, a note signed by a bankrupt was put in by his assignees to support the petitioning creditor's debt. Now, why was this exception allowed ? Clearly, because it was so much to the interest of the petitioning creditor to support the fiat, that he might collusively induce the bankrupt to antedate the instrument, by means of which his debt was to be established. Then, does not this reasoning apply equally to the indorsements unler discussion,* which, if really made within twenty years from the date of the bond, are received, because being in such case entries against the interest of the obligee, they are presumed to be true ; but, if made beyond the twenty years, are rejected, because, after the lapse of that time, it would be so obviously to the advantage of the obligee to revive, by their means, the remedy barred by the statute, that the law presumes they are false ? But surely it is as easy to fabricate a date, as to fabricate an indorse- 1 Ante, § 688. ^ 9 G. 4, c. 14, ? 3. ^ Ante, ? 169. See, also, another exception noticed, ante, §§ 169, 582. * See Potez v. Glossop, 2 Ex. R. 194, 195, per Parke, B. (3476) CHAP. XI. ] EXTRINSIC EVIDENCE OF DATE OF INDORSEMENT. 609 ment, of which the date forms part, and it seems a strange mode of checking such fraudulent practices to say to an obligee, " Your remedy on the bond is barred by the statute, and therefore if you now indorse upon it any admission that you have received some interest from the obligor, no credit, after your death, will be given to such admission; but carry on your deceit one step fiirther, and add to your indorsement a date, which will give it the semblance of having been made while your remedy was unimpaired, and then, at your death, your representatives may recover against the obligor." § 694 The authorities on this subject lay down no decisive rule. ^ ^^7 In the case of Searle v. Lord Barrington, extrinsic evidence was given of the time when the indorsements were made,' though that fact is only mentioned loosely by Mr. Brown,^ and is not noticed at all by the other reporters.^ In Bosworth v. Cotchett* it seems, indeed, to have been unsuccessfully contended before the House of Lords, that unless evidence were given, independent of the note, to show when the indorsements were made, they could not be re- ceived;^ but as that case is not reported, and is noticed so shortly by our text writers*' that the grounds of the decision cannot be ascertained, it will scarcely be considered as a binding authority. In Sanders v. Meredith, in addition to an indorsement signed by the obligee, a witness was called, who proved actual payment of the interest The case of Gleadow v. Atkin ^ throws but little light upon the subject. There the payment of interest by the obligor to a stranger was proved; and in order to show that this payment had been made on account of the bond, the executors of the obligee relied on an indorsement in his handwriting, whereby he acknow- 1 Per Bayley, B., in Gleadow r. Atkin, 1 C. & M. 421, 424, stating the result of his own researches. ^ 3 Br., P. C, 594, where the reporter says that "other circumstantial evi- dence" was given to prove that the bond had not been satisfied. 3 2 Str. 826; 8 Mod. 278; 2 Ld. Ray. 1370. * Judgment in Dom. Proc. 6 May, 1824. * Per Vaughan, B., in Gleadow v. Atkin, 1 C. & M. 428. His lordship was of counsel in Bosworth v. Cotchett. * 1 Ph. Ev. 333; 3 St. Ev. 824. In this last work the case is cited as Parr v. Cotchett. ' 3 M. & K. 116. » j C. & M. 410. (3477) 610 now DATE OF INDORSEMENT PROVED. [PAET II. ledged that the principal sum due on the bond was trust-money, to which the stranger was entitled. This indorsement bore the same date as the bond itself, and was countersigned by the attesting wit- ness of the bond. The court held that it was admissible in evidence, and rightly so; because, in the first place, many circumstances concurred to show that the indorsement was written on or about the day of the date, and next, it signified little when it was written, as it was equally against the interest of the obligee at all times.' § 695. The only case which directly supports the presumption ^ 628 in question is that of Smith v. Battens.^' There the point was, whether an indorsement of interest on a promissory note, which bore date before the first of January, 1829, when Lord Tenterden's Act came into operation, could be admitted in evidence for the purpose of taking the case out of the statute, without some ex- trinsic proof of the time when it was actually written; and Mr. Justice Taunton. — apparently on the authority of Bosworth v. Cot- chett,^ — received it, observing, that, " in the absence of all evidence to the contrary, he should assume that it was written at the time it bore date." Now, although this case was subsequently cited with approbation by the Court of Common Pleas,* and by Lord Justice Turner, on a more recent occasion,^ as supporting the general doctrine that documents are presumed to have been written at the time they bear date, it may be doubted whether, with respect to the particular question before the court, the case be law. To throw on the defendant the burthen of proving negatively that the indorse- ment was not written on the day of the date, was in fact to shut the door upon all inquiry into the matter; because, as the note continued in the hands of the payee or his representatives, it was scarcely possible for the maker to ascertain at what time any in- dorsement was written upon it. § 696. This view of the subject is much confirmed by the language ^ 629 » See per Bayley, B., 1 C. & M. 417. M M. & Rob. 341. ^ Cited in the Report as Parr v. Crotchett. * In Anderson v. Weston, 6 Bing. N. C. 302, 303. * Briggs V. Wilson, 5 De Gex, M. & G. 20. (3478) CUAP. XI.] now DATE OF INDORSEMENT PROVED. 611 of Lord Ellenborougb in Rose v. Bryant,' wliere the adminis- trator of an obligee of a bond, for the purpose of meeting certain direct evidence of payment in the year 1794, proposed to read an indorsement, which appeared to have been made on the bond in the following year, and which acknowledged the receipt of interest and of part of the principal. In refusing to admit this evidence, his lordship said, "I think you must prove that these indorsements were on the bond at or recently after the times when they bear date, before you are entitled to read them. Although it may seem at first sight against the interest of the obligee to admit part-payment, he may thereby in many cases set up the bond for the residue of the sum secured. If such indorsements were receivable whensoever they might have been written, this would be allowing the obligee to manufacture evidence for himself to contradict the fact of payment. I have been at a loss to see the principle on which these receipts, in the handwriting of the creditor, have sometimes been admitted as evidence against the debtor ; and I am of opinion they cannot be properly admitted, unless they are proved to have been written at a time when the effect of them was clearly in contradiction to the writer's interest." Perhaps the safest rule that can be laid down on this subject is, that if the indorsement ajypear by its date to have been written within the twenty years, the question may be left to the jury, under all the circumstances of the case, whether it were really so written f the law raising no presumption either way. » 2 Camp. 321 2 See per Vanghan, B., in Gleadow v. Atkin, 1 C. & M. 426. 18 LAW OF EVin.— V. II. (3479) 612 DECLARATIONS IN BUSINESS, WHY ADMISSIBLE. [pART II. CHAPTER XII. DECLARATIONS IN TDE COURSE OF OFFICE OR BUSINESS. § 097. In many of the cases cited in the preceding chapter, the ? g:50 admissibility of the statements and entries tendered in evidence rested on the ground, not only of their being prejudicial to the pecuniary or proprietary interests of the parties making them, but of their having been made in the ordinary course of business or professional employment. The class of cases, therefore, which forms the fifth exception to the rule rejecting hearsay evidence, consists of such declarations as fall within this last category. The considerations which have induced the courts 'to recognise this exception appear to be principally these ; — that, in the absence of all suspicion of sinister motives, a fair presumption arises that entries made in the ordinary routine of business are correct, since, the process of invention implying t'-ouble, it is easier to state what is true than what is false ; that such entries usually form a link in a chain of circumstances, which mutually corroborate each other ; that false entries would be likely to bring clerks into disgrace with their employers ; that as most entries made in the course of business are subject to the inspection of several persons, an error would be exposed to speedy discovery ; and that as the facts to which they relate are generally known but to few persons, a relaxa- tion of the strict rules of evidence in favour of such entries may often prove convenient, if not necessary, for the due investigation of truth.i * § 698.'^ One of the earliest cases,^ illustrative of this subject, | 631 was an action for beer sold and delivered, the plaintiff being a 1 Poole V. Dicas, 1 Bing. N. C. 653, per Tlndal, C. J. ; 1 Ph. Ev. 319 ; 1 St. Ev. 348, 349. ' Gr. Ev. ? 116, in part. =* Price V. Torrington, 1 Salk. 285 ; 2 Ld. Ray. 873 ; 1 Smith. L. C. 277, S. C. ; Pitman v. Maddox, 2 Salk. 690 ; 2 Ld. Ptay. 732, S. C. ; Rowcroft v. Basset, Pea. Add. Cas. 199, 200, per Le Blanc, J. (3480) CHAP. XII.] DECLARATIONS IN COURSE OF OFFICE OR BUSINESS. 613 brewer. In order to prove the delivery, it was first shown that, in the usual course of the plaintiff's business, the draymen came every night to the clerk of the brewhouse, and gave him an account of the beer delivered during the day, which he entered in a book kept for that purpose, to which the draymen set their hands. An entry in this book, which stated the delivery of the beer in question, and was signed by a drayman, whose signature and death were proved, was then put in, and Lord Holt held that it was sufficient evidence to maintain the action. So, where the question was whether a notice to quit had been served upon a tenant, the indorsement of service upon a copy of the notice, made by the attorney who served it, was held after his death to be • admissible in proof of that fact; it being shown to be the ordinary course of business in his office to preserve copies of such notices, and to indorse the service thereon.' § 699. So, an entry by a deceased solicitor in his diary, noting § G31 the fact of his having attended a client on a certain day on her executing a deed of appointment, has been held sufficient evidence of the due execution of the deed.^ So, an entry of the recei[)t of rates by a deceased clerk of a collector, who was duly appointed, has been received as evidence of the payment of the rates.^ So, also, the books of the messenger of a bank, and of the clerk of a notary, have been held admissible to prove the dishonour of a bill of exchange by the acceptor, and notice to the indorser, upon proof that the entries were made in the usual routine of business;* and upon like proof, the letter-book of the plaintiff, who was a merchant, ^ Doe V. Tnrford, 3 B. & Ad. 890; K. v. Cope, 7 C. & P. 720, 727, per Ld. Denman; E. v. Dukiutield, 11 Q. B. 678; Stapylton v. Clough, 2 E. & B. 933. ^ Rawlins v. Rickards, 28 Beav. 370. See Bright v. Legerton, 30 L. J., Ch. 338; 2 De Gex, F. & J. 606, S. C. ; per Ld. Campbell, C, overruling in part a decision by Romilly, M. R., in S. C, reported 29 L. J., Cli. 852; 29 Beav. 60, S. C. But see Kerin v. Davoren, 12 Ir. Eq. R., N. S. 352. 3 R. V. St. Mary, Warwick, 22 L. J., M. C. 109. * Sutton V. Gregory, Pea. Add. Cas. 150, per Ld. Kenyon; Poole v. Dicas, 1 Bing. N. C. 649; 1 Scott, 600; 7 C. & P. 79, S. C. ; Nichols r. Webb, 8 Wheat. 326; Welch v. Barrett, 15 I\I;\ss. 380; Halliday v. Martinett, 20 Jolins. 168; Butler r. Wright, 2 Wend. 369; Hart v. Williams, id. 513; Nicholls v. Goldsmith, 7 Wend. 160. (3481) 614 DISINCLINATION TO EXTEND THE RULE. [PART 11. in which a deceased clerk had inserted what purported to be the copy of a letter to the defendant, and had further made a memo- randum stating that he had sent the original letter, has been admitted as evidence of the fact of sending the letter, as also of its contents, the defendant having been served with notice to produce the original.' So, where a police-constable had made, in the course of his duty, a verbal repDrtto his inspector, stating where he was going and what he was about to do, this report was held to be admissible as evidence for the Crown on the trial of an indictment, which charged the prisoner with the murder of the policeman.^ § 700. Though the cases cited above have established beyond ? 632 dispute the existence of the exception now under discussion, several of the judges have, of late years, evinced great disinclina- tion to extend its principle beyond the limits strictly warranted by antecedent decisions.^ Thus, in an action for the price of coals, which had been sold at the pit's mouth, an entry was rejected, which appeared to have been made in the following manner. In the ordinary course of business, it was the duty of one of the workmen at the pit, named Harvey, to give notice to the foreman of the coal sold; and the foreman, who was not present when the coal was delivered, and who was unable to write, used to employ a man named Baldwin to make entries in the books from his dictation. Baldwin road over these entries every evening to the foreman. At the time of the trial, Harvey and the foreman were dead, and Baldwin was called to produce this book, with the view of proving thereby the delivery of the coal in question; but the court held that it was inadmissible.* The ground of this decision appears to have been, that, although the entries, being made Tinder the foreman's direction, might be regarded as made by ' Pritt V. Fiiirflongh, 3 Camp. 305; Hagedorn v. Reid, id. 379. See, also, Champneys f. Peck, 1 Stark. R. 404; Doe «. Langfield, 16 M. & W. 497. 515; East Union Rail. Co. v. Symonds, 5 Ex. R. 237; 6 Rail. Cas. 578, S. C. But see Rowlands v. De Vecclii, 1 Cab. & El. 10, per Day, J. « R. V. Buckley, 13 Cox, 293, per Lush & Mellor, Js. « See Doe «. Skinner, 3 Ex. R. 84; Smith v. Blakey, 36 L. J., Q. B. 156; 2 Law Rep., Q. B. 326; 8 B. & S. 157, S. C; The Henry Coxon, 47 L. J., Adm. 83; L. R., 3 P. D. 156, S. C; Massey v. Allen, 49 L. J., Ch. 76, per Hall, V.-C; L. R., 13 Ch. D. 558, S. C. ♦ Brain v. Preece, 11 M. & W. 773. (3482) CHAP. XII.] LEGISLATIVE RECOGNITION OF RULE. 615 him, yet, inasmuch as he had no personal knowledge of the facts stated in them, but derived his information at second-hand from the workman, there was not the same guarantee for the truth of the entries as might be found in Price v. Torrington, Doe v. Tur- ford, and Poole v. Dicas; in all of which cases the party making the entry had himself done the business, a memorandum of which he had inserted in his book. § 701. It seems more difficult to reconcile the case of Davis v. I 633 Lloyd ' with sound principle, o;- with previous decisions. There, in order to show that a Jew was of age, it was proved that Jewish children were circumcised on the eighth day from their birth, and that it was the duty of the chief rabbi to perform this rite, and to make an entry thereof in a book kept at the synagogue. Upon proof that the rabbi was dead, this book was tendered in evidence; but Lord Denman, after consulting Mr. Justice Patteson, rejected it, though it does not appear on what grounds. In another case,^ where it was necessary to show that a contract of service had been for less than a year, proof was given that the employer, who was dead, had in the course of his business been in the habit of hiring farm servants, and that his practice was to enter the time and terms of such hiring in a book kept by him for that purpose. This book, which contained entries of the service in question, and showed that the servant had been engaged for half a year only, was tendei'ed in evidence; but the court held that it was inadmis- sible, on the ground that, although it might be the practice, it was not the duty, of the master to make such entries. § 702. The Legislature has in one instance recognised and g 634 acted upon the exception under discussion; for the statute, which now regulates the Civil Bill Courts in Ireland,^ enacts in § 19, that " a book or books shall be kept by every officer appointed for the service of prC'Cess, in such form as shall be directed or approved by the chairman or assistant barrister; in which shall be entered the names of the plaintiff and defendant by or against whom any process shall be issued, the cause of action, the day on 1 1 C. & Kir. 275. ^ jj ^ Worth, 4 Q. B. 132. ^ 14 & 15 y., c. 57., Ir. (3483) 616 ENTRIES CONTEMPORANEOUS WITH ACTS NARRATED. [PART II. which such process shall be receivetl to be served, the clay on which such process shall be served or executed, the place where, and the name or description of the person on or with whom, such process shall be served or left, and in case any such process shall not have been duly served or left, then the cause of such service not having been effected shall be stated ; and each and every process-officer shall attend, and produce such book or books to the chairman or assistant barrister, at each and every sessions of the peace, or shall cause such book or books to be produced to such chairman or barrister in case of the unavoidable absence of such process-officer ; and in case of the death, ilhiess, or such absence as aforesaid of any such process-officer, the book or books of such process officer, kept by him as aforesaid, verified on oath as to his handwriting by some credible person, shall be produced at the sessions, and shall there be prima facie evidence of the truth of the several matters entered therein as aforesaid." § 703. In many respects the rules which regulate the reception § 635 of this species of evidence, are the same as those which prevail with respect to declarations against interest. For instance, the death,^ the handwriting, and the official character,^ of the person who made the entry must be proved; and it should further appear that he had no motive to misstate. In some particulars, however, a marked distinction exists between the two classes of cases. § 704. First, in order to render admissible entries made in the § 636 course of office or business, they must, — unlike declarations against interest, — be proved to have been made contemjwraneously icith the acts ivhich they relate.^ This distinction was expressly pointed out by Mr. Baron Parke in Doe v. Turford. " It is to be observed," said the learned judge, " that in the case of an entry against interest, proof of the handwriting of the party, and of his death, is enough to authorise its reception; at whatever time it was made it is admissible: but in the other ease [of an entry made in the * See Cooper v. Marsden, 1 Esp. 1, per Ld. Kenyon. See ante, § 669. 2 Doe V. "\Vittcomb, 6 Ex. R. 601. 3 Doe V. Beviss, 18 L. J., C. P. 128; 7 Com. B. 456, S. C; Doe v. Skinner, 3 Ex. E. 88, per Parke, B. (3484) CHAP. XII.] INADMISSIBLE TO PROVE INDEPENDENT MATTERS. 617 course of business], it is essential to prove that it was made at the time it purports to bear date; it must be a contemporaneous entry.'" In using the word " contemporaneous," it is not meant that the entry must have been made at the immediate time of the occurrence; but it will be sufficient if made within so short a time after, as reasonably to be considered part of the transaction. Thus, if the business be done in the morning, and the entry be made in the evening of the same day,^ or perhaps even on the following morning,^ it will be sufficient ; though, where several intermediate days had elapsed between the date cf the transaction and the time of inserting an entry of it in the book, the evidence has been rejected;* and in one American case, the interval of a single day was held to constitute a valid objection.^ The fact that the entry was made contemporaneously may, like any other fact, be established either by direct testimony, or by proof of any circumstances sufficient to raise a reasonable inference that such was the case.^ § 705. Secondly, it has been shown in the last chapter, that decla- ? 637 rations against interest are often admissible to prove independent matters^ which, though forming part of the entry, are not in them- selves against the interest of the declarant.^ A stricter rule, how- ever, prevails with respect to official or business entries, and it has been held that, " whatever effect may be due to an entry made in the course of office, reporting facts necessary to the performance of a duty, the statement of other circumstances, however naturally they may be thought to find a place in the narrative, is no proof of those circumstances." * In the case which called forth these obser- 1 3 B. & Ad. 897, 898, cited and approved by Park, J., in Poole v. Dicas, 1 Bing. N. C. 654, 655. ■^ Price V. Torriugton, 1 Salk. 285; Ray v. Jones, 2 Gale, 220; Curren v. Crawford," 4 Serg. & R. 3, 5. ^ Ingraham v. Bockins, 9 Serg. & R. 285. * Forsytlie v. Norcross, 5 Watts, 432. * Walter v. Bollman, 8 Watts, 544. 8 East Union Rail. Co. v. Symonds, 5 Ex. R. 237; 6 Rail. Cas. 578, S. C. ■ Ante, ?? 677—679. * Chambers v. Bernasconi, 1 C. M. & R. 368. per Ld. Dennian, ])ronouncing the unanimous opinion of the Ex. Ch. See, also, Percival v. Nanson, 7 Ex. R. 3, per Pollock, C. B. ; and Polini v. Gray and Sturla r. Freceia. L. R., 12 Ch. D. 411, per Ct. of App.; 49 L. J., Ch. 41, S. C. ; S. C. in Dom. Pr., 50 L. J., Ch. D. 86. (3485) G18 now FAR CORROBORATIVE EVIDENCE NECESSARY. [pART II. vations, it became necessary to show in what place the plaintiff had been arrested; and in order to do this, a certificate of a deceased sheriff 's officer, which had been retnrued by him to the office in the ordinary routine of his daty, and which specified, among other circumstances connected with the arrest, the spot where it took place, was tendered ia evidence; but the judges of the Exchequer Chamber, before whom the question was argued on a bill of exceptions, — while they admitted, for the sake of argument, that the certificate was evidence of the arrest itself, as also of the day when it was made, since it might be necessary for the officer to make known these facts to his principal, — were all clearly of opinion that it could not be received to show the particular spot where the caption took place, that circumstance being merely collateral to the duty done. ^ "This decision," as was afterwards observed by Mr. Justice Park, ''turned on the circumstance that the sheriff 's officer was going beyond the sphere of his duty when he made an entry of the place of arrest, and that such an entry therefore had no claim to be received as evidence of that fact."' § 706. Some persons contend that the rule under discussion is § 638 subject to a third qualification, which certainly does not apply to declarations against interest, and which is to this effect; — namely, that entries made in the course of office or business cannot be admitted, unless corroborated by other circumstances which render it probable that the facts therein recorded really occurred. This opinion seems to rest, partly, on a supposed dictum of Mr. Justice Taunton;^ partly, on a misapprehension of the rule adopted by Lord Wensleydale, that an entry made in the course of business ' Chambers v. Bernasconi, 1 C. M. & 11. 347, 368; 4 Tyr. 531, S. C. '^ Poole V. Dicas, 1 Bing. N. C. 655. See, also, per Tindal, C. J., id. 651. ^ Doe V. Turford, 3 B. & Ad. 898, where his lordship is made to say, "A minute in writing like the present, made at the time when the fact it records took place, by a person since deceased, in the ordinary course of his business, corroborated by other circumstances which render it probable that* that fact occurred, is admissible in evidence. Those corroborating circumstances must be proved; and here many such circumstances did appear." Mr. Phillips suggests that the words, "the entry was made when," have probably been omitted by accident at the place marked with the star. 1 Ph. Ev. 324. (3486) CHAP. XII.] ADMISSIBLE. THOUGH BETTER EVIDENCE ATTAINABLE. G19 is admissible " where it is one of a chain or combination of facts, and the jjroof of one raises a presumption that another has taken place ;'" and partly on the circumstance, that, in one or two of the later cases on the subject, confirmatory evidence, has in fact been adduced, and its existence has been noticed by the court as tending to establish the correctness of the- entry." Still, Mr. Phillipps is probably right in rejecting this qualification, and in contending that, though corroborative evidence must naturally add. to the value of entries, it cannot be deemed essential to their admissibility.^ § 707. It has further been urged that entries in the course of ? G39 business will only be received, when the nature of the case is such as to render better evidence unattainable; but this limitation of the rule has been expressly rejected in Poole v. Dicas, where Chief Justice Tindal, after observing that Doe v. Turford was no authority for the proposition, since in that case persons might have been present when the notice was served, continued thus : — • "In the present case, it would operate as a great hardship to require the testimony of the persons who might have been present. The clerk who presented the bill could scarcely, at the distance of two years, point out who it was that answered his application; and if it were necessary to call all the persons who resided at the place of presentment, the expense and incon- venience would be enormous. The rejection of the evidence which has been received would be a great injury to the commercial classes, by casting an unnecessary difficulty on the holders of bills of exchange."* § 70S. From the cases cited above it may be collected, that, in § 640 order to bring a declaration within the present exception, proof must be given that it was made contemporaneously with the fact ' Doe V. Turford, 3 B. & Ad. 897. ■^ Id. 890, 897; Poole v. Dicas, 1 Scott, 600; 1 Bing. N. C. G49, 6.5:5, 654, S. C. 3 1 Ph. Ev. 324. SeeR. v. Cope, 7 C. &.P. 726, 727, per Ld. Denman. * 1 Bing. N. C. 654. The same rule prevails with respect to declarations against interest, ante, ^ 681. (3487) 620 SHOP-BOOKS of parties, now far adimissible. [pabt ii. which it narrates, and in the usual routine of business, by a person whose duty it was to make the whole of it,' who was him- self personally acquainted with the fact, who had no interest in stating an imtruth, and who is since dead;' and, provided all the terms of this proposition be satisfied, it seems to be immaterial, excepting so far as regai'ds the u-eight of the evidence, that more satisfactory proof might have been produced, that the declara- tion is uncorroborated by other circumstances, or that it consists of a mere oral statement, which has never been reduced to writing.* § 709.* In the United States this principle has been extended ? 641 to entries made by the x>arty himself in his own shop-books;^ at least, where they were evidently contemporaneous with the facts to which they refer, and formed part of the res gestae. Being the acts of the party himself, they are received with the greater caution; but still they may be seen and weighed by the jury. Though this doctrine is not in accordance with the principles of the common law, at least as now understood,'^ it seems to have been regarded as sound law by the Legislature, if not by the judges, in the time of James the First. In 1609 an Act was passed' " to avoid the double payment of debts," which clearly recognised a tradesman's shop-books as instruments of evidence on his behalf. No doubt this statute, in modern times, has been treated in courts of justice as a dead letter; but, strangely enough, after lying dormant for upwards of two centuries, it was in the year 1863 revivified and rendered perpetual by the Act of 26 and 27 1 Stapylton v. Clough, 2 E. & B. 933; Trotter v. Maclean, L R., 13 Ch. D. 574, per Fry, J. 2 See Doe v. Wittcomb, 6 Ex. R. 601 ; 4 H. of L. Cas. 42.5, S. C. 3 Ante, ?i 672. * Gr. Ev. § 118, in part. ^ For the American statutes and decisions on the above subject, see' notes to § 641 of the first three editions of this work; also notes to Gr. Ev. ^ 118. fi Ellis r. CoANTje, 2 C. & Kir. 719, per Wilde, C. J.; Smyth v. Anderson, 7 Com. B. 21. In this last case the books of the plaintiff were tendered in evidence by him, to show that he had, throughout a sale effected by means of an agent, debited the defendant as principal. The court, however, rejected the evidence. '^ 7 J. 1, c. 12.. (3488) CHAP. XII.] SHOP-BOOKS OF PARTIES, HOW FAR ADMISSIBLE. 621 v., c. 125. What will be the practical result when this Parlia- mentary freak is brought under the notice of the judges is a ques- tion that cannot readily be answered; but thus much seems clear, that the Act itself ought to be inserted in this ])lace. It is a curious specimen of quaint legislation, and it will at least furnish useful hints when stale demands are sought to be enforced in the county courts. § 710. The Act is as follows: — "Whereas divers men of ? 641a trades, and handicraftsmen, keeping shop-books, do demand debts of their customers upon their shop-books long time after the same hath been due, and when, as they have supposed, the par- ticulars and certainty of the wares delivered to be forgotten, then either they themselves, or their servants, have inserted into their said shop -books divers other wares supposed to be delivered to the same parties, or to their use, which in truth never were delivered, and this of purpose to increase by such undue means the said debt: (2.) And whereas divers of the said tradesmen and handicraftsmen, having received all the just debts due upon their said shop-books, do oftentimes leave the same books un- crossed, or any way discharged, so as the debtors, their executors or administrators, are often by suits of law enforced to pay the same debts again to the party that trusted the said wares, or to his executors or administrators, unless he or they can produce sufficient proof, by writing or witnesses, of the said payments, that may countervail the credit of the said shop books, which few or none can do in any long time after the said payments: (3. ) Be it therefore enacted by the authority of this present Parliament, that no tradesman or handicraftsman keeping a shop-book as is aforesaid, his or their executors or administrators, shall be allowed, admitted, or received, to give his shop book in evidence in any action for any money due for wares hereafter to be de- livered, or for work hereafter to be done, above one year before the same action brought, except he or they, their executors or administrators, shall have obtained or gotten a bill of debt or obligation of the debtor for the said debt, or shall have brought or pursued against the said debtor, his executors or adminis- trators, some action for the said debt, wares, or work done, within (3489) 622 merchants' account-books, when admissible, [part II. one year next after the same wares delivered, money due for wares delivered, or work done. II. Provided always, that this Act, or anything herein contained, shall not extend to any inter- course of traffick, merchandizing, buying, selling, or other trading or dealing for wares delivered or to be delivered, money due, or work done or to be done, between merchants and merchants, merchant and tradesman, or between tradesman and tradesman, for anything directly falling within the circuit or compass of their mutual trades and merchandize, but that for such things only they and every of them shall be in case as if this Act had never been made ; anything herein contained to the contrary thereof notwithstandi ng. ' ' § 711. Independent of all statutable sanction our courts of ^ ^'^^^^ equity have for years past, to a certain extent, acted upon the principle of admitting shop-books in evidence, where accounts have been required to be taken, and vouchers have been lost;^ and now, by virtue of the Rules of the Supreme Court, 1883, the court or a judge may, at any stage of the proceedings in a cause or matter, direct any necessary accounts to be taken, and "may, either by the judgment or order directing the 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 direct that, in taking the account, the books of account in which 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." ^ § 712.^ In the administration of the Eoman Law, the production ? 642 of a merchant's or tradesman's book of accounts, regularly and fairly kept in the usual manner, was deemed presumptive evidence^ ' Lodge V. Prichard, 3 De Gex, M. & G. 908. See post, § 812. 2 Ord. XXXII r., RK. 2, 3. For the law in Ireland, see 30 & 31 V., c. 44, ? 159, Ir. See Lodge v. Prichard, 3 T)e Gex, M. & G. 906; Newberry v. Benson, 23 L. J., Ch. 1003, coram I.ds. .Is.; Ewart v. Williams, 3 Drew. 21; 7 De Gex, M. & G. 68, S. C. coram Lds. .Is. ; Cookes v. Cookes, 3 New R. 97, per Lds. Js. ; O'Grady v. Corr, I. R., 10 Eq. Ill; Alford v. Clay, L R., 9 Eq. 215. * Gr. Ev. ^ U9, verbatim. (3490) CHAP. XII.] tradesmen's BOOKS — LAW OF FRANCE — OF SCOTLAND. 623 (semi plena probatio) ' of the jastice of his claim, and in such cases, the suppletory oath of the party (juramentum suj)})letivum) was admitted to make up the plena probatio necessary to a decree in his favour." By the law of France, too, the books of merchants and tradesmen, regularly kept, and written froin day today without any blank, when the tradesman bas the reputation of probity, constitute a semi-proof, and, with his suppletory oath, are received as fall proof to establish his demand.^ The same doctrine is familiar in the law of Scotland, by which the books of merchants and others, if kei)t with such a reasonable degree of regularity as to be satisfactory to the court, may be received in evidence, the party being allowed to give his own " oath in supplement " of such imperfect proof. It seems, however, that a course of dealing, or other '• pregnant circumstances," must in general be first shown by evidence aliunde, before the proof can be regarded as amounting ^ This degree of truth is thns defined by Mascardus: — "Non est igno- randum probationem semipleTiam earn esse, per quam rei geatsa fides aliqua lit judici. non tameu tauta ut jure debeat in pronuncianda .sententia earn sequi." 1 de Prob., Qna?st. 11, n. 1, 4. '^"Juramentum (suppletivum) defertur ubicunque actor habet pro se — aliquas oonjecturas, per quas judex inducatuv ad suspicionem vel ad opinan- dum pro parte actoris." 13 Masc. de Prob., ConcL, 230, n. 17. The civilians, however they may differ as to the degree of credit to be given to books of account, concur in opinion, that they are entitled to consideration, at the dis- cretion of the judge. They furnish at least the conjectures mentioned by Mas- cardu.s; and their admission in evidence, with the suppletory oath of the party, is thus defended by Paul Yoet, de Statutis, § 5, cap. 2, n. 9: — "An ut credatur libris rationem, sen registris uti loqunntur, mercatorum et artificum, licet probationibus testium non juventur? Kespondeo, quam vis exemplo per- niciosum esse videatur, quemque sibi privata testatione, sive adnotatoine lacere debitorem. Quia tamen htec est mercatorum cura et opera, ut debiti et crediti rationes diligenter conticiant. Etiam in eorum foro et causis, e.x sequo et bono est judicandum. Insuper non admisso aliquo litium accelerandarum remedio, commerciorum ordo et usus evertitur. Neque enim omnes pra;senti pecunia merces .sibi comparant, neque cujusque rei venditioni testes adhiberi, qui pretia mercium noverint, aut expedit, aut congruum est. Non iniqnum vide- bitur illud statutum, quo domestici.s falibns instrumentis additur fides, modo aliquibus adminiculis juventur." See, also, Hertius, de Coll. Leg. ? 4, n. 68; 7 Stryk. de Sem. Prob., Disp. 1, cap. 4, §5; Menoch., de Pra?s., lil). 2, Vrscs. 57, n. 20, and lib. .■?, Pra?s. 63, n. 12. * Poth. Obi., Part iv. ch. 1, art. 2, ^ 4. By the Code Napoleon, mer- chants' books are required to be kept in a particular manner therein prescribed, and none others are admitted in evidence. Code de Commerce, Li v. 1, tit. 2, art. 8-12. (3491) 624 merchants' books should be admissible. [pakt ii. to that degree of semi -plena probatio, which may be rendered complete by the oath of the party/ § 713. Especial reference is here made to these laws, because it ? 643 is conceived that the adoption of a somewhat similar practice in all the English and Irish com-ts of justice would prove highly benefi- cial; especially in cases where actions are brought or defended by the representatives of persons deceased. ^ Tait, Ev. 273 — 277. This degree of proof is there defined as "not merely a suspicion, — but such evidence as produces a reasonable belief, though not complete evidence." See, also, 2 Dickson, Ev. g 1179, et. seq. ; Glassf. Ev. 550; Bell, Dig. 378, 898. (3492) CHAP. XIII.] DYING DECLARATIONS, WHY ADMISSIBLE. 625 CHAPTER XIII. DYING DECLARATIONS § 714' A SIXTH EXCEPTION to the rule rejecting hearsay evi- § 644 dence is allowed in the case of dying declarations. The general principle on which this species of evidence is admitted, was stated by Lord Chief Baron Eyre to be this, — "that such declarations are made in extremity, when the party is at the point of death, and when every hope of this world is gone ; when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth ; a situation so solemn and so awful is considered by the law as creating an obligation, equal to that which is imposed by a positive oath in a court of justice."' At one time an opinion prevailed that this general principle warranted the admission of dying declarations in all cases, civil and criminal ;^ and it was expressly held, by respectable authorities, that the dying declarations of a subscrib- ing witness to a forged instrument could be given in evidence to ' Gr. Ev. § 165, in part. * R. V. Woodcock, 1 Lea. 502; R. v. Drummo'nd, id. 338. Our great poet, in King John, has put the same sentiment into the mouth of the wounded Melun, who, finding himself disbelieved while announcing the intended treachery of the Dauphin Lewis, exclaims : — " Have I not hideous death within my view, Retaining but a quantity of life ; Which bleeds away, even as a form of wax Resolveth from his figure 'gainst the fire ? What in tlie world should make me no\c deceive, Since I must lose the iise of all deceit? Why should I then be false; since it is true That I must die here, and live hence by truth? — Act 5, sc. 4. ' It was even held that the dying declarations of a pauper respecting his settlement were admissible, though that question involved both law and fact, R. V. Bury St. Edmunds, Cald. 486 ; Abbotun r. Dnnswell, 2 Bott, 80. This doctrine is now properly exploded. See R. v. Abergwilly, 2 East, G'6 ; Stobart V. Dryden, 1 M. & W. 626. (3493) 626 DYING DECLARATIONS, WHEN ADMISSIBLE. [pART II. impeach it.' A contrary doctrine, however, has since prevailed;" and it is now settled law, both in England and America, that proof of this description is admissible iu no civil case — and, in criminal cases, only in the single instance of homicide, " where the death of the deceased is the subject of the charge, and the circumstances of the death are the subject of the dying declaration." ^ § 715. Thus, on a trial for robbery, the dying declaration of I "-^'^ the party robbed has been rejected ;* and where a prisoner was indicted for administering drugs to a woman, with intent to procure abortion, her statements in extremis were held to be inadmissible.^ So, where a party, convicted of perjury, had obtained a rule nisi for a new trial, and, pending the proceedings, had shot the prosecutor, the Couit of King's Bench, on cause being shown against the rule, rejected the affidavit of the dying declarations of the latter, as to the transaction out of which the prosecution for perjury arose."^ After stating these strong cases, it seems scarcely necessary to add, that in an action of ejectment the court refused to receive the dying declarations of a servant of the party last seised, as to the relationship of such party with the lessor of the plaintiff; ' and that in Ireland, on an indictment for murder, the prisoner was not allowed to avail himself of the state- ment of a stranger, who on his death- bed confessed that he had ' Wright?'. Littler, 3 Burr. 12r>r> ; 1 W. Bl. 349, S. C, per Ld. Mansfield ; stating, however, as reported in Blackstone, that no general rule could he drawn from the admission of the evidence in that particular case; Anon., per Heath, J., cited with apparent approhation by Ld. Ellenborough in Aveson v. Ld. Kinnaird, G East, 19.5, 190, and in Bp. of Durham v. Beau- mont, 1 Camp. 210, and explained by Baylej', J., in Doe v. Ridgway, 4 B. & A. 55. 2 See Stobart v. Dryden, 1 M. & W. G24— 627, where the cases cited in the preceding note were virtually overruled. See ante, ^ 568. 3 R. r. Mead, 2 B. & C. 608; 4 D. & R. 120, S. C; R. r. Hind, 29 L. J., M. C. 147; 8 Cox, 300, S. C; Bell, C. C. 253, S. C; 1 East, P. C. 353; Wilson V. Boerem, 15 Johns. 286. * R. v. Lloyd, 4 C. & P. 233. ^ R. r. Hutchinson, 2 B. & C. 608, n., per Bayley, J.; R. r. Hind. 29 L. J., M. C. 147 ; 8 Cox, 300, S. C; Bell, C. C. 253, S. C. In 1 Ph. Ev. 282, the.se declarations are stated to have been held admissible, but this is a mistake. « R. V. Mead, 2 B. & C. 605 ; 4 D. & R. 120, S. C. ' Doe V. Ridgway, 4 B. & A. 53. (3494) CHAP, XIII.] WHY LIMITED TO CASES OF HOMICIDE. 627 committed the crime.' Upon one occasion the judges appear to have intrenched somewhat upon this rule ; for a prisoner being indicted for poisoning his master, and it appearing that a maid- servant had taken some of the same poison, and died in con- sequence, her dying declarations were admitted on the part of the prosecution, apparently on the ground that it was all one transaction.^ § 710.^ The reasons for thus restricting the admission of this * ^'^^ species of evidence may be, — first, the danger of perjury in fabri- cating declarations, the truth or falsehood of which it is impos- sible to ascertain, — secondly, the danger of letting in incomplete statements, which, though true as far as they go, do not consti- tute "the lohole truth," — and thirdly, the experienced fact, that implicit reliance cannot in all cases be placed on the declarations of a dying person ; for his body may have survived the powers of his mind ;* or his recollection, if his senses are not impaired, may not be perfect ; or, for the sake of ease, and to be rid of the importunity of those around him, he may say, or seem to say, whatever they choose to suggest.^ As these, or the like con- siderations, are thought in ordinary cases to counterbalance the force of the general principle above stated, the exception under review is restricted to cases of homicide, and is there recognised on the sole ground of public necessity. For as it often happens that no third person was present as an eye-witness to a murder,, and as the party injured, who is the usual witness in other cases of felony, cannot himself be called, it follows that if his dying declarations could not be received, the murderer might often, ^ R. V. Gray, Ir. Cir. R. 73, per Torrens, J. ^ R. V. Baker, 2 M. & Rob. 53, per Coltman, J., after consulting Parke, B. The point would have been reserved for the opinion of the judges, but the prisoner was acquitted. ^ Gr. Ev. § 156, in part. * Thus, in King John, Prince Henry is made to say: — "Death's siege is now Against the mind, the which he pricks and wounds With many legions of strange fantasies ; Which, in their throng and press to that last hold, Confound themselves." — Act 5, sc. 7. * Jackson v. Kniffen, 2 Johns. 31, 35, per Livingston, J. 19 LAW OF EVID. — v. 11. (3495) 628 DANGER AND FEAR OF DEATH NECESSARY. [PART II. escape justice.* Still, tliis restriction applies only to such declara- tions as are tendered in evidence merely because they were made in extremis ; for where they constitute part of the res gestae, or come within the exception of declarations against interest, or the like, they are admissible as in other cases ; irrespective of the fact, that the declarant was under apprehension of death. § 717.^ The persons whose declarations are thus admitted, are ? 647 considered as standing in the same situation as if they were sworn, the danger of impending death being equivalent to the sanction of an oath. It follows, therefore, that when the declarant, if living, would have been incompetent to testify by reason of imbecility of mind, or tender age, his dying declarations are inadmissible.' On the other hand, as the testimony of an accom- plice is admissible against his fellows, the dying declarations of a felo-de-se are admissible against one indicted for assisting the deceased in his self-murder.* And on the same ground, when a husband is charged with the murder of his wife, or a wife with the murder of her husband, the dying declarations of the deceased will be received.^ § 718. It is essential to the admissibility of these declarations, ^ 648 first, that at the time when they were made the declarant should have been in actual danger of death; secondly, that he should then have had a full apprehension of his danger;'^ and lastly, that death should have ensuedJ All these facts, therefore, must be ' 1 East, P. C. 353 ; 2 Johns. 35. ^ Qj. ^v. I 157, in part. * R. V. Pike, 3 C. & P. 598 ; E. v. Drummond, 1 Lea. 338. In this last case, the declaration of an attainted convict was rejected. This would no longer be a ground of objection. 6 & 7 V., c. 85, | 1. * R. V. Tinckler, 1 East, P. C. 354. 5 R. V. Woodcock, 1 Lea. 500 ; 1 East, P. C, 354, 356, S. C; Stoop's case, Addis. 381. « R. V. Cleary, 2 Post. & Fin. 850. ' Sussex Peer., 11 CI. & Fin. .108, 112, per Ld. Denman, who laid down the law as follows : — " With regard to declarations made by persons in extremis^ supposing all necessary matters concurred, such as actual danger, death follow- ing it, and a full apprehension, at the time, of the danger, and of death, such declarations can be received in evidence ; but aU these things must concur to render such declarations admissible. Such evidence, however, ought to be received with caution, because it is subject to no cross-examination." (3496) CHAP. XIII.] BELIEF OF IMPENDING DEATH NECESSARY. 629 proved to the satisfaction of the judge before the evidence will be received.' It' is not, liowever, necessary that the declarant should have stated that he was speaking under a sense of impending death, provided it satisfactorily appears, in any mode, that the declara- tions were really made under that sanction; as for instance, if the fact can be reasonably inferred from the evident danger of the declarant,'' or from the opinions of the medical or other attendants stated to him, or from his conduct, such as settling his affairs, taking leave of his relations and friends, giving directions re- specting his funeral, receiving extreme unction, or the like. In short, all the circumstances of the case may be resorted to, in order to ascei'tain the state of the declarant's mind.* The length of time which elapsed between the declaration and the death of the declarant, furnishes no rule for the admission or rejection of the testimony; though, in the absence of better evidence, it may serve as one of the exponents of the deceased's belief, that his recovery was or was not impossible. It is the impression of impending death, ^ and not the rapid succession of death in point of fact, which renders the testimony admissible. If, therefore, it appear that the deceased, at the time of the declaration, had any expectation or hope of recovery, however slight it may have been, and though death actually ensued within an hour afterwards, the declaration will be inadmissible.® On the other hand, a firm ' 1 Ante, ? 23. ^ Gr. Ev. § 158, in part. * See R. V. Morgan, 14 Cox, 337, per Denman, J. In R. v. Bedingfield, id. 341, Cockburn, C. J., declined to rely on such evidence. Sed qn. * R. V. Woodcock, 1 Lea. 503; R. v. John, 1 East, P. C. 357, 358; R. v. Bonner, 6 C. & P. 386; R. v. Van Butchell, id. 631; R. v. Mosley, 1 Moo. C. C. 97; R. V. Spilsbury, 7 C. «& P. 187, per Coleridge, J.; R. v. Minton, M'Nally, Ev. 386; R. v. Scallan, Craw. & D., Abr. C. 340. See R. v. Nicolas, 6 Cox, 121; R. v. Qualter, id. 357; R. v. Perkins, 9 C. & P. 395; 2 Moo. C. C. 135, S. C. * R. V. Forester, 4 Fost. & Fin. 857, per Byles, J., Avhere the law seems to have been laid down somewhat too strictly; 10 Cox, 368, S. C. « R. V. Welborn, 1 East, P. C. 385; R. v. Christie, 2 Russ. C. & M. 754; R. r. Jenkins, 1 Law Rep., C. C. 187; 38 L. J., M. C. 82; 11 Cox, 250, S. C; R. V. Mackay, 11 Cox, 148; R. v. Hayward, 6 C. & P. 157, 160; R. v. Crockett, 4 id. 544; R. v. Fagent, 7 id. 238; R. v. Megson, 9 id. 418. Where the words were, "I have no hope of recovering, unless it be the will of God," R. V. Murphy, Ir. Cir. R. 38, per Richards, B. ; and, in another case, " I think myself in great danger," R. v. Errington, 2 Lew. C. C. 148, they were respectively held to be insufficient. See R. v. Howell, 1 C. & Kir. 689; 1 Den. 1, S. C. (3497) 630 WHAT DYING DECLARATIONS ARE ADMISSIBLE. [PART II. belief that death is impending,^ — by which is meant, not as was once thought," that it will almost immediately follow, but that it will happen shortly in consequence of the injury stistained,^ — will suffice to render the statement evidence, though the sufferer may subsequently express a hope of recovery,* or may chance to linger on for some 'days, or even for two or three weeks.* § 719. It is worthy of remark that in Scotland it is immaterial, § 649 except as regards the weight of the evidence, whether or not the declaration be made under the impression of impending death; but where a party has received a mortal wound, an account of the matter given by him at any time subsequent to the injury will be admissible in the event of his death, provided it were made seriously and deliberately, and whilst the deceased appeared to be aware of what he was doing, and in the possession of his faculties.® § 720.' The declarations of the deceased are admissible 07ily as I 650 to matters to ichich he ivoiild have been competent to testify, if sworn in the cause. They must, therefore, in general narrate facts only, and not mere opinions;* and they must be confined to what is relevant to the issue. But it is not necessary that the examination of the deceased should have been conducted after < — ■ ^ E. V. Goddard, 15 Cox, 7, per Hawkins, J., and Baggallay, L. J. ^ Per Hullock, B., in R. v Van Butchell, 3 C. & P. 629, 631. See, also, R. V. Forester, 4 Post. & Fin. 859, per Bjies, J.; 10 Cox, 368, S. C; E. v. Osman, 15 Cox, 1, per Lush, L. J. » R. V. Reaney, Dear. & Bell, 151; 26 L. J., M. C. 43; 7 Cox, 209, S. C. * R. V. Hubbard, 14 Cox, 565, per Hawkins, J. ^ In R. V. Woodcock, 1 Lea. 500, the declarations were made two days before death; in R. v. Bonner, 6 C. & P. 386, three days; in R. v. Whitwortb, 1 Post. & Fin. 382, six days; in R. v. Tinckler, 1 East, P. C. 354, ten days; in R. V. Reaney, Dear. & Bell, 151; 26 L. J., M. C. 43; 7 Cox, 209, S. C; in R. V. Mosley. 1 Moo. C. C. 97, eleven days; and in R. v. Bernadotti, 11 Cox, 316, coram Brett & Lush, Js., nearly three weeks; yet they were all received. In R. V. Mosley, and in R. v. Whitworth, it appeared that the surgeon did not think the case hopeless, and told the patient so: but the patient thought otherwise. See, also, R. t-. Peel, 2 Post. & Fin. 21; R. v. Howell, 1 C. & Kir. 689; 1 Den. 1, S. C. « Alison, Pract. Cr. L. 510—512, 604—607; 2 Hume, Com. 391— 393 ;1 1 Dickson, Ev. 66, 67. The same laAv seems to have prevailed in England a century ago. See R. v. Blandy, 18 How. St. Tr. 1137. ' Gr. Ev. I 159, in part. ^ R. v. Sellers, Carr. Cr. L. (3498) CHAP. XIII.] WHAT DYING DECLARATIONS ARE ADMISSIBLE. 631 the manner of interrogating a witness in the cause, though any departure from this mode may affect the credibility of the declara- tions. Therefore, in general, it is no objection to their admissibility, that they were made in answer to leading questions,' or obtained by earnest solicitation.' But where a statement, ready written, was brought by the father of the deceased to a magistrate, who accordingly went to the deceased and interrogated her as to its accuracy, paragraph by paragraph, it was rejected in Ireland by Mr. Justice Crampton, who observed that, " in the state of languor in which dying persons generally are, their assent could be easily got to statements which they never intended to make, if they were but ingeniously interwoven by an artful person with statements which were actually true;" and his lordship added, "the magis- trate should not have trusted to the relation of a third person, but should have taken down the deceased's declaration from her own lips, or at least have had it taken down in his presence." ^ When the declarations have been properly made, the right to ofler them in evidence is not restricted to the prosecutor, but they are equally admissible in favoui* of the accused.* ( § 721.^ Whatever the declaration may be, it must be complete in | 651 itself; for, if the dying man appears to have intended to qualify it by other statements, which he is prevented by any cause from making, it will not be received. '^ Again, it has been held in one case, — though with very questionable propriety so far as relates to the rejection of oral evidence, — that if the statement were committed to tcriting at the time it was made, this writing must be produced, or its n on -production acounted for; and that neither a copy, nor parol evidence of the declaration, can be admitted in the first instance to supply the omission.' But whei'e 1 E. V. Smith, L. & Cave, 607; 10 Cox, 82; 34 L. J., M. C. 153, S. C. ^ R. V. Fagent, 7 C. & P. 238; 11. v. Reason, 1 Str. 499; 16 How. St. Tr. 1, 24, et seq., S. C; Com. v. Vass, 3 Leigh, R. 786; R. v. Whitworth, 1 Fost. & Fin. 382. => R. v. Fitzgerald, Ir. Cir. R. 168, 169. * R. V. Scaife, 1 M. & Rob. 551; 2 Lew. C. C. 150, S. C. The same law pre- vails in Scotland, 2 Hume, Com. 393. * Gr. Ev. I 159 & 161, in part. 6 3 Leigh, R. 797. ' R. V. Gay, 7 C. & P. 230, per Coleridge, J. ; R. v. Reason, 16 How. St. Tr. 1, 24, et seq.; 1 Str. 499, S. C. But see ante, § 415. (3499) 632 VALUE OF DYING DECLARATIONS. [PART II. tliree declarations bad been made at different times on tbe same day, one of wbicb was made under oath to a magistrate, and reduced to writing, but tbe otber two were not, it was held that these last might be proved by parol, though the written statement was not produced.' If the deposition of the deceased has been taken under any of the statutes on that subject, and is inadmissible as such, for want of compliance with some of the legal formalities, it seems that it may still be treated as a dying declaration, if made in extremis.^ § 722.^ Though these declarations, when deliberately made ? 652 under a solemn sense of impending death, and concerning circum- stances wherein the deceased is not likely to be mistaken, are entitled to great weight, if precisely identified; it should always be recollected that the accused has not the po^cer of cross-examina- tion, — a power quite as essential to the eliciting of the truth as the obligation of an oath can be; — and that where a witness has not a deep sense of accountability to his Maker, feelings of anger or revenge, or, in the case of mutual conflict, the natural desire of screening his own misconduct, may affect the accuracy of his statements, and give a false colouring to the whole transaction. Moreover, the particulars of the violence to which the deceased lias spoken are likely to have occurred under circumstances of confusion and surprise, calculated to prevent their being accurately observed, and leading both to mistakes as to the identity of persons, and to the omission of facts essentially important to the completeness and truth of the narrative.* 1 R. V. Reason, 16 How. St. Tr. 1, 24, et seq. ; 1 Str. 499, S. C, Piatt, C. J., dubit. See R. v. Scallan, Craw. & D., Abr. C. 340. 2 R. V. Woodcock, 1 Lea. 502; R. v. Callaghan, McNally, Ev. 385. ^ Gr. Ev. ^ 162, in great part. * Jackson v. Kniffen, 2 Jobns. 35, 36, per Livingston, J.; R. v. Ashton, 2 Lew. C. C. 147, per Alderson, B. See, also, Mr. Evans's observations on the great caution to be observed in the nse of this kind of evidence, in 2 Poth. Obi. 255 (293) ; 2 St. Ev. 367, and 1 Ph. Ev. 292. (3500) CHAP. XIV.] ADMISS. AND CONFESS. SUBSTITUTES FOR PROOF. 633 CHAPTER XIV. ADMISSIONS. § 723.* Under the head of exceptions to the rule rejecting ^ 653 hearsay evidence, it has been usual to treat of admissions and con- fessions; considering them as declarations against interest, and, therefore, as probably true. But in regard to many admissions, and especially those implied from conduct and assumed character, it cannot be supposed that the party, at the time of the principal declaration or act, believed himself to be speaking or acting against his own interest; but often the contrary. Such evidence seems, therefore, more properly admissible as a substitute for the ordinary and legal proof ;^ either in virtue of the direct consent and waiver of the party, as in the case of explicit and solemn admissions, or on grounds of public policy and convenience, as in the case of those implied from assumed character, acquiescence, or conduct. In this light confessions and admissions are regarded by the Roman law, as stated by Mascardus. Illiid igitur in primis, ut hinc potissimum exordiar, non est ignorandum, quod esti con- fessioni inter probationum species locum in proesentia tribuerimus; cuncti tamen fere Dd. unanimes sunt arbitrati, ipsam potius esse ab onere probandi relevationem, quam proprie probationem.^ Many admissions, however, being made by third persons, are receivable on mixed grounds; partly, as belonging to the res gestae, partly. 1 Gr. Ev. § 169, verbatim. ^ As to when the admissions of a party with respect to written instruments may be substituted for the ordinary proof of such instruments by their pro- duction, see ante, ^^ 410 — 414. * 1 Masc. de Prob. qusest. 7, n. 1, 10, 11; Menoch. de Praes., lib. 1, qufest. 61, n. 6; Alciat. de Praes., pars 2, n. 4. The Roman law distinguishes, with great clearness and precision, between confessions extra judicium, and confes- sions in judicio; treating the former as of very little and often of no weight, unless corroborated, and the latter as generally, if not always, conclusive, even to the overthrow of the pra3sumptio juris et de jure; thus constituting an (3501) 634 ADMISSIONS AND CONFESSIONS — DISTINCTION. [PART II. as made against the interest of the person making them, and partly, because of some privity with him against whom they are offered in evidence. § 724.^ In our law, the term admission is usually applied to ciml I 654 transactions, and to those matters of fact, in criminal ca^es, which do not involve criminal intent;^ the term coyifession being gene- rally restricted to acknowledgments of guilt. This distinction will be better understood by an example. Thus, on the trial of Lord Melville, who was charged, amongst other things, with criminal misapplication of moneys received from the Exchequer, the ad- missions of his agent and authorised receiver was held sufficient proof of the fact of such agent having received the public money; though had such admission been tendered in evidence to establish the charge of any misapplication of the money by the noble defendant, it would clearly have been rejected. The law was thus stated by Lord Chancellor Erskine: — " This first step in the proof " (namely, the receipt of the money by the agent, ) " must advance by evidence applicable alike to civil, as to criminal cases; for a fact must be established by the same evidence, whether it is to be followed by a criminal or civil consequence; but it is a totally different question, in the consideration of criminal as dis- tinguished from civil justice, how the noble person now on trial may be affected by the fact when so established. The receipt by the paymaster would in itself involve him civilly, but could by no possibility convict him of a crime." ^ § 724a. As the rules of evidence, respectively applicable to exception to the conclusiveness of this class of presumptions. But to give a confession this effect, certain things are essential, which Mascardus cites out of Tancred: — '' Major, sponte, sciens, contra se, ubi jus fit; Nee natura, favor, lis, jusve repugnet, et hostis." Masc. ub. supr. n. 15; Vid. Dig. lib. 42, tit. 2, de confessis. Cod. lib. 7, tit. 59; Van. Leeuw. Comm. book v. ch. 21. ^ Gr. Ev. § 170, almost verbatim. 2 Ld. Melville's trial, 29 How. St. Tr. 746—764. 3 29 How. St. Tr. 764. (3502) CHAP. XIV.] RULES OF COURT AS TO NOTICES TO ADMIT. 635 admissions and confessions, differ in some respects, the two sub- jects will be discussed in separate chapters. And with regard to Admissions, it will first be convenient to refer to a practice, which of late years has greatly prevailed, of making solemn admissions before a trial for the purpose of dispensing with formal proof. The law on this subject, — after several changes,' — is now embodied in the Eules of the Supreme Court, 1883, Order XXXII. Eule 1 of that Order provides in general terms, that " Any party to a cause or matter may give notice, by his pleading, or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party."' R. 2, — which is almost a re-enactment of the old law, — is con- fined to the admission of documents, and with this view it provides, that " Either party may call upon the 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 be paid by the party so neglecting or refusing, whatever the result of the cause or matter may be, unless at the trial or hearing the court or a judge shall certify that the refusal to admit was reasonable; and no costs of proving any document shall be allowed unless such notice be given, except where the omission to give the notice is, in the opinion of the taxing officer, a saving of expense." R. 3 furnishes a form of " notice to admit documents," in which 1 See Eeg.-Gen. 2 W. 4, reported in 3 B. & Ad. 392, 393; Reg. -Gen., H. T., 4 W. 4, r. 20, reported in 4 B. & Ad., xvii., xviii.; Reg.-Gen., H. T., 1853; 15 & 16 v., c. 76, U in, 118; 16 & 17 V., c. 113, § 118, Ir.; Rule.s of Sup. Ct. 1875, Ord. XXXII., rr. 1 4. For the practice on the Revenue side of the Queen's Bench Division, see Reg.-Gen., 24 V., r. 17; 6 H. & N. xiii. And also, in pro- ceedings under the Public Worship Registration Act, 1874, 37 & 38 V., c. 85, see Reg.-Gen., 22 Feb., 1879, r. 46, and Form 39, cited, L. R., 4 P. D. 261, 284. So, too, in the Court of Probate, see Rules of 1862, for Ct. of Prob. in conten- tious business, r. 72, and Form No. 20. The Rules of 1865, 1869, 1875, 1877, and 1880, for the Ct. of Div. & Mat. Causes, are, ibrsome unaccountable reason, silent on the subject. ^ If a defendant, in an action of .salvage, admits all the facts pleaded in the statement of claim, the plaintiff cannot call evidence in support of any additional facts, except by leave of the court, and on special grounds. The Hardwick, L. R., 9 P. D. 32; 53 L. J., P. D. & A. 23, per Sir James Hannen, S. C. (3503) G36 NOTICES TO ADMIT DOCUMENTS. [part II. the draughtsman has certainly not displayed a striking amount of intelligence/ ^ Form 11, Appendix B., is as follows : — 188 . [Here put the letter and number.'] In the High Court of Justice. Between A. B., plaintiff, Division. and C. D. defendant. Notice filed 188 . 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 l^or ])laintiff] is hereby required, within forty-eight hours from the last- mentioned hour, to admit that such of the said documents as are specified to be originals were respectively written, signed, or executed as they purport respectively to have been; that such as are specified as copies are true copies; 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]. * [Here describe the documents, the manner of doing which may be as Jollows : — ] Originals. Description of Documents. Deed of covenant between A. B. and C. D. first part, and E. F. second part Indenture of lease from A. B. to C. D Indenture of release between A. B., C. D. first part, &c Letter, defendant to plaintiff Policy of insurance on goods by ship " Isabella," on voyage from Oporto to London Memorandum of agreement beween C. D., captain of said ship, and E- F Bill of exchange for 100/. at three months, drawn by A. B. on and accepted by C. D., indorsed by E. F. and G. 11 January 1, 1848. February 1, 1848. February 2, 1848. March 1, 1848. December 3, 1847. January 1, 1848. May 1, 1849. * The references in the above Form to the year 1848, to leases and releases,. to the General Post, to Attorneys, and to the Rolls Chapel, furnish a ludicrous example of the .slovenly mode in which these guides for the use of the Pro- fession have been prepared. (3504) CHAP. XIV.] NOTICES TO ADMIT FACTS. G37 R. 4 is one of an experimental nature, and it may, or may not, attain its object, viz., that of diminishing the expense at the trial. It has thus been framed: — "Any party may, by notice in writing, 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 siiecific fact or facts men- tioned 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 purposes of the particular cause, matter, or issue, and not as an admission to be used against the party on any other occasion, or in favour of any person 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." B. 5 provides, that " A notice to admit facts shall be in the Copies. Original or Duplirate served, Description of Documents. Dates. sent, or delivered, when, how, and by whom. Register of baptism of A.B.in the parish of X. January 1, 1848. Letter — plaintiff to de- fendant February 1, 1848 . . Sent by General Post, February 2, 1848. Served March 2, 1848, on Notice to produce papers March 1, 1848 .... defendant'.s attorney by E. F., of Record of a judgment of the court of Queen's Bench in an action, F. S. V. F. N. ... Trinity Term, 10th Vict. Letters Patent of King Charles II. in the Rolls Chapel January 1, 1680. (3505) 638 ADMISSIONS OF FACTS. [PAHT II. Form No. 12, in Appendix B., and admissions of facts shall be in the Form No. 13 in Appendix B., with such variations as circum- stances may require." ' 1 No. 12. Notice to admit Facts. [Heading as in Form 11, ante, p. 636.] Take notice that the phiintiff [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 plaintiff] 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 Axcts, 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 his only lawful son. 4. That Julius Smith died on the 1st of April, 1876. 5. That Julius Smith never was married. No. 13. Admission of Facts, pursuant to Notice. [Heading as in Form 11, ante, p. 636.] The defendant [or plaintiff] in this cause, for the purposes of this cause only, hereby admits the several facts respectively hereunder specified, subject to the qualifications or limitations, if any, hereunder specified, saving all just exceptions to the admissibility of 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] on 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 plaintiff]. To G H., solicitor [or agent] for the plaintiff [or defendant]. Facts admitted. Qualifications or Limitations, if any, subject to wliicli tiiey are admitted. 1. That John Smith died on the 1st of January, 1870. 1. 2. That he died intestate. 2. 3. That James Smith was his law- 3. But not that he was his only law- ful son. ful son. 4. That Julius Smith died. 4. But not that he died on the 1st of April, 1876. 5. That Julius Smith never was married. 5. (3506) CHAP. XIV.] ADMISSIONS OF DOCUMENTS OR FACTS, IIOW PROVED. G39 R. 6 provides, that " any party may at any stage of a cause or matter, where admissions of fact have been made, either on the pleadings, or otherwise, apply to the court or a judge for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties ; and the court or a judge may upon such application make such order, or give such judgment, as the court or judge may think just." R. 7 provides, with respect to the mode of proof, that " an affidavit of the solicitor or his clerk, of the due signature of any ad- missions made in pursuance of any notice to admit documents or facts, shall be sufficient evidence of such admissions, if evidence thereof be required ;" and by virtue of R. 9, the costs occasioned by any notice to admit unnecessary documents, " shall be borne by the party giving such notice." § 724b. In contrasting Rules 2 and 4 as cited above, it will be seen that while the latter specifies the respective times allowable for giving notice to admit, and for admitting, facts, the former, which relates to documents, is silent on both those points. For this reason,^and indeed for many more, which will occur to an intelligent lawyer, — a reference to a few cases, which were decided on the construction of the former rules, may still be of service. And, « 704 first, it has been held, that, though the notice to admit documents must be given a reasonable time before trial, yet, where it was given to the defendant's agent in town only four days before the commis- sion day at Newcastle, — and he two days afterwards refused to admit the documents without objecting to the sufficiency of the notice, or requiring further time, — the plaintiff was entitled to the costs of proof. ^ Secondly, though the admission be made " with a saving of all just exceptions," it so far recognises the general character and accuracy of the documents, that no objection can subsequently be taken to the authenticity of any part of them," or to their reception in evidence on the ground of any interlineation, however material. » Tinn v. Billingsley, 2 C. M. & R. 253 ; 3 Dowl. 810, S. C. ^ Hawk V. Freuud, 1 Fost. & Fin. 294, per Byles, J. ' (3507) 640 DECISIONS RESPECTING NOTICES TO ADMIT. [pART II, appearing upon them.' If this were not so, great inconveniences would follow; for as one main object of inducing a party to admit under notice, is to dispense with the necessity of formal proof of the instrument, it would obviously open a door to fraud, if the party admitting were at liberty afterwards to object to an interlineation, which the attesting witness might alone be enabled to explain.^ So, Avhere a deed was admitted as " the counterpart of a lease," an objection taken at the trial, that it was in fact a lease, and as such inadmissible for want of a sufficient stamp,^ was overruled ; * and where a party admitted an instrument, which was specified in the notice as bearing date the 10th August, he was not allowed to call on his opponent for an explanation, though on the production of the instrument it was evident that the date" August" had been written on an erasure.^ § 724c. Thirdly, a variance in the description of the document, ? 705 if not of a nature to mislead, will not release the admitting party from his obligation; as, for instance, where the date of a promissory note, which was otherwise correctly described in the notice to admit, was misstated.® Fourthly, it seems that a party will not be entitled to the costs of proving any document specified in the notice, unless the witness called to establish this proof has, at least in his examination in chief, been questioned to no other fact.^ Fifthly, when a notice is given to admit documents, all that can fairly be asked is, that the handwriting or due execution of the papers specified should be admitted ; and, therefore, where a plaintifF in- cluded in his notice a demand to admit the authority by which the documents had been written, and afterwards, on the defendant re- fusing generally to make the admission as prayed, proved the documents at the trial, it was held that he could not recover from his opponent the costs of such proof.* 1 Freeman v. Steggall, 14 Q. B. 202. 2 Id, 203, per Coleridge, J. 3 See noil' 33 & 34 V., c. 97, ? 93, and Sch. Tit. " Duplicate." * Doe V. Smith, 8 A. & E. 255 ; 3 N. & P. 335 ; 2 M. & Rob. 7, S. C. * Poole V. Palmer, C. & Marsh. 69, per Rolfe, B. « Field V. Hemming, 7 C. & P. 619, per Ld. Abinger ; 5 Dowl. 450, S. C, nom. Field v. Flemming ; Bittleston v. Cooper, 14 M. & W. 399. ^ Stracey v. Blake, 7 C. & P. 404, per Ld. Abinger. 8 Oxford, Wore, & Wolverh. Ry. Co. v. Scudamore, 1 H. & N. 666. (3508) CHAP. XIV.] DECISIONS RESPECTING NOTICES TO ADMIT. G41 § 724d. Sixthly, it is needless to show that the aclmitting party g 70.") has actually examined the documents mentioned in the notice, if he has had an opportunity of doing so;^ and it seems to be unneces- sary to identify the document produced at the trial with the one inspected, provided that it corresponds with the description con- tained in the notice." On two occasions, however, the necessity for such evidence was urged by counsel, if not acknowledged by the court ;^ and prudence may generally dictate the propriety of being prepared with such proof, or, at least, of having the documents that are to be produced signed or marked by the party making the admission. Seventhly, though the notice to admit contain no saving of all just exceptions, the party admitting may still rely on any valid objection to the admissibility of a document specified in it; and, therefore, where a plaintiff admitted that a paper was a copy of a letter from himself to a defendant, who had suffered judgment by default, this did not entitle the other defendant to put in the copy, without first accounting for the non-production of the original, or tracing it to the plaintiff's possession, and proving the notice to produce. The judge's order in that case, which served the same purpose as the present notice to admit, merely secured the accuracy of the secondary evidence, but did not give it the effect of primary proof.* § 724e. Lastly, Rule 2 extends to every document which a party § 706 purposes to adduce in evidence, whether or not it be in his custody or control,^ and whether or not it be put in issue by the pleadings.® Neither will the case be varied though the opposite party may have already, irrespective of the notice, refused in positive terms to make any admission on the subject.' A party may even, as it ^ Doe V. Smith, 8 A. & E. 264, 265, per Patteson and Coleridge, Js. * Id. per Coleridge, J., who observed, that " to require such evidence would be multiplying proofs, so as to defeat the rule of court." 3 Clay V. Thackrah, 9 C. & P. 53, coram Ld. Denman; Doe d. Tindal v. Roe, 5 Dowl. 420, per Ld. Abinger. * Sharpe v. Lamb, 11 A. & E. 805, 807; 3 P. & D. 454, S. C. See Goldie V. Shuttleworth, 1 Camp. 70; Rochfort v. Sedley, 12 Ir. Law R., N. S., App. iv. ^ Rutter v. Chapman, 8 M. & W. 388. « Spencer v. Barough, 9 M. & W. 425. ' Id, (3509) 642 CAUTION REQUISITE IN ADMITTING UNDER NOTICE. [PAET II. would seem, be served with notice to admit a foreign judgment, or other documents in a foreign court, provided that his opponent will give him time to inspect them abroad, and pay his expenses incurred in so doing.' Still, the rules do not apply where ancient records of a public nature require, not proof, but translation and explanation, or where affidavits which have been filed must be produced by an officer; and, consequently, a plaintiff was held entitled to the costs, both of a witness who was called to explain and translate the records, and of an officer of the Court of Chancery who produced the affidavits, though the defendant had not been called upon to admit any one of these documents.^ § 724f. In consenting to admit for the purposes of a trial, care § 707 must be taken, lest, by the words used in the notice to admit, the party admitting should be entrapped into making a larger admis- sion than he intended. The defendant fell into this en-or in the case of Chaplin v. Levy.^ There the holder of a bill of exchange sued the acceptor, and the defendant's solicitor wrote a letter ad- mitting " that the acceptance to the bill on which the action is brought is in the defendant's handwriting." A plea denying the acceptance was afterwards pleaded, but the court held that, not- withstanding this plea, the admission contained in the letter estab- lished a prima facie case on behalf of the plaintiff without the production of the bill itself at the trial. In the case of Wilkes v. Hopkins, a similar mistake was made.* That was an action against three persons on a bill of exchange alleged to have been accepted by them under the style of " The Newbridge Coal Company." The acceptance was traversed by two of the defendants, while the third one. Bishop, who had actually signed the acceptance for the company, suffered judgment by default. At the trial, the two defendants who had pleaded, denied that Bishop had any authority to accept for them; but as the notice to admit stated the bill to have been " accepted by Bishop for the defendants as the Newbridge 1 Smitli V. Bird, 3 Dowl. 641. 2 Bastard v. Smith, 10 A. & E. 213. ' 9 Ex. K. 531. 1 1 Com B. 737. See, also. Hunt v. Wise, 1 Fost. & Fin. 445. (3510) CHAP. XIV.] NOTICE TO ADMIT IN COUNTY COURTS. 643 Coal Company," the court held, that an admission under this notice, not only acknowledged the signature of Bishop, but precluded the defendants from denying that he had authority to bind them by his acceptance. This last decision is certainly one strictissirai juris; and probably it would not be upheld at the present day.^ § 724g. In the County Courts the rule which governs notices to admit is as follows: — " AVhero a party desires to give in evidence any document, he may, not less than five clear days before the trial, give notice'^ to any other party in the action who is competent to make admissions, requiring him to inspect and admit such document; and if such other party shall not within three days after receiving such notice make such admission, any expense of proving the same at the trial shall be paid by him, whatever be the result of the action, unless the court shall otherwise order; and no costs of proving any document shall be allowed unless such notice shall be given, except in cases where, in the opinion of the registrar, the omission to give such notice has been a saving of expense." ^ § 725. Having now explained the practice relating to notices to I 655 admit, it will be convenient to discuss the general law of admis- sions; and here, the first rule important to be borne in mind, is, that the whole statement containing the admission must be taken together; for though some part of it may be favom-able to the party, and the object is only to ascertain what he has conceded against himself, and what may therefore be presumed to be true; yet, unless the whole is received, the true meaning of the party, which is evidence against him, cannot be ascertained.* But though the whole of what he said at the same time, and relating to the same subject, must be given in evidence, it does not follow that all the parts of the statement should be regarded as equally 1 See Pilgrim r. Southampton & Dorchester Ry. Co., 18 L. J., C. P. 330. 2 C. C. R., 187G, Form 288. This Form is the same as Form U of the Rules of the Supreme Court, cited ante, p. 636. ^ C. C. R., 1875, Orel. XIII., r. 9. * Thomson v. Austen, 2 D. & R. 361, per Abbott, C. J. ; Fletcher v. Froggatt, 2 C. & P. 56G, per id. ; Cobbctt v. Grey, 4 Ex. R. 729. 20 L.VW OF EVID.— v. II. (3511) 644 -WHOLE ADMISSION MUST BE TAKEN TOGETHER. [PAET II. deserving of credit; but the jury must consider, under the circum- stances, how much of the entire statement they deem worthy of belief, including as well the facts asserted by the party in his own favour, as those making against him.' § 726. This rule, simple as it appears, is not without difficulty 'i 650 in its practical application; and it will therefore be convenient briefly to refer to a few of the leading decisions on the subject. And, first, the rule applies equally to UTitten, as to verbal, admis- sions; and, consequently, where a defendant has rendered a debtor and creditor account to the plaintiff, which the latter produces in proof of his demand, it will be equally admissible in evidence of the defendant's setoff;^ though the plaintiff will be at liberty, while relying on the creditor side of the account, to impeach items which appear oa the debtor side.'^ Where, however, to an action on an attorney's bill of costs, the defendant pleaded a set-off, and put in an account furnished to him by the plaintiff, in which the plaintiff credited himself for the amount of his bill, and debited himself for the amount of goods sold, the court held that the defendant could not exclude from the consideration of the jury so much of the account as related to the bill of costs, on the ground that no signed bill had been delivered; because the non-delivery of a signed bill does not bar the debt, but merely, if insisted on, prevents its recovery by action.^ § 727. When, under the old system of pleading and practice, the § 657 admission was contained in an affidavit, a written examination,^ a ' Bermon v. Woodbridge, 2 Doug. 788, per Ld. IMansfield; Smith r. Blandy, Ry. & M. 259, per Best, C. J. ; Cray v. Halls, cited id. 258, per Abbott, C. J. See, also, Whitwell v. Wyer, 11 Mass. 6, 10 ; Garey v. Nicholson, 24 Wend. .350; Kelsey r. Bush, 2 Hill, S. Car. R. 440. '' Randle v. Blackburn. 5 Taunt. 245. ^ Rose V. Savory, 2 Bing. N. C 145; 2 Scott, 199, S. C. See Moorhouse V. Newton, 3 De Gex & Sm. .307. * Harrison v. Turner, 10 Q. B. 482. ^ In Prince i: Samo, 7 A. & E. 630, Coleridge, J., asked whether the question had ever been decided as to depositions? To which the counsel replied that no express decision had been found. (.3512) CHAP. XIV.] WHOLE ADMISSION MUST BE TAKEN TOGETHER. G45 signed pleading,^ an answer," or plea,^ in Chancery, or other docu- ment complete in itself, the whole document was required to be read, though the jury were not bound to give equal credit to every part of it, and they frequently lent an academic faith to such portions as made in favour of the declarant.* So stringent was this rule, that where, on exceptions taken, a second answer to a bill in equity had been sent in, the defendant was allowed to insist upon having that also read, in order to explain what he had sworn in his first answer.^ It has also been held that a party, against whom an answer in Chanceiy was produced, might have the whole bill read as part of his adversary's case, on the ground that this was like the ordinary case of a conversation, where the answers of a party could not be given in evidence against him without also proving the questions which drew forth the answers.** The jury, however, might in such case be warned, that the statements in the bill were not admissions of the facts contained therein ; it being notorious that allegations, not consistent with fact, were frequently introduced into a bill, for the sole purpose of eliciting truth from the opposite party.' § 728. In Goss i\ Quinton,^ where the plaintiffs, who were ^ 658 assignees of a bankrupt, gave in evidence an examination of the defendant before the commissioners, as proof that he had taken certain property, the court held that they thereby made his ' Marianski r. Cairns, 1 IVIacq. Sc. Cas. H. of L. 212. In the Supreme Court the rule respecting the signing of pleadings, is as follows: — "Signa- ture of counsel shall not be necessary ; but when pleadings have been settled by counsel or a special pleader, they shall be signed by him ; and if not so settled, they shall be signed by the solicitor, or by the party if he sues or defends in person." Sup. Ct. Rules. 1883, Ord. XIX., R. 4. 2 See Cons. Ord. Ch. 1860, Ord. xv., rr. 5, 6. ^ Pleas in Chancery, Avhere the matter of the plea did not appear upon record, must have been upon oath, and be signed by the parties pleading. Cons. Ord. Ch. 1860, Ord. xiv., rr. 2, 3. * Bermon r. Woodbridge, 2 Doug. 788, per Ld. Mansfield ; Blount v. Burrow, 4 Br. C. C. 75, per Ld. Hardwicke ; Baildon r. Walton. 1 Ex. R. 617; Percival v. Caney, 4 De Gex & Sm. 623, 624, per Knight-Bruce, V.-C. » R. V. Carr, 1 Sid. 418 ; B. N. P. 237; Ld. Bath v. Bathersea, 5 Mod. 10 ; Lynch v. Gierke, 3 Salk. 154. « Pennell v. Meyer, 2 M. & Rob. 98, per Tindal, C. J.; 8 C. & P. 470, S. C. ■Id. « 3 M. & G. 825. (3513) 64:6 WHOLE ADMISSION MUST BE TAKEN TOGETHER. [PART II. cross-examination evidence in the cause : and as, in this cross- examination, the defendant had staled that he had purchased the property under a written agreement, a copy of which was entered as part of his answer, this statement was considered as some evidence on his behalf of the agreement and its contents ; and that too, though the absence of the document was not accounted for, nor had notice been given to the plaintiifs to produce it. So, where a magistrate was sued in trespass for assault and false im- prisonment, the warrant of commitment put in evidence by the plaintiff was held to be admissible on behalf of the defendant, as proof of the informalion recited in it ;' and in an action against a sheriff, where an undersheriff's letter was produced by the plaintiff to affect the defendant, it was held to be some evidence also of certain facts stated therein, which tender to excuse the sheriff.' § 729. The Case of Bessey v. "Windham^ purports to have been § 659 decided on the same principle. There, in order to fix a sheriff in an action of trespass, the plaintiff put in the warrant under which the seizure was made ; and as this recited the writ of fi. fa , the Court of Queen's Bench held that it was some evidence of the writ, and, consequently, that it tended to protect the sheriff, as showing that the seizure was made by the authority of the law. The Court of Common Pleas, however, on a more recent occasion,* has questioned this decision, on the ground that the warrant was offered in evidence, not as proof of the facts recited in it, but merely to show that the sheriff had ordered the goods in question to be seized. And it seems to be now tolerably clear from several authorities, that where a sheriff" or bailiff seeks to justify a seizure as against any party but the execution-debtor, he must produce both the writ of execution and the judgment, and he cannot be 1 Ilaylock v. Sparke, 22 L. J., M. C. 67 ; 1 E. & B. 471, S. C. This case seems to overrule Stephens v. Clark, 2 M. & Rob. 435, per Cresswell, J. ' Haynes v. Hayton, 6 L. J., K. B. (O. S.), 231, recognised in Bessey u- Windham, 6 Q. B. 172. 3 6 Q. B. 1G6. See Ogden v. Hesketh, 2 C. & Kir. 772. * White V. Morris, 11 Com. B. 1015. See, also, Bowes v. Fo.ster, 27 L. J,, Ex. 2G3, per Watson, B. (3514) CHAP. XIV.] RULE AS TO READING OLD ANSWERS IN CHANCERY. G4T relieved from offering such proof, by any recital in the warrant which his opponent may put in evidence.' § 730. The rule requiring the whole statement containing the ? 6G0 admission to be taken together, has long pevailed to a considerable extent in equity ; and therefore, where a defendant had been examined on two days before commissioners of the Court of Bankruptcy, and the plaintifP read the examination taken on the first day, he was compelled to read that also which was taken on the second day;^ and where a plaintiff in equity read that part of the defendant's account-book, which charged the latter, the de- fendant was allowed to read the discharging part as evidence for himself.^ With respect, however, to the old ansicers and examina- tions in Chancery, —which have now been superseded by statements of defence and answers to interrogatories, — the equity rule was far less comprehensive than that which was recognised at common law; and although, if a party in equity admitted in his examina- tion or answer, that he had received a sum, and then added in the same sentence that he had immediately paid it away, — or if he stated in a still more general form, that a person gave him lOOZ. as a present, — the charge and the discharge would be so blended together, that the one could not be admissible without the other ; * still, if he once admitted the receipt of money as an independent fact, he could not refer to other parts of his examination or answer, much less to affidavits sworn by him, or to schedules attached to his answer, for the purpose of showing that he had liquidated the amount so admitted to have been received, by separate and inde- pendent payments.^ So, if a plaintiff read a passage in the answer 1 White I'. Morris, 11 Com. B. 1015; Glare v. Wentworth, 6 Q. B. 173, n. per Parke, B. ; Martin v. Podger, 5 Burr. 2631 ; Lake v. Billers, 1 Ld. Kay. 733. 2 Smith r. Biggs, 5 Sim. 391, per Sliadwell, V.-C. ^ Carter v. Ld. Coleraine, cited in 2 Ball & B. 384; Blount v. Burrow, 4 Br. C. C. 75, per Ld. Hardvvicke. * Ridgeway r. Darwin, 7 Ves. 404, per Ld. Eldon; Thompson r. Lambe, id. 588, per id.; Robinson v. Scotney, 19 id. 584, per Sir W. Grant, M. R. ; B. N. P. 237. See, also, Awdley v. Awdley, 2 Vern. 194 ; Hampton v. Spencer, id. 2"<8; Freeman v. Tatham, 5 Hare, 329. ^ Cases cited in last note. (3515) 648 RULE AS TO ANSWERS TO INTERROGATORIES. [PART II. as evidence of a particular fact, the defendant could not read other parts, even though grammatically connected with such passage by conjunctive particles, unless they were really explanatory of its meaning; ' and if, in order to understand the sense of the passage on which the plaintiff relied, it was necessary to read on the part of the defendant other portions of the answer, still these portions would be evidence only so far as they were explanatory; and any new facts introduced therein, though so immediately connected with the parts admitted as to be incapable of subtraction, would be con- sidered as not read." This rule seems to have been adopted in conse- quence of the subtle contrivances of equity draftsmen, whose skill formerly consisted in so grammatically blending important points of the defendant's case with admissions that could not be with- held, as to render it necessary that both should be read in con- junction, and thus to prove their client's case by means of his own unsupported statements/ The oats and tares were reaped together. § 731. In accordance with the practice in equity as explained in the preceding section, the Rules of the Supreme Court, 1883, have provided by Order XXXI., Rule 24, that " any party may, at the trial of a cause, matter, or issue, use in evidence any one or more of the answers or any part of an answer of the opposite party to interrogatories without putting in the others or the whole of such answer: Provided always, that in such case the judge may look at the whole of the answers, and if he shall be of opinion that any others of them are so connected with those put in that the last mentioned answers ought not to be used without them, he may direct them to be put in." § 732. Though the whole of a document may, as a general rule, § 661 be read by the one party, when the other has already put in evi- dence a partial extract,^ this rule will not warrant the reading of ^ DaA'is V. Spurling, 1 Ru.ss. & Mj\. 68, per Leach, M. R. 2 Bartlett v. Gillard, 3 Ru.ss. 1.56, per Ld. Eldon. ^ Gresl. Ev. 13. * R. V. Queen's Cy. Js., re Feehan, 10 L. R. Jr. 294. (3516) CHAP. XIV. J DISTINCT ENTRIES — DISTINCT MATT. IN CONVERSATION. 649 distinct entries in an acconnt-book/ or distinct paragraphs in a newspaper," unconnected with the particular entry or paragraph relied on by the opponent; nor will it render admissible bundles of proceedings in bankruptcy, entries in corporation-books, or a series of copies of letters inserted in a letter-book, merely because the adversary has read therefrom one or more papers, or entries, or letters.^ If, indeed, the extracts put in expressly refer to other documents, these may be read also; but the mere fact, that the remaining portions of the papers or books may throw light on the parts selected by the opposite party, will not be sufficient to warrant their admission; for such party is not bound to know whether they will or not; and moreover, the light may be a false one.* § 733, The same rule prevails in the case of a conversation, in ^ G62 which several distinct matters have been discussed; and although it was at one time held, on high authority, that if a witness were questioned as to a statement made by an adverse party, such party might lay before the court the whole that was said by him in the same conversation, even matter not properly connected with the statement deposed to, provided only that it related to the subject- matter of the suit:^ yet, a sense of the extreme injustice that might result from allowing such a course of proceeding, has induced the courts, in later times, to adopt a stricter rule; and if a part of a conversation is now relied on as an admission, the adverse party can give in evidence only so much of the same conversation as may explain or qualify the matter already before the court. "^ The case in which this decision was pronounced admirably illustrates its propriety and justice. It was an action against the defendant for having maliciously arrested the plaintiff for debt, the plaintiff contending that the advance had been a gift and not a loan. A ' Catt V. Howard, 3 Stark. R. 6, per Abbott, C. J. ; Reeve v. Wliitmore, 2 Drew. & Sm. 446. '^ Darby v. Ouseley, 1 H. & N. 1. 3 Sturge V. Buchanan, 10 A. & E. 598; 2 M. & Rob. 90, S. C. ♦ Id. 600, 605, per Ld. Denman. 5 The Queen's case, 2 B. & B., 297, 298, per A})bott, C. J. « Prince, v. Samo, 7 A. & E. 627, 634, 635. (3517) C50 LETTERS WHEN ADMISSIBLE WITHOUT ANSWERS. [pART 11. witness for the plaintiff acknowledged on cross-examination, that he had heard the plaintiff admit on oath, that he had repeatedly been insolvent, and had been remanded by the Insolvent Debtors' Court; whereupon he was asked in re-examination whether the plaintiff had not, on the same occasion, expressly stated that the money was given to him, and not lent. The court, in holding that the answer to this question was not evidence, observed, that if it were, "the jury would be bound to consider it, and might give full effect to it, and thus award large damages for an injury, of which no particle of proof could be found but the plaintiff"'s own assertion; " and they added, that " the reason of the thing wQuld rather go to exclude the statements of a party making declarations which cannot be disinterested." ' § 734. With regard to letters, it has been held that a party may g 663 put in such as were written by his opponent, without producing those to which they were answers, or calling for their production; because, in such a case, the letters to which those put in were answers are in the adversary's hands, and he may produce them, if he thinks them necessary to explain the transaction.' But if a plaintiff puts in a letter by the defendant, on the back of which is someting written by himself, the defendant is entitled to have the whole read;^ and where a defendant laid before the court several letters between himself and the plaintiff, he was allowed to read a reply of his own to the last letter of the plaintiff, it being considered as a part of an entire corespondence,* § 735. Questions not unfrequently arise as to the admissibility § 664 of letters, account books, &c., which are tendered as admissions, in cases where their existence or contents have been discovered by means of a compulsory examination or answer of the party either in previous bankruptcy proceedings, or in some other legal inquiry; 1 Prince V. Sanio, 7 A. & E. 627, 634, 635. ^ Ld. Bairymore r. Taylor, 1 Esp. 326, per Ld. Kenyon; De Medina v. Owen, 3 C. & Kir. 72, per Parke, B. 3 Dagleish v. Dndd, 5 C. &. P. 238, per Taunton, J. * Eoe t'. Day, 7 C. & P. 705, per Park, J. (3518) CHAP. XIV.] DOCUMENTS RliFEUKED TO IN PREVIOUS EXAMONS. 051 and it is often contended in such cases that the documents cannot be read, without first producing the examination or answer. On one or two occasions at Nisi Priu?, this objection has prevailed; ' but the judges in Banc have since decided that, — whatever the correct doctrine may be with respect to documents referred to in an exami- nation or answer, and actually annexed thereto, — no rule of law will, in other cases, compel a party to treat the document on which he relies as part of a previous examination or answer." "It was sur- mised," said Lord Denman, — while pronouncing the judgment of the court in Sturge i\ Buchanan, — "that an unfair advantage had been taken of tlie defendant in obtaining a knowledge of these letters through a suit in Chancery, and then producing them without the answers, which may have greatly qualified and altered their eifect. But I cannot think that a judge at Nisi Prius has anything to do with these considerations: he is to inquire only whether due notice has been given; whether the documents have been proved to exist; whether copies are well proved."^ § 736. Lord Tenterden has even expressed a doubt whether, in ? (JGr the event of a document being annexed to an old answer in Chancery, the answer need be read, if it have no connexion with the cause in which the document is produced.* If, however, the letter in ques- tion be not written by the party against whom it is offered, though contained in the schedule of his answer, and if it be merely used against him, as raising an inference from possession that he knew of its contents, and had acted upon it, common fairness seems to dictate, — in conformity with a decision of Chief Juf^tice Tindal,'"^ — that the letter should not be read without the answer; for the answer of the party might contain such an explanation of the circumstances under which the letter came into his possession, as also such a con- tradiction of any passages in it which seemed to bear against his ^ Yates V. Carnsew, 3 C. & P. 99, per Ld. Tenterden; Holland v. Reeves, 7 C. & P. 36, per Alderson, B. •^ Long V. Champion, 2 B. & Ad. 284; Sturge v. Buchanan, 10 A. & E. 605. * 10 A. & E. 605. * Long V. Champion, 2 B. & Ad. 286. 5 Hewitt v.- Piggott, 5 C. «& P. 75, 77. (3519) G52 WHETHER admissions of hearsay are evidence, [part ii. rights, as utterly to neutralise its effect. If a party, while making a verbal admission, refers to a written paper, without which the admission is incomplete, the paper should be produced, before the statement can be used as evidence against him.' § 737.^ Where the admission, whether oral orin writing, contains ? 666 matters stated as mere hearsay, it may be questionable whether such matters can be received in evidence If tendered against the party making the statement, they are clearly entitled to very little weight, and unless coupled with a further admission, that he be- lieves them to be true, they would seem, like hearsay declarations against interest,^ to be inadmissible. But does the same rule hold, when they are oflered in favour of the party making the admission, as tending to explain the statement which tells against him? Mr. Justice Chambre on one occasion thought that it did, contending that where a party had read a part of the answer which his opponent had pleaded to a bill filed for discovery, " he did not thereby admit as evidence all the facts which happened to have been stated therein by way of hearsay only." * Notwithstandiog this auihority, it may perhaps be urged with success, that, since the answer in that case was offered as the admission or the party against whom it was read, the whole should have been laid before the jury, for the purpose of showing under what impressions the admission was made, though some part of it were stated only upon hearsay and belief. § 738. The rule requiring the whole admission to be taken ?. 667 together is so important, that the judge will do well to explain dis- tinctly to the jury its bearing and extent, whenever any portion of the statement is favourable to the party against whom it is read; but his neglecting to do so in a case where it is clear that the jury, ' Jacob?'. Ivindsay, 1 East, 460; Falconer v. Hanson, 1 Camp. 171; 1 Ph. Ev. 341. ^ Gr. Ev. ^ 202, in part. 2 Ld. Trimblestown v. Kemmis, 9 CI. & Fin. 780, 784—786; ante, § 685. * Roe V. Ferrars, 2 B. & P. 518. (3520) CHAP. XIV. ] VERBAL ADMISSIONS NOT PUT IN ISSUE. 653 in fact, took the whole into their consideration, will not amount to such a misdirection as to warrant a new trial.' § 739. A second rule respecting admissions is, that they are re- ? 668 ceivable in evidence though they relate to the contents of a itritten instrument, even when such contents are directly in is&ue ;" but as this rule has already been discussed, it is needless to do more in this place than thus shortly to refer to it ^ The Courts recognise a third rule, in rejecting, or, at least, in placing no reliance upon, any verbal admissions or declarations of the parties, ichich are not put directly in isstie by the j^leadings, and which, consequently, have not been open to explanation or disproof.* This doctrine rests upon the ground, that the reception of such evidence would facilitate the production of false testimony;^ and although it does not strictly extend to written admissions, yet the fact of their not being put in issue by the pleadings will naturally detract from their weight, as the party against whom they are oifered in evidence will, in such case, have had no opportunity of explaining them.*^ § 740.' With respect to the person, ivhose admissions may be I 669 received, the general doctrine is, that the declarations of a party to the record, or of one identified in interest ivitli him, are, as against such party, receivable in evidence;^ but if they proceed from a stranger, who is still living, they are almost uniformly rejected;' » Beckham v. Osborne, 6 M. & Gr. 771. 2 Slatterie v. Pooley, 6 M. & W. 664. * Ante, II 410 — 415. See, also, ante, ? 413, as to the admissibility of a confessio juris. * Austin V. Chambers, 6 CI. & Fin. 1, 38, 39; Attwood v. Small, id. 234; Copland v. Toulmin, 7 id. 350, 373, 375. 5 6 CI. & Fin. 39, per Ld. Cottenham. 6 McMahon v. Burchell, 2 Phil. 127, 132, 133; 1 Coop. R. temp. Ld. Cottenham, 475, S. C, and cases cited in n.; Crosbie r. Thompson, 11 Ir. Eq. K. 404, per Brady, C. ; Swift c. M'Tiernan, id. 602, per id.; Malcolm v. Scott, 3 Hare. 39, 63; and see Margareson r. Saxton, 1 Y. & C, E.x. R. 529; Fitzgerald V. O'Flaherty, 2 Moll. 394, n.; and Steuart v. Gladstone, 47 L. J., Ch. 423, per Fry, J.; L. R., 10 Ch. D. 626, 644, S. C. ^ Gr. Ev. I 171, in part. « Spargo V. Brown, 9 B. & C. 938. per Bayley, J. 3 Barongh r. White, 4 B. & C. 328, per Littledale, J. As to when they are admissible, see post, H 759 — 765. (3521) 054 ADMISSIONS BY NOMINAL PLAINTIFF REJECTKD. [PART 11. and, though he be dead, they cannot in general be admitted, unless upon some of the tpecial grounds already considered.' In holding that the admissions of parties to the record are receivable in evidence, it matters not whether such admissions were made before or after the party had arrived at full age; and, there- fore, if an action be brought against an adiilt for necessaries supplied to him during his minority, admissions made, and letters written, by him while under age, may be proved on behalf of the plaintifif.^ § 741. Contrary to the practice which formerly prevailed at common law, the courts now recognise a wide distinction between nominal and real parties; and, therefore, if the consignee of goods uses the name of the consignor in proceeding against a shipper, or if the assignee of a bond sues the obligor in the name of the original obligee, or if the cestui que trust brings an action in the name of his trustee. Courts of J»]isi Prius, recognising the prin- ciples of equity, will reject the admission of the nominal plaintiff as evidence for the defendant.^ Thus, although a receipt in full may have been given by the nominal plaintiff to the defendant, the parties really interested may show to the jury that the money has in fact never been paid :* and if a release from a nominal plaintiff were pleaded in bar, a prior assignment of the cause of action, with notice thereof to the defendant, and an averment that the suit was prosecuted by the assignee for his own benefit, would be a good answer. Nor would the nominal plaintiff be permitted, in any manner, injuriously to affect the rights of his assignee in an action." § 742. Again, the declaration of a prochein amy or guardian will ? 67.5 not be receivable in evidence, because these persons, though their ' Ante, ? 607. 2 O'Neill V. Kead, 7 Ir. Law R. 434. See 37 & 38 V., c. 62. * See Payne v. Rogers, 1 Doug. 407; Legh v. Legh, 1 B. & P. 447; Innell v. Newman, 4 B. & A. 419; Hickey v. Burt, 7 Taunt. 48; Mounstcphen v. Brooke, 4 Chit. R. 390; Manning v. Cox, 7 Moore, 617; Barker ??. Richardson, 1 Y. & J. 362; Johnson v. Holdsworth, 4 Dowl. 63. * See Wallace v. Kelsall, 7 M. & W. 273, 274, per Parke, B., explaining the decisions in Skaife v. Jackson, 3 B. «& C. 421, and Farrar v. Hutchinson, 9 A. & E. 641; 1 P. &D. 437, S. C. ^ See Welch v. Mandeville, 1 Wlieat. 233; Mandeville v. Welch, 5 Wheat. 277, 283. (3522) CHAP. XIV. J AD:MISSrON BY A PARTNER OR CO-OBLIGOR. 655 names appear on the record, are not in fact parties to the action, but are considered as ofificers of the court specially appointed by the judges to look after the interests of the infant.' A solemn admission, however, made by a guardian or prochein amy in good faith in a pending suit, for the purpose of that trial only, is governed by other considerations, and will be equally admissible with like admissions made by the solicitor in the cause." § 743, When several persons are jointly interested in the subject- ? (^74 matter of the suit, the general rale is, that the admissions of any one of these persons are receivable against himself and fellows, whether they be all jointly suing or sued, or whether an action be brought in favour of or against one or more of them separately; provided the admission relate to the subject-matter in dispute, and be made by the declarant in his character of a person jointly interested with the party against whom the evidence is tendered.^ Thus, the representation or misrepresentation of any fact made by one partner, with respect to some partnership transaction, will bind the firm;* and if partners bring an action as on a joint contract, an admission by one of them that the subject-matter of the contract was his separate property, will render the plaintiffs liable to a nonsuit,^ unless the case be such as to warrant an amend- ment at the trial under Order XVI. R. 11, of the Siipreme Court Rules, 1883.'^ So, where it appeared on the record, that an agree- ment sued on was made by the plaintiff on behalf of himself and the other proprietors of a theatre, statements made by one of such pro- prietors were admitted on the part of the defendant.' And where 1 Eccleston v. Speke, alias Petty, 3 Mod. 258; Cowling v. Ely, 2 Stark. R. 366, per Abbott, J. ; Webb v. Smith, Ry. & M. 106, per Littledale, J. ; Morgan V. Thome, 7 M. & W. 408, per Parke, B. ; Sinclair v. Sinclair, 13 M. & W. 640, 646; Eccles v. Harrison, 6 Ec. & Mar. Cas. 204. These cases overrnle James r. Hatfield, 1 Str. 548. See Doe v. Roberts, 16 M. & W. 778, cited ante, ^ 605. '^ See post, § 772. 3 WhitcombiJ. Whiting, 2 Doug. 652; 1 Smith, L. C. 555, S. C; Wood v. Braddick, 1 Taunt. 104, * Rapp V. Latham, 2 B. & A. 795; Thwaites v. Richardson, Pea. R. 16; Nicholls v. Dowding, 1 Stark. R. 81, per Ld. EUenborough. 5 Lucas V. De la Cour, 1 M. & Sel. 249. « Cited ante, g 223. ' Kemble v. Farren, 3 C. & P. 623, per Tindal, C. J. (3523) 656 LORD TENTERDEN'S act. [pakt II. the obligee of a bond filed a bill against two joint and several obligors, alleging that the bond had been delivered up to one of them by mistake, and pra} ing that he, the obligee, might recover the amount due on it, an admission by the party to whom the bond was given up, that it had been delivered to her by mistake, was held to be evidence against the co obligor, though the joint answer of the defendants had traversed the allegation as to mistake, and, simply admitting the delivery of the bond, had stated that the party to whom it was given up had destroyed it' § 744. This doctrine, however, has been much restricted by the § G75 Legislature, and is now rendered wholly inapplicable to cases where joint, or joint and several, debts have been barred by the Statute of Limitations. The first blow aimed at the rule was struck by Lord Tenterden's Act," which, — after enacting that " in actions of debt, or upon the case grounded upon any simple con- tract, no acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing contract, whereby to take any case out of the operation of the enactments" contained in the old Statute of Limitations,^ or to deprive any party of the benefit thereof, unless such acknowledgment or promise shall be made or contained by or in some writing, to be signed by the party chargeable thereby,'''' — goes on to provide, "that where there shall be two or more joint-contractors, or executors or administrators of any contractor, no such joint-contractor, executor, or adminis- trator, shall lose the benefit of the said enactments or either of them, so as to be chargeable in respect or by reason only of any written acknowledgment or promise made and signed by any other or others of them:* Provided alicays, that nothing herein contained si tall alter, or take away, or lessen the effect of, any pay- ment of any xmncipal or interest made by any pterson ivhatsoecer : provided also, that in actions to be commenced against two or more such joint-contractors, or executors, or administrators, if it shall ' Crosses. Bedingfield, 12 Sim. .35. ^ 9 G. 4, c. 14, 'i 1. See ante, ? 600. Similar restrictions prevail in Ireland; see 16 & 17 V., c. 113, ^ 24; and in Massachusetts; see Kev. Stat. c. 120, I 14. 3 21 J. 1, c. 16. * See ante, U 600, 601. (3524) CHAP. XIV.] :mp:rcantili-: law amendment act, 1S5G. 657 appear at the trial, or otherwise, that the plaintiff, thongh barred by" the said Act of Jac. ],' "or this Act, as to one or more of sxich joint contractors, or executors, or administrators, shall nevertheless be entitled against any other or others of the defendants, by virtue of a new acknowledgment or promise or otherwise, judgment may be given and costs allowed for the plaintiff as to such defendant or defendants against whom he shall recover, and for the other defendant or defendants against the plaintiff^ § 745. This enactment was open to two objections ; for, in the § 67() first place, it required that the written acknowledgment should be personally sigaed by the party chargeable ; and next, it left untouched the law which allowed part payment by one of several co-debtors to operate as a bar of the statute with respect to the others. These defects caused much litigation, and not less in- justice, till at length, after the lapse of a quarter of a century, a remedy was applied to them by the Mercantile Law Amendment Act, 1856.^ § 13 enacts, with reference to the first defect, that " an acknowledgment or promise made or contained by or in a writing signed by anagent of the party chargeable thereby, duly authorised to make such acknowledgment or promise, shall have the same effect as if such writing had been signed by such party himself." * The second defect was cured by § 14 of the same Act, which provides, that " when there shall be two or more co- contractors or co-debtors, whether bound or liable jointly only, or jointly and severally, or executors or administrators of any con- tractor, no such CO contractor or co-debtor, executor or adminis- ' 21J. 1, c. 16. '^ ^ 4 of 9 G. 4, c. 14, enacts, "that the said Act of James, anrl that Act, shall apply to the case of any debt on simple contract alleged by way of set- off on the part of any defendant." ^ 19 & 20 v., c. 97. * This section applies to ? 24 of 16 & 17 V., c. 113, Ir. as well as to O of Ld. Tenterden's Act. As to the law in India, see the Indian Act IX. of 1871, s. 20, and Dinomoyi Debi v. Roy Liichmissut Singh, L. R., 7 Ind. App. 8. (3525) I 658 REAL TROPERTY EI.MITATION ACTS. [PART II. trator shall lose the benefit of the" Statutes of Limitations,' " so as io be chargeable in respect or by reason only of payment' of any principal, interest, or other money, by any other or others of such CO contractors or co debtors, executors or administrators." § 740. The enactment last cited came under the consideration ? 67* of a court of equity in the case of Thompson v. Waitham.^ There, two partners had given a promissory note in the name of the firm. One cf the partners afterwards died, leaving his co- partner his executor ; and this man continued to pay interest on the note for some years, when he became bankrupt. The holder of the note then claimed payment out of the assets of the de- ceased partner's estate ; but as more than six yeans had elapsed since the date of the death, the Statute of Limitations was set up as a bar to the claim. Vice-Chancellor Kindersley recognised the validity of this defence, holding that the payments in the case before him must be presumed to have been made by the bankrupt in his character of surviving partner, and not as executor of his deceased partner. In the case, too, of Jackson v. Woolley,* the Court of Queen's Bench has ruled, that, on the proper construc- tion of the enactment in question, payment by one co-debtor, with the knowledge and mere consent of the other, does not deprive that other of the benefit of the Statute of Limitations. § 747. "The Real Property Limitation Act, 1874,"' which, although passed in that year, did not come into operation till the 1st of January, 1879, ® contains, in § 7 ' a provision respecting ' 21 J. 1, c. Ifi, M; 3 & 4, W. 4, c. 42, ? 3 ; 16 & 17 Y., c. 113, s. 20, Ir. ^ See Cockrill v. Sparkes, 32 L. J., Ex. 118 ; 1 H. & C. 699, S. C. ^ 26 L. J., Ch. 134 ; 3 Drew. 628, S. C. * 27 L. J., Q. B. 181 ; 8 E. & B. 778, S. C. * 37 & 38 v., c. 57. ** 'i 12. " This enactment, — which has been substituted for | 28 of 3 & 4 W. 4, c. 27, and Avhich reduces the period of tivcnly years therein named to a period of /(ceZre years, making no other alteration in the law, — is as follows: — "When a mortgagee shall have obtained the possession or receipt of the (3526) CHAP. XIV.J BANKRUPTCY OF ONE PARTNER — RELEASE BY OTHER. 659 acknowledgments of the mortgagor's title given by one of several mortgagees in possession, which is the same in jirinciple as the enactments just cited from Lord Tenterden's Act. § 748. Where a member of a partnership has been adjudged ? 678a banki'upt, and an action has been brought, under the authority of the Court of Bankruptcy, in the joint names of the trustee and of the bankrupt's partner, such partner has no power to release the debt or demand to which the action relates, but any attempted profits of any land, or the receipt of any rent, comprised in his mortgage, the mortgagor, or any person claiming through him, shall not bring any action or suit to redeem the mortgage but within twelve years next after the time at which the mortgagee obtained such i>ossession or receipt, unless in the mean- time an acknowledgment in writing of the title of the mortgagor, or of his right of redemption, shall have been given to the mortgagor, or some person claiming his estate, or to the agent of such mortgagor or person, signed by the mortgagee or the person claiming through him; and, in such case, no such - action or suit shall be brought but within twelve years next after the time at which such acknowledgment, or the last of such acknowledgments, if more than one, was given; and when there shall be more than one mortgagor, or more than one person claiming through the mortgagor or mortgagors, such acknowledgment, if given to any of such mortgagors or persons, or his or their agent, shall be as effectual as if tlie same had been given to all such mortgagors or persons ; but where there shall be more than one mortgagee, or more than one person claiming the estate or interest of the mortgagee or mortgagees, such acknowledgment, signed by one or more of such mortgagees or persons, shall he effectual only as against the party or parties signing as afore- said, and the person or persons claiming any part of the mortgage money or land or rent ^jy, from, or under, him or them, or any person or persons entitled to any estate or estates, interest or interests, to take effect after, or in defeasance of, his or their estate or estates, interest or interests ; and shall not operate to give to the mortgagor or mortgagors a right to redeem the mort- gage, as against the person or persons entitled to any other imdivided or divided part of the money or land or rent ; and where such of the mortgagees or persons aforesaid, as shall have given such acknowledgment, shall be entitled to a divided part of the land or rent comprised in the mortgage, or some estate or interest therein, and not to any ascertained part of the mortgaged money, the mortgagor or mortgagors shall be entitled to redeem the same divided part of the land or rent, on payment, with interest, of the part of the mortgage money which shall bear the same proportion to the whole of the mortgage money, as the value of such divided part of the land or rent shall bear to the value of the whole of the land or rent comprised in the mortgage." ^ 28 of 3 & 4, W. 4, c. 27, has been repealed by ? 9 of 37 & 38 v., c. 57. See Richardson v. Younge, 10 Law Rep., Eq. 275, per Malins, V.-C; 39 L. J., Ch. 475, S. C. ; 40 L. J., Ch. 338, S. C, by Lds. Js. ; and 6 Law Rep., Ch. Ap. 478. 21 LAW OF EVID. — V. II. (3527) GCO JOIXT INTEREST COMMUNITY OF INTEREST. [PAHT II. release made by him, is, by the Bankruptcy Act of 1883,' — as was the law by the Act of 1809,^ — rendered void.^ § 749. If an admission has been made by one of several parties in fraud of the others jointly interested with him, and in collusion with the opponent, then, on proof of this fact by the innocent parties," such admission will, on principles of equity, be rejected by the court.* § 750. In order to render the admission of one person receivable in evidence against another, it must relate to some matter in which either both were jointly interested, or one was derivatively interested through the other; and a mere community of interest will not be sufficient. Thus, where two persons were in partnership, and an action was brought against them as part-owners of a vessel, an ad- mission made by the one, as to a matter which was not a subject of co-partnership, but only of co-part-ownership, was held inadmissible against the other.* So, where two executors were sued on a covenant by a testator for quiet enjoyment, and the question sowewhat sin- gularly raised by the facts and the pleadings was, whether the defendants, who had themselves evicted the covenantee, had done 80 under a lawful title, it was held that the plaintiff, in order to es- tablish this fact, could not put in evidence a declaration by one of the defendants, made after entry, to the effect that both of them had a lawful title, through the testator, under a deed prior to that on which the action was founded.^ The court considered that this admission was not made by the party in his character as executor, nor did it relate to any matter touching the testator's estate; but it simply referred to something of which the two defendants had M6 & 47 v., c. 52, I 113. * 32 & 33 v., c. 71, I 105. •''But iu order to protect the interest of the partner, he miist have "notice of the application for authority to commence the action," and if he claims no benefit therefrom, " he shall be indemnified against costs." ^ See Rawstorne D. Gandell, 15 M. & W. 304; Phillips v. Clagett, 11 M. & W. 84; ante, § 741. * Jaggers v. Binnings, 1 Stark. R. 64, per Ld. Ellenborough. See Brodie v. Howard, 17 Com. B. 109. « Fox V. Waters, 12 A. & E. 43. See Stanton v. Percival, 5 H. of L. Caa. 257. (3528) CHAP. XIV.] ADMISSIONS BY ONE OF SEVERAL TRUSTEES, ETC, G61 taken advantage in their individual capacities. It may even be doubted whether an express promise made by one executor in his representative character will bind the remaining executors in their representative characters ;^ and it has been held that the admission of the receipt of money by one of several trustees, who were joint defendants, but were not personally liable, could not be received to charsfe the others.^ § 751.' So, where a joint contract is severed by the death of one ^ 681 of the contractors, nothing that is subsequently done or said by the survivor can bind the personal representative of the deceased,* nor can the acts or admissions of the executor bind the survivor.^ Neither will the admissions of one tenant in common be receivable against his co-tenant, though both are parties on the same side of the suit f and in America, it has been decided, that no such privity exists among the members of a board of public officers,' or among several indorsers of a promissory note,^ or between executors and heirs of devisees,** as to make the admission of one binding on all. These cases almost dispense with the necessity of adding, that in an action for negligence, or trespass, or in any other action for tort, the admission of one defendant will not be evidence against the others ;'" and it is abundantly clear that the same rule prevails ' Tullock V. Dunn, Ry. & M. 416, per Abbott, C. J. ; cited with approba- tion by Parke, B., in Scholey v. Walton, 12 M. & W. 514, who there ques- tioned the correctness of the contrary oijinion, which the Q. B. appeared to have entertained in Atkins r. Tredgold, 2 B. & C. 23 ; 3 D. & R. 2U0, S. C. ; and in M'Culloch r. Dawes, 9 D. & R. 40. 2 Davies r. Ridge, 3 Esp. 101, 102, per Ld. Eldon. =* Gr. Ev. § 17G, in part. * Atkins V. Tredgold, 2 B. & C. 23 ; 3 D. & R. 200, S. C; Fordham v. Wallis, 10 Hare, 217 ; Slaymaker v. Gundacker's Ex., 10 Serg. & R. 75. 5 Slater v. Lawson, 1 B. & Ad. 396 ; Hathaway v. Haskell, 9 Pick. 24. « Dan V. Brown, 4 Cowen, 483, 492. ' Lockwood V. Smith, 5 Day, 309. * Slaymaker v. Gundacker's Ex., 10 Serg. & R. 75. ® Osgood I'. Manhattan Co., 3 Cowen, 611. See, also, Fordham v. Wallis, 10 Hare, 217. '" Daniels v. Potter, M. & M. 501, per Tindal, C. J. ; Morse v. Royal, 12 Ves. 362, per Ld. Erskine. See R. v. Hardwick, 11 East, 585, where Ld. Ellenborough lays down the rule somewhat too loosely. (3529) 662 ADMISSIONS BY INHABITANTS OF TOWNSHIPS, ETC. [PAET 11. in criminal proceedings, as the law cannot recognise any partnership !0r joint interest in crime.^ § 752. One apparent exception to this last proposition prevails, 2 6^2 where the inhabitants of townships, counties, or other territorial divisions of the country, sue or are prosecuted eo nomine ; but in these cases they are regarded in the light of a corporation, of which each individual inhabitant forms a component part ; and therefore it is entirely consistent with the rule stated above, to hold that the declarations and admissions of any one of such persons should be receivable in evidence against the collective body. It has, con- sequently, been decided on an indictment against a township for non-repair of a bridge, that the declarations of all rateable inhabi- tants, whether actually rated or not, may be given in evidence for the Crown, though the value of such evidence will of course vary according to the knowledge and position of the declarant, and will in many cases be exceedingly slight." So, also, in settlement cases, declarations by rated parishioners will be evidence against the parish.^ This rule of evidence is in no way affected by the statutes, which render parties to the record and other interested persons competent witnesses.* § 753.^ An apparent joint interest is obviously instifficient to ? 683 make the admissions of one party receivable against his compa- nions, where the reality of that interest is the point in controversy. A foundation must first be laid, by showing, prima facie, that a joint interest exists. Where, therefore, an action was brought against a party for money had and received, and the plaintiff, in order to prove the receipt of the money by the defendant, tendered in evidence certain statements, which had been made by a person whom the defendant had taken into partnership subsequently to the transaction in question, the court rejected the evidence of these ' Grant v. Jackson, Pea. R. 204, per Ld. Kenyon. 2R. V. Adderbury East, 5 Q. B. 187, 189, n. a.; R. v. Hard wick, 11 East, 586, per Ld. Ellenborough. 2 R. V. Hardwick, 11 East, 579 ; R. v. Whitley Lower, 1 M. &. Sel. 636 ; R. V. Woburn, 10 East, 395. * See 6 & 7 V., c. 85 ; 14 & 15 V., c. 99 ; 16 & 17 Y., c. 83. ^ Gr. Ev. I 177, in part. (3530) • CHAP. XIV.] REALITY OF JOINT INTEREST MUST BE PROVED. 663 statements, on the ground that a joint liability could not be pre- sumed from the mere fact of a subsequent partnership.' Again, the existence of a joint interest which is disputed, cannot be es- tablished by the admission of one of the parties sought to be charged, but this fact must be established by independent proof. Therefore, in an action against three makers of a promissory note, the joint execution of which was the point in issue, the admission of his signature by one defendant was held insufficient to entitle the plaintiff to recover against him and the others, though theirs had been proved; the point to be established against all being a joint promise by all.^ And where it is sought to charge several as partners, an admission of the fact of partnership by one is not receivable in evidence against any of the others, to prove the part- nership; but it is only after the partnership is shown to exist by independent proof satisfactory to the judge, that the admission of one of the parties are received in order to aft'ect the others.^ As, however, the admissions are evidence against the party making them, he will be bound thereby, either in an action brought against him as surviving partner, or even, if he be sued on the joint promise with his co-partners, provided they have let judgment go bv default.* § 754. In general, the statement of defence made by one de- | 684 fendant cannot be read in evidence either for or against his co- defendant; neither can the answer to interrogatories of one defendant be read in evidence, excepting against himself;'' the reason being, that, as there is no issue between the defendants, no opportunity can have been afiorded for cross-examination;® and 1 Catt V. Howard, 3 Stark. K. 3, 5, per Abbott, C. J. "^ Gray v. Palmers, 1 Esp. 135. 3 Nicholls V. Doweling, 1 Stark. R. 81; Gibbons v. Wilcox, 2 Stark. R. 43; Grant v. Jackson, Pea. R. 204, per Ld. Kenyon; Van Reimsdyk v. Kane, 1 Gall. 635; Harris v. Wilson, 7 Wend. 57; Burgess v. Lane, 3 Greenl. 165; But- ton I'. Woodman, 9 Gush. 255, 260. * Sangster v. Mazarredo, 1 Stark. R. 161, per Ld. Ellenborough ; Ellis v. Watson, 2 Stark. R. 453, 478, per Abbott, C. J. * See Meyer v. Montriou, 9 Beav. 521 ; Stephens v. Heathcote, 2 Drew. & Sm. 138; Parker v. Morrell, 2 Phill. 463, per Ld. Cottenham; Hoare v. Johnstone, 2 Keen, 553; Saltmarsh v. Hardy, 42 L. J., Ch. 422, per Ld. Sel- borne, C. * Jones V. Turberville, 2 Ves. 11; Morse v. Royal, 12 Ves. 355, 361, 362. (3531) 664 ADMISSIONS BY REPRESENTATIVES OF OTHERS. [PART II. moreover, if such a course were allowed, the plaintiff might make one of his friends a defendant, and thus gain a most unfair ad- vantage.' But this rule does not apply to cases, where the other defendant claims thi'ough the party whose defence is offered in evidence; nor to cases, where they have a joint interest, either as partners or otherwise, in the transaction." Wherever the admis- sion of one party would be good evidence against another party, the defence of the former may, a fortiori, be read against the latter.' § 755. Where parties either sue or are sued in a representative § 685 character, it may be questionable how far statements made by them before they were comjjietely clothed tvith that character, will be admis- sible against them, so as to affect the interest of the persons they represent. In one case, Chief Justice Tindal is reported to have re- ceived an admission of a person, who was suing as the assignee, now called the trustee, of a bankrupt, though it was made before he be- came such;* but Lord Tenterden has ruled otherwise on precisely the same point ;^ and in weighing the respective merits of these decisions, the reader will probably be of opinion that Lord Tenter- den's was correct. It certainly appears to be a somewhat startling proposition, that the assets of a testator, and the consequent rights of legatees, may be affected by some inconsiderate statement, which the executor, before the death of the testator, may have been in- duced to make;*^ and the more so, as even the sworn admission of a married woman, answering to a bill in Chancery jointly with her husband, has, — except so far as it related to her separate estate,^ — J Wycli V. Meal, 3 P. Wms. 311. ^ Petherick v. Turner, cited 1 Taunt. 104; Pritchard v. Draper, 1 Russ. & Myl. 191; Hiliard v. Phaley, 8 Mod. 180; Field v. Holland, 6 Cranch, 8, 24; Clark's Ex. v. Van Eeimsdyk, 9 Cranch, 153, 156. See Parker v. Morrell, 2 Phill. 453; 2 C. & Kir. 599, S. C. ; cited ante, § 599. ' Van Keimsdyk v. Kane, 1 Gall. 630, 635. * Smith V. Morgan, 2 M. & Rob. 257. ^ Fen wick v. Thornton, M. & M. 51. See, also, Metters v. Brown, 32 L. J., Ex. 140, per Pollock, C. B.; 1 H. & C. 691, S. C. ; Plant i). M'Ewen, 4 Conn. 544. * See Legge v. Edmonds, 25 L. J., Ch. 125, which confirms the law as stated in the text. ^ Callow v. Howie, 1 De Gex & Sm. 531 ; Clive v. Carew, 1 Johns. & Hem. 199, 207. (3532) CHAP. XIV.] ADMISSIONS OF PERSONS INTERESTED IN SUIT. 665 been rejected after his death, as against her, it being considered as the answer of the husband alone.' Neither can the affidavit of a guardian of an infant defendant be read against the infant in another suit;^ though it may be used against the guardian himself, if he afterwards be sued in his private capacity, for it is his own admission upon oath.^ The same doctrine would seem to apply in the case of a committee of a lunatic* § 756.^ The admissions of persons who are not parties to the ^ ^^^ record, but who are interested in the subject-matter of the suit, will next be considered. The law, in regard to this source of evidence, looks chiefly to the real parties in interest, and gives to their ad- missions the same weight as though they were parties to the record. Thus, the admissions of the cestui que trust of a bond, so far as his interest and that of the trustee are identical;** those of the persons interested in a policy effected in another's name for their benefit; ^ those of the shipowners, in an action by the master for freight; * those of the indemnifying creditor, in an action against the sheriff; ^ those of the deputy- sheriff tending to charge himself, in an action against the high sheriff for the misconduct of the deputy; '" those of rated parishioners, in a settlement appeal, where ' Hodgson V. Merest, 9 Price, 563; Elston v. Wood, 2 Myl. & K. 678. 2 Eccleston v. Speke, alias Petty, 3 Mod. 258; 2 Ventr. 72; Carth. 79; Comb. 156, S. C. ; Hawkins v. Luscombe, 2 Swanst. 392, cases cited in n. a; Story, Eq. PI. § 668; Gresl. Ev. 24, 323; Mills v. Dennis, 3 Johns. Ch. 367. See ante, | 742. 3 Beasley v. Magrath, 2 Sch. & Lef. 34. * Stanton r. Percival, 5 H. of L. Cas. 257; 24 L. J., Ch. 369, per Dom. Proc. S. C. * Gr. Ev. § 180, in part. ® Hanson v. Parker, 1 Wils. 257. See, also, Harrison v. Vallance, 1 Bing. 45; 7 Moore, 304, S. C. ; May v. Taylor, 6 M. & Gr. 266, per Maule, J. ' Bell V. Ansley, 16 East, 143, per Ld. Ellenborough. * Smith V. Lyon, 3 Camp. 465. ^ Dowden v. Fovvle, 4 Camp. 38; Proctor v. Laison, 7 C. & P. 629, per Ld. Abinger; Dyke v. Aldridge, cited 7 T. E. 665; 11 East, 584 ; Young v. Smith, 6 Esp. 121 ; Harwood v. Keys, 1 M. & Rob. 204. '** Snowball v. Goodricke, 4 B. & Ad. 541, questioning the language of Ld Ken yon and Lawrence, J., in Drake v. Sykes, 7 T. E. 113, which seems to identify the .sheriff with the under-sheriff to all intents. Yabsley v. Noble, 1 Ld. Eay. 190. The declarations of under-sheriffs, or of the sheriff's bailiffs, (3533) G66 ADMISSIONS OF PERSONS INTERESTED IN SUIT. [PART II. the churchwardens and overseers of the poor are the nominal parties on the record; ' and, in short, those of any persons who are repre- sented in the cause by other parties, — are receivable in evidence against their respective representatives.^ On this ground, it has been repeatedly held on the trial of election petitions, that the declarations of voters against their own voters, whether made before or after the votes were given,^ and even though invalidating their votes on the ground of their having received bribes,* are admissible in evidence; for, in a scrutiny, each case is considered as a separate cause, in which the supporter of the vote under discussion and the voter are the parties on the one side, and the opposers of the vote are the parties on the other.^ § 757. In all these cases, the declarations or admissions must, g 687 as will presently be seen,® have been made while the party making them had some interest in the matter; and, moreover, they are receivable in evidence only so far as his own interests, or the interests of those who claim through him, are concerned. In illustration of this last proposition, it may be observed, that if an action be brought by trustees, who represent the interests of a variety of cestuis que trust, the statements of the person bene- ficially interested as tenant for life cannot be received as evidence for the defendant, so as to prejudice the rights of the remainder- men in fee. Indeed, before the declaration of a cestui que trust accompanying official acts, are admissible as parts of the res gestaj. See Jacobs V. Humphrey, 2 C. & M. 413; 2 Tyr. 272, S. C; Scott i). Marshall, 2 C. & J. 238; North 17. Miles, 1 Camp. 390, per Ld. Ellenborough ; and ante, § 583, et seq. 1 E. V. Hardwick, 11 East, 579; R. v. Wliitley Lower, 1 M. & Sel. 636. ^ In Hart v. Horn, 2 Camp. 92, Avhich was an action of replevin, the decla- rations of the person, under whom the defendant made cognizance, were rejected by Heath, J., as evidence for the plaintiff; but it is presumed that this case is not law. See Welstead v. Levy, 1 M. & Rob. 138. » Southampton case, Cock. & R. 113—117; Per. & K. 225, S. C; Ripon case, Cock. & R. 301; Per. & K. 211, S. C; Petersfield case, Cock. & R. 34 ; Per. &K. 49, S. C; New Windsor, Knapp & O. 173, 174; Ennis, id. 435; Droitwich, id. 64; Bedfordshire, 2 Luders, 411; and other cases cited 2 Rog. on Elect. 139. * Ipswich, Knapp & O. 387—389; and cases cited 2 Rog. on Elect. 139. * 2 Rog. on Elect. 139. ^ Post, § 794. (3534) CHAP, XIV.] TENANT FOR LIFE — TENANT IN TAIL. 667 will be admitted at all against a trustee, the nature of the interest of the declarant in the trust estate must be shown, so that it may clearly appear that he alone is entitled to the benefit resulting from the action.^ § 758. In applying the rule that a man's admissions are only I 687a evidence against himself and his privies, care must be taken to distinguish between the position of a tenant for life and that of a tenant in tail. A tenant for life cannot — unless empowered by some special statute " — prejudice, by an admission, the interest of a remainder-man or reversioner; but a tenant in tail is regarded as representing the inheritance, and, therefore, what he says or does will often be binding on the persons entitled in remainder. Thus, the law is well settled that a release of the equity of redemp- tion by a tenant in tail in possession,^ or a decree of foreclosure against him, will bind the remainder-man ; * and the acknowledg- ment by a tenant in tail of a mortgage title, which, in the absence of such admission, would have been barred by the equitable rule respecting limitations, has been held to restore, as against the remainder-man, the right of redemption,^ § 759.® In some cases, the admissions of third persons, strangers I 688 to the suit, are receivable. These exceptions to the general rule arise when the issue is substantially upon the mutual rights of such persons at a particular time ; in which cases the practice is to let in such evidence in general, as would be legally admissible in an action between the parties themselves. Thus, the admissions of a bankrupt, made before the act of bankruptcy, are receivable in proof of the petitioning creditor's debt ;' but if made after the act of bankruptcy, though admissible against himself,^ they cannot 1 Doe V. Wainwriglit, 8 A. «& E. 691, 699, 700 ; 3 N. & M. 598, S. C; May V. Taylor, 6 M. & Gr. 261. "^ See ante, I 692, n.^, and post, § 1088, n., at 7th line from end of sect. ' Reynoldson v. Perkins, Amb. 563. * Pendleton v. Rooth, 1 Giff. 45, per Stuart, V.-C. ^ Id. 1 Gifif. 35 ; 1 De Gex, F. & J. 81, S. C. 6 Gr. Ev. § 181, in part. ' See Coole v. Braliam, 3 Ex. R. 185. 8 Jarrett v. Leonard, 2 M. & Sel. 265. (3535) 689 668 ADMISSIONS OF PERSONS EXPRESSLY REFERRED TO, [PART II. furnisli evidence against the trustee, because of the intervening rights of creditors, and the danger of fraud.' § 760.- The admissions of a third person are also receivable in ^ evidence against the party who has expressly refen^ed another to him for information in regard to an uncertain or disputed matter. In such cases the party is bound by the declaration of the person referred to, in the same manner, and to the same extent, as if they were made by himself. Thus, upon a plea of plene adminis- travit, where the executors wrote to the plaintiff, that if she wished for further information in regard to the assets, she should apply to a certain merchant in the city, they were held bound by the replies of the merchant to her inquiries upon that subject.' So, in an action for goods sold and delivered, where the fact of the delivery of them by the carman was disputed, and the defen- dant said, " If he will say that he delivered the goods, I will pay for them ; " he was held bound by the affirmative reply of the carman.* § 761. In the application of this principle, it matters not § 690 whether the question referred be one of law or of fact ; whether the person to whom reference is made, have or have not any peculiar knowledofe on the subject ; or whether the statements of the reference be adduced in evidence in an action on contract, or in an action for tort. Therefore, where two parties had agreed to abide by the opinion of counsel upon the construction of a statute, the party against whose interest the opinion operated was held bound thereby in a subsequent action ; ^ and a disputed fact ^ Hoare v. Cory ton, 4 Taunt. 560 ; 2 Eose, 158, S. C. ; Robson v. Kemp, 4 Esp. 234 ; Watts v. Thorpe, 1 Camp. 376 ; Smallcombe v. Bruges, McClel. 45 ; 13 Price, 136, S. C. ; Taylor v. Kiuloch, 1 Stark. R. 175 ; 2 Stark. R. 594, S. C. These cases virtually overrule Dowton v. Cross, 1 Esp. 168. See, also, Bernasconi v. Farebrother, 3 B. & A. D. 372. ^ Gr. Ev. § 182, almost verbatim. ^ Williams v. Innes, 1 Camp. 364, per Ld. Ellenborough. * Daniel v. Pitt, Pea. Ad. Cas. 238 ; 1 Camp. 366, n. ; 6 Esp. 74, S. C. ; Brock V. Kent, 1 Camp. 366, n. ; Burt v. Palmer, 5 Esp. 145 ; Hood v. Reeve, 3 C. & P. 532. R. V. Mallory, L. R., 13 Q. B. D. 33 ;.53 L. J., M. C. 1.34 ; 15 Cox, 456, S. C, where the person referred to by a prisoner was his wife, who thereupon made an admission in his presence, and this admission was held to be good evidence. ^ Price V. Hollis, 1 M. & Sel. 105. (3536) CHAP. XIV.] ADMISSIONS BY PERSONS EXPRESSLY REFERRED TO. 669 regarding a mine, having been referred by consent to a miner's jury, tlieir decision was received in evidence when one of the disputants afterwards brought an action on the case against his adversary.' In these cases the decisions, which partook of the nature of awards, were not stamped; but the court held that this was immaterial, as the instruments, not containing any recital of the agreements, did not on their face purport to be awards. § 762. The doctrine under discussion may further be illustrated ? 690 by the case of Downs v. Cooper." There the defendant had de- mised premises to the plaintiff, who entered and paid him rent. During the term a brother of the defendant disputed his title, and to avoid litigation between brothers, both, within the knowledge of the plaintiff, agreed to abide by the opinion of a barrister, to whom a case was submitted. The opinion being adverse to the defendant, he thereupon gave up his title deeds, and permitted his brother's attorney to tell the plaintiff, that in future he must regard the brother as his landlord. The plaintiff" paid his rent accordingly; but the defendant being subsequently dissatisfied with the barrister's opinion, levied a distress, and an action of replevin was the consequence. The above facts being stated in the plea in bar, the court held, that, though in general a tenant is estopped from denying his landlord's title, he was not so here, inasmuch as the conduct of the defendant amounted to an admission that his title had expired. § 763. To render the declarations of a person referred to equiva- ? 691 lent to a party's own admission, it is not necssary that the reference should have been made by express words; but it will suffice if the party by his conduct has tacitly evinced an intention to rely on the statements as correct. Therefore, where a party, on being questioned by means of an interpreter, gave his answers through the same medium, it has been held that the language of the interpreter should be considered as that of the party; and that, Sybray r. White, 1 I\I. & W. 435; Tyr. Gr. 746, S. C. 2 Q. B. 256. (3537) 670 ADMISSIONS BY PERSONS EXPRESSLY REFERRED TO. [PART II. consequently, it might be proved by any person who heard it, without calling the interpreter himself.' So, if a party, on motion before a judge, uses the affidavit of another person to prove a certain fact deposed to therein, such affidavit is on any subsequent trial evidence as against him of this fact, and that, too, though the person who made the affidavit is present in court ;^ and where a petitioning creditor, knowing that his servant could prove a particular act of bankruptcy, sent him expressly for that purpose to be examined at the opening of the fiat, the depositions so made were held to be evidence of the act of bankruptcy as against the petitioning creditor, where that fact was put in issue in an action brought against him by the assignees.^ § 764. It has even been held, — apparently on the authority of § 692 these cases, — that, where the question in an action of trespass was whether the plaintiff or defendant was the tenant of a field, the deposition of a witness who, in a proceeding before justices for an alleged trespass on the same close, had been called by the plaintiff to prove his possession, but had in fact disproved it, might be put in evidence for the defendant, though the witness was alive.* In this case, however, as the witness was abroad at the time of the trial, and as the litigants and the matter in dispute before the justices were identical with those before the court, the depositions would seem to have been admissible, rather as secondary evidence of oral testimony^ than as admissions by the accredited agent of the plaintiff.*' In this last light they could scarcely have been viewed, consistently with the opinion of the court, as expressed in Gardner v. Moult,' or Brickell v. Hulse;* for in both these cases the judges expressly admitted, that a party was not bound by what his witness might say at Nisi Prius. ' Fabrigas v. Mostyn, 20 How. St. Tr. 122, 123, per Gould, .T. == Brickell v. Hulse, 7 A. & E. 454; Boileau v. Rutlin, 2 Ex. E. 675, 679, 680; Pritchard v. Bagshawe, 11 Com. B. 459; Johnson v. Ward, G Esp. 47, per Chambre, J. But see White v. Dowling, 8 Jr. Law R. 128. 3 Gardner v. Moult, 10 A. & E. 464; Boileau v. Eutlin, 2 Ex. R. 680. * Cole V. Headly, 11 A. & E. 807. * Ante, ? 464. ^ See Boileau v. Rutlin, 2 Ex. R. 680, per Parke, B. Mo A. & E. 468, per Ld. Denman & Patteson, J. « 7 A. & E. 456^458, per Ld. Denman & Coleridge, J. See ante, § 469. (3538) CHAP. XIV.] WHETHER ANSWERS OF REFEREE ARE CONCLUSIVE. 671 § 765.^ Whether the answer of a person thus referred to is ^ 693 conclusive against the party does not seem to have been settled. Where the plaintiff had offered to rest his claim upon the defen- dant's affidavit, which was accordingly made, Lord Kenyon held that he was conclusively bound, even though the affidavit were false; and he added, that, to make such a proposition and after- wards to recede from it, was not only a dishonest act, but was one which might be turned to very improper purposes, such as to entrap the witness, or to find out how far the party's evidence would go in support of his case.' But in a later case, where the question was whether a horse in the defendant's possession was identical with one lost by the plaintiff, and the plaintiff had said that if the defendant would take his oath that the horse was his, he should keep him; and he made oath accordingly; Lord Ten- terden observed, that considering the loose manner in which the evidence had been given, he would not receive it as conclusive, though it was a circumstance on which he should not fail to remark to the jury.^ And certainly the opinion of Lord Tenterden, indicated by what fell from him in this case, more perfectly harmonizes with other parts of the law, especially as it is opposed to any further extension of the doctrine of estoppels, which precludes the investigation of truth. The purposes of justice and policy are sufficiently answered, by throwing the burthen of proof on the opposing party, as in the case of an award, and by holding him bound, unless he can impeach the test referred to by clear proof of fraud or mistake.* § 766. It may here be expedient to examine briefly how far the § 694 admissions of a married ivoman can be received in evidence, either against herself or her trustees, or for or against her husband. If a wife sue or be sued as a single ivoman, no valid reason can be given why her admissions should not have the same legal effect ' Gr. Ev. 1 184, in great part. * Stevens v. Thacker, Pea. R. 187; Lloyd v. Willan, 1 Esp. 178; Bretton v. Prettiman, T. Ray. 153; Delesline v. Greenland, 1 Bay, 458, where the oath of a third person was referred to. 5 Garnet v. Ball, 3 Stark. R. 160. ♦ Whitehead v. Tattersall, 1 A. & E. 491. (3539) 672 ADMISSIONS BY WIFE. WHEN RECEIVABLE. [PART II. as those of any other person; but in one case, where the defence to an action on contract was that the plaintiff was under coverture when the cause of action accrued, Lord Ellen])orough is reported to have held,— on what grounds it does not appear, — that it was not sufficient to show that she had acknowledged herself to be married. without proof of an actual marriage, or at least of cohabitation.' If the trustees of a married woman sue or be sued, and the opposite party be a stranger, her admissions, like those of an ordinary cestui que trust,^ will be clearly admissible as against the trustees; and even if the husband be the hostile party, it seems that, on principle, the wife's admissions ought to be received on his behalf to the same extent as her viva voce testimony;^ for the principle of policy which admits the one should equally admit the other; and, therefore, it is probable that if an action were brought against a husband by the trustees of his wife under a separation deed, for arrears of maintenance, and the defence were to rest on the fact of the wife's adultery, proof of her admission of criminal misconduct would, — contrary to what was formerly the law,* — be now received. § 767. The admissions of a wife cannot be received in evidence ? 695 for her husband in any suit between him and a stranger, unless, perhaps, in the single event of their constituting part of the res gestae. An instance of their admissibility on this ground is afforded by the case of Walton v. Green,^ where, in an action of assumpsit for goods supplied to a wife, who had been turned out of doors by her husband the defendant, evidence was admitted, in support of a defence which relied on her previous adultery, that she had confessed her guilt to a third party; as it appeared to have been partly in consequence of this confession that she had been put away by her husband. This case is here noticed, more out of respect for the eminent judge who decided it, than because it appears to rest upon any sound principle of law. The question was not whether the husband had reason to suspect his wife's fidelity, but I Wilson V. Mitchell, 3 Camp. 393. ^ See ante, § 756, 3 See 16 & 17 v., c. 83. * Scholey v. Goodman, 1 Bing. 349. 6 1 C. & P. 621, per Abbott, C. J. (3540) CHAP. XIV.] wife's confessions of adultery. 673 whether she had in fact committed adultery ; and to allow her admissions to establish that fact, and thus to screen her husband fx'om the claims of a stranger, would seem to be directly opposed to the rule of law which rejects hearsay evidence. § 768. It remains to be seen in what manner the Divorce § 696 Division of the High Court' will deal with the wife's admissions of adultery, on applications for judicial separation, or for restitu- tion of conjugal rights, and on petitions for dissolution of mar- riage. The unfettered reception of such evidence in the last class of cases, would open a wide door to collusion : and on this ground, the House of Lords, in proceedings upon bills of divorce, was generally in the habit of rejecting letters from the wife to the husband containing confessions of adultery," unless they were ordered in confirmation of circumstances which tended strongly to prove the defendant's guilt.'' It seems, however, that such letters, if addressed to a stranger, or even to the husband's agent, were receivable in evidence, after proof that they were not written in consequence of any threat or promise, and that the writer was then living apart from her husband ;* and it further seems, that the wife's oral confession of guilt to a third party was admissible, at least as confirmatory evidence.^ Not only were direct confes- sions rejected in the House of Lords, except under the circum- stances above stated, but all letters written by the wife after her separation, either to the husband or to the adulterer, were generally held inadmissible, unless they were connected with some particular fact," or could be referred to as part of the res gestse,^ or were tendered in evidence after a prima facie case of guilt had been already established. In one case, where the husband held a situation at Malta, and his wife, in consequence of bad health, had left the island, and had resided in England * The Act of 20 & 21 V., c. 85, and the Rules which regulate the practice of the court, are alike silent on this subject. * Ld. Cloncurry's case, Macq. Pr. in H. of L. 606. ^ Doyly's case, id. 654. See id. 536, 537. * Ld. Cloncurry's case, Macq. Pr. in H. of L. 606. ^ Ld. Ellenborough's case, id. 655. But see Wiseman's case, id. 63L ® Dundas's case, id. 610. ^ Boydell's case, id. 651. (3541) GT-l wife's confessions of adultery. [part II, for several years, during •which time she had lived with a paramour and had borne him four children, the House of Lords admitted a series of letters from the wife to her husband, which were tendered as accounting for the circumstance of her not going out to rejoin him, and as showing that she had practised upon him the grossest deceit/ § 7G9. In the Ecclesiastical Courts a less strict rule obtained ? 697 than was observed in the Common Law Courts, with respect to the exclusion of a uife''s confession. By a canon" passed in 1G03, a mere confession, indeed, unaccompanied by other circumstances, was rendered insufficient to support a prayer for a separation a mensa et thoro ; and this rule has been held applicable, though the confession was made under the apprehension of approaching dissolution, and was free from all suspicion of a collusive purpose.* Still the confession was always admissible in evidence, and, if coupled with other facts of a suspicious nature, it generally proved an important ingredient in the decision of the court. In one case, letters from the wife to the supposed paramour, taken in conjunc- tion with other suspicious circumstances, were, in the absence of direct proof, considered to establish her guilt, though they con- tained no express avowal of adultery, and though they never reached the hands of the party to whom they were addressed, as they were intercepted by the husband.* Whether the wife's confession of adultery would be sufficient in itself to repel a suit instituted by her for restitution of conjugal rights, was still an undecided point when the Spiritual Courts were deprived by the Legislature of their jurisdiction over such matters f but, in 1 Miller's case, id. 620—623. ^ No. 105. ^ Mortimer v. Mortimer, 2 Hagg. Cons. 316. * Grant v. Grant, 2 Curt. 16 ; Caton v. Caton, 7 Ec. & Mar. Cas. 15—17 ; Faussett v. Faussett, id. 88. In the Eccles. Courts, letters from the alleged paramour, found in the wife's possession, were admissible ; but if they did not necessarily imply the commission of adultery, or were not supported by other evidence of indecent Aimiliarities, they were insufficient to support a sentence of separation. Hamerton v. Hamerton, 2 Hagg. Ec. R. 8. As to the ad- missibility of letters written by the adulterer to the wife, in proceedings before the H. of L., see Ld. Glerawley's case, Macq. Pr. in H. of L. 629. * Mortimer v. Mortimer, 2 Hagg. Cons. 310 ; Burgess v. Burgess, id. 227. (3542) CHAP. XIV.] WIIEX ADMISSIONS OF WIFE BIND HUSBAND. G75 a suit of nullity of marriage, by reason of a former marriage, the simple admission of such former marriage was held not to be sufficient.^ § 770." The admissions of the ivife will bind the husband only ? 698 where she had authority to make them.^ This authority does not result, by mere operation of law, from the relation of husband and wife; but is a question of fact, to be found by the jury, as in other cases of agency; for, though this relation is peculiar in its circumstances, from its close intimacy and its very natvire, yet there is nothing peculiar in the principles of law which apply to it. As the wife is seldom expressly constituted the agent of the husband, the cases on this subject are almost universally those of implied authority, turning upon the degree in which the husband permitted the wife to participate, either in the transaction of his affairs in general, or in the particular matter in question.* Where, under the old law,'^ he sued for her wages, the mere fact that she had earned them did not authorise her to bind him by her admis- sions of payment;*^ nor could her unauthorised declarations affect him, even where he sued with her in her right; for in these, and similar cases, the right was his own, though acquired through her instrumentality.' § 771. In regard to the inference of her agency from circum- I 699 stances, the question used to be left to the jury with great latitude, both as to the fact of agency, and the time of the admissions. Thus, it has been held competent for them to infer authority in her ' Searle v. Price, 2 Hagg. Cons. 189. ^ q,.. Ev. ^ 185, in great part, ^ Emerson v. Blonden, 1 Esp. 142; Anderson v. Sanderson, 2 Stark. R. 204; Carey v. Adkins, 4 Camp. 92; Meredith v. Footner, 11 M. & W. 202. * See ante, | 192. * A married woman may now sue for wages in her own name, 45 & 4G V., c. 75, |g 1, 2. •^ Hall V. Hill, 2 Str. 1094. ^ Albant'. Pritchett, 6 T. R. 680; Kelly v. Small, 2 Esp. 716; Denn n White, 7 T. R. 112, as to the wife's admission of a trespass. Neither are the has- band's admissions as to facts respecting his wife's property, which happened before the marriage, receivable after his death to affect the rights of the sur- viving wife. Smith v. Scudder, 11 Serg. & R. 325. 22 LAW OF EVII). — V. II. (354;{) (57G BINDING ADMISSIONS BY SOLICITORS. [PART II. to accept a notice and direction, in regard to a particular transaction in her husband's trade, from the circumstances of her being seen twice in his counting-house appearing to conduct his business relating to that transaction, and once giving orders to the foreman.' And in an action against the husband for goods furnished to the wife while in the country, where he occasionally visited her, her letter to the plaintiff, admitting the debt, and apologising for the non-payment, though written several years after the transaction, was held by Lord Ellenborovigh, previous to Lord Tenterden's Act,^ sufificient to take the case out of the Statute of Limitations/ Of late years, however, a greater strictness has prevailed; and in the case of Meredith v. Footner,* where a wife, by her husband's autho- rity, carried on the business of a shop, and attended to all the receipts and payments, the court held that admissions made by her to the landlord of the shop respecting the amount of rent were not admissible to bind the husband. Had the admissions related to the receipt of shop goods, they would have been evidence; but the fact that she was conducting a business for her husband, did not constitute her his agent to make admissions of an antecedent con- tract for the hire of the shop, or to make a new contract for the future occupation of it. § 772.^ The admissions of solicitors bind their clients in all I "00 matters relating to the progress and trial of the action. In some cases they are conclusive, and may even be given in evidence upon a new trial; though, previously to such trial, the party give notice that he intends to withdraw them, or though the pleadings be altered, provided the alterations do not relate to the admissions.® 1 Plimmer v. Sells, 3 N. & M. 422. ^ 9 G. 4, c. 14, § 1, which rendered it necessary that an acknowledgment, to take the case out of the statute, should he in writing, " signed by the party chargeable thereby." The acknowledgment may now be signed by an autho- rised agent, 19 & 20 V., c. 97, § 13, cited ante, I 745. See post, § 1073. •' Gregory v. Parker, 1 Camp. 394; Palethorpe v. Furni.sh, 2 Esp. 511, n ; Clifford V. Burton, 1 Bing. 199; 8 Moore, IG, S. C; Petty v. Anderson, 3 Bing. 170; Cotes v. Davis, 1 Camp. 485. * 11 M. & W. 202. * Gr. Ev. l\m,m part. « Elton V. Larkins, 1 M. & Rob. 196, perTindal, C. J. ; 5 C. «& P. 385, S. C; (3544) CHAP. XIV.] INCIDENTAL ADMISSIONS BY SOLICITORS. 677 But to this end they must be distinct and formal, or such as are termed solemn admissions, made for the express purpose of relaxing the stringency of some rule of practice, or of dispensing with the formal proof of some document or fact at the trial.' § 773. Another class of admissions comprehends those which g 701 solicitors make, nob indeed with the express intent of dispensing with proof of certain facts, but as it were incidentallij , while they are referring to other matters connected with the action. These, which are generally the result of carelessness, though not regarded as conclusive admissions, are still considered, not unfrequently, as raising an inference respecting the existence of facts, .which the adversary would otherwise have been called upon to prove; and, consequently it is very important that solicitors should exercise great caution in the language they employ while corresponding with their opponents. Thus, where in an action against the acceptor of a bill, his solicitor had served notice on the plaintifP to produce all papers relating to a bill, the description of which corresponded with that set forth in the declaration, — " which said bill," the notice went on to state, "teas accepted by the said defendant,''^ — the court held that such notice was prima facie evidence of the defendant's acceptance ; ^ and in an action against the owners of a ship, their joint ownership was inferred from an undertaking to appear for them, signed by their solicitor, in which they were described as owners of the sloop in question.^ Again, where the defendant's solicitor, in an action of debt on a bond, had admitted the signature of the attesting witness; this was held, by implication, to amount to an admission of the due execution of the instrument.* § 774.^ Admissions, however, contained in the mere conversation § 702 of a solicitor, cannot be received against a client, though they relate Doe V. Bird, 7 C. & P. 6, per Ld. Denraan ; Langley r. Ld. Oxford, 1 M. & W. 508. See Hargrave v. Hargrave, 12 Beav. 408, as to the case where the client is an infant. ' See cases cited in last note. Also, ante, I 724a, et seq. ; and Young v. Wright, 1 Camp. 141 ; Doe v. Rollings, 4 Com. B. 188. 2 Holt V. Squire, Ky. & M. 282. per Abbott, C. J. ' Marshall v. Cliif, 4 Camp. 133, per Ld. Ellenborougli. * Milward v. Temple, 1 Camp. 375, per Ld. Ellenborough. * Gr. Ev. I 186, in part. (3545; G7S LETTERS BY SOLICITORS WITHOUT PREJUDICE, [PAET II. to the facts in controversy. The reason of this distinction is fonnd in the nature and extent of the authority given, the solicitor being constituted, for the management of the action in court, and for nothing more.' So, if a letter sent by a solicitor to the opposite party, bo expressed to be written " without prejudice,'''' it cannot be received as an admission ; neither can the reply be admitted, though not guarded in a similar manner." If the admission were made before suit, it will bo equally binding, provided it be shown that the solicitor was already retained to appear in the action.^ But in the absence of any evidence of such retainer, some other proof must be given of authority to make the admission.* When the solicitor is already constituted in the.cause, admissions made by his managing clerk, or his agent, are received as his own.^ § 783. Admissions made by counsel stand on much the same g 708 footing as those made by solicitoi's; and therefore, where a special case had been signed by the junior barrister on each side, but as a material fact had been omitted, a new trial was granted, the case was regarded by the court as containing the admissions of the parties to the facts therein stated, and its production was held to dispense with a second proof of those facts. ** Indeed, it may be laid down as a general proposition of law, available alike in the Chancery and Common Law Divisions of the High Court, that a consent once given, or an admission made, by a counsel under his signature, with the authority of his client, with a full knowledge ' Fetch V. Lyon, 9 Q. B. 147 ; Yonng v. AVright, 1 Camp. 139, 141 ; Parkins V. Hawkshaw, 2 Stark. R. 239 ; Doe r. Richards, 2 C. & Kir. 216. See Wilson V. Turner, 1 Taunt. 398 ; Wat,sou v. King, 3 Com. B. 608. 2 Paddock v. Forrester, 3 Scott, N. R. 734 ; 3 M. & Gr. 903, S. C. ; Hoghton V. Hoghton, 15 Beav. 321. See Jardine v. Sheridan, 2 C. & Kir. 24 ; Williams V. Thomas, 2 Drew. & Sm. 29, 37 ; and post, § 795. ^ Marshall v. Cliff, 4 Camp. 133, per Ld. Ellenborough ; Gainsford v. Grammar, 2 Camp. 9, per id. * Wagstaff V. Wilson, 4 B. & Ad. 339 ; Burghart v. Angerstein, 6 C. & P. 695, per Alderson, B. ; Pope v. Andrews, 9 C. & P. 564, per Coleridge, J. 5 Taylor v. Willans, 2 B. & Ad. 845, 856 ; Standage v. Creighton, 5 C. & P. 406 ; Griffiths v. Williams, 1 T. R. 710 ; Truslove v. Burton, 9 Moore, G4 ; Taylor v. Forster, 2 C. & P. 195. ® Van Wart v. Wolley, Ry. & M. 4, per Abbott, C. J. ; Edmunds v. New- man, id. 5, n. per id. (3546) CHAP. XIV.] ADMISSIONS BY COUNSEL, WHEN EVIDENCE. CT9 of the facts, and -without some egregious mistake, is conclusively binding, and cannot afterwards be withdrawn.' Again, where counsel on Loth sides so conduct a cause, as to lead to an inference that a certain fact is admitted between them, the court or the jury may treat it as proved;^ and though the counsel do so with respect to some fact which goes to support one issue only, that fact, it seems, may be taken for granted for all purposes, and as to the whole case.^ So, where a plaintiff's counsel in his opening stated that his client had paid a particular cheque, but called no evidence in support of that fact, the defendant was allowed to give secondary evidence of the contents of the cheque after notice to produce, without giving further proof of the plaintiff's possession.* § 784. In the case of Col ledge t'. Horn,^ this doctrine was sought g 709 to be carried one step further; and on a second trial the defendant endeavoured to avoid part of his opponent's demand, by proving an admission, which, on the former trial, had been made in the plain- tiff's presence by the plaintiff's counsel in his opening address to the jury. The judge rejected this evidence; and although the court above subsequently granted a new trial, they did so, not on the ground that the ruling was wrong, but because the facts were not sufficiently before them. Mr. Justice Burrough, indeed, felt no difficulty in saying, that, if the plaintiff was in court, and heard what his counsel said, and made no objection, he was bound by the statement; but the other learned judges, with more prudence, forebore giving any opinion on a question, which they held to be one of great nicety. It was urged, with much truth at least, in support of the judge's ruling, that statements made by counsel in the course of his address to the jury are often no other than embel- ' Harvey v. Croydon Union, &c., per Ct. of App. 13 Feb., 1884, overruling S. C, as decided by Pearson, J.; 53 L. J., Ch. 335. L. K., 26 Ch. D. 249; 53 L. J., Ch. 707, S. C. 2 Stracy v. Blake, 1 M. & W. 1G8; Doe d. Child v. Roe, 1 E. & B. 279. ' Bolton V. Sherman, 2 M. & W. 403, per Ld. Abinger. * Duncombe v. Daniell, 8 C. & P. 222, 227, per Ld. Denman. But see Machell v. Ellis, 1 C. & Kir. 682. ^3Bing. 119; 10 Moore, 431, S. C. See R. v. Coyle, 7 Cox, 74; Haller r. Worman, 2 Fost. & Fin. 165, per Keating, J. Sed qu. as to this last case. (3547) GSO ADMISS. in- PRINCIPAL, WHEN EVID. AGAINST SURETY. [PAET II. lishments of the imagination; and it was contended, that, as bills in equity were not evidence against the parties who tiled them, in- asmuch as they were supposed to be the suggestions of counsel, so the speeches of barristers should clearly be rejected. Should these arguments be considered inconclusive, some learned members of the profession, — if duly watched, — will often save their adversaries much trouble in the way of proof.' § 785.^ The admissions of a princi2ml can seldom bo received as ? "^10 evidence in an action against the surety upon his collateral under- taking. In these cases the main inquiry is, whether the declara- tions of the principal were made during the transaction of the business for which the surety was bound, so as to become part of the res gestae. If so, they are admissible; otherwise, they are not. The surety is considered as bound only for the actual condvict of the party, and not for whatever he might say he had done; and there- fore he is entitled to proof of the principal's conduct by original evidence, where it can be had; excluding all his declarations made subsequent to the act to which they relate, and out of the course of his official duty.^ Thus, where one guaranteed the payment for such goods as the plaintiffs should send to another in the way of trade; the admissions of the principal debtor, that he had received goods, made after the time of their supposed delivery, were held ' As to the authority of counsel to bind a client by a compromise or agree- ment made at the trial, see Swinfen v. Swinfeu, 25 L. J., C P. 303; 26 id. 97; 1 Com. B., N. S. 364, S. C; 27 L. J., Ch. 35, coram Eomilly, M. R., S. C; 24 Beav. 549, S. C. ; judg. of M. R. affd. by Lds. Js., 2 De Gex & J. 38; 27 L. J., Ch. 491, S. C; Chambers v. Mason, 5 Com. B., N. S. 59; Swinfen v. Ld. Clielmsford, 5 H. & N. 890; Tristwick v. Foley, 34 L. J., C. P. 189; S, C. nom. Prestwich v. Poley, 18 Com. B., N. S. 80(); Strauss v. Francis, 35 L. J., Q. B. 133; 1 Law Rep., Q. B. 379; and 7 B. & S. 365, S. C; Brady v. Curran, T. R., 2 C. L. 314; Holt v. Jesse, L. R., 3 Ch. D. 177; 46 L. J., Ch. 254, S. C; Davis v. Davis, L. R., 13 Ch. D. 861, per Fry, J.; 49 L. J., Ch. 241, S. C. '^ Gr. Ev. ? 187, in great part. ' So, in the ab.sence of special agreement, a judgment or an award again.st a principal debtor is not binding on the surety, and is not evidence against him if he be sued by the creditor. Ex. p. Young, reKitchin, L. R., 17 Ch. D. 668. (3548) CHAP. XIV.] ADMISS. BY PRINCirAL, WHEN EVID. AGAINST SURETY. 681 inadmissible in evidence against the surety.' So, if a man become surety in a bond, conditioned for the faithful conduct of a clerk or collector, confessions of embezzlement, made by the principal after his dismissal, cannot be given in evidence if the surety be sued on the bond; ^ though entries made by the principal in the course of his duty, or whereby he has charged himself with the receipt of money, will, at least after his death, be received as proof against the surety.^ § 786.* The declarations of a principal may possibly be evidence ? "1^ against the sui'ety, in a case where the latter, being sued for the default of the former, gives him notice of the pendency of the suit and requests him to defend it; for here, if judgment goes against the surety, the record is conclusive evidence for him, in a subse- quent action against the principal for idemnity, inasmuch as the principal has thus xnrtually become a party to the suit. This view of the law is at least in accordance with the ruling of Lord Kenyon, which cannot be supported on any other ground. A sheriff had brought an action against the surety of his baliff, who had kept back some money which he had received; and his lordship held, that a wi'itten admission by the bailiff of the receipt of this money was evidence against the surety, as the bailiff was substantially the defendant in the action.^ § 787.® The admissions of one person are also evidence against i "712 another, in respect of privity between them. The term x^^'ivity denotes mutual or successive relationship to the same rights of pro- ' Evans v. Beattie, 5 Fsp. 26, per Ld. Ellenborongh; Bacon ?'. Chesney, 1 Stark. R. 192, per id.; Longenecker.r. Ifyde, 6 Binn. 1. '^ Smith V. Whittingliam, G C. & P. 78. See, also, Cutler r. Newlin, ]\rann. Dig. N. P. 137, per Holroyd, J.; Dunn v. Slee, Holt, N. P. R. 401; Dawes V. Shed, 15 Mass. 6, 9; Foxoroft v. Nevens, 4 Greenl. 72; Hayes v. Seaver, 7 Greenl. 237; Beall v. Back, 3 Har. & McHen. 242. * Whitnash v. George, 8 B. & C. 556; Middleton v. Melton, 10 B. & C. 317; Goss V. Watlington, 3 B. & B. 132; 6 Moore, 355, S. C; M'Gahey v. Alston, 2 M. & W. 213, 214. * Gr. Ev. § 188, in part. ^ Perchard r. Tindall, 1 Esp. 394. « Gr. Ev. I 189, in great part. (3549) 682 ADMISSIONS BY PRIVIES. [PART II. perty; and privies are distributed in several classes, acccording to the manner of this relationship. Thus, there are privies in estate, — as, donor and donee, lessor and lessee, joint-tenants, and succes- sive bishops, rectors, and vicars: privies in blood, — as, heir and ancestor, and coparceners; i)rivies in representation, — as, executors and testators, administrators and intestates; privies in law, — where the law, withoiat privity of blood or estate, takes the land from one and bestows it upon another, as by escheat. All these are more generally classed into privies in estate, privies in blood, and privies in law.^ The ground, upon which admissions bind those in privity with the party making them, is, that they are identified in interest; and of course the rule extends no further than this identity. The cases of coparceners, and of joint tenants, are assimilated to those of joint promissors, partners, and others having a joint interest, which have already been considered." In other cases, where the party by his admissions has qualified his own right, and another claims to succeed him, as heii*, executor, or the like, the latter succeeds only to the right as thus qualified at the time when his title commenced; and the admissions are receivable in evidence against the representative, in the same manner as they would have been against the party represented ^ Thus, the declarations of the ancestor, that he held the land as the tenant of a third person, are admissible to show the seisin of that person, in an action brought by him against the heir for the land.^ And the declarations of an intestate are admissible against his administrator, or any other claiming in his right ;^ but it has been held, that the declarations of an executor, though made while he was acting in that capacity, are not admissible against a special administrator, who has been appointed in consequence of the executor's protracted absence from England." 1 Co. Lit. 271 a; Carver r. Jackson, 4 Pet. 1, 83; Wood, Inst. LL. Eng. 236; Tomlin, L. Diet. Verb. Prides. See Walker's case, 3 Co. 23; Beverley's case, 4 Co. 123, 124; ante, g 90. 2 Ante, I 743. ^ Coole V. Braham, 3 Ex. R. 185, per Parke, B. * Doe V. Pettett, 5 B. & A. 223; 2 Poth., 01)1., 254; ante, H G84— 687, and cases there cited. 5 Smith r. Smith, 3 Bing. N. C. 29; 7 C. & P. 401, S. C. ^ Rush V. Peacuck, 2 M. & Rob. 162, per Ld. Denman. There the adminis- (3550) CHAP. XIV.] ADMISSIONS BY PRIVIES. 683 § 788.' Agaiu, any declaration by a landlord, in a prior lease, ^ 713 which is relative to the matter in issue, and concerns the estate, has been received in evidence against a lessee, vyho claims by a sub- sequent title;" and admissions, — whether evidenced by letters, receipts, cases drawn for the opinion of counsel, answers in Chan- cery, or verbal statements, — if made by former bishops, rectors, or vicars, with regard to their several rights, will be evidence against their respective successors, in all cases where the same rights are in question.'^ So, where a vicar had tiled a bill against his rector and certain landowners of the parish for tithe hay, and had subse- quently abandoned the suit, the defendants in their answer having declared that the tithes in question belonged to the rector, it was held, in an action for similar tithes brought by a succeeding rector against owners, who had purchased their lands from the parties to the former suit, that the answer was strong evidence in favour of the plaintiff.* So, ancient maps, books of survey, and the like, though mere private documents, are frequently admissible on this ground, where a privity in estate exists between the former pro- prietor iinder whose direction they were made, and the present claimant against whom they are offered.'^ The declarations, also, of former owners or occupiers, i^ade while in possession, have been admitted as evidence of the nature and extent of their title, against those claiming in privity of estate.® § 789. The question how far the admissions of tenants may be § 714 trator was appointed under the Act of 38 G. 3, c. 87. As to liow far pay- ments made by an executor de son tort to a creditor of a deceased person are binding on the rightful executor, See Thomson v. Harding, 2 E. & B. 630. 1 Gr. Ev. § 189, in part. 2 Crease r. Barrett, 1 C. M. & R. 932. See Doe v. Seaton, 2 A. & E. 171. 2 Bp. of Meath v. M. of Winchester, 3 Bing. N. C. 183 ; Maddison v. Nuttall, 6 Bing. 226; 3 M. & P. 544, S. C; Doe v. Cole, 6 C. & P. 359, per Patteson, J.; De Whelpdale r. Milburn, 5 Price, 485; Carr v. Mostyn, 5 Ex. R. 69. * Lady Dartmouth r. Roberts, 16 East, 334. 5 Bridgman v. Jennings, 1 Ld. Ray. 734; B. N. P. 283, a. 6 Woolway v. Rowe, 1 A. & E. 114; 3 N. & M. 849, S. C. ; Doe v. Austin, 9 Bing. 41; Davies t). Pierce. 2 T. R. 53; Doe v. Jones, 1 Camp. 367; Jack- son V. Bard, 4 Johns. 230, 234; Norton v. Pettibone, 7 Conn. 319; Weidman V. Kohr, 4 Serg. & R. 174. (3551) CSi AD.MIS6. BY TENANTS WHEN EVID. AGAINST LANDLORDS. [PART II. received in evidence against their landlords is not very distinctly ascertained; but, although in one case at Nisi Prius it has been held, that the receipts of a lessee of vicarial tithes were evidence, in proof of a modus, against the vicar, by a reason of privity between them; ' and though in an action for the recovery of land, the ad- mission of the tenant in possession will, from the peculiar nature of the proceedings, be evidence against one who oefends as landlord;^ yet it seems that, in general, the naked declarations of a tenant will not be evidence against the reversioner; ^ and it has been expressly held, that the declarations of a former occupier of the defendant's land were not admissible against him, on an issue whether the plaintiif had an easement in such land.* § TOO.'* The same principle holds in regard to adTO!'ssi'o7?s ??jade 6?/ g 715 the assignor of a personal contract or chattel previous to the assign- ment, where the assignee must recover through the title of the assignor, and succeeds only to that title as it stood at the time of its transfer. In such case, he is bound by the previous admissions of the assignor in disparagement of his own apparent title. But this is true only where an identity of interest exists between the assignor and assignee; and such identity is deemed to exist, not only where the latter is either expressly or impliedly the mere agent and representative of the former,*' but also where the assignee has acquired a title with actual notice of the true state of that of the assignor as qualified by the admissions in question, or where he has purchased a demand already stale, or otherwise infected with cir- cumstances of suspicion. ' Jones r. Carrington, 1 C. & P. 329, 330, per Park, J. See, also, Illing- worth V. Leigh, 3 Gwill. 1615; 3 Eag. & Y. 1385, S. C. '' Doe r. Litherland, 4 A. & E. 784; 6 N. & M. 313, S. C. See Kules of Sup. Ct., 1883, Old. XII., RR. 25, 26. ^ Tickle V. Brown, 4 A. & E. 378, per Patteson, J. * Scholes r. Chadwick, 2 M. & Rob. 507, per Cresswell, J.; Papendick v. Bridgwater, 5 E. & B. 166. " Gr. Ev. ^ 190, almost verhatim. * AVelstead v. Levy, 1 M. «& Rol). 138 ; Harrison r. Vallanoe, 1 Bing. 45: Gibblehouse r. Strong, 3 Rawle, 437; Hatch v. Dennis, 1 Fairf. 244; Snel- grove V. Martin, 2 M'C. 241, 243. (3552) CHAP. XIV.] ADMISSIONS BY rOR>[ER HOLDERS OF BILLS. 685 § 791.' Thus, in an action by the indorsee of a bill or note, ^ 716 which has been taken by the plaintiff after it was due, or without consideration, and with notice of fraud in its original concoction, the declarations of the indorser, made while the interest was in him, are admissible in evidence for the defendant."^ But, on the other hand, the declarations of a former holder of a note, showing that it was given without consideration, though made while he held the note, are not admissible against the indorsee, to whom the in- strument has been transferred on good consideration, and before it was overdue; for such an indorsee derives his title from the nature of the instrument itself, and not through the previous holder; and, as Mr. Justice Parke properly observed, "the right of a person, holding by a good title, is not to be cut down by the acknowledgment of a former holder, that he had no title. "'^ In applying this rule, a note payable on demand, though not negotiated for some time after its date, will not on that account be treated as a note taken by an in- dorsee when overdue; for such notes are intended to be continuing securities, and may circulate for years without exciting suspicion.* IS^either will the circumstance that the declarations of the prior holder would, if received, prove his fraud in connexion with the indorsee, render them admissible against the latter; because all preliminary facts, which are necessary to establish the admissi- bility of evidence, must be proved aliunde, before such evidence is received.^ § 792. The case of Ivat v. Finch'^ appears to have been decided ^ 717 partly on the same principle. This was an action of trespass for taking three mares, the property of the plaintiff. The defendant, 1 Gr. Ev. ^ 190, in part. ■-' Beaucliamp v. Parry, 1 B. & Ad. 89; Peckham v. Potter, 1 C. & P. 232, per Ld. Gifibrd; Benson v. Marshal, cited in Shaw v. Broom, 4 D. & R. 7ol ; Shirley V. Todd, 9 Greenl. 83. * Wool way i'. Rowe, 1 A. & E. 116, explaining Barough r. White, 4 B. & C. 325; 6 D. & R. 379, S. C. ; Smith v. De Wruitz, Ry. & M. 212, per Abbott, C. J. ; Beauchamp ?'. Parry, 1 B. & Ad. 89. * Barough v. White, 4 B. & C. 325; Brooks v. Mitchell, 9 M. & W. 15. ^ Phillips V. Cole, 10 A. & E. 106, 112; 2 P. & D. 288, S. C. See Heenan v. Clements, 1 Ir. Law Rep., N. S. 44. 6 1 Taunt. 141. . (3553) GSG ADMISSIONS BY PKIVIES. [PART II. who was lord of the inauor, justified under a heriot custom; and the sole question between the parties was, whether one Alice "Watson, the tenant, Avas possessed of the mares at the time of her death. The plaintiff contended that she had given them to him some time before, and tendered in evidence her declarations to that effect. These were rejected at the trial, but the court above held that they were admissible, as they were against her interest, and the right of the lord depended upon her title. But where the fact of this de- pendence is not directly raised by the issue, such declarations will be inadmissible; and therefore, in Stotherd v. James,' where an issue was directed to try whether goods seized in A.'s house at the suit of the defendant were the property of the plaintiff, the declara- tions of A. respecting the property were rejected as evidence; because on that narrow issue the defendant would succeed, whether the goods belonged to A. or to any other person besides the plaintiff. Had the issue raised the question, whether the goods belonged to A. at the time of the execution, it would seem, on principle, that his declarations made before the seizure would have been evidence against the defendant; though, on an issue similar to that which was raised in Stotherd v. James, Mr. Justice AVightman is reported to have rejected the debtor's admissions, on the dubious ground that the execution creditor claimed adversely to him.^ In the case of Coole V. Braham,^ the Barons of the Exchequer, while they doubted the doctrine propounded by Mr. Justice AYightman, and intimated an opinion that, in an interpleader suit, the execution creditor should be considered as claiming under the debtor, held that the admissions of the debtor would only be evidence against the execu- tion creditor, when they qualified or affected the debtor's title to the chattels in question; and, therefore, on an interpleader issue between the holder of a bill of sale and the execution creditor, where the question raised was the usual one of fraud in the concoc- tion of the bill of sale, the court determined that the plaintiff could not support the genuineness of the instrument, by giving evidence of an admission by the debtor of a debt due from him to the » 1 C. «& Kir. 121, per Maule, J. 2 Prosser v. Gwillim, 1 C. & Kir. 95. 2 18 L. J., Ex. 105; 3 Ex. R. 183, S. C. (3554) chap.xivJadmiss. by declarant, after parting with interest. 687 plaintifP, though such admission was made prior to the assignment, it having also been made in the absence of the defendant. § 793.' These admissions by third persons, as they derive their ? 718 legal force from the relation of the party making them to the property in question, may be proved by any icitness who heard them, without calling the party by whom they were made. The question is, whether he made the admission, and not merely whether the fact is as he admitted it to be. Its truth, where the admission is not conclusive, — and it seldom is so, — may be con- troverted by other testimony, and even by calling the party him- self ; but it is not necessary to produce him, for his declarations, when admissible at all, will be received as original evidence, and not as hearsay.^ § 794. With respect to the time and circumstances of the admis- sion it may first be observed, that whenever the declarations of a third person are offered in evidence, on the ground that the party against whom they are tendered derives his title from the declarant, it must be shown that they were made at a time, when he had an interest in the property in question; because it is manifestly unjust, that a person who has parted with his interest in property, should be empowered to divest the right of another claiming under him, by any statement which he may choose to make.^ Thus, the admission of a former party to a bill of exchange, made after he has negotiated it, cannot under any circumstances be received against the holder ; ^ and where a person had, by a voluntary postnuptial settlement, conveyed away his interest in an estate, and afterwards had executed a mortgage of the same property, it was held, that his admission that money had actually been ' Gr. Ev. 191, almost verbatim. ^ Ante, II 576, 602, 603, and cases there cited; Wool way v. Rowe, 1 A. & E. 114; 3 N. & M. 849, S. C. ; Brickell v. Hulse, 7 A. & E. 454. 3 Doe V. Webber, 1 A. & E. 740, per Ld. Denman; Foster v. M'Mahon, 11 Ir. Eq. R. 301; Lalor v. Lalor, 4 L. R. Ir. 678. * Pocock V. Billing, 2 Bing. 269 ; Shaw v. Broom, 4 D. &R. 730. See Roberts V. Justice, 1 C. & Kir. 93. (3555) (19 088 OFFERS OF COMPROMISE, WHEN AD3IISSIBLE. [pART II. advanced upon the mortgage could not be received on behalf of the mortgagee, who was seeking to set aside the former settle- ment as voluntary and void.' So,^ also, the declaration of a banki'upt, though good evidence to charge his estate with a debt, if made before his bankruptcy, is not admissible at all, if it were made afterwards.^ This most just and equitable doctrine will be found to apply to the cases of vendor and vendee, grantor and grantee, and, generally, to all cases of rights acquired in good faith previous to the time of making the admission in question.* § 795. It will here be convenient to repeat, — what has before been ^ 720 briefly noticed,^ — that confidential overtures of pacification, and auy other offers or propositions between litigating parties, expressly or impliedly made tvifhoi.it j)^'edjudice, are excluded on grounds of public policy.*^ For without this protective rule, it would often be difficult to take any steps toward an amicable compromise or adjustment, and as Lord Mansfield has observed, all men must be permitted to buy their peace, without prejudice to them should the offer not succeed ; such offers being made to stop litigation, without regard to the question whether anything is due or not. If, therefore, the defendant, on being sued for lOOZ., should offer the plaintiff 20^., and at the same time state that such offer was made " without prejudice," this is not admissible in evi- dence, for it is irrelevant to the issue; it neither admits nor ascer- 1 Doe V. Webber, 1 A. & E. 733; 3 N. & M. 586, S. C; Gully v. Bp. of Exeter, 5 Bing. 171, ^ Gr. Ev. § 180, in part. 3 Bateman v. Bailey, 5 T. R. 513; Smith v. Simmes, 1 Esp. 330; Deady V. Harrison, 1 Stark. R. 60. See, also, Harwood v. Keys, 1 M. & Rob. 204, and Kempland v. Macauley, Pea. R. 66, per Ld. Kenyon. * Welstead v. Levy, 1 M. & Rob. 138; Bartlett v. Delprat, 4 Mass. 702, 70R Clark v. Waite, 12 Mass. 439; Bridge v. Eggleston, 14 Mass. 245, 250, 251 Phenix v. Ingraham, 5 Johns. 412; Placker v. Gonsalus, 1 Serg. & R. 526 Patton r. Goldsborough, 9 Serg. & R. 47; Babb v. Clem.son, 12 Serg. & R. 328 Crowder c. Hopkins, 10 Paige, 183; Padgett v. Lawrence, id. 180, 181. * Ante, § 774. « Cory V. Bretton, 4 C. & P. 462, per Tindal, C. J. ; Hcaley v. Thatcher, 8 C. & P. 388 ; Paddock v. Forrester, 3 Scott, N. R. 734 ; 3 M. & Gr. 903, S. C. ; Jardine v. Sheridan, 2. & Kir. 24; Whiffcn v. Hardwright, 11 Beav. Ill; Hoghton v. Hoghton, 15 Beav. 821, Jones v. Foxall, id. 388. (3556) CHAP. XIV.] OFFERS OF COMPROMISE, WHEN ADMISSIBLE. 689 tains any debt, and is no more than saying tbat he would give 20Z, to be rid of the action.' So, in equity, it has been held, that the giving of a small sum in order to obtain the release of a right, could not be considered as an acknowledgment that a right existed ; it amounts only to this — " I give you so much for not seeking to disturb me." " Perhaps, also, an offer of compromise, the essence of which is that the party making it is willing to submit to a sacrifice, or to make a concession,"^ will be rejected, though nothing at the time was expressly said respecting its con- fidential character, if it clearly appear to have been made under the faith of a pending treaty, into which the party has been led by the confidence of an arrangement being afFected ; * though, in this case, if the admission be merely of a collateral or indiffei-ent fact, such as the handwriting of a party, which is capable of easy proof by other means, and is not connected with the substantial merits of the cause, it will be received.^ The American courts have held, that evidence of the admission of any independent fact is receivable, though made during a treaty of compromise.^ § 796. In the absence of any express, or strongly implied, ^ 721 restriction as to confidence, an offer of compromise is clearly admissible as some evidence of liability ; ' and although the offer of a less sum than the amount demanded will not, in general, support a count on an account stated, since it may be a mere offer to purchase peace ; ^ — nor, perhaps, will an offer by the drawer of a bill, who is threatened with legal proceedings upon it, to give another bill by way of settlement, obviate the necessity of proving at the trial that he has received due notice of dis- 1 B. N. P. 23G, h. 2 Underwood v. Ld. Courtown, 2 Sch. & Lef. 67, 68, per Ld. Eedesdale. 3 Thomson v. Austen, 2 D. & R. 361, per Bayley, J. * "Waldridge r. Kennison, 1 Esp. 144, per Ld. Kenyon. ^ Id. ® Mounts. Bogert, Antlion, 190, per Thompson, C. J.; Murray v. Coster, 4 Coweu, 635 ; Fuller r. Hampton, 5 Conn. 416, 426 ; Sanborn v. Neilson, 4 New Hamps. R 501, 508, 509 ; Delogny v. Rentoul, 1 Mart. 175. ' Wallace v. Small, M. & M. 446, per Ld. Tenterden ; Watts v. Lawson, id. 447, n., per id.; Nicholson v. Smith, 3 Stark. R. 129, per id. 8 Wayman v. Hilliard, 7 Bing. 101 ; 4 M. & P. 729, S. C. (3557) 690 OFFERS OF COMPROMISE, WHEN ADMISSIBLE. [PART II, honour ; ' yet there are occasions, — as, for instance, if the drawer of a bill, whose signature is in issue, has proposed a settlement, — when the fact of an offer having been made may be entitled to considerable weight." In the case of Thomas v. Morgan,^ however, where the defendant was sued for keeping mischievous dogs, which had killed three of the plaintiff's cattle, and it appeared that on being told of the injury done by them he had offered to settle for it, the court held, that though this was a fact, which in strictness should have been submitted to the jury as evidence of the scienter,* it was entitled to little, if any, weight, " as it might have been made from motives of charity without any admission of liability at all." They therefore refused a new trial, though the question, whether the offer of compromise was not an admission of the defendant's liability, had not in point of fact been left to the jury, the attention of the judge at Nisi Prius not having been drawn to that particular point. After what has been said above, authorities need scarcely be cited to show, that admissions made before an arbitrator are receivable in a sub- sequent trial of the cause, the reference having proved ineffectual.^ § 797. Before leaving this subject one word of caution may be § "22 added respecting a man's purchasing peace, where his conduct, though strictly upright and honourable, may be subjected to mis- ' Cuming v. French, 2 Camp. 106, n., per Ld. Ellenborongh. See, post, § 806. ^ Harding r. Jones, Tyr. & Gr. 135. •■* 2 C. M. & R. 496 ; 5 Tyr. 1085, S. C. See, however, Sayers v. Walsh, 12 Ir. Law R. 435. * The absurd doctrine of " scienter," as applicable to mischievous dogs, no longer prevails in its entirety ; though the law, notwithstanding lour legis- lative attempts at amendment, still continues in a most unsatisfactory state. In Ireland, " the owner of every dog is liable in damages for injury done to any sheep by his dog," whether such dog be mischievous or not ; 25 & 26 V., c. 59, ^ 1, Ir. See, also, 28 & 29 V., c. 50, Ir. A somcAvhat similar amend- ment of the law has been introduced into England and Scotland, and has been extended in these countries to injuries cau-sed by dogs to sheep or cattle; 26 & 27 v., c. 100, § 1, Sc; 28 & 29 V., c. 60. The word "cattle" here used, includes horses, Wright v. Pearson, 4 Law Rep., Q. B. 582 ; 38 L. J., Q. B. 312; 10 B. & S. 723, S. C. s Greg(jry v. Howard, 3 Esp. 113, per Ld. Kenyon ; Slack v. Buchannan, Pea. E. 5, per id. (3558) CHAP. XIV.] ADMISSIONS MADE UNDER CONSTRAINT. 691 interpretation. Such a course is always pusillanimous, seldom gains its immediate object, and, if it fails, may be productive of irreparable injury to character. The council of a man who has once lent himself to such an arrangement, may feebly urge that he was actuated by motives of charity and benevolence ; but the opponent will more loudly and successfully contend that his behaviour amounts to proof of a consciousness of misconduct; and the judge, while he rejects both these interpretations, will perform no easy task, should he induce the jury to ascribe it to the infirmity of one, who was reluctant to have his character and conduct questioned, and his name bandied about in the public papers. "Let this action," said Lord Ellenborough,- — when Sir William Scott was sued for illegally excommunicating one Beaurain, whose animosity he had endeavoured to stifle by a gift, — " Let this action be a lesson for all men to stand boldly forward — to stand on their characters — and not, by compro- mising a present difficulty, to accumulate imputations on their honour.' § 798.^ In regard to admissions made under circumstances of ^ ^^^' constraint, the rule of law is this, that they cannot be received when obtained by illegal duress f but that they are admissible, at least on the trial of civil actions,* if the compulsion under which they were made was legal. Thus affidavits sworn by a party in former legal proceedings, answers filed by him in Chancery in a former suit, evidence given by him in an action at law, or his examination taken in bankruptcy, will be evidence against himself in a subsequent cause ; and this, too, though his subsequent opponent was a stranger to the prior proceed- ing,^ — though he himself might, had he thought fit, have success- ' Ld. Eldon's Life, by Twiss, vol. ii., pp. 233—235, 2nd ed. - Gr. Ev. § 193, in part. ' Stockfleth V. De Tastet, 4 Camp. 11, per Ld. Ellenborough ; Robson v. Alexander, 1 M. & P. 448. As to what questions a witness may refuse to answer, see post, ? 1453, et seq. * As to their admissibility in criminal proceedings, see post, ?.? 895 — 899. * Grant v. Jackson, Pea. R. 203, per Ld. Kenyon ; Ashmore v. Hardy, 7 C. & P. 501, 504, per Patteson, J. 23 LAW OF EVID.— V. II. (3559) 692 ADMISSIONS MADE UNDER CONSTRAINT. [pART II. fully demurred to the questions,' — though they were irrelevant to the matter before the court at the time of his examination, and were put to him for the purpose of procuring evidence in an action depending against him,^ — and though he had no op- portunity of fully explaining the testimony he had given. This last point may be illustrated by the case of Collett v. Lord Keith,'' where in an action for taking the plaintiff's ship, the testimony of the defendant, given as a witness in an action between other parties, in which he admitted the taking of the ship, was allowed to be proved against him ; though it appeared that, in giving his evidence, when he was proceeding to state his reasons for taking the ship, the judge had stopped him by saying that it was unnecessary for him to vindicate his conduct. The manner in which the evidence had been obtained was matter of observation to the jury ; but as what was said bore directly on the issue, it could not be excluded as evidence of the fact. So, where a defendant had been examined before commissioners of bankrupts, and, though the whole of what he said had not been taken down, the portion that was reduced to writing had been read over and signed by him, this was held to be receivable against him as a statement of facts, the truth of which he had admitted.* § 799. It has been said that an admission, - obtained under a i '^24 compulsory examination, will not be evidence of an account stated; but the case in which this point arose, probably rests on the ground that the admission was there made to a third party,^ while to support an account stated the admission must be made, either to the person to whom the money is owing, or to some one sent by him.*^ If, therefore, the admission were contained in an 1 Smith V. Beadnell, 1 Camp. 30, 33, per Ld. Ellenborough. "^ Stockfleth V. De Tastet, 4 Camp. 10. If the commission has been per- verted to improper pm-poses, the remedy is by an application to have the examination taken from the files and cancelled, id. 11, per Ld. Ellenborough. 3 4 Esp. 212, per Le Blanc, J. * Mihvard v. Forbes, 4 Esp. 171, per Ld. Ellenborough. 5 Tucker v. Barrow, 7 B. & C. G25, per Littledale, J. ; 3 C. & P. 90 ; 1 M. & R. 518, .S. C. 6 Breckon v. Smith, 1 A. & E. 488 ; Bates v. Townley, 2 Ex. R. 156, 157. (3560) CHAP. XIV.] NATURE OF ADMISSIONS — DIRECT — INCIDENTAL. 693 answer to interrogatories, which is clearly an answer to the plaintiff in the suit, it would most probably be regarded as good evidence of an account stated.' § 800.^ Passing now to a consideration of the nature of ad- ^ ^^^ missions, it may be observed that no difference exists, in regard to their inadmissibility, between direct admissions, and those which are incidental, or made in some other connexion, or in- volved in the admission of some other fact. One or two cases illustrative of this rule have already been noticed, while treating of admissions made by solicitors;' but it may here be added, that in an action by the assignees of a bankrupt against an auctioneer, to recover the proceeds of a sale of the bankrupt's goods, the defendant's advertisement of the sale, in which he described the goods as "the property of D., a bankrupt," was held to be a conclusive admission that D. was a bankrupt, and that the defendant was acting under his assignees.* So, where a party, with a view of suing out a commission of bankruptcy against a trader, made an affidavit that the trader owed him 100 Z., and was become banki'upt, he was not allowed afterwards to dispute the bankruptcy, when he was himself sued in trover by the assignees of the bankrupt, appointed under a second com- mission, for the price of some flour which he had clandestinely received from the trader, and applied to the dischage of his own debt.' § 801.® Other admissions are implied from assumed character; I 726 for, whenever the existence of any domestic, social, or official relation is in issue, any recognition, whether by word or deed, of that relation, is prima facie evidence of its existence, as against the person making such recognition.' This rule is more frequently ' See Bates v. Townley, 2 Ex. R. 157, per Alderson, B. 2 Gr. Ev. I 194, in part. ^ Ante, ? 773. * Maltby i;. Christie, 1 Esp. 342, as explained by Ld. Ellenborough in Rankin V. Horner, 16 East, 193. 5 Ledbetter v. Salt, 4 Bing. 623; Harmer v. Davis, 7 Taunt. 577. See post, ? 856, ad fin. •* Gr. Ev. § 195, in part. ' Dickinson v. Coward, 1 B. & A. 677, 679, per Ld. Ellenborough; recognised by Ld. Lyndhurst in Inglis v. Spence, 1 C. M. & R. 436. (3561) 694 ADMISSION IMPLIED FROM ASSUMED CHARACTER. [PART II. applied against a person, who has recognised the character or office of another; but it embraces, in its principle, any repre- sentation or language in regard to himself. Thus, — to illustrate the second branch of the rule first,^-"where one has assumed to act in an official character, this is an admission of his appoint- ment or title to the office, so far as to render him liable, even criminally, for misconduct or neglect in such office.' This doc- trine has been held to apply, among other eases, to actions or prosecutions against clergymen, for non residence;" against military officers, for returning false musters;^ against popish priests, for remaining forty days within the kingdom, when this was con- sidered an offence of no less magnitude than high treason;* against letter-carriers, for embezzlement;^ and against solicitors," toll- gatherers,' and collectors, for penalties.* § 802. So, — under the first branch of the rule, — where one has I 727 recognised the official character of another, by treating with him in such character or otherwise, this is at least prima facie evidence of his title against the party thus recognising it." For instance, where a person had received credit from the renter of turnpike tolls, and had afterwards accounted with him in that character, and made him a partial payment, he was not permitted to question the legality of his appointment; '" and where a farmer- general of post horse duties brought an action for certain statute penalties against a person who let out horses for hire, proof of his appoint- ment was waived, the defendant having previously accounted with > See ante, I 171. 2 Sevan v. Williams, 3 T. R. 635, a, per Ld. Mansfield. ' R. V. Gardner, 2 Camp. 513, per Ld. Ellenborough. * R. V. Kerne, 7 How. St. Tr. 714; R. v. Brommich, id. 722; R. v. Atkins, id. 728. The Act of 27 El., c. 2, under which these poor wretches were tried, is now repealed by 7 & 8 V., c. 102. * R. V. Borrett, 6 C. & P. 124, per Littledale and Bosanquet, Js., and Bol- land, B. The prisoner was indicted under 2 W. 4, c. 4, now repealed by 24 & 25 v., c. 95. * Cross V. Kaye, 6 T. R. 663. ' Trowbridge v. Baker, 1 Cowen, 251. * Lister v. Priestly, Wightw. 67. 9 Peacock v. Harris, 10 East, 104. 1° See ante, H 173—175. (3562) CHAP. XIY.] RECOGNITION OF OFFICIAL CHARACTER OF OTHERS. 695 him as farmer-general.' So, the clerk of the trustees of a turn- pike road has not been allowed to show, that a person who had acted as one of the trustees, and had been treated as such by himself, while clerk, was not duly qualified; " and in an action by the trustee of a bankrupt against a debtor, who has made him a partial payment,^ or has acknowledged his title in letters to the solicitor under the bankruptcy,* the plaintiff need not prove his title as trustee, though notice to dispute it has been given. Again, where a solicitor brought an action against a defendant for defamation, in charging him with swindling, and threatening to have him struck off the rolls, this threat was held to imply an ad- mission that the plaintiff was a solicitor; ^ and in a similar action brought by a physician, where the plaintiff was spoken of as "Doctor L.," and the defendant, who was an apothecary, had made up medicines prescribed by him, the Court of Common Pleas was equally divided upon the question, whether the defendant's words and conduct amounted to an acknowledgment of the plaintiff's character.^ In actions of this kind, however, if the words com- plained of charge a want of qualification and not mere miscon- duct, the plaintiff must prove that he possesses the character which has been impugned, for the slander in such case does not admit it.^ § 803. The case of Lipscombe v. Holmes^ affords a good § 728 example of both branches of the rule in question^ That was an action for work and labour as a surgeon ; and the defence was that the plaintiff was a physician, and therefore incapable, by the law then in force," of maintaining an action for fees. It was 1 Radford v. M'Intosh, 3 T. R. 632. 2 Pritchard v. Walker, 3 C. & P. 212, per Vaughan, B. 3 Dickinson v. Coward, 1 B. & A. 677. * Inglis V. Spenee, 1 C. M. & R. 432; Crofton v. Poole, 1 B. & Ad. 561. * Berryman v. Wise, 4 T. R. 366. « Smith V. Taylor, 1 N. R. 166; Sir J. Mansfield, and Heath, J., aflf., Rooke and Chambre, Js., neg. ' Id. 207; Collins v. Carnegie, 1 A. & E. 703, per Ld. Denman. * 2 Camp. 441. See further on this subject, R. v. Barnes, 1 Stark. R. 243; Cummin r. Smith, 2 Serg. & R. 440; Divoll v. Leadbetter, 4 Pick. 220. 9 See now 21 & 22 V., c. 90, I 31; Gibbon v. Budd, 32 L. J., Ex. 182, 2 (3563) G96 ADMISSIONS IMPLIED FROM CONDUCT. [PABT II. sliown that he had written prescriptions and signed himself M. D., upon which Lord Ellenborough was on the point of nonsuiting him, saying that " if a person passes himself off as a physician, he must take the character cum onere." It appearing, however, that the defendant had paid money into court, his lordship thought that this act removed the objection, being tantamount to an admission of the plaintiff's right to sue as a surgeon. § 804.^ Admissions implied from the conduct of the party are i 729 governed by the same principles; and although this class of ad- missions has already been adverted to, while treating of the law of presumptions,^ it deserves further illustration in this place. Thus, an attempt by a plaintiff' to suborn false witnesses is cogent evidence, in the nature of an admission by conduct, that his cause is an unrighteous one.^ So, the suppression of documents is an admission that the contents were deemed unfavourable to the party suppressing them.* The entry of a charge to a particular person in a tradesman's book, or the making out of a bill of parcels in his name, is an admission that the goods were furnished on his credit.^ The delivery, too, by a tradesman, of an invoice or account in which goods are described as bought from him, is strong, but not conclusive evidence, that he was the real vendor.® The H)mission of a claim by an insolvent in a schedule of the debts due to him given on oath, is an admission that it is not due; though whether it amounts to a conclusive admission may H. & C. 92, S. C. ; and by-law by the Royal College of Physicians, that no Fellow of the Coll. shall be entitled to sue for fees. This by-law, it will be observed, does not extend to ordinary members of the Coll., and such persons may now sue by virtue of the Medical Act. ' Gr. Ev. ^ 196, in part. ^ ^nte, U 107, 116, 117, 178, 555. ^ Moriarty v. Lond. Chat. & D. Ey. Co., 39 L. J., Q. B. 109; 5 Law Rep., Q. B. 314, S. C. * James v. Biou, and Owen v. Flack, 2 Sim. & St. 606, 607; Bell v. Frankis, 4 M. & Gr. 446; Curlewis i-. Corfield, 1 Q. B. 814; 1 G. & D. 489, S. C; Clifton V. U. S., 4 Howard, S. Ct. R. 242; R. v. Lond. Bright. & S. Coast Ry. Co., 20 L. J., M. C. 145, per Coleridge, J.; Sutton v. Devonport, 27 L. J., C. P. 54; Edmonds t;. Foster, 45 L. J., C. P. 41. ^ Storr V. Scott, 6 C. & P. 241, per Ld. Lyndhurst. See Thomson v. Daven- port, 9 B. & C. 78, 86, 90, 91. « Holding r. Elliott, 29 L. J., Ex. 134; 5 H. & N. 117, S. C. See post, § 1153. (3564) CHAP. XIV.] ADMISSIONS IMPLIED FROM CONDUCT. G97 be a question of some doubt. ^ Payment of money is an admis- sion against tlie payer, that the receiver is the proper person to receive it ; but not against the receiver, that the payer was the person who was bound to pay it ; for the party receiving payment of a just demand may well assume, without inquiry, that the party tendering the money was the person legally bound to pay it." § 805. Relief given at various times to a pauper while residing ? '^:>o in another parish, is cogent, though not conclusive, evidence that he is settled in the relieving parish;^ and even a single instance of such relief having been given will warrant a similar conclusion.* Of course the effect of such evidence will be much stronger, if the examination states a distinct head of settlement in the relieving parish, though the technical proof may fail to establish it satisfac- torily.^ On the other hand, the relief of a pauper, while residing in the relieving parish, is no evidence whatever of a settlement, however frequently it may have been bestowed;® but this rule rests, not so much on the absence of any presumption deducible from the conduct of the relieving parish, as on the impolicy of permitting such evidence to have any weight ; for if parochial officers, by giving relief to a pauper, were to make evidence against themselves ^ In Nicholls v. Downes, 1 M. & Rob. 13, Ld. Tenterden held it to be con- clusive, apparently questioning Hart v. Newman, 3 Camp. 13, where Ld. Ellenborough treated it as entitled to little weight. See Tilghman v. Fisher, 9 Watts, 441. ^ James v. Biou, 2 Sim. & St. 606; Chapman v. Beard, 3 Anstr. 942. 3 R. V. Barnsley, 1 M. & Sel. 377, 380, per Ld. Ellenborough; R. v. Wake- field, 5 East, 335; R. v. Stanley cum Wrenthorpe, 15 East, 350; R. v. East Winch, 12 A. & E. 697; R. v. Yarwell, 9 B. & C. 894; 4 M. & R. 685, S. C; R. V. Carnarvonshire, Js., 2 Q. B. 325. Formerly the relief must have been given by the churchwardens and overseers in order to furnish evidence against the parish, but the board of guardians now represent for this piirpose every parish within the union. See R. v. Crondall, 2 Sess. Cas. 667; 10 Q. B. 812, S. C. ; and the clerk to the guardians represents the board; R. v. Wigan, 14 Q. B. 287. * R. V. Edwinstowe, 8 B. & C. 671 . ^ R. V. Bedingham, 1 Sess. Cas. 114, per Ld. Denman. « R. V. Chatham, 8 East, 498; R. v. Trowbridge, 7 B. & C. 252 ; 1 M. & R. 7, S. C; R. V. Coleorton, 1 B. & Ad. 25; R. v. St. Giles-in-the-Fields, 5 Q. B. 872. (3565) 698 ADMISSIONS IMPLIED FROM CONDUCT. [PAET II. as to bis settlement in their parish, they would perform their duty to casual poor with great reluctance.' § 806. A distinct promise by the drawer to pay, or indeed any § 731 acknowledgment by him or liability upon, a dishonoured bill, — as, for example, the suffering judgment by default in a prior action, brought by a former holder of the instrument, — will raise an in- ference that he has either received or waived due notice of dishonour,^ and, in the case of a foreign bill, that it has been duly protested;' and a jury will be justified in coming to the same conclusion on less positive evidence; as, for instance, if the drawer, in disclaiming liability when threatened with an action, did not rest his defence on the want of notice, but on some different ground.* The maxim, expressum facit cessare tacitum, will here raise a presumption, which a defendant may find it difficult to rebut. The suing,^ or distraining,® for rent accruing due since a forfeiture of which the lessor has had notice, as also the acceptance of such rent,' and, perhaps, even the mere demand of it,* will, — unless an action to recover the property ■ • • . ^ R. V. Chatham, 8 East, 501, per Ld. Ellenborough ; R. v. Coleorton, 1 B. & Ad. 27, per Bayley, J. 2 Rabey v. Gilbert, 30 I.. J., Ex. 170; 6 H. & N. 53G, S. C; Woods i'. Dean, 32 L. J., Q. B. 1; 3 B. & S. 101, S. C; Cordery v. Colvin, 14 Com. B., N. S. 374; S. C. nom. Cordery v. Colville, 32 L. J., C. P. 210; Killbyt'. Eochussen, 18 Com. B., N. S. 357. 3 Hicks V. D. of Beaufort, 4 Bing. N. C. 229, 232; Campbell v. Webster, 2 Com. B. 258 ; Patterson v. Becher, 6 Moore, 319 ; Brownell v. Bonney, 1 Q. B. 39; Pardoe v. O'Connor, 12 Jr. Law R. 63. See Bell v. Frankis, 4 M. & Gr. 446; Holmes v. Staines, 3 C. & Kir. 19. * Wilkinsv. Jadis, 1 M. & Rob. 41, per Ld. Tenterden; Curlewis v. Corfield, 1 Q. B. 814; 1 G. & D. 489, S. C. See ante, § 796. 5 Roe V. Minshal, cited B. N. P. 96, c; Dendy v. Nicholl, 27 L. J., C. P. 220; 4 Com. B., N. S. 376, S. C. See Toleman v. Portbury, 6 Law Rep., Q. B. 245; 40 L. J., Q. B. 125, S. C. ; in Ex. Ch., S. C. 41 L. J., Q. B. 98; and 7 Law Rep., Q. B. .344. « Doe V. Peck, i B. & Ad. 428; Cotesworth v. Spokes, 30 L. J., C. P. 220; 10 Com. B., N. S. 10.3, S. C; Ward v. Day, 33 L. J., Q. B. 3, 254; 4 B. & S. 337; and 5 B. & S. 359, S. C. ' Warwick v. Hooper, 3 M. & Gord. 60, 69, per Ld. Truro, C; Croft v. Lumley, 25 L. J., Q. B. 73; 5 E. & B. 648, S. C; 27 L. J., Q. B. 321, S. C. in Dom. Proc; 6 H. of L. Cas. 672, S. C; Price v. Worwood, 4 H. & N. 512; Davenport v. The Queen, L. R., 3 App. Cas. 115, per Pr. C; 47 L. J., P. C. 8, S. C. See Keene v. Biscoe, 47 L. J., Ch. 644. 8 Doe V. Birch, 1 M. & W. 402. (3566) CHAP. SIV.] WAIVER OF FORFEITURE — OF A NOTICE TO QUIT. G99 has actually been brought/ — amount to an acknowledgment of the tenancy on the part of the lessor, and will, consequently, waive the forfeiture f though, if the breach be a continuing one, as the using rooms in a prohibited manner, or the omitting to keep premises insured or repaired, the acceptance of rent after such breach will not waive the forfeiture incurred by subsequent user or omission.^ A notice to quit will also in general be regarded as waived, if the landlord accepts rent subsequently accruing due, or puts in a distress for such rent, or does any other act amounting to a recognition of an existing tenancy, after the expiration of the time when the tenant ought to have quitted according to the notice.* Whether a simple demand of rent subsequently accruing due, or the bringing of an action for such rent, will operate as a waiver of a notice to quit, is a question not of "law, but of fact, which must consequently be determined by the jury.^ And here it must be remembered that, as a notice to quit, — provided it be a valid notice,'' — has the legal effect of determining a tenancy, the waiver of such notice does not revive the tenancy thus determined, but creates a new one.' § 807. The doctrine of implied waiver, as applicable to the law § 73IA of landlord and tenant, is not now recognised in Ireland, the Act of 23 & 24 V-, c. 154, having expressly enacted, in § 43, that where any lease, made after the 1st of January, 1861, shall contain or imply any condition, covenant, or agreement to be observed or per- formed on the part of the tenant, no act done or suffered by the landlord shall be deemed a dispensation therewith, or a waiver of 1 Grim wood v. JMoss, 7 Law Rep., C. P. 360; 41 L. J., C. P. 239, S. C. 2 Gooclright v. Davids, 2 Cowp. 803; Walrond v. Hawkins, 44 L. J., C. P. 116; 10 Law Rep., C. P. 342, S. C. Roe v. Harrison, 2 T. R. 430, 431; Doe I'. Allen, 3 Taunt. 78; Doe v. Rees, 4 Bing. N. C. 384; Arnshy v. Woodward, 6 B. & C. 519. 3 Doe V. Woodbridge, 9 B. & C. 376; Doe v. Peck, 1 B. & Ad. 428; Hyde V. Watts, 12 M. & W. 254; Price v. Worwood, 4 H. & K 512; Doe v. Gladwin, 6 Q. B. 953, 963; Doe v. Jone.s, 5 Ex. R. 498. See post, § 847. * Zouch V. Willingale, 1 H. Bl. 311; Goodriglit v. Cordwent, 6 T. R. 219; Doe V. Batten, 1 Cowp. 243; Doe v. Calvert, 2 Camp. 388. * Blyth V. Dennett, 13 Com. B. 178; Doe v. Batten, 1 Cowp. 243; Vance V. Vance, I. R., 5 C. L. 363. « See Holme v. Brunskill, L. R., 3 Q. B. D. 495, per Ct. of App.; 47 L. J., Q. B. 610, S. C; Aliearn v. Bellman, L. R., 4 Ex. D. 201, per Ct. of App. ^ Tayleur v. Wildin, 3 Law Rep., Ex. 303; 37 L. J., Ex. 173, S. C. (3567) 700 ADMISSIONS IMPLIED FROM ACQUIESCENCE. [pART II. the benefit of the same in respect of any breach thereof, unless such dispensation or waiver shall be signified by the landlord, or his authorised agent, in writing under his hand. § 808. The class of admissions now under discussion has, how- ever, on another occasion, been paitially recognised by the Legisla- ture, which, for the sake of promoting substantial justice, has drawn a conclusive inference from particular conduct. Thus, if a lease granted under a power be invalid by reason of some deviation from the terms of the power, the acceptance of rent under it will, — by virtue of the Act of 13 & 14 V., c. 17, § 2,^be deemed a confirma- tion of the lease as against the person accepting the rent; provided such person, or some one else by his authority, shall, before or at the time of accepting the rent, sign a receipt, memorandum, or note in writing, confirming such lease. § 809.' Admissions may also be implied from the acquiescence of the party. But acquiescence, to have the effect of an admission, must exhibit some act of the mind, and amount to voluntary de- meanour or conduct of the party." And whether it be acquiescence in the conduct or in the language of others, it must plainly appear that such conduct was fully known, or such language fully under- stood, by the party, before any inference can be drawn from his passiveness or silence.' The circumstances, too, must be not only such as afforded him an opportunity to act or to speak, but such also as would properly and naturally call for some action or reply from men similarly situated.* Thus, where a landlord quietly suffers a tenant to expend money in making alterations and im- provements on the premises, it is evidence of his consent to the alterations ;'' though the mere lying by and passively witnessing a breach of covenant for several years, is not such an acquiescence as 1 1 Gr. Ev. § 197, in great part. ^ Allen v. McKeen, 1 Sumn./314. =* See Smith v. Hayes, I. E., 1 C. L. 333; Davies v. Marshall, 10 Com. B., N. S. 697; Bickett v. Morris, 1 Law Rep., H. L. Sc. 57. * Melen v. Andrews, M. & M. 330; explained in Simpson r. Robinson, 12 Q. B. 512, per Ld. Denman; R. v. Newman, 1 E. & B. 268; Boyd r. Bolton, 1 Ir. Eq. K. 113. See Bigg v. Strong, 3 Sm. & Giflf. 592. ^ Doe V. Allen, 3 Taunt. 78, 80; Doe v. Pye, 1 Esp. 366, per Ld. Kenyon; Neale v. Parkin, 1 Esp. 229, per id. See, also, Stanley v. White, 14 East, 332; Cotching V. Basset, 32 L. J., Ch. 280, per Romilly, M. E.; 32 Beav. 101, S. C. (3508) CHAP. XIV,] ADMISSIONS IMPLIED FROM ACQUIESCENCE. 701 to amount to a waiver of the forfeiture.' Again, if a tenant, on personally receiving notice to quit on a particular day, makes no ob- jection, lie will generally, in England," ba deemed to have admitted that his tenancy expires on that day;^ but if he cannot read, or even if he did not read the notice in the presence of the person serving it upon him, it will be treated as a notice not personally served,* and will go for nothing.^ Thus, also, a debtor being in- quired for, and hearing himself denied, may thereby furnish some evidence against himself that he is beginning to keep house with intent to defeat or delay his creditors, and, consequently, is committing an act of bankruptcy;'^ and, in general, where one knowingly avails himself of another's acts done for his benefit, the jury will be justified in considering such conduct as an admission of his obligation to pay a reasonable compensation.' So, where an executor, in an administration action, had been served with notice of motion to pay into court part of the testator's estate, which was sworn by affidavit to have reached his hands, Sir George Jessel, — though he declined, in accordance with the rule in Equity, to rely simply on the proof afforded by the affidavit— was yet induced to hold that the silence of the defendant, in not disputing the facts deposed to, was a sufficient admission of their truth to ' Doe I'. Allen, 3 Taunt. 78; Perry v. Davis, 3 Com. B., N. S. 7G9. But see ante, | 806. * In Ireland, however, the law is regulated, in part, by § G of 23 & 24 V., c. 154, and in part, by s. 58 of 33 «& 34 V,, c. 46. The former Act enacts, that " every tenancy from year to year shall be presumed to have commenced on the last gale day of the calendar year on which rent has become due and payable in respect of the premises, until it shall appear to the contrary . " This law, though called a presumption, is, in fact, a mere arbitrary rule, badly expressed. ^ Doe d. Leicester, 2 Taunt. 109; Thomas v. Thomas, 2 Camp. 647; Doe v. Forster, 13 East, 405; Oakapple v. Copous, 4 T. E. 361; Doe v. Wombwell, 2 Camp. 559, per Ld. Ellenborough. See AValker v. God^, 30 L. J., E.x. 172; 6 H. & N. 594, S. C. * Doe V. Calvert, 2 Camp. 388, per Ld. Ellenborough, explained in 2 Camp. 648. * Thomas v. Thomas, 2 Camp. 649; Doe v. Forster, 13 East, 405. « Key V. Shaw, 8 Bing. 320. See 46 & 47 V., c. 52, | 4, subs. 1 (D). ' Morris r. Burdett, 1 Camp. 218, per Ld. Ellenborough, where a candidate not bound by statute to pay for the hustings erected for an election, had made use of them. Abbot v. Hermon, 7 Greenl. 118, were a schoolhouse was used by the school district; Hayden v. Madison, id. 76. (3569) 702 NOT OBJECTING TO ACCOUNTS SENT BY POST. [pART II. justify the making of the order.' So, in settlement law, where two brothers, claiming derivative settlements from their father, were removed by successive orders, and the examination of the father proving his settlement was served upon the appellants together with the first order, against which there was no appeal, the fact of the appellants not objecting to the ground of removal when they received the first son, was held, to be some slight evidence of an admission that the father was settled in their parish; and, consequently, although an appeal against the second order the first was inadmissible,^ the father's examination was received as part of the evidence of such admission.^ § 810. The raising an objection to one item of an account, § 734 no remark being made as to the rest, will be evidence of an account stated as to those items to which no objeetion has been made;* and, among merchants, an account rendered will be re- garded as allowed, if it be not objected to within a second or third post,^ or, at least, if it be kept for any length of time without making an objection.® With respect to ordinary accounts, how- ever, a distinction has been taken in Ireland between such as are sent by post, and those delivered by hand; and it has been held that the former, though kept by the party to whom they were sent without observation, are not admissible against him, as evidence that he had acquiesced in their contents.' In the case where this point was determined, Chief Justice Bushe remarked, that what a party says upon an account furnished to him, or upon a statement made in his presence, may be given in evidence against him along with the account or statement, because what is thus offered is the act or declaration of the party to be affected by it, and the account or the statement is by reference made a part of such act or declara- tion; but the naked fact that an account remains in the pos- 1 Freeman v. Cox, L. R., 8 Ch. D. 148; 47 L, J., Ch. 560, S. C. See also, Hampden v. Wallis, L. R., 27 Ch. D. 251, per Chitty, J. 2 On the authority of R. v. Duch. of Kingston, 20 How. St. Tr. 538, n. 5 R. V. Sow, 4 Q. B. 93. * Chisman v. Count, 2 M. & Gr. 307. ^ Sherman v. Sherman, 2 Vern. 27G, per Hutchins, Ld. Com. 9 Willis V. Jernegan, 2 Atk. 252, per Ld. Hardwieke; Tickel v. Short, 2 Ves. Sen. 239, per id., where the account had been kept without objection for two years. " Price V. Ramsay, 2 Jebb & Sy. 338. (3570) CHAP. XIV.] EFFECT OF NOT ANSWERING LETTERS. 703 session of a party to wbom it was sent, cannot amount to an acquiescence in its contents. His lordship added* that the ad- mission of such evidence would countenance the notion, that a man might, by furnishing an account claiming a balance against his creditor, establish an acquittance for himself.' § 811. The same distinction between letters and oral statements I 735 has been partially recognised in England. "What is said to a man before his face," observed Lord Tenterden in Fairlie v. Denton," " he is in some degree called on to contradict, if he does not acquiesce in it; ^ but the not answering a letter is quite different; and it is too much to say, that a man, by omitting to answer a letter at all events, admits the truth of the statements that letter contains." Lord Denman, also, in a later case, declared, that "it was a great deal too broad a proposition to say, that every paper which a man might hold, purporting to charge him with a debt or liability, was evidence against him if he produced it." * InGaskill V. Skeene,^ however, the Court of Queen's Bench subsequently held, that letters containing a demand, written to a defendant, and unanswered by him, were admissible in evidence for the plaintiff, though they also stated facts showing how the demand arose; but possibly that case rested on the ground, that the defendant had made some unsatisfactory statements respecting these letters, in a subsequent conversation with the plaintiff's agent. On this last ground unanswered letters written to a party have been admitted as evidence in America. "^ § 812. Letters and other papers found in a party's possession § 735 will occasionally, in a civil suit, be evidence against him, as raising a prima facie inference that he knows their contents and has acted upon them;^ and they are frequently received in criminal prosecu- 1 Price V. Ramsay, 2 Jebb & Sy. 342, 343. = 3 C. & P. 103. ^ This doctrine, by the by, would justify much speaking at St. Stephen's. * Doe V. Frankis, 11 A. & E. 795. M9 L. J., Q. B. 275; 14 Q. B., 664, S. C. See, also. Keen v. Priest, 1 Post. &Fin. 314; Lucy v. Mouflet, 29 L. J., Ex. 112; 5 H. & N. 229, S. C; Came V. Steer, 29 L. J., Ex. 281; 5 H. & N. 628, S. C; and Gore v. Hawsey, 3 Post. & Pin. 509, per Martin, B. « Dutton V. Woodman, 9 Cush. 262. ' Hewitt V. Piggott, 9 C. & P. 75. (3571) 704 ACQUIESCENCE IN STATEMENTS BY STRANGERS. [PAET II. tiors, especially those for conspiracy and treason, though their weight, as evidence against the prisoner, will in a great measure depend on the fact, whether answers to them can be traced, or whether anything can be shown to have been done upon them.' So," also, the opportunity of constant access to documents may sometimes, by raising a presumption that their contents are known, afford ground for affecting parties with an implied admission of the truth or correctness of such contents.^ Thus, the rules of a club, or the record of the proceedings of a society, contained in a book kept by the proper officer and accessible to the members,* — charges against a club, entered by the servants of the house in a book kept for that purpose open in the club-room,^ and the like, — are admissible against the members; their knowledge of the contents of the books, and their acquiescence therein, being presumable under the circumstances. On similar grounds, \)Ook8 of account which have been kept between master and servant, tradesman and shopman, banker and customer, or co- partners, will occasionally be admitted as evidence even in favour of the party by whom they have been written, provided that the opposite party has had ample opportunities for testing from time to time the accuracy of the entries.*^ § 813.' But in regard to admissions inferred from acquiescence § 737 in the oral statements of others, the maxim Qui tacet consentire videtur, — however it may be recognised by the lover, — must by the lawyer be applied with careful discrimination. "Nothing," it has been observed, " can be more dangerous than this kind of 1 R. V. Home Tooke, 25 How. St. Tr. 120, 121, per Eyre, C. J. ; E. v. Watson, 2 Stark. 140; 32 How. St. Tr. 349, 351, S. C. 2 Gr. Ev. ?i 198, in part. 3 See, however, Hallmark's Case, 47 L. J., Ch. 868, per Ct. of App.; L. E. 9 Ch. D. 329, S. C. ; disapprovinjr of Wheatcroft's Case, 42 L. J., Ch. 853; and Ex. p. Brown, 19 Beav. 97, 104. * Raggett V. Musgrave, 2 C. & P. 556, per Abbott, C. J. ; Alderson r. Clay, 1 Stark. R. 405, per Ld. Ellenborough ; Ashpitel v. Sercombe, 5 Ex. R. 147. * Wiltzie V. Adamson, 1 Ph. Ev. 357. ^Symonds r. Gas Light and Coke Co., 11 Beav. 283, 287; Boardman v. Jackson, 2 Ball & B. 382; Kilbce & Sneyd, 2 Moll. 193: Lodge v. Prichard, 3 De Gex. M. & G. 906, Rules of Sup. Ct. 1883, Ord. XXXIII. R. 3; and 30 & 31 v., c. 44, l 159, Ir., cited ante, 'i 711. ' Gr. Ev. § 199. in great part. (3572) CHAP. XIV.] SILENCE OF ACCUSED IN JUDICIAL INQUIRIES. 705 evidence. It should always be received with caution : and never ought to be received at all, unless the evidence is of direct declara- tions of that kind, which naturally calls for contradiction ; some assertions made to the party with respect to his right, which by his silence he acquiesces in." ' A distinction has accordingly been taken between declarations made by a party interested and those made by a stranger; and while what one party declares to the other without contradiction is admissible evidence, what is said to a party by a third person may well be inadmissible. It may be impertinent, and be best rebuked by silence.^ Still less will state- ments made by strangers in the presence of a party be receivable against him, if they be not directly addressed to him ; because, in such case, he can scarcely under any circumstances be called upon to interfere. Therefore, where in a real action, upon a view of the premises by a jury, one of the chainbearers was the owner of a neighbouring close, respecting the bounds of which the litigating parties had much altercation, their declarations in his presence were held inadmissible against him, in a subsequent action respecting his own close.^ § 814. Moreover, to affect one person with the statements of I "^38 others, on the gi'ound of his implied admission of their truth by silent acquiescence, it is not enough that they were made in his presence, or even to himself, by parties interested, but they must also have been made on an occasion, when a reply from him might be properly expected} Depositions, therefore, taken in the presence of a party during a judicial investigation, observations made by a magistrate to the parties before him, and confessions of an accomplice criminating his co-prisoner before the justices, will not, in general,'^ be evidence in any subsequent trial, whether ' Moore v. Smith, 14 Serg. & R. 393, per Duncan, C. J. '' Child V. Grace, 2 C. & P. 193, per Best, C. J. ^ Moore r. Smith, 14 Serg. & R. 388. ♦ Boyd J'. Bolton, 8 Ir. Eq. R. 113. ^ This cannot be laid-down as a strict rule of law applicable on all occa- sions ; for as Ld. Denman observed, in Simpson v. Robinson, 12 Q. B. 512, " ca.ses may certainlj^ be conceived, in which a party, by not denying a charge made against him in a court of justice, may possibly afford strong proof that the imputation is just." See R. v. Coyle, 7 Cox, 74. (3573) 706 SILENCE WEAK EVIDENCE OF ACQUIESCENCE. [PART II. civil or criminal, against the party who heard them in silence ; because in judicial inquiries a regularity of proceeding is adopted, which often prevents a person from interfering when and how he pleases, as he naturally would do in a common conversation.' The same inferences cannot, therefore, be drawn from his silence or his conduct on such occasions, as might reasonably result from similar behaviour, were he under no restraint ; and as it is only for the sake of these inferences that the statements of other parties can ever be admitted, they are properly rejected whenever they do not warrant the inferences sought to be drawn from them. A similar distinction has been recognised in the civil law, by which "confessio facta seu prsesumpta ex taciturnitate in aliquo judicio, non nocebit in alio." ^ § 815. If, however, the statement of one person calls forth a ^ reply from another, such statement may then be read in conjunc- tion with the reply, and will become evidence against the party replying so far as the answer dii'ectly or indirectly admits its truth; and it will make no difference in the application of this rule, whether the words were spoken by an interested party or a stranger, — whether they were addressed or not to the party reply- ing, — or whether they fell from the parties, the witnesses, or the court, in a judicial proceeding, or were uttered during the course of an ordinary conversation.^ § 816.* But the silence of the party, even where the declarations § 740 are addressed to himself, at a time too when he is at full liberty to reply as he thinks lit, is, at best, worth very little as evidence of acquiescence ; ^ and if he has no means of knowing the truth or falsehood of the statement, the fact that he did not in terms deny ^ Melen v. Andrews, M. & M. 336, per Parke, J.; Short v. Stoy, cited in Roscoe Ev. 54, 55, as ruled by Alderson, B. ; R. v. Appleby, 3 Stark. R. 33, per Holroyd, J. ; R. v. Turner, 1 Moo. C. C. 347, 348, per Patteson, J. ; Child V. Grace, 2 C. & P. 193. 2 1 Masc. de Prob., concl. 348, n. 31. 3 Child V. Grace, 2 C. & P. 193 ; Jones v. Morrell, 1 C. & Kir. 266, per Ld. Denman ; R. v. Edmunds, 6 C. & P. 164, per Tindal, C. J. ; Boyd v. Bolton, Sir. Eq. R. 113. * Gr. Ev. § 199, in part. 6 See Ch. 26 ol St. Matthew, v. 59—63 ; and Ch. 27, v. 12—14, (3574) CHAP. XIV.] EFFECT OF ADMISSIONS WHEN PROVED. 707 it is almost valueless.' In all these cases it must be distinctly remembered, that the statement made in the party's presence or hearing^ is not evidence against him, but his own conduct in consequence of such statement is the sole evidence. Magistrates often make mistakes on this subject ; but it is highly important that the distinction should be observed.^ § 817.* The effect of admissions, when proved, must next be I "741 considered ; and with regard to their conclusiveness, it is first to be observed, that the policy of the law favours the investigation of truth by all expedient methods ; and that the doctrine of estoppels, by which further investigation is precluded, being an exception to the general rule, and being adopted only for the sake of general convenience, and for the prevention of fraud, is not to be extended beyond the reasons on which it is founded.^ It is also to be observed, that estoppels bind only parties and privies ; and not strangers. Hence it follows that a sherifF, who, being armed with a writ of execution in favour of a creditor, seizes goods as the property of the debtor, is not bound by an estoppel which would have prevented the debtor himself from claiming the goods.® Neither, as it seems, would the trustee of a bankrupt be bound by the bankrupt's written admission^, because the court would regard the trustee as claiming adversely to the bankrupt.^ Again, though a stranger may often rely on an admission, which parties or privies might have specially pleaded by way of estoppel, yet, in his case it is only matter of evidence to be considered by the jury. This subject was very clearly illustrated by Mr. Justice Bayley, in the case of Heane v. Kogers,^ which was an ' Hayslep v. Gymer, 1 A. & E. 165, per Parke, J. See, further, on the subject of tacit admissions, The State ?•. Kawls, 2 Nott & M'C. 301 ; Batturs r. Sellers, 5 Har. & J. 117, 119. '^ See Neile v. Jakle, 2 C. & Kir. 709. •^ Per Alderson, B., at Maidstone Sp. Ass. 1842, MS.; Doe v. Frankis, 11 A. & E. 793, per Ld. Denman. * Gr. Ev. I 204, in part. ^ See ante, I 89. * Richards r. Johnson, 4 H. & N. G60 ; overruling the decision of Channell, B., in S. C, reported 1 Post. & Fin. 447. ' Harris v. Rickett, 4 H. & N. 6, per Brannvell, B. « 9 B. & C. 577, 586, 587. See Morgan v. Couchman, 14 Com. B. 100 ; Painter v. Abel, 3 Post. & Fin. 518, per Erie, C. J.; Welland Canal Co. r. Hathaway, 8 Wend. 483 ; Jennings v. Whittaker, 4 Monroe, 50. See, also, Ld. Londesborongh's case, 4 De Gex, M. & G. 411; and Ld. Londesborough v. Foster, 3 B. & S. 805. 24 LAW OF Evin. — V. II. (3575) 70S ADMISSIONS WHEN NOT CONCLUSIVE. [PART 11. action of trover, brought by a person, who had been declared a bankrupt, against his assignees, to recover the value of goods, which, as assignees, they had sold. The defendants contended that the plaintiff was estopped from bringing this action, as, in addition to other evidence of his acquiescence in their title, it appeared that, after the issuing of the commission, he had given notice to the lessors of a farm "which he held, that he had become bankrupt, and was willing to give up the lease, where- upon the lessors accepted the lease, and took possession of the premises. The question, therefore, was, whether he was pre- cluded by this surrender from disputing the commission in the present suit. § 818. On this point the language of the learned judge was as ? 742 follows: — "There is no doubt but that the express admissions of a party to the suit, or admissions implied from his conduct, are evidence, and strong evidence, against him ; but we think that he is at liberty to prove that such admissions were mistaken or were untrue, and is not estopped or concluded by them, unless another person has been induced by them to alter his condition ; in such a case the party is estopped from disputing their truth with respect to that person (and those claiming under him), and that transaction ; but as to third pei'sons he is not bound. It is a well established rule of law, that estoppels bind only parties and privies, not strangers.' The offer of surrender made in this case was to a stranger to this suit; and though the bankrupt may have been bound by his representation that he was a bankrupt, and his acting as such, as between him and the stranger to whom that representation was made, and who acted upon it, he is not bound as between him and the defendants, who did not act on the faith of that representation at all. The bankrupt wo aid probably not have been permitted, as against his landlords, — whom he had induced to accept the lease without a formal surrender in writing, and to take possession, upon the supposition that he was a bank- rupt, and entitled under 6 G. 4, c. 16, § 75, to give it up, — to say afterwards that he was not a bankrupt, and bring an action of trover for the lease, or an ejectment for the estate. To that ' Co. Lit. 352 a. ; Com. Dig. Estop. C. (3576) CHAP. XIV.] ADMISSIONS WHEN NOT CONCLUSIVE. TOO extent he would have been bound, probably no further, anl certainly not as to any other persons than those landlords. This appears to us to be the rule of law, and we are of opinion that the bankrupt was not by law, by his notice and oflFer to surrender, estopped; and indeed it would be a great hardship if he were precluded by such au act. It is admitted that his surrender to his commissioners is no estoppel, because it would be very perilous to a bankrupt to dispute the commission, and to try its validity by refusing to surrender." A similar observation, though not to the same extent, applies to this act; for whilst his commission dis- ables him from carrying on his business, and deprives him for the present of the means of occupying his farm with advantage, it would be a great loss to the bankrupt to continue tenant ; paying a rent and remaining liable to the covenants of the lease, and deriving no adequate benefit; and it cannot be expected that he should incur such a loss, in order to be enabled to dispute his commission with effect. It is reasonable that he should do the best for himself in the unfortunate situation in Avhich he is placed." § 819. The doctrine propounded in Heane v. Rogers,^ that a ^ '^'^^ party is always at liberty to prove that his admissions were founded on mistake, unless his opponent has been induced by them to alter his condition, is as applicable to mistakes in respect of legal liability, as to those in respect of matters of fact' In all cases, therefore, of this nature, the jury, with the view of esti- mating the efPect due to an admission, will be justified in consider- ing the circumstances under which it was made; and if it should appear to have been made under an erroneous notion of legal liability, they may qualify its effect accordingly.* § 820. In a former part of this work, we have treated of estoppels ^ 744 by deed, alluded to those by record, and discussed that particular class of estoppels in pais, which relates to the rights of landlord and tenant; ^ and in the present chapter it has Already been shown 1 See Flower v. Herbert, 2 Ves. Sen. 326. '' 9 B. & C. 577. ' Newton t". Liddiard, 12 Q. B. 927, per Ld. Denman. * Newton v. Belcher, 1 Q. B. 921; and Newton v. Liddiard, 12 Q. B. 925. * Ante, U 89—103. (3577) 710 ADMISSIONS IN PLEADINn. [PAET II. that admissions solemnly made in tho course of judicial proceed- ings, whether as a substitute for regular proof, or in a case stated for the opinion of the court, are on motives of policy and justice, deemed to be conclusive.' It remains, then, only to examine the law as it regards other conclusive admissions ; and these will, in general, be found to range themselves under one or other of the following heads. First, admissions expressly or tacitly made hy pleadings; secondly, admissions which have been acted upon by others. To these may be added a few cases of fraud and illegality, and some admissions on oath, where the party is estopped on grounds of public policy. § 821. With respect to admissions by pleading, it was at one § 745 time thought that a party might, by bringing an action on a contract, estop himself from denying the obligatory force of the agreement in a subsequent action against himself. In conformity with this view of the law, a strong opinion was expressed by Chief Justice Tindal, in the case of the Fishmongers' Company v. Kobertson,' that if a corporation were to enter into an executory contract, which was invalid against themselves for not being under seal, and were then to sue thereon, this would amount to an ad- mission on record, that such contract was duly entered into on their part, so as to be obligatory on them; and such admission would estop them in a cross action, from setting up an objection that it was not sealed by their common seal. The doctrine, thus propounded, has on several occasions been brought under the notice of the courts; but although it is unquestionably based on substantial justice, it has hitherto met with little favour, and will probably ere long be expressly overruled.^ The law, as at present understood, seems to be, that the statements which are contained in any pleadiug, though binding on the party making them for all purposes in the cause, ought not to be regarded in any subsequent action as admissions of the truth of the facts stated.* ' Ante, ?d 112, 783. "" 5 M. & Gr. 193, 193. ' See Copper Miners' Co. j;. Fox, 16 Q. B. 229; Boileau v. Riitlin, 2 Ex. R. 681, per Parke, B.; Buckniaster v. Meiklejohn, 8 Ex. R. G37, per id.; The May. of Kidderminster r. Hardwicke, 43 L. J., Ex. 9; 9 Law Rep., Ex. 13, S. c. * Cases cited in last note. (3578) CHAP. XIV.J ADMISSIONS IN PLEADING. 711 § 822. Still less will any admission, which has been incidentally g 74C or tacitly made in pleading in one buit, estop the party who has made it from denying in another suit, where precisely the same matter is not litigated, the fact so admitted. For instance, where a plea to an action on a bond set out a corrupt agreement between the parties irrespective of the bond, and then went on to aver that the bond was given to secure, among other moneys, the sum mentioned in the said agreement; and the replication, tacitly admitting the corrupt agreement, traversed the fact of the bond having been given in consideration thereof, but the plaintiff failed on this issue; it was held, that the admission was available for the purpose of that suit only; and, consequently, the plaintiff was at liberty to dispute the corrupt nature of the agreement, in a subsequent action on a deed, which was signed by the defendant at the same time with the bond by way of collateral security.' § 823. Although, as a general rule, an admission made in one ^ 747 suit by pleading or omitting to plead, cannot conclusively bind the party in any subsequent suit, an exception to this rule must be recognised, where the second action is brought on a judgment recovered in the first. For example, if an executor or administrator confess judgment, or suffer it to go against him by default, he thereby admits assets in his hands, and is estopped to say the con- trary in an action on such judgment, suggesting a devastavit.* Some proof must indeed be given that the assets have been wasted, in order to charge the executor or administrator personally in such a case; but the slightest evidence will suffice for this purpose; and the mere issuing of a writ of fieri facias, directed to the county where the action was laid, and a return of nulla bona thereto, has, for a long time past, been deemed evidence enough.^ So, where, to an action against three executors, two had pleaded plene adminis- ' Carter v. James, 13 M. & W. 137. See Rigge v. Burbidge, 15 M. & W. 598; 4 Dowl. & L. 1, S. C; and Hunt v. Morrell, 3 Ex. R. 241, per Pollock, C. B. 2 Skelton v. Hawling, 1 Wils. 258; Re Trustee Relief Act, Higgins' Trusts, 2 Giff. 562. » Leonard v. Simpson, 2 Biug. N. C. 176, 180, per Tindal, C. J. ; 2 Scott, 335, S. C. (3579) 712 ADMISSIONS IN TLEADIXG. [PART II. traverant, and the third had admitted assets to tho amount of 383?., the court held, that, in a subsequent action against tho third executor, suggesting a devastavit, the phiintiff was entitled to recover, on proof that the SS'Sl. had been deposited with bankers to the credit of the executorship account, and that the defendant, after judgment in the former action, had given tho plaintiff a cheque for the amount, which was dishonoured, as not being signed by tho co-executors.' § 824. The questions which usually arise with respect to admis- ? ~^'^ sions in pleading relate to their effect in the same suit; and here it may be laid down broadly, that " every allegation of fact in any pleading, not being a petition or summons, if not denied specifi- cally or by necessary implication, or stated to be not admitted in the pleading of the opposite party, shall be taken to be admitted, except as against an infant, lunatic, or person of unsound mind not BO found by inquisition."" The proper understanding of this rule is the province of the pleader: ^ and in works on pleading a detailed explanation of its effects must be sought. It may, however, be here pointed out that the rule operates only with respect to material allegations. If, therefore, a statement of defence denies a particular fact alleged in the statement of claim, it does not thereby admit all the immaterial averments, which the pleader has chosen to intro- duce as part of the plaintiff's case.* § 825. Thus, where a declaration in assumpsit, — after stating ^ ''^•^ that the defendants were onmers of a vessel, on which the plaintiff caused to be shipped some potatoes to be carried by them, as oivners of the vessel, to Liverpool; in consideration whereof, and of freight, they promised to carry the potatoes safely as aforesaid, — alleged as a breach, that through their negligence the goods were damaged: it was held, that the general issue did not admit that the defendants • Cooper r. Taylor, 6 ^ST. & Gr. 989. » Kules of Sup. Ct., 1883, Ord. XIX., R. 13. But see, and attempt to re- concile, this Rule with R. 13 of Ord. XXVII., cited po.st, g 829. 3 Van Sandau r. Turner, 6 Q. B. 785, per Ld. Denman. * Bingham r. Stanley, 2 Q. B. 127; Bcnnion v. Davison, 3 M. & W. 179; Dunford v. Trattles, 12 M. & W. 534, per Barke, B. ; King v. Norman, 4 Com. B. 884. (3580) CHAP. XIV.] ADMISSIONS IN PLEADING. T13 were owners, so as to raise the inference that the captain was their agent, the allegation of ownership being regarded as immaterial. The declaration in this case would have been equally good had no such allegation been made; since the statement, that, in considera- tion of the plaintift* having shipped the goods, and of the freight, the defendants promised to carry them safely, would have been quite sufficient, when coupled with an averment that the goods were not safely carried, to have made a complete case of liability against the defendants.^ § 826. Next, the omitting to traverse a material allegation so | 7o;5 far admits it, that the x^^^^^tJI '^^'^>^o thus pleads over cannot disprove it. This accords with the old law, and therefore, where, in trover for bales of silk, the defendant pleaded that A. was factor of the plaintiffs, and as such, before andaf the time of the pledge men- tioned in the plea, was intrusted bij them trith, and ivas in j^ossession o/, dock -warrants relating to the bales: that he delivered the dock- warrants to the defendant, and pledged with him the bales, as security for a loan which the defendant then advanced to him on the faith of the said dock-warrants; and that the defendant had no notice that the factor was not the actual owner; it was held that the plaintiffs, by simply traversing the allegation that the defendant advanced the money on the faith of the dock- warrants, were do- barred from proving that the dock- warrants were not deposited at the time of the advance, and were not, in fact, then in existence.'' § 827. Under order XXXII , Rule 6, of the Rules of the Supreme Court, 1883, " any party may, at any stage of a cause or matter, where admissions of fact have been made, either on the pleadings, or otherwise, apply to the court or a judge for such judgment or order as, upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties; and the court or a judge may upon such application make such 1 Bennion v. Davison, 3 M. & ^Y. 179, 182, 183, per Tarke, B. ; recognised by Alderson, B., in Dnnford r. Trattles, 12 M. Sc "W. 532. See, also. Grew v. Hill, 3 Ex. R. 801; 6 Dowl. Si L. 664, S. C. 2 Bonzi V. Stewart, 4 U. Sc Or. 295. See, also. Carter v. James, 13 M. & W. 145, 146, text and note. (3581) 714 ADMISSIONS BY DEMURRING UNDER OLD LAW. [pART II. order, or give such judgment, as the court or judge may think lit.'' In accordance with this rule the Lords Justices have held, that where, in a partition action the defendants had by their statement of defence admitted the facts stated in the claim showing the plaintiff's title, the plaintiff had a right, — instead of having the action set down for hearing, — to an order on motion, directing the usual inquiries as to the portons interested in the property.' So, a plaintiff may move for judgment upon admissions, although he has joined issue on the defence, and given notice of trial. ^ So, in an action between partners,^ and in one between principal and agent,' an order for an account and for the delivery of securities has been made on motion before the hearing, the judge acting solely on the admissions contained in the pleadings.'' But in cases under this rule, as the judge has a discretion whether he will grant relief on motion or not, he will seldom be induced to take that step when any question of difficulty is raised ; neither will the Court of Appeal, except in a clear case of error, interfere with the exercise of the judge's discretion.*^ § 828.' Under the old rules of pleading, a demurrer used to be regarded by Courts of Equity as simply raising the question of law without any admission of the truth of the allegations contained in the bill; but in Courts of Law its operation was widely different; for there it was held to amount to an absolute admission of the facts stated in the paragraphs demurred to.' The New Rules of 1883 have rendered this discrepancy of no further importance, for they have cut the Gordian knot by abolishing demurrers altogether. The modern proceedings in lieu of demurrers are, in Order XXV. R. 2, thus explained- — ''Any party shall be entitled to raise by 1 Gilbert v. Smith, L. R., 2 Ch. D. C8G; 45 L. J., Ch. 514, S. C; Hether- ington V. Longrigg, 48 L. J., Ch. 171, per Hall, Y.-C. ■ ■•' Brown v. Pearson, L. R., 21 Ch. D. 716, per Fry, J. 3 Turquand v. Wilson, L. R., 1 Ch. D. 85; 45 L. J.. Ch. 104. S. C. ♦ Rumsey v. Reade, L. R., 1 Ch. D. 46:i; 45 [.. J., Ch. 489, S. C. ^ See, al.so, Jenkins v. Davies, L. R., 1 Ch. D. 696; In re Smith's estate, Bridson v. Smith, 24 W. R., Ch. D. 392, per Hall, V.-C; In re Barker's Estate, L. Q., 10 Ch. D. 162, per Hall, V.-C. « Mellor V. Sidebottom, 46 L. J., Ch. 398; L. R., 5 Ch. D. 342, S. C. ' See Metrop. Ry. Co. i'. Defiles, L. R., 2 C^. B. D. 387, and Rules of 1875, Ord. XXVIII. (3582) CHAP. XIV.] ADMISSIONS IN PLEADING UNDER NEW RULES. 715 bis pleading any point of law, and any point bo raised shall be disposed of by the judge who tries the cause, at or after the trial; provided that, by consent of parties, or by order of the court or a judge on the application of either party, the same may be set down for hearing, and disposed of at any time before the trial." ' § 829. The Rules of the Supreme Court farther provide, by Order XXVII., Rule 13, that "if the plaintiff does not deliver a reply, or any party does not deliver any subsequent pleading within the period allowed for that purpose, the pleadings shall be deemed to be closed at the expiration of that period, and all the material statements of fact in the pleading last delivered shall be deemed to have been denied and* put in issue." ^ § 830. Irrespective of the new Rules of pleading, the Legislature has, in one somewhat remarkable case, provided, that the omission to plead a special defence shall operate as a conclusive presumption of liability. Allusion is here made to the Married Woman's Pro- perty Act, 1874,^^ which, — after enacting with respect to marriages that have taken place since the 30th July in that year, that husbands and wives may be jointly sued for debts incurred or torts committed by the wife before marriage, but that the husband shall be liable to the extent only of the assets therein specified,* — goes on to provide, that, if no plea denying liability be pleaded, " the husband shall be deemed to have confessed his liability so far as assets are concerned." '^ Since the 1st January, 1883, the passage just cited is only operative with respect to parties married before that date.** § 831. It remains here to notice, in connexion with this subject, the effect of paying money into court, and of tendering compensation. ' See also RR. 3, 4, and 5 of same Order. Burstall v. Beyfus, 53 L. J., Ch. 565, per Ct. of App.; L. R., 26 Ch. D. 35, S. C. '■^ This rule deserves special notice, as heing directly opposed to the practice which prevailed under the Rules of 1875. See Ord. XXIX., R. 12, ol those Rules. See, also, Ord. XIX., R. 13 of the Rules of 1883, cited ante, ? 824. 3 37 & 38 v., c. 50. * ?n, 2, and .5. 6 § 2. See Matthews v. Whittle, L. R., 13 Ch. D. 811, per Jessel, M. R.; 49 L. J., Ch. 359, S. C. « 45 & 46 v., c. 75, ^ 14, 15. (3583) 760 71G ADMISSION BY PAYING MONEY INTO COURT. [pART II. Payment of moaey into court, — wbicb, (except in actions brought against magistrates,' and, perhaps, in one or two other suits,^) must, unless made before delivering a defence,^ now be pleaded in all cases, but may be pleaded eitber to the whole or to part only of the plaintiff's claim, — may be made, as of course, in any* action which is brought to recover a debt or damages.^ Amends may also be paid into court in some special actions under the provisions of particular statutes. For instance, in an action for a libel contained in any newspaper or other periodical publication, whether in England or Ireland, the defendant may plead that the language complained of was inserted without actual malice, and without gross negligence, and that at the earliest opportunity he had published, or, in some cases, had offered to publish, an ample apology.* This statutable plea must then terminate with an allegation of the payment of money into court by way of amends, for otherwise the plaintiff may treat it as a mere nullity.'^ Many other statutes authorise the tender of amends and pleas of payment of money into court, when actions are brought against persons for acts done by them either in execution 1 11 & 12 v., c. 44, ? 11, cited ante, | 315, n. K ^ See ante, ^ 315, ad fin. ■' Rules of Sup. Ct., 1883, Ord. XXII., R. 4, which points out the course of proceeding in that case. * See Hawkslej^ v. Bradshaw, 49 L. J., Q. B. 333, per Ct. of App.; L. R., 5 Q. B. D. 302, S. C. 5 Rules of Sup. Ct., 1883, Ord. XXII., R. 1, provides, that "Where any action is brought to recover a debt or damages, any defendant may, before or at the time of delivering his defence, or at any later time, by leave of the court or a judge, pay into court a sum of money by way of satisfaction, which shall be taken to admit the claim or cause of action in respect of which the payment is made; or he may, with a defence denying liability, (except in actions or counterclaims for libel or slander), pay money into court" subject to special provisions. R. 2 provides that " Payment into court shall be signified in the defence, and the claim or cause of action, in satisfaction of which such payment is made, shall be specified therein." K. 4 regulates the practice where defendant pays money into court before delivering his defence; RR. 5 and 6 explain how the money is to be paid out of court, while R. 7 — by imposing upon the plaintiff the duty of giving the defendant a special notice — exposes him to the risk of losing his costs in the event of his neglecting to comply with that Rule. See Langridge v. Campbell, L. R., 2 Ex. D. 281; 46 L. J., Ex. 277, S. C, as explained by Buckton v. Higgs, L. R., 4 Ex. D. 174. See, al.so. Greaves v. Fleming, L. R., 4 Q. B. D. 22G; 48 L. J., Q. B. 335, S. C. 6 See 6 & 7 v., c. 96, ^ 2, as amended by 42 & 43 V., c. 59; and 8 & 9 v., c. 75, ? 2, as to Eng. ; and 8 & 9 V., c. 75, U 1 and 2 as to Irel. (3584) CHAP. XIV.] ADMISSION DY PAYING MONEY INTO COniT. 717 of their offices, or in pursuance or under ibe autbority i)l Acts of Parliament;^ and among these may be mentioned the Act passed in 1848 for the protection of justices," the Acts of 1861, which consolidate the law relating to larceny, malicious injuries, and coin,* the Seamen's Clothing Act, 1809,* the Contagious Diseases, Animals, Act, 1878,^^ the Army Act, 1881,*^ and the Militia Act, 1882/ § 832. The salutary effect of these regulations was at one time much impaired by regarding payment of money into court as an admission of the cause of .action. This mischievous doctrine is at length happily exploded; and, although such payment, when unaccompanied by any defence denying liability, is still " taken to admit the claim or cause of action in respect of which the payment is made," defendants may now in any cause, except in actions or counterclaims for libel or slander, plead payment of money into court together with any other pleas, either denying the plaintiff's right of action, or setting np some special defence.** The exception just cited would seem to have been aimed specially at the case of Hawkesley v. Bradshaw." There, to an action for libel published in a newspaper, the defendant was allowed to plead, first, a justification on the ground that the libel was true, and next, an apology, together with a payment into court of 40s. by way of amends. § 838.'" When judicial admissions, — by which are meant admis- § 768 sions entered into in the due course of legal proceedings, — have been made through inadvertence or mistake, the court, in its dis- cretion, will relieve the party from the consequences of his error, 1 See ante, H 311—315. Ml & 12 v., c. 44, ? 11, cited ante, ? 315, n. ^. 3 24 & 25 v., c. 96, ^ 113; c. 97, § 71; c. 99, I 33. * 32 & 33 v., c. 57, I 6. 5 41 & 42 v., c. 74, I 55, subs. 2. " 44 & 45 v., c. 58, I 170, subs. 2. M5 & 46 v., c. 49, \ 46, subs. 3. 8 Rules of Sup. Ct., 1883, Ord. XXII., R. 1, cited, ante, § 831, n. ^j Berdan V. Greenwood, L. R., 3 Ex. D. 251, per Ct. of App.; 47 L. J., Ex. 628, S. C. » L. R., 5 Q. B. D. 302; per Ct. of App.; 49 L. J., Q. B. 333, S. C. " Gr. Ev. § 206, nearly verbatim. (3585) 718 ADMISSIONS MADE BY MISTAKE. [PART II. by ordering a repleader, or by permitting an amendment, or by discharging the case stated, or the rule, or the agreement, if made in court.' Agreements, too, made out of court between solicitors, concerning the course of proceedings in court, are, in effect, equally under the court's control, by means of its coercive power over the solicitor in all matters relating to professional character and conduct. But, in all these cases, the party will be held to his admission, unless it clearly appear that he has acted through mistake.^ § 839.^ Every admission, which has been made with the inten- tion of being acted upon, and which has been acted upon by another person, is conclusive against the party making it, in all cases between him and the individual whose conduct he has thus influenced. It is of no importance, whether such admission be Diade in express language to the person who acts upon it, or be implied from the general conduct of the party making it; for, in the latter case, the implied declaration will be considered as having been addressed to every one in particular, who may have had occasion to act upon it: and the rule of law is clear, that, where one by his words or conduct tcilfxdly causes another to believe in the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time.* Indeed, the prin- ciple may be laid down still more broadly, as precluding any party, who negligently or culpably stands by, and allows another to ' "Nonfatetur, qui errat, nisi jus ignoravit." Dig. lib. 42, tit. 2, 1.2. "Si vero per errorem fuerit facta ipsa confe.ssio (scil. ab advocato), elienti concessum est, errore probato, usque ad sententiam revocare. " 1 Masc. de Prob., quaist. 7, n. 63; id. n. 19, 20, 21, 22; id. concl. 348, per tot. 2 See Pearse v. Grove, 3 Atk. 523, per Ld. Hardwicke;Amb. 65, S. C. The Roman law was administered in the same spirit. " Si is, cum quo Lege Aquilia agitur, confessus est servum occidisse, licet non occiderit, si tamen oc-cisus sit homo, e.x confesso tenetur." Dig. lib. 42, tit. 2, 1. 4; id. 1. 6. See, also. Van Leeuw. Comm., B. V. ch. 21; Everb. Cone. 155, n. 3. " Confessus pro judicato est." Dig. lib. 42, tit. 2. 1. 1. * Gr. Ev. I 207, in part. * Per Ld. Denman, in Pickard v. Sears, 6 A. & E. 474; recognised by "Wood V.-C, in Att.-Gen. v. Stephens, 1 Kay & J. 748, 749. (358G) CHAP. XIV.] ADMISSIONS ACTED UPON BY OTHERS. 719 contract on the faith and understanding of a fact which he can contradict, from disputing that fact in an action against the person, whom he has himself assisted in deceiving.' In such case the party is estopped, on the grounds of public policy and good faith, from repudiating his own representations.^ § 840. In the case of Freeman v. Cooke,^ Lord Wensleydale, i '''^ while explaining this rule, pointedly observed: — "By the term ' wilfully,' we must understand, if not that the party represents that to be true which he knows to be untrue, at least that he means his representations to be acted upon, and that it is acted upon accordingly; and if, whatever a man's real intention may be, he so conducts himself that a reasonable man would take the representation to be true, and believe that it was meant that he should act upon it, and did act upon it as true, the party making the representation would be equally precluded from contesting its truth;* and conduct by negligence or omission, where there is a duty cast upon a person by usage of trade or otherwise to disclose the truth, may often have the same effect; — as, for instance, a retiring partner omitting to inform his customers of the fact, in the usual mode, that the continuing partners were no longer autho- rised to act as his agents, is bound by all contracts made by them with third persons on the faith of their being so authorised." ^ ' Per Ld. Denman, in Gregg v. Wells, 10 A. & E. 98; recognised by Parke, B., in Harrison v. Wright, 1.3 M. & W. 820. 2 See ante, § 89, et seq. •'' 2 Ex. R. 663; 6 Dowl. & L. 190, S. C. * The rule, as here enunciated, was expressly adopted by the Court of Ex. in Cornish v. Abington, 4 H. & N. 549. See, too. Sweeny v. Promoter Life Ass. Co., 14 Jr. Law R., N. S. 476, 486—493; Thomas u Brown, L. R., 1 Q. B. D. 714; 45 L. J., Q. B. 811, S. C. ; and M'Kenzie v. British Linen Co., L. R., 6 App. Cas. 82, H. L. (Sc). ^ In Howard v. Hudson, 2 E. & B. 1, Ld. Campbell laid down a more restricted rule, observing: — "The party setting up such a bar to the reception of the truth must show, both that there was a wiJful intent to make him act on the faith of the representation, and that he did so act; " and Crompton, J., adds: — "The rule takes in all the important commercial cases in which a representation is made, not wilfully in any bad sense of the word, not malo animo, but so far wilfully that the party making the representation on which the other acts means it to be acted upon in that way. That is the true criterion." See further on this subject, Foster v. Mentor Life Ass. Co., 3 E. & B. 48. (3587) 720 ADMISSIONS ACTED UPON BY OTHERS. [PART II. § 841. Again, if a party having a secret equity, chooses to § 771 stand by, and permit the apparent owner to deal with others as if he were the absolute owner, he shall not be permitted to assert such secret equity against a title founded on such apparent owner- ship.* Many decisions have been founded upon this principle, but the case of the Duke of Beaufort v. Neald"- will sufficiently serve to illustrate it. There, the Duke had signed, and put into the hands of his agent, an authority to consent to any exchanges under an Inclosure Act, but had directed him not to act upon this authority excepting under certain circumstances. The agent, in breach of his private instructions, having produced the authority and agreed to an exchange not under the stipulated circum- stances, the Duke repudiated the agreement, but the House of Lords held that he was clearly bound thereby. The Courts have also acted upon this doctrine on several occasions, where nego- tiations have been entered into preparatory to marriage; and the abstract rule deducible from the authorities is, that, whenever a representation ^ of some fact, — as contradistinguished from a mere representation of intention *, — has been made by one party for the purpose of influencing the conduct of another, and has been acted upon by the latter, this will, in general, be sufficient to entitle him to the assistance of the court for the purpose of realising such representation.^ 1 Mangles v. Dixon, 1 M. & Gord. 446, per Ltl. Cottenliam; 1 Hall & T 550, S. C. See, also, Att.-Gen. v. Naylor, 33 L. J., Ch. 151, per Wood, V.-C; Ramsden v. Dyson, 1 Law Rep., H. L. 129; Rolt v. White, 3 De Gex, J. & S. 360, 365, per Ld. Westbury. 2 12 CI. & Fin. 249. See Graham v. Birkenhead Ry. Co., 2 M. & Gord. 146; 2 Hall & T. 450, S. C. ; Kent v. Jackson, 14 Beav. 384, per Romilly, M. R. ; Triekett r. Tomlinson, 13 Com. B., N. S. 663; Pole v. Leask, 33 L. J., Ch. 155, per Dom. Proc. ^ Ld. Ci'anworth is said to have held that the rule does not apply unless there be vusrcjyrescnfation. Sed qu. See Money v. Jordon, 15 Beav. 372, 387, n.; Pulsford v. Richards, 17 Beav. 94, 95. * Jordan v. Money, 5 H. of L,, Cas. 185, per Ld. Cranw>!;rth, C, and Ld. Brougham, in Dom. Proc, Ld. St. Leonards diss., overruling a decision of Romilly, M. R., in Money v. Jorden, 15 Beav. 372. SeeMaddisonw. Alderson, L. R., 8 App. Cas. 467, per Dom. Proc; 52 L. J., Q. B. 737, S. C; affirm. S. C, per Ct. of App.; .50 L. J., Q. B. 466; and L. R., 7 Q. B. D. 174; and overruling S. C, nom. Alderson v. Maddison, L. R., 5 Ex. D. 293; and 49 L. J., Ex. 501, per Stephen, J.; and questioning Loffus v. Maw, 3 Gifif. 592, 604, per Stuart, V.-C. See, also, post, ?, 1043. ^ Hammersley v. Baron de Biel, 12 CI. & Fin. 45, 62, n., per Ld. Cotten- (3588) CHAP. XIV.] ADMISSIONS ACTED UPON BY OTHERS. 721 § 842.^ The same rule is familiarly illustrated by the case g 772 of a man cohabiting with a mistress, and treating her in the face of the world as his wife. Here, though he thereby acquires no rights against others, they possibly may do so against him. For instance, if the woman duiing such cohabitation be supplied with goods ostensibly for the use of the joint household, and the reputed husband be sued for their price, he will not be permitted to disprove the marriage, but the jury will be justified, as in the case of a real wife, in dealing with the question as one of ordinary domestic agency." It must not, however, here be forgotten, that the old doctrine of presumptive agency, as applicable to the relationship of husbands and wives, has been recently encroached npon to an un- defined extent, if not actually set aside, by " The Married Women's Property Act, 1882,"^ which in § 1, subs. 3, enacts, that every con- tract entered into, since the 1st of January, 1883, "by a married woman, shall be deemed to be a contract entered into by her with respect to and to bind her separate property, unless the contrary he shoion." § 843.'^ Where a person knowingly permits his name to be used § 773 as one of the partners in a trading firm, or an existing joint-stock company, under such circumstance of publicity as to satisfy the jury that a stranger knew of it, and believed him to be a partner, ham ; 88, per Ld. Campbell ; Neville v. Wilkinson, 1 Br. C. C. 543 ; Moute- fiori V. Montefiori, 1 W. Bl. 3()3 ; Bentley v. Mackay, 31 Beav. 155, per Romilly, M. R.: Laverf. Fielder, 32 L. J., Ch. 365, per Romilly, M. R. ; 32 Beav. 1, S. C. ; Gale v. Lindo, 1 Vern. 475; Jorden r. Money, 5 H. of L. Cas. 185 ; Money v. Jorden, 15 Beav. 372 ; Hntton v. Rossiter, 7 Ds Gex, M. & G. 9 ; Pulsford V. Richards, 17 Beav. 87, 94, per Romilly, M. R. ; Yeomans v. Williams, 1 Law Rep., Eq. 184 ; Hodgson v. Hutchinson, 5 Vin. Abr. 522, Cookes r. Mascall, 2 Vern. 200; Wankford v. Fotherley, id. 322; Luders v. Anstey, 4 Ves. 501 ; Middleton v. Pollock, Ex p. Wetherall, L. R., 4 Ch. D. 49; 46 L. J., Ch. 39, S. C. See Wright v. Snowe, 2 De Gex & Sm. 321 ; Maunsell v. White, 4 H. of L. Cas. 1039 ; Bold v. Hutchinson, 24 L. J., Ch. 285, per Romilly, M. R.; 2J Beav. 250, S. C; 5 De Gex, M. & G. 558, S. C, on appeal ; Traill v. Baring, 33 L. J., Ch. 521 ; 4 Giff. 485, S. C. ' Gr. Ev. ^ 207, in part, as to first 7 lines. => Watson V. Threlkeld, 2 Esp. 637 ; Robinson v. Nahon, 1 Camp. 245 ; Munro v. De Chemant, 4 Camp. 215. See ante, ? 192. Also, Mace v. Cadell, 1 Cowp. 233, recognised in Batthews v. Galindo, 4 Bing. 613. •' 45 & 46 v., c. 75. See Myles v. Burton, 14 L. R. Ir. 258. ♦ Gr. Ev. 207, in part. (3589) 722 ADMISSIONS ACTED UPON BY OTHERS. [PART II. he is liable to such stranger in all transactions, in which the latter engaged and gave credit upon the faith of his being such partner.' So, although the mere fact of a person agreeing to become a member of the provisional committee of an intended railway company, or even the fact of such person authorising his name to be published in a prospectus, which contains nothing more than the names of the provisional committee men, will not render him liable for contracts made by the other members or by the solicitor, for the purpose of promoting the objects in view ; because such an intended association does not amount to a partnership, as it constitutes no agreement to share in profit and loss ; ^ — still, if evidence be forth- coming that such person has acted with relation to the proposed scheme, as by attending meetings, giving directions, and the like, it will be for the jury to determine* whether he has not thereby authorised the managing committee, or the other members of the provisional committee, or the solicitor or secretary of the intended company, to pledge his credit for the necessary and ordinary ex- penses to be incurred in forming the company ; and if they decide this question in the affirmative, they may then give a verdict against him, on further finding that the work was done, and the credit given, on the faith of his being liable.* § 844 On the same principle, if a man, by holding out false colours, induces a railway company to register him as a proprietor of shares, and, subsequently, to bring an action against him for calls on such shares, he will be precluded from disputing the validity 1 Per Parke, J., in Dickinson v. Valpy, 10 B. & C. 128, 140, 141 ; 5 M. & R. 126, S. C. ; Wood v. D. of Argyll, 6 M. & Gr. 932, per Cresswell, J. ; Harrison v. Heathorn, 6 M. & Gr. 81, 133, 134, per Tindal, C. J.; Fox v. Clifton, 6 Bing. 776, 794, per Tindal, C. J. See, also, Kell v. Nainby, 10 B. & C. 20 ; Guidon v. Robson, 2 Camp. 302, per Ld. Ellenborough. 2 Reynell r. Lewis, & Wyld r. Hopkins, 15 M. & W. 517. See Ex parte Cottle," 2 M. & Gord. 185 ; 2 Hall & T. 382, S. C. ; Ex parte Roberts, 2 M. & Gord. 192 : 2 Hall & T. 391, S. C; Norris r. Cottle, 2 H. of L. Cas. 647 ; Hutton V. Upfill, id. 674 ; Bright v. Hutton, & Hutton v. Bright, 3 H. of L. Cas. 341 ; M'Ewan v. Campbell, 2 Macq. Sc. Cas. H. of I>. 499. ^ Williams v. Pigott, 2 Ex. K. 201 ; Bright v. Hutton, & Hutton v. Bright, 3H. of L. Cas. 341. * Reynell v. Lewis, & Wyld v. Hopkins, 15 M. & W. 517; Lake u D. of Argyll^ 6 Q. B. 477. See Higgins v. Hopkins, 3 Ex. R. 163 ; Burnside v. Day- rell, id. 224; Bailey r. Macanlay, 13 Q. B. 815; Rennie v. Clarke, 5 Ex. R. 292 ; Rennie v. Wynn, 4 Ex. R. 691 ; Ex parte Besley, 2 M. & Gord. 176. (3590) CHAP. XIV. ] ADMISSIONS ACTED UPON BY OTHERS. 723 of the transfer to Lim, or from otherwise denying his character as a shareholder.^ So, when a company had registered a person as a shareholder, and had induced him, on the faith of such registration, to pay a call, they were not allowed to dispute his title to the shares." An infant, too, who has actually deceived a tradesman by fraudulently representing himself to be of full age, and who has thus obtained credit for goods supplied to him, will be held bound by his statement,^ and liable to pay the debt. So, also, a person who has assumed to act as a broker of the city of London, cannot, as against a party who has employed him, protect himself from a discovery of his dealings with such party, on the ground that his answer may expose him to penalties for having acted as a broker without being duly qualified.* § 845. Where parties have agreed to act upon an assumed state § 774 of facts, their rights between themselves will be made to depend on such assumption, and not upon the truth. ^ Again, if a party has taken advantage of, or voluntarily acted under, the bankrupt or in- solvent laws, he shall not be permitted, as against parties to the proceedings, to deny their regularity.® So, the grantee of an 1 Sheffield & Manch. Ry. Co. v. Woodcock, 7 M. & W. 574, 582, 583 ; Cheltenham & Gt. West. Union Ry. Co. v. Daniel, 2 Q. B. 281, 292; In re North of Eng. Jt. St. Bk. Co., Ex parte Straffon's Exors., 22 L. J., Ch. 194, 202, 203; Taylor v. Hughes, 2 Jones & Lat. 24. See Swan r. North Brit. Austral. Co., 7 H. & N. 603; S. C. in Ex. Ch., 2 New R. 521; 2 H. & C. 175; and 32 L. J., Ex. 273. ^ Hart?;. Frontino, &c., Gold Mining Co., 5 Law Rep., Ex. Ill; 39 L. J., Ex. 93, S. C; Re Bahia & Francisco Ry. Co. v. Tritten, 37 L. J., Q. B., 137; 3 Law Rep., Q. B. 584; 9 B. & S. 844, S. C. See, also, Webb v. Heme Bay Improving Com., 39 L. J., Q. B. 221; 5 Law Rep., Q. B. 642, S. C. ; and Simm V. Anglo-Amer. Teleg. Co., 49 L. J., Ch. 392, per Ct. of App. ^ Ex parte Unity Jt. St. Mutual Bank. Associat., In re King. 3 De Gex & J. 63; Nelson v. Stock er, 28 L. J., Ch. 760; 4 De Gex & J. 458, S. C. The old common law rule, as recognised in the following cases, is no longer law. Price V. Hewett, 8 Ex. R. 146; Liverpool Adelphi Loan Associat. v. Fair- hurst, 9 Ex. R. 423, 430; Bartlett v. Wells, 31 L. J., Q. B. 57; 1 B. & S. 836, S. C; DeRoo v. Foster, 12 Com. B. N. S. 272. * Robinson v. Kitchin, 21 Beav. 365; 8 De Gex, M. & G. 88 S. C; 25 L. J., Ch. 441, S. C; Green v. Weaver, 1 Sim. 404. See 33 & 34 V., c. 60. ^ M'Cance v. Lond. & N. W. Ry. Co., 34 L. J., Ex. 39; 3 H. & C. 343, S. C. * Like V. Howe, 6 Esp. 20; Clarke v. Clarke, id. 61; Gouldie v. Gunston, 4 Camp. 381 ; Watson v. Wace, 5 B. & C. 153, explained in Heane v. Rogers, 9 B. & C. 586, 587; Mercer v. Wise, 3 Esp. 219; Harmar v. Davis, 7 Taunt. 577; Flower r. Herbert, 2 Ves. Sen. .326. See ante, U 817, 818. 25 LAW OF EVin. — v. II. (3591) 724 ADMISSIONS ACTED UPON BY OTHERS. [PART II. annuity, whose duty it was, under an Act now repealed,' to have the memorial properly enrolled, was not allowed to take advantage of his own neglect, and set up the want of enrolment against the grantor, although the statute declared that in case of non-enrolment annuity deeds should be void." So, if an agent or a workman knowingly renders an untrue account to his principal or employer, and such account is adopted by the party to whom it is given, it cannot afterwards be gainsaid by the person who rendered it.'^ So, if a man by his receipt acknowledges that he has received money from an agent on account of his principal, and thereby accredits the agent with the principal to that amount, such receipt is con- clusive as to payment by the agent.* Therefore, the usual ac- knowledgment in a policy of insurance of the receipt of premium from the assured is conclusive of the fact as between the under- writers and the assured, although not as between the underwriters and the broker.^ So, if a person having a right to an estate permit or encourage a purchaser to buy it of another, the purchaser shall hold it against the person who has the right; ^ and precisely the same doctrine applies to personarproperty.' So, if the owner of an instrument which purports to be transferable by delivery, deposits it with his broker or banker, he will be estopped, as against a bona tide holder for value, from denying that it was transferable.** § 846. Trespass, also, is not maintainable against a sherift's officer who executes process against a man by a v.rong name, either » 53 G. 3, c. 141, repealed by 17 & 18 V., c. 90. 2 Molton v. Camroux, 2 Ex. R. 487; afif. in Ex. Ch., 4 Ex. R. 17. * Cave V. Mills, 31 L. J., Ex. 265; 7 H. & N. 913, S. C; Skyring v. Green- wood, 4 B. & C. 281; Shaw v. Picton, id. 715. * 3 St. Ev. 956. See Rice v. Rice, 2 Drew. 73; Hunter v. Walters, 11 Law Rep., Eq. 292. ' 3 St. Ev. 956; Dalzell v. Mair, 1 Camp. 5.32, per Ld. Ellenborough; De Gaminde v. Pigou, 4 Taunt. 246; Anderson v. Thornton, 8 Ex. R, 428, per Parke, B. « 3 Sug. V. & P. 428, lOih ed.; and id. 611, 13th ed.; recognised by the court in Sandys v. Hodgson, 10 A. & E. 476. See, also, Ramsden v. Dyson, 1 Law Rep., H. L. 129; and Doe r. Groves, 10 Q. B. 486. Dixon v. Muckle- .stone, L. R., 8 Ch. App. 155; In re Lambert's estate, 13 L R. Ir. 234, per Ct. of App. ' Pickard r. Sears, 6 A. & E. 469; Gregg v. Wells, 10 A. & E. 90 ; 2 P. & D. 296, S. C; Coles v. Bk. of England, 10 A. & E. 437; 2 P. & D. .521, S. C. « Goodwin r. Robarts, L. R., 1 App. Cas. 476; 10 Ex. D. 76, 337, S. C. ; Rumball v. Metrop. Bk., L. R., 2 Ex. D. 194; 46 L. J., Q. B. 346, S. C. (3592) CHAP. XIV.] ADMISSIONS ACTED UPON BY OTHERS. 'i25 by taking bis person, or seizing bis goods, if before tbe process be sued out, be is asked bis name, and gives sucb wrong one; ' and if a party, vpbo bas entered into a bond by a wrong name, is sued in tbat name, be cannot, as it seems, cause tbe statement of claim to be amended at tbe cost of tbe plaintiff,^ and probably be would be estopped from denying tbat tbe name in wbicb be was sued was bis real uame.^ Again, in tbe case of a compulsory reference under tbe Common Law Procedure Act, 1854, wben tbe award was not made witbin tbree montbs,^ but botb parties bad, after tbe lapse of tbat period, continued to attend before tbe arbitrator witbout raising any objection to bis jurisdiction, it was beld tbat tbe losing party was estopped from alleging tbat tbe time bad not been enlarged, eitber by tbe court, or by tbe written consent of tbe parties.' On tbe same principle, wbere a judge bad tried a cause witbout tbe in- tervention of a jury, botb parties assenting to bis jurisdiction, and appearing before bim, tbe unsuccessful party was not allowed after- wards to object, tbat no written consent bad been drawn up in accordance witb tbe requirements of tbe statute tben in force.^ § 847. If tbe members of an incorporated company allo^v a soli- citor to appear for tbem as defendants, and be consents to a refer- ence, tbey cannot, after tbe award is made, object to tbe submission, ' As to a ca. sa., see Morgans v. Bridges, 1 B. & A. 6.50, 651, and Magnay V. Fisher, 5 M. & Gr. 778, 787; 6 Scott N. R. 588, S. C. These cases appear to overrule Coote v. Leighworth, M. 557, and a dictum of Ld. Hale in Thur- bane et al., Hardr. 323; but see Freeman v. Cooke, 18 L. J., Ex. 115, where Parke, B., intimated that it had always been the opinion of the profession that Coote v. Leighworth was law. See, also, Dunston v. Paterson, 26 L. J., C. P. 267; 2 Com. B., N. S. 495, S. C; Kelly v. Lawrence, 33 L. J.. Ex. 197; 3 H. & C. 1, S. C. As to a fi. fa., see Price i\ Harwood, 3 Camp. 108, per Ld. Ellenborough; cited and recognised by Cresswell, J., in Fisher v. Magnay, 5 M. & Gr. 787. See, also. Reeves r. Slater, 7 B. & C. 486. 2 Hyckman v. Shotbolt, 3 Dyer, 279, b., cited 5 M. & Gr. 788, n. See 3 & 4 W. 4, c. 42, ^ 11. " R. v. Wooldale, 6 Q. B. 566, per "Wightman, J., citing Maby v. Shepherd, Cro. Jac. 640, and Hyckman v. Shotbolt, 3 Dyer 279, b. See, also, Williams V. Bryant, 5 M. & W. 447. * See Baker v. Stephens, 8 B. & S. 438. » Tyerman v. Smith, 25 L. J., Q. B. 359; 6 E. & B. 719, S. C; 17 & 18 V., c. 125, |§ 3 & 15. See, also, Haines v. E. India Co., 6 Moo. Ind. App. Cas. 467, 484, 485, per Sir J. Patteson; 11 Moo. P. C. R. 39, 57, S. C. « Andrews v. Elliott, 5 E. & B. 502; S. C, 6 E. & B. 338, per Ex. Ch.; 17 & 18 v., c. 125, § 1. (3593) 726 ADMISSIONS actp:d upon by others. [part ii. on the ground that the solicitor had no authority under seal to defend or refer the cause.' Where, too, the order of a judge was bad as a proceeding under an Interpleader Act,- now repealed, for want of a statement of consent upon its face, it was nevertheless held to be conclusive upon the parties, who by their conduct had agreed to submit the matter in dispute to the decision of the judge.' So, although a breach of covenant can in no case be justified by a parol licence to break it,* a forfeiture occasioned by it may be some- times waived or rendered nugatory by the conduct of the covenantee. Thus, where a lessor, after giving notice to his lessee to do repairs within the period prescribed by the lease, so conducted himself as to hall the lessee asleep and to lead him to suppose that he might refrain from doing the repairs, the court would not allow the lessor to insist upon a covenant of forfeiture, on the ground that the re- pairs had not been finished within the time fixed for them.^ So, where a covenant to insure on the tenant's part was qualified by an option given to the landlord to insure if the tenant made default, and to add the premiums to his rent; it was held, in ejectment for a forfeiture for not insuring, that the defendant might defeat the action, by proving that the landlord had represented to him that he had exercised the power, and had himself duly insured the premises.® So, also, a tenant, who had paid rent, and acted as such, was not per- mitted, — as stated more fully in another place,' — to set up a superior title of a third person against his lessor, in bar of an ejectment brought by him; for since he derived possession from him as tenant, he was not allowed to repudiate that relation. § 848. This doctrine is also applied to the respective relations ? 776 of licensor and licensee, bailor and bailee, and principal and agent; the rule of law being clear that neither licensees, nor bailees, nor ' Faviell v. East. Cos. Ry. Co., 2 Ex. R. 344; 6 Dowl. & L. 54, S. C. M & 2 W. 4, c. 58. ' Harrison r. Wright, 13 M. & W. 816. * Doe V. Gladwin, 6 Q. B. 953, 962; West v. Blakeway, 2 M. & Gr. 729. 6 Hughes V. Metrop. Ry. Co., 45 L. J., C. P. 578, per Ct. of App. ; S. C, aff. in Dora. Proc. L. R., 2 App. Cas. 439; and 46 L. J., C. P. 583. * Doe V. Sutton, 9 C. & P. 706; explained by Patteson, J., in Doe v. Glad- win, 6 Q. B. 962, 963; Doe v. Rowe, Ry. & M. 343; 2 C. & P. 246, S. C. See ante. U 804—808. ^ Ante, U 101—103. (3594) CHAP. XIV.] ADMISSIONS ACTED UPON BY OTHERS. 727 agents, caa be permitted to dispute the respective titles of their licensors, bailors, or principals.' A licensee, therefore, under a patentee is estopped from dispating the validity of the patent, so long as the licence continues in force." So, if a warehouseman, wharfinger, banker, solicitor, agent, or other depositary of goods or moneys, has once acknowledged the title of a person as his bailor or principal, and has agreed to hold the goods or moneys subject to his order, or to sell the goods and to account for the proceeds, he will be estopped from setting up the title of a third person to the same goods or moneys, or from otherwise defeating the rights of his bailor or principal, against his own manifest obligations to him.' An exception, however, will be allowed, where the bailment has been determined by what is equivalent to an eviction by title para- mount,* and, also, where the bailor or principal has obtained the goods fraudulently or tortiously from the third person,^ provided the defendant in such last case can show, that he was unacquainted with the circumstances when he made the admission,'* and that such third person has actually made a claim to the goods or moneys in question.^ Perhaps the bailor's title might also be impugned, 1 Dixon V. Hamond, 2 B. & A, 310, 313, per Abbott, C. J. ; Collett v. Hub- bard, 2 Coop. 94, 99; Zulueta v. Vinnent, 1 De Gex, M. & G. 315, Story, Agen. I 217; Phillips v. Hall, 8 Wend. 610; Drown v. Smith, 3 New Hamp. 299; Eastman v. Tattle, 1 Cowen, 248; M'Neil v. Philip. 1 M'C. 392; Chapman v. Searle, 3 Pick. 38, 44; Jewett v. Tony, 11 Mass. 219; Lyman v. Lyman, id. 317; Story, Bail. I 102. ^ Crossleyn Dixon, 32 L. J., Ch. 617, per Dom. Proc.; 10 H. of L. Cas. 293, S. C; Clark v. Adie, L. R., 2 App. Cas. 423; 46 L. J., Ch. 598, S. C, per Dom. Proc. 3 Gosling V. Birnie, 7 Bing. 339; 5 M. & P. 160, S. C; Woodley v. Coventry, 32 L. J., Ex. 185; 2 H. & C. 164, S. C; Stonard v. Dunkin, 2 Camp. 344, per Ld. Ellenborough; Harman v. Anderson, id. 243, per id.; Knights V. Wiflfen, 5 Law Rep., Q. B. 660; Hawes v. Watson, 2 B. & C. 540; 4 D. & R. 22, S. C; Dixon v. Hamond, 2 B. & A. 310; Roberts v. Ogilby, 9 Price, 269; anon, per Gould, J., cited 3 Esp. 115, and there recognised by Ld. Kenyon; Farringdon v. Clerk, 3 Doug. 124; 2 Chit. R. 429, S. C; Holl V. Griffin, 10 Bing. 246; 3 Moore, 732, S. C; Nickolson v. Kuowles, 5 Madd. 47; Evans v. Nichol, 3 M. & Gr. 614. See, however, Thorne v. Tilbury, 27 L. J., Ex. 407; 3 H. & N. 534, S. C. * Biddle v. Bond, 34 L. J., Q. B. 137; 6 B. & S. 225, S. C. 5 Hardman v. Wilcock, 9 Bing. 382, n.; Biddle v. Bond, 34 L. J., Q. B. 137; 6 B. & S. 225, S. C. ^ Per Alderson, J., in Gosling i\ Birnie, 7 Bing. 346; Ex p. Davies, re Sad- ler, L. R., 19 Ch. D. 86. ' Betteley v. Reid, 4 Q. B. 511, 517, 518. (3595) 728 ADMISSIONS ACTED UPON BY OTHERS. [PART II. should the circumstances be such as to show that he, in connexion with some third person, had practised a fraud on the bailee, by re- presenting goods to belong to the bailor, which, in fact, were the property of such third person, if in this case additional proof were given, that the defendant, in consequence of the fraudulent misre- presentation, had sustained any real injury.^ § 849. It seems also that, where a person pledges property to § '^^6 which he has no title, the pledgee is not estopped from delivering it to the rightful owner; for in the ordinary case of a pledge, the pledgor impliedly undertakes that the property is his own, and the pledgee merely undertakes that he will return it to the pledgor, provided it be not shown to belong to another.' A common carrier, too, being bound to receive goods for carriage, and having no means of making inquiry as to their ownership, is at liberty to dispute the title of the person from whom he has received them; and if he be sued in trover by such person, he may establish his defence by proving that he has delivered the goods to the real owner on his claiming them.^ A vendor, however, who has sold goods to a party as a sole purchaser, and has directed his factors to weigh them over to such party, and to enter them in his name in their books, cannot, after such sale and transfer, dispute his title as sole proprietor, or detain the goods, on the authority of a third person, who claims to be a joint purchaser.* § 850. Again, in an action against the acceptor of a bill, the § 777 defendant cannot show that his signature has been forged, if he has accredited the bill, and induced the plaintiff to take it, by saying that the acceptance was his, and that the bill would be duly paid.^ At one time, however, it was deemed law, that no consideration of estoppel as between the parties could have any weight where the rights of the revenue intervened; and, consequently, the maker of a ' Scott V. Crawford, 4 M. & Gr. 1031. ^ Cheesman v. Exall, G Ex. R. 341. 3 Sheridan v. The New Quay Co., 28 L. J., C. P. 58; 4 Com. B., N. S. 618, S. C. * Kieran i'. Sandars, 6 A. & E. 515. ^ Leach v. Buchanan, 4 Esp. 226 per Ld. Ellenborough; recognised by Erskine, J., in Sanderson i;. Collman, 4 M. & Gr. 222. (3596) CHAP. XIV.] ADMISS. IMPLIED IN ACCEPTING BILL OF EXCHANGE. 729 banker's cheque provided it were payable to bearer on demand,' might have defrauded a bona fide holder for value, by proving that the cheque was post dated, and, as such, inadmissible in evidence without a bill stamp.^ But this doctrine, — which certainly- savoured of cruel injustice, — has been repudiated by the Court of Exchequer;^ and it seems now to be the law, that if a cheque, — - whether payable to bearer or to order, — appears, when tendered in evidence, to bear on its face a sufficient stamp, the court will receive the document, and will not allow any proof to be given that it had actually been post-dated, and that the holder had taken it with knowledge of that fact.* § 851. The acceptance of a bill of exchange is also deemed a ? 778 conclusive admission,^ as against the acceptor, of the signature of the drawer,^ of his capacity to draw; ' and if the bill be payable to the order of the drawer, of his capacity to indorse;^ and if it be drawn by procuration, of the authority of the agent to draw in the name of the principal; ^ and it matters not in this respect, whether 1 Whistler w. Forster, 32 L. J., C. P. 161; 14 Com. B., N. S. 248, S. C. ; Austin V. Bunyard, 4 Fostand Fin. 253, per Cockburu, C. J. ; Bull v. O'Sullivan, G Law Kep., Q. B. 209; 40 L. J., Q. B. 141, S. C. ^ Field V. Woods, 7 A. & E. 114; 2 N. & P. 117, S. C; recognised in Steadman v. Duliamel, 1 Com. B. 892, 893. ^ Austin V. Bunyard, 34 L. J., Q. B. 217; 6 B & S. 687, S. C. * Gattyr. Fry, L. R., 2 Ex. I). 265; 46 L. J., B.\. 605, S. C; Emanuel V. Robarts, 6 B. & S. 687; 34 L. J., Q. B. 217, S. C. s See 45 & 46 V., c. 61, ? 54. 6 Sandersons. Collman, 4 M. & Gr. 209; 4 Scott, N. R. 638, S. C; Bass V. Clive, 4 M. & Sel. 13. ' Id. See Haly v. Lane, 2 Atk. 182, per Ld. Hardwicke. ^ Taylor v. Croker, 4 Esp. 187, per Ld. Ellenborough; Pitt v. Chappelow, 8M.-&W. 616; Drayton v. Dale, 2 B. & C. 293; 3 D. & R. 534, S. C. All these cases were recognised by the court in Sanderson v. Collman, 4 M. & Gr. 218, 219, 224. See, also, Bralthwaite v. Gardiner, 8 Q. B. 473, where, in au action by the indorsee against the acceptor of a bill, the defendant was held to be estopped from pleading that the drawer and first indorser was an un- certificated bankrupt when the acceptance was given, and that his assignees had demanded payment. So, in a similar action, it was held, that the defendant could not plead under the old law, that the drawer and first indonser was a married woman from the date of the drawing down to the time of the indorsing of the bill. Smith v. Marsack, 6 Com. B. 486; 6 Dowl. & L. 363, S. C. See ante, ? 842. » Robins )n v. Yarrow, 7 Taunt. 455; Jones v. Turnour, 4 C. & P. 204, per Ld. Tenterden. (3597) 730 AVIIAT ACCEPTOR OF BILL OF EXCHANGE ADMITS. [PAKT II. the bill be drawn before or after the acceptance.' The law, however, in geneial, recognises no such admission on the part of the acceptor, either of the signature of the payee, though he be the same party as the di-awer,-' or of that of any other indorser;'' and this, too, although, at the time of the acceptance, the indorsements were on the bill.* Neither does the acceptance admit, that an agent, who has drawn a bill by procuration, payable to the order of the principal, has authority to indorse the same;^ nor is the acceptor of a bill, which a partner has drawn in the partnership name and made payable to the firm's order, estopped from showing that in fact it was not indorsed by the firm or negotiated for any partnership purpose.'^ So, if on a bill payable to the order of the drawer the name of a real person as drawer and indorser be forged, it seems that the mere acceptance of such bill, in ignorance of the forgery, will not preclude the acceptor from denying the genuineness of the indorse- ment, though it be in the same handwriting as the di'awing which he is bound to admit;' but if the acceptor, with knowledge of the forgery, puts the bill in circulation, he will be estopped from dis- puting the validity of the indorsement equally with, that of the drawing * In this last event the case is considered to fall within the principle of Cooper v. Meyer, which decides that if the bill be drawn in a whoWy fictitious name, and the handwriting of the in- dorsement be the same as that of the drawing, the acceptor will be estopped from denying it, because he admits that the bill is drawn by somebody, that is, by the person who indorses in the same hand- writing, and the fair construction to be put on his undertaking is, that he will pay to the signature of the same person who signed for the drawer.® 1 Schultz V. Astley, 2 Bing. N. C. 544, 552, 553 ; 2 Scott, 815, S. C. ; Hallifax v. Lyle, 3 Ex. R. 446; Lond. & S. West. Bk. v. Wentworth, L. R., 5 Ex. D. 96. But see Baxendale v. Bennett, L. R., 3 Q. B. D. 525, per Ct. of App.; 47 L. J., Q. B. 625, S. C. 2 Forster v. Clements, 2 Camp. 17; Macferson v. Thoytes, Pea. R. 20; Bosanquet v. Anderson, 6 Esp. 44, per Ld. Ellenborough; Cooper r. Meyer, 10 B. & C. 471, per Ld. Tenterden. ^ Id. * Smith V. Chester, 1 T. R. 654; Roharts v. Tucker, 16 Q. B. 560. * Robinson v. Yarrow, 7 Taunt. 455; recognised in Beeman v. Duck, 11 M. & W. 255. « Garland v. Jacmib, 8 Law Rep., Ex. 216, per Ex. Ch. T Beeman r. Duck, 11 ]\I. &, W. 251, 255. ^ Id. 9 Cooper V. Meyer, 10 B. & C. 468, 471, per Ld. Tenterden; 5 M. & R. 387, (3598) CHAP. XIV.] WHAT INDORSEMENT OF BILL OR NOTE ADMITS. 731 § 852. The reasons for this distinction between the case of a § 779 drawer and that of an indorser, who signs the bill before the accept- ance, are not very clear; but those usually assigned are, that, as the acceptor is only presumed to be acquainted with the handwriting of the drawer, it is sufficient if he ascertains that his signature is genuine; that he is not bound to look at the back of the bill at all; that, even if he were, he could not be supposed to know the hand- writing of indorsers, who would probably be strangers to him ; and that a different rule would raise nice questions of fact in every case, as to whether the bill was indorsed before or after acceptance, and would consequently embarrass the circulation of negotiable securities, by rendering the position of acceptors hazardous and undefined.' § 853. In accordance with the law which estops an acceptor from ^ 780 disputing the genuineness of the drawing, the indorsement by the payee of a promissory note is a conclusive admission of the hand- writing of the maker ;^ and the indorsement of a bill of exchange will also operate as an estoppel on the indorser to deny any of the preceding signatures.^ § 854. Having now fully discussed the effect of such admissions ^ 731 as have been acted upon, it is right to point out that those admissions, which either have been made without any intention of being acted upon, or which have not been acted upon, or by which the situation of the opposite party has not been prejudiced or altered, though receivable in evidence against the parties making them, are not conclusive.* Thus, if A. contracts to sell timber S. C. ; explained and recognised by Parke, B., in Beeman v. Duck, 11 ]\I. &W. 253—256. See, also Ashpitel v. Bryan, -32 L. J., Q. B. 91; 3 B. & S. 474, S. C; S. C. in Ex. Cli., 5 B. & S. 723, and 33 L. J., Q. B. 328; Phillips v. Ira Thurn, 18 Com. B., N. S. 400 & 694; 35 L. J., C. P. 220; and 1 Law Eep., C. P. 463, S. C; 1 H. & R. 499, S. C, in a later stage. ' See Story, Bills, § 263; Robinson v. Yarrow, 7 Taunt. 458, per Park, J.; Smith V. Chester, 1 T. R. 654; Canal Bk. v. Bk. of Albany, 1 Hill, N. Y. K. 287. . 2 Free v. Hawkins, Holt, N. P. R. 550, per Gibbs, C. J. 3 45 & 46 v., C.61, I 55. * See Howard v. Hudson, 2 E. & B.-l; White v. Greenish, 11 Com. B., (3599) 732 ADMISSIONS NOT ACTED UPON BY OTHERS. [PAUT 11. to B., and gives him a delivery order, he may still, on B.'s bank- ruptcy, meet an action of trover brought by B.'s trustee, by showing that the delivery order was invalid, and therefore did not amount to a constructive delivery of the goods, provided B. has neither paid for them, nor sold them to a third party.' So, in an action against a marshal, for the escape of a prisoner arrested at the suit of the plaintiff, the defendant, by having received the prisoner into custody, is not estopped from disputing the legality of the custody.^ Neither will the court treat as conclusive evidence the admission that his trade was a nuisance, by one indicted for setting it up in another place ;^ or the admission by the defendant, in a petition for damages by reason of adultery,* that the " teterrima causa " was the wife of the plaintiff.'^ So a sheriff's return, though it be conclusive evidence, in the particular cause in which it is made, or for the purposes of an attachment, does not operate as an estoppel in any other action or proceeding, either as against the sheriff or as against his bailiff.^ So, also, a creditor is not estopped from bringing an action against a sheriff for a false return, by accepting the amount levied on account and towards the satisfaction of the debt mentioned in the writ;' and where a person brought an action of trover for a dog, he was held not to be precluded from proving his title to it, though he had previously authorised a third party, against whom the defendant had brought a similiar action, to deliver it to the defendant, in the place of paying 50Z , which was the alternative directed by the verdict; the third person having, at the time of delivery, demanded back the dog, on behalf of the N. S. 20!); Foster?;. Mentor Life Assur. Co., 3 E. & B. 48; Carr v. Lond. & N. West. Ry. Co., 44 L. J., C. P. 109; 10 Law Rep., C. P. 307, S. C. ; Coventry v. Gt. East. Ry., L. R., 11 Q. B. D. 776. 1 Lackington r. Atheiton, 7 M. & Gr. 360, 363—365. 2 Contant r. Chapman, 2 Q. B. 771. * R. V. Neville, Pea. R. 91, per Ld. Kenyon. * See 20 & 21 V., c. 85, ? 33. * Morris r. Miller, 4 Burr. 2057; further explained in Rigg v. Curgenven, 2 Wils. 399. « Standish v. Ross, 3 Ex. R. 527; Brydges v. Walford, 6 M. & Sel. 42; 1 Stark. R. 389, n. S. C; Jackson v. Hill, 10 A. & E. 477; Remmett v. Lawrence, 15 Q. B. 1004; Levy v. Hale, 29 L. J., C. P. 127; Stimson r. Farnham, 41 L. J., Q. B. 52; 7 Law Rep., Q. B. 175. S. C. ' Holmes v. Clifton, 10 A. & E. 673, overruling Beynon v. Garrat, 1 C. & P. 154. (3600) CHAP. XIV.] ADMISSIONS NOT ACTED UPON BY OTHERS. 733 plaintiff, as bis property.' In these,' and the like cases,' no wrong is done to the other party, by receiving any legal evidence to show that the admission was erroneous, and by leaving the whole evidence, including the admission, to be weighed by the jury. § 855. The case of Freeman v. Cooke* carries this doctrine to ^ 792 its extreme limit, if it does not transgress the strict bounds of law. That was an action of trover brought against a sheriff for seizing the plaintiff's goods under a fi. fa. against his brother, to which the defendant pleaded not guilty, not possessed, and leave and licence. It appeared at the trial, that the plaintiff, fearing an execution, had removed his goods to his brother's house, and when the sheriff's officer came there, the plaintiff, supposing that he had a writ against himself, warned him not to seize the goods, as they be- longed to his brother. The officer, however, producing his writ, which was against the brother, the plaintiff, before the goods were actually seized, told him that they were the property of a third party; but the officer disregarded this last statement, and seized and sold the goods, as belonging to the brother. On this state of facts, the jury found that the goods were the plaintiff's, but that, before the seizure, he falsely stated to the officer that they belonged to his brother, and that the officer was thereby induced to seize them as his brother's. The court, on this finding, directed the verdict to be entered for the plaintiff, on the grounds, first, that the plaintiff did not intend to induce the officer to sieze the goods as those of the brother; and next, that no reasonable man would have seized the goods on the faith of the plaintiff's representations taken altogether. § 856.^ In some few cases, connected with the administration of g 733 public justice and of government, admissions have been held con- ' Sandys v. Hodgson, 10 A. & E. 472. * Gr. Ev. § 209, four lines. ^ See ante, ??^ 804—808. See, also, Machu v. Lend. & S. West. Ry. Co., 2 Ex. R. 41.5; Greenish v. White, 31 L. J., C. P. 93. * 2 Ex. R. 654, 664; 6 Dowl. & L. 187, S. C. * Gr. Ev. g 210, iu part. (3601; 734 ADMISS. CONCLUSIVE ON GROUNDS OF PUBLIC POLICY. [PAKT II. elusive on grounds of public policy. Thus, in an action for penalties for election bribery, a man who had given money to another for his vote, was not permitted to say that such other person had no right to vote.' So, where the owners of a stage coach took up more passengers than were allowed by statute, and an injury was laid as having arisen from overloading, their conduct was held to be conclusive evidence that the accident was occasioned by the cause assigned." So, one who has officiously intermeddled with the goods of another recently deceased, is, in favour of creditors, estopped from denying that he is executor.^ And if an executrix treats the goods of her testator as the property of her husband, she will not be allowed to object to their being taken in execution for her husband's debt* Thus, also, where a shipowner, whose ship had been forfeited for breach of the revenue laws, applied to the Secretary of the Treasury for a remission of the forfeiture, on the ground that it was incurred by the master ignorantly and without fraud, and upon making oath to the application, in the usual course, the ship was given up; he was not permitted after- wards to gainsay this statement, and to prove the misconduct of the master, in an action by the latter against himself for wages on the same voyage, even by showing that the fraud hadsiibsequently come to his knowledge.^ § 857.® The mere fact, that an admission was made under oath, I "784 1 Combe v. Pitt, 3 Burr. 1586, 1590; 1 Wm. Bl. 524, S. C; Rigg r. Cur- genven, 2 Wils. 395. ^ Israel v. Clark, 4 Esp. 259, per Ld. Kenyon, recognised by Ld. Ellen- borough. 3 Reade's case, 5 Co. 33, 34; Toller on Ex. 37—41; 1 Will, on Ex. 225, et seq. * Quick V. Staines, 1 B. & P. 293. See Fenwick i-. Eaycock, 2 Q. B. lOS. ° Freeman v. Walker, 7 Greenl. 6S. But a sworn entry at the custom-hou.se of certain premises, as being rented by A., B., and C, as partners, for the .sale of beer, though conclusive in favour of the Crown, is nut conclusive evidence of the partnership, in a civil suit, in fav'our of a stranger. Ellis v. Watson, 2 Stark. R. 453, 478. The difference between this case and that in the text may be, that, in the latter, the partner gained an advantage to himself, which was not the case in the entry of partnership; it being only incidental to the principal object, namely, the designation of the place where an excisable commodity was sold. « Gr. Ev. I 210, in part. (3602) CHAP. XIV.] SWORX ADMISSIONS — ADMISSIONS IN DEEDS. 735 does not seem alone to render it conclusive against the party; but it adds vastly to the weight of the testimony, throwing upon him the burthen of showing that it was a case of clear and innocent mistake. Thus, in a prosecution under the game laws, proof of the defendant's oath, taken under an Income Act then in force, that the yearly value of his estate was less than 100/., was held not quite conclusive against him, though very strong evidence of the fact;' and the same rule has been applied where the fact sworn to was not, as it might be considered in this case, a matter of judgment, but was purely a matter of fact within the knowledge of the party swearing.^ The defendant's belief of a fact, sworn to in an old answer in Chancery, is admissible evidence against him, though not conclusive.^ § 858.* Admissions in deeds have already been considered in ? "785 regard to parties and privies,^ between whom they are generally regarded as estoppels, if properly pleaded;® and when not techni- cally so, they are entitled to great weight, from the solemnity of their nature.' But when offered in evidence by a stranger, the adverse party may repel their effect, in the same manner as though they were only parol admissions.* § 8591 Other admissions, though in writing, not having been § 786 acted upon by another to his prejudice, nor falling within the ' ' K. V. Clarke, 8 T. R. 220. " Thornes v. White, Tyr. & Gr. 110. ' Doe V. Steel, 3 Camp. 115, per Ld. Ellenborough. Answers in Chancery- used to be always admissible at common law against the party ; but apparently were not regarded as strictlj- conclusive, merely because they were sworn to. See B. N. P. 236, 237; Cameron r. Lightfoot, 2 W. Bl. 1190; Grant v. .Jackson, Pea. E. 203; Staddy v. Sanders, 2 D. & R. 347; De Whelp- dale V. Milburn, 5 Price, 485. * Gr. Ev. | 211, in great part. ^ Ante, U 91—100. ® Fishmongers' Co. v. Robertson, 5 M. & Gr. 193; Bowman v. Rostron, 2 A. & E. 295, n. ' Doe V. Stone, 3 Com. B. 176. ^ R. V. Neville, Pea. R. 91. Woodward v. Larking, 3 Esp. 286; May. of Carlisle r. Blamire, 8 East, 487. 492, 493. ® Gr. Ev. § 212, in great part. (3603) 733 ADMISSIONS IN KECEH'TS, PASS-BOOKS, ETC. [PART II. reason before mentioned for estopping the party to gainsay them, are not conclusive against him, but are left at large, to be weighed with other evidence by the jury. Of this sort are receipts, or mere acknowledgments, given for goods or money, whether on separate papers,' or indorsed on deeds," or on negotiable securities;' bankers' pass-6ooA;s; ^ the adjustment of a loss on a policy of insurance, made without full knowledge of all the circumstances, or under a mistake of law or fact, or under any other invalidating circumstances; ^ and acco»»^s rendered, such as a solicitor's bill,® and the like.' An old bill in Chancery is not admissible at all against the plaintiff in proof of the admissions it contains, since the facts stated therein are regarded as nothing more than the mere sugrerestions of counsel.* § 860. Where an executor or administrator, upon the citation § 787 of a party interested, has exhibited an inventory of the personal estate of a deceased person, either in the Ecclesiastical Court under the old law, or in the Probate Division of the High Court under the new law,' such document, being sworn to by the exhi- ' Skaife v. Jackson, 3 B. & C. 421; Farrar v. Hutchinson, 9 A. «fe E. 641 ; 1 P. & D. 437, S. C; Wallace v. Kelsall, 7 M. & W. 273, per Parke, B. ; Bowes r. Foster, 2 H. & N. 779, 787, per Martin, B. ; Lee v. Lane. & Yorks. Ry. Co., 6 Law Rep., Ch. Ap. 527. These cases have virtually overruled Alner v. George, 1 Camp. 392. For American cases see Harden v. Gordon, 2 Mason, 541, 561; Fuller v. Crittenden, 9 Conn. 401; Ensign v. Webster, 1 Johns, 145; Putnam v. Lewis, 8 Johns. 389; Stackpole v.. Arnold, 11 Mass. 27; Tucker v. ]\Iaxwell, id. 143; Williamson v. Scott, 17 Mass. 249. 2 Straton v. Kastall, 2 T. R. 366; Lampon v. Corke, 5 B. & A. 611, per Holroj'd, J.; 612. per Best, J. As to cases where the receipt of money is mentioned in the deed itself, see ante, | 96. =* Graves v. Key, 3 B. & Ad. 313. * Commercial Bk. of Scotl. v. Rhind,3 Macq. Sc. Cas. H. of L. 643. ^ Luckie v. Bushby, 13 Com. B. 864; Reyner v. Hall, 4 Taunt. 725; Shep- herd V. Chewter, 1 Camp. 274, 276, n. ; Adams v. Sanders, M. & M. 373 ; 4 C. & P. 25, S. C. ; Christian v. Coombe, 2 Esp. 489. « Loveridge v. Botham, 1 B. & P. 49. ' See Bacon v. Chesney, 1 Stark. R. 192, 193, n. h ; Dawson v. Remnant, 6 Esp. 24, 8 Boileau v. Rutlin, 2 E.x. R. 665; Doe v. Sybourn, 7 T. R. 3, per Ld. Ken yon. ' 20 & 21 v., c. 77; Rules of 1862 for Ct. of Prob. in contentious business, r. 76, and Form No. 27. (3604) CHAP. XIV.] INVEKTORY, HOW FAR AN ADMISSION OF ASSETS. 737 bitant, will be regarded very properly as prima facie evidence of assets ; and the executor or administrator, who has pleaded plene administravit, will be forced to show, either the nonexistence of such assets, or that they have not reached his hands, or that they have been duly administered.' The same effect will be given to a declaration of the personalty of a testator or intestate, which has been made upon oath by his representative before a tinal settle- ment of the accounts." So, where, since the 1st of June, 1881, an affidavit has been received by the Commissioners of Inland Revenue from any person applying for probate or letters of admin- istration, verifying the account of the deceased's estate or effects, such affidavit and account will, of course, be received, whether iu England or in Ireland, as at least prima facie evidence that the deceased left assets to the amount specified in the account,^ if not as sufficient proof that such assets have been realised in due course.* In England, however, under the old law, as inventories without signature or verification used to be produced for the mere purpose of obtaining probate, they were not regarded as prima facie evidence of assets,'^ though they would seem to have fur- nished, in conjunction with other circumstances, some proof of the value of the estate. An old probate stamp,** though admissible as slight evidence of assets to the amount covered thereby, was not alone sufficient to throw upon the executors the burthen of proving the non-receipt of such assets.' Coupled, however, with proof, ' Giles V. Dyson, 1 Stark. R. 32, explained in Steam v. Mills, 4 B. & Ad. 660, 662 ; Parsons v. Hancock, M. & M. 330, per Parke, J. ; Hickey v. Hayter, 1 Esp. 313 ; 6 T. R. 384, S. C. ; Young v. Cawdrey, 8 Taunt. 734. See Hutton V. Rossiter, 7 De Gex, M. & G. 9. - See Rules of 1862 for Reg. of Ct. of Prob. in non-contentious business, Form No. 18; and Rules for Dist. Reg. of Ct. of Prob., Form No. 18 ; and cases cited in last note. ^ 44 v., c. 12, ?§ 27 — 29. This law has prevailed in Ireland for some years past. See Rowan v. Jebb, 10 Ir. Law R. 216. * 44 v., c. 12, § 31. To understand the new law respecting probate and legacy duty, and duties on accounts, see, and study, 44 V., c. 12, ^^ 26 — 43. ^ Steam v. Mills, 4 B. & Ad. 6.57 ; 1 N. & M. 434, S. C. * An affidavit stamp is now substituted for the probate stamp, see 44 V., c. 12, ^27. ' Mann v. Lang, 3 A. & E. 699 ; Steam v. Mills, 4 B. & Ad. 663, 664. These cases overrule Foster v. Blakelock, 5 B. & C. 326. (3605) 738 ORAL ADMISSIONS TO BE RECEIVED WITH CAUTION. [pART II, either of long acquiescence in the payment of the duty, or of other suspicious circumstances, it furnished a presumption of assets received, which executors found it difficult to rebut.' § 861. '■' Evidence of oi-al admissions ought always to be received ^ with great caution.^ Such evidence is necessarily subject to much imperfection and mistake ; for either the party himself may have been misinformed, or he may not have clearly expressed his meaning,* or the witness may have misunderstood him,* or may purposely misquote the expressions used.® It also sometimes happens, that the witness, by unintentionally altering a few words, will give an effect to the statement completely at variance with what the party actually said.' But where the admission is delibe- rately made, and precisely identified, the evidence it afPords is often of the most satisfactory nature.^ ^ Mann r. Lang, 3 A. & E. 702, per Ld. Denman ; Curtis v. Hunt, 1 C. & P. 180, per Ld. Tenterden ; Eowan r. Jebb, 10 Ir. Law K. 217 ; Lazenby v. Rawson, 4 De Gex, M. & G. 556, 563, 564, per Ld. Cranworth. 2 Gr. Ev. § 200, iu part. =» See post, ? 862. * See Gospel of St. John, ch. 21, vv. 21—23. * See St. MattheAv, ch. 27, vv. 46, 47. 6 See and compare St. John, ch. 2, vv. 18—21, and St. Matthew, ch. 26, vv. 60, 61. ' Ante, ? 216, n.'. Alciatus expresses the sense of the civilians to the same effect, where, after speaking of the weight of a judicial admission, "propter majorem certitudinem, quam in se habet," he adds, — " Quae ratio non habet locum quando ista confessio probaretur per testes ; imo est minus certa cxteris prolationibus,'' &c. Alciat. de Prses., Pars 2, Col. 682, n. 6. See Poth. Obi., App. No. 16, § 13 ; Lench v. Lench, 10 Ves. 517, 518. "^ Rigg. V. Curgenven, 2 Wils. 395, 399 ; Glassf. Ev. 356 ; Com. v. Knapp, 9 Pick. 507, 508, per Putnam, J. As to Admissions by Agents, see ante, U 602—605. r88 (3606) CHAP. XV,] ORAL CONFESSIONS TO BE RECEIVED WITH CAUTION. 739 CHAPTER XV. CONFESSIONS. § 862.* The only topic under the general head of admissions g 7^9 which remains to be discussed, is that of confessions of guilt in criminal prosecutions ; and here it may be observed, — as just remarked in regard to admissions in civil proceedings," — that the evidence of oral confessions of guilt ought to be received tcith great caution.^ For not only does considerable danger of mistake arise from the misapprehension or malice of witnesses, the misuse of words, the failure of the party to express his own meaning, and the infirmity of memory;* but the zeal which generally prevails to detect offenders, especially in cases of aggravated guilt, and the strong disposition which is often displayed by persons engaged in pursuit of evidence, to magnify slight grounds of suspicion into sufficient proof,'^ — together with the character of the witnesses, ' Gr. Ev. g 214, in great part. 2 ^^^^^ ^ gQj_ ■' Macaulay, in his History of England, Vol. 1, Ch. 5, p. 583, has ex- pressed this sentiment in forcible language. " Words," says he, "may easily be misunderstood by an honest man. They may easily be misconstrued by a knave. What was spoken metaphorically may be apprehended literally. What was spnken ludicrously may be apprehended seriously. A particle, a tense, a mood, an emphasis, may make the whole difference between guilt and inno- cence." * See Earle r. Picken, 5 C. & P. 542, n., per Parke, B.; P. r. Simons, 6 C. & P. 540, per Alderson, B. ; Fost. C. L. 243; Coleman's case, cited in Joy on Confess. 108. In Resp. v. Fields, Peck, R. 140, the court observed, "How easy is it for the hearer to take one word for another, or to take a word in a sense not intended by the speaker; and for want of an exact representation of the tone of voice, emphasis, countenance, eye, manner, and action of the one who made the confession, how almost impossible is it to make third persons understand the exact state of his mind and meaning ! For these reasons such evidence is received with great distrust, and under appehensions for the wrong it may do." ^ For a curious instance of this kind of exaggeration, see the evidence adduced in support of Hugh Macauley Boyd's claim to the authorship of Junius, 1 Woodtall's Junius, *133— *137. See ante, I 57. 26 LAW OK KVii).— V. II. (3607) 7iO ORAL CONFESSIONS TO BE RECEIVED WITH CAUTION. [lART II. who are sometimes necessarily called in cases of secret and atrocious crime, — all tend to impair the value of this kind of evidence, and sometimes lead to its rejection, where, in civil actions, it would have been received. The weighty observation of Mr. Justice Foster should also be kept in mind, that " this evidence is not, in the ordinary course of things, to be disproved by that sort of negative evidence, by which the proof of plain facts may be, and often is, confronted." ' § 803. In addition to these sources of distrust, which are often ? "^90 sufficient to raise a serious doubt whether the confession given in evidence was actually made by the prisoner in the words, or to the effect, stated by the witnesses, there is yet another reason why caution should be employed in receiving and weighing confessions. The statements, though made as deposed to, may be false. The prisoner, oppressed by the calamity of his situation, may have been induced by motives of hope or fear to make an untrue confes- sion;" and tha same result may have arisen from a morbid ' Fost. C. L. 243. See, also, 1 Ph. Ev. 307; Lencli v. Lencli, 10 Yes. 518; Smith v. Buruhani, 3 Sumn. 438; 4 Bl. Com. 357; R. v. Crossfiekl, 2G How. St. Tr. 109, per Mr. .\dams, in his address to the jury. The civilians jilaced little reliance on naked confessions of guilt, not corroborated by other testi- mony. Carpzovius, after citing the opinion of Severus to that effect, and enumerating the various kinds of misery which tempt its wretched victims to this mode of suicide, adds — '" quorum omnium ex his fontibus contra se emissa pronunciatio, non tarn delicti confessione firmati quam vox doloris, vel in- sanientis oratio est." Carpz. Pract. Rer. Cr. Pars. III. Qua^st. 114, p. 160. So, also, in the Eccles. Courts it is regarded with great distrust. See per Sir W. Scott, in Williams r. Williams, 1 Hagg. Cons. .304. ^ *0f this character was the remarkable case of the two Boorns, convicted in the Supr. Court of Vermont, in Sept. 1819, of the murder of Russell Colvin, May 10, 1812. It appeared that Colvin, who was the brother-in-law of the prisoners, was a person of weak mind; that he was considered burdensome to the family of the prisoners, who were obliged to supjiort him; that on the day of his disappearance, being in a distant field where the prisoners Avere at work, a violent quarrel broke out between thera; and that one of them struck him a violent blow on the back of the head with a club, Avhich felled him to the ground. Rome suspicions arose at that time that he was murdered; which were increased by the finding of his hat in the same field a few months after- wards. These suspicions in jyrocess of time subsided; but, in 1819, one of the * Gr. Ev. ? 214, n. 2. (3608) CHAP. XV.] INSTANCES OF FALSE CONFESSIONS. 741 ambition to obtain an infamous notoriety/ from an insane or criminal desire to be rid of life, from a reasonable wish to break off old connexions, and to commence a new career, from an almost pardonable anxiety to screen a relative or a comrade," or even from the delusion of an overwrought and fantastic imagination.^ § 8G4. Still, the actual instances of false confessions of crime § '790 are very rare, and * their just value has been happily stated by one neighbours having rejieatedly dreamed of the murder, with great minuteness of circumstance, both in regard to his death and the concealment of his remains, the prisoners -were vehemently accused, and generally believed guilty of the murder. Upon strict search, the pocket-knife of Colvin and a button of his clothes were found in an old open cellar in the same field, and in a hollow stump not many rods from it were discovered two nails and a number of bones, believed to be those of a man. Upon this evidence, together with their deliberate confession of the fact of the murder and concealment of the body in those places, the prisoners were convicted and sentenced to die. On the same day, they applied to the Legislature for a commutation of the sentence of death to that of perpetual imprisonment; which, as to one of them only, was granted. The confession being now withdrawn and contradicted, and a reward offered for the discovery of the missing man, he was found in New Jers(>y, and re- turned home in time prevent the execution. He had fled for fear that they would kill him. The bones were those of some animal. They had been advised by some misjudging friends, that, as they would certainly be convicted upon the circumstances proved, their only chance of life, by commutation of punishment, depended on their making a penitential confession, and thereupon obtaining a recommendation to mercy. This case, of which there is a Report in the Law Library of Harvard University, is critically examined in a learned article in the North Amer. Rev. vol. x., pp. 41S — 429. For another case of false confession, under a promise of pardon, see a case cited in note to Warickshall's case, 1 Lea. 264, n. ^ One or other of these motives probably induced Hubert falsely to confess tliat he set fire to London in 1666. His confession cost him his life. See 6 How. St. Tr. 807—809, 819—821; and Wills, Cir. Ev. 70—75. See, also, Gen- eral Lee's assertion that he was the author of Junius, as narrated in 1 Wood- fall's Junius, *122, *123. '■' Mr. Joy mentions the case of an innocent j)erson making a false construc- tive confession, in order to fix suspicion on himself alone, that his guilty l)rothers might have time to escape, — a stratagem which was completely suc- cessful; after which he proved an alibi in the most satisfactase, 1 Dev. 259, 294 ; R. v. Walsh, Ir. Cir. R. 8G6, per. Jackson, J, * Gr. Ev. 'i 221, in part. See R. v. Doherty, 13 Cox, 23. (3620) ■ CHAP. XV.] CONFESSION MADE AFTER INDUCEMENT HELD OUT. 753 satisfaction of the judge, that the improper influence was totally done away before the confession was made, the evidence will be received.' Thus, where a magistrate told a prisoner charged with murder, that if he was not the man who struck the fatal blow, and would disclose all he knew respecting the matter, he would use his in- fluence to protect him; but on subsequently receiving a letter from the Secretary of State refusing mercy, he communicated its contents to the prisoner, it was held that a confession, which the prisoner afterwards made to the coroner, who had also duly cautioned him, was clearly voluntary, and as such it was admitted." So, where the accused had been induced by promises of favour to make a confes- sion, which was for that cause excluded, but some months after- wards, and after he had been solemnly warned by two magistrates that he must expect death and prepare to meet it, he again fully acknowledged his guilt, this latter confession was received in evidence.'^ Indeed, it may be generally laid down, that, though an- inducement has been held out by an officer, a prosecutor, or the like, and though a confession has been made in consequence of such inducement, still, if the prisoner be subsequently warned by a person in equal or superior authority, that what he may say will be evidence against himself, or that a confession will be of no benefit to him, — or if he be simply cautioned by the magistrate not to say anything against himself, — any admission of guilt afterwards made, will be received as a voluntary confession.* More doubt may be entertained as to the law, if the promise has proceeded from a person of superior authority, as a magistrate, and the confession is afterwards made to an inferior officer; because a caution from this latter person might be insufficient to efface the expecta- tion of mercy, which had previously been raised in the prisoner's mind.^ * See R. V. Cheverton, 2 Fost. & Fin. 833. 2 E. V. Clewes, 4 C. & P. 221, per Littledale, J. See, also, R. v. Dingley, 1 C. & Kir. 637. » Guild's case, 5 Halst. 163, 168. * R. V. Howes, 6 C. & P. 404, per Ld. Denman; R. i-. Lingate, 1 Ph. Ev. 410; R. V. Rosier, id. 410, 411; R. v. Bryan, Jebb, C. C. 157; Joy on Conf. 72—74. See R. v. Richards, 5 C. & P. 318. ^ R. V. Cooper, 5 C. & P. 535, per Parke, J. (.3621) 754 THE IXDUCEMENT MUST REFER TO THE CHARGE. [PART II. § 879. Passing now to the nature of the inducement, it may g 803 be laid down as a general rule, that in order to exclude a con- fession, the inducement, whether it assume the shape of a pro- mise, a threat, or mere advice, must have reference to the prisoner's escape from the criminal charge against him. It is not here meant that at the time when the inducement is held out, the charge against the prisoner must actually have been made; for where a man was threatened to be given into custody without any offence being then specified, but afterwards the nature of the charge was stated, and he confessed his guilt, the judges held that the confession was not admissible.' Still, the promise or threat, to have the eifect of excluding the statement, must be such as is calculated to influence the prisoner's mind with respect to his escape from the charge. A confession, therefore, will be received, though it were induced by spiritual exhortations, whether of a clergyman,^ or of any other person;^ for such a confession can scarcely be regarded as wn^rite ; and the law of England, Ireland, and America, — unlike that which prevails in Scotland,* or in other countries subject to the Roman law,^ — does not, as will presently be pointed out,'' regard penitential confessions to a priest in the light of privileged communication. Again, a promise of some merely collateral benefit or § 803 ^ R. V. Luckhurst, Pearce & D. 245. ^ R. V. Gilham, 1 Moo. C. C. 186; explained in Joy on Conf. 52 — 56; Com. V. Drake, 15 Mass. 161. But see R. v. Griffin, 6 Cox, 219, cited post, p. 789, ad fin. n. 5. =* R. r. Wild, 1 IVIoo. C. C. 452; R. r. Xnte, 2 Russ. C. & ISI. 832, 833; recognised in R. v. Hewett, C. & Marsh. 536, per Patteson, J. ; R. v. Gibney, Jebb, C. C. 15; R. v. Sleeman, Pearce & D. 249. * 2 Alison, Cr. L. of Scot. 586, cited in Joy on Conf. 57, n. a, 58. ^ In the Roman law penitential confessions to the priests are encouraged for the relief of the conscience, and the priest is bound to secrecy by the peril of punishment. " Confessio coram sacerdote in penitentia facta non probat in judicio; quia censetur facta coram Deo ; imo, si sacerdos eam enunciet, incidit in pcenam." 1 Masc. de Prob., Concl. 377. It was lawful, however, for the priest to testify in such cases to the fact, that the party had made such a penitential confession to him as the Church requires, and that he had enjoined penance upon him; and, with the express consent of the penitent, he might lawfully testify to the substance of the confession itself. Id. 6 Post, II 916, 917. (3622) CHAP. XV.] THE INDUCEMENT MUST RELATE TO THE CHARGE. 755 boon, as for instance, a promise to give the prisoner some spirits,' or to strike ofiP his hand-cuffs,- or to let him see his wife,^ will not be deemed such an inducement as will authorise the rejection of a confession made in consequence. Neither will an inducement held out to a prisoner with reference to one charge, exclude a consequent confession which relates to another;* unless the two offences be so blended together as to constitute in reality but one transaction.^ So, where a woman was indicted for concealing the birth of her child, her acknowledgment that she had been confined has in Ireland been received in evidence, though made in conse quence of the doctor having threatened that he would examine her person." It is right, however, to add that, under precisely similar circumstances, two English judges of ability have refused to admit evidence so obtained,' and, consequently, this last point must be considered as one still open to debate. Be this as it may, confes- sions will in general be admitted, though caused by intimidating language, provided the intimidation has had no reference to the charge, and was not otherwise calculated to produce any untrue statement.^ § 881.' Moreover, if no inducement has been held out relating § 804 to the charge, it matters not in tvhat icay the confession has been obtained; for whether it were induced by a solemn promise of. secrecy, even confirmed by an oath;'" or by reason of the prisoner having been made drunken;^^ or even, by any decejMon practised ' R. V. Sexton, cited in Joy on Conf. 17 — 19, is to the contrary; but this case, which was decided by Best. J., is probably not law. See observations of Mr. Greaves in 2 Russ. C. & M. 827, n. k. ■ R. V. Green, 6 C & P. G55, per Bosanquet and Taunton, Js. •' R. V. Lloyd, 6 C. & P. 393, per Patteson, J. * \i. r. Warner, citsd 2 Russ. C. & M. 845, per Littledale, J. ^ R. r. Hearn, C. & Marsh. 109, perColtman, J. « R. r. Cain, 1 Craw. & D. C. C. 37. ' R. V. Bowder, decided at the Liverpool Assizes, Dec. 1859, by Martin, B., after consulting Willes, J. ; MS. ex relatione, Mr. Ch. Hy. Hopwood. « See R. V. Thornton, 1 Moo. C. C. 27, 28. " Gr. Ev. ^ 229, in part. " R. V. Shaw, 6 C. & P. 372, per Patteson, J., Com. v. Knapp, 9 Pick. 496, 500—510. " R. V. Spilsbury, 7 C. & P. 187, per Coleridge, J., qu. on the ground that 27 LAW OF EVID. — V. II. (3623) 750 COXFKSSIONS MAY BE ELICITED BY QUESTIONS. [PAKT II. upon biin, or false representation made to him for that purpose;' it will be ecpuvlly admissible, however much the mode of obtaining it may be ojjeu to censure, or may render the statement itself liable to suspicion. Much less will a confession be rejected, merely because it has been elicited by questions put to the prisoner, whether by a magistrate," officer,'' or private person;* and the form of the question is immaterial, even though it assumes the prisoner's guilt. ^ So, if a prisoner makes a confession under the hope, held out by a person not in authority, that he will thereby be admitted as Queen's evidence, it will be received against him;'' and the same result will follow, though his hopes have been excited by a constable or other officer, if on the trial of his accomplices he refuses to make a full disclosure, and thus violates the condition on which his claim to favour can alone rest.^ So, what the accused has been overheard muttering to himself, or saying to his wife or to any other person in confidence, in vino Veritas. In the case of R. v. Sippet, Avhich was tried at Maidstone Ass. 1839, a confession, made hy the jmsoner «7h7c talking in hi^ sleep, was tendered in evidence; but as Tindal, C. J., doubted its admissibility, it Avas ■withdrawn. MS. • R. V. Derrington, 2 C. & P. 418, per Garrow, B.; R. r. Burley, 2 St. Ev. 13, ,n, z, and 37, per Garrow, B., afterwards confirmed by all the judges. - R. r. Rees, 7 C. & P. 569, per Ld. Dentnan; R. v. Bartlett, id. 832, per Bolland, B. ; R. v. Ellis, Ry. & M. 432, per Littledale, J., citing a similar decision of Holroyd, J., and overruling R. r. Wilson, Holt, N. P. R. 597, per Richards, C. B. =' R. r. Thornton, 1 Moo. C. C. 27; R. v. Gibney, Jebb, C. C. 15; R. r. Kerr, 8 C. & P. 176; R. v. Johnston, 15 Ir. Law R. N. S. 60, per 8 r. 3, Js. The case of R. V. Devlin, 2 Crawf & D., C. C. 152, is contra, but seems not to be law. * R. V. Wild, 1 Moo. C. C. 452. = R. v. Wild, 1 Moo. C. C. 452; R. v. Thornton, id. 27; R. v. Kerr, 8 C. & P. 179, per Park, J.; Anon., per Littledale, J., cited 1 Ph. Ev. 406. In the case of R. V. Doyle, 1 Crawf. & D., C. C. 396, a constable, after cautioning the prisoner, asked her how so much of her blue came into the child's stomach, and Bushe, C. J., is reported to have rejected the answer; but this case, it is submitted, is not law. See Joy on Conf 32 — 41, 42 — 44. " R. V. Berigan, Ir. Cir. R. 177, per Crampton, J. This case seems to over- rule R. V. Hall, 2 Lea, 560, n., per Mr. Sergt. Adair. See R. v. Boswell, C. & Marsh. 584; R. v. Blackburn, 6 Cox, 333. See, also, post, I 885. ^ R. V. Dingley, 1 C. & Kir. 640, per Pollock, C. B. ; R. v. Burley, 2 St. Ev. 13, n. z, approved of by all the judges. See R. v. Gillis, 11 Cox, 69. (3624) CHAP. XV. ] now FAR PROPER TO CAUTION PRISONER. 757 will be receivable in evidence;' though the wife, solicitor, and couQsel of the prisoner will not, on grounds that will be presently explained, be themselves allowed to reveal what he has said to them." A voluntary confession, too, is admissible, to whom- soever it may have been made, though it does not appear that the prisoner was teamed that what he said would be used against him; nay, though it appears on the contrary that he was not so warned.^ § 882. In most cases, indeed, it may be advisable and proper ? 805 to caution the prisoner in general terms, that any confession he makes will be admissible against him at the trial, and can do him no service;* because, if it should turn out that any threat or inducement has been previously held out by some person in authority, the confession, which is unaccompanied by such caution, will, as before stated,^ be inadmissible. Still, it is not necessary, in general, to do more than to show that the party receiving the confession left the prisoner at full liberty to act and judge for himself; and though it should appear that immediately before the admission was made the accused was in the custody of another person, the court, unless some reason exists for suspecting collu- sion, will not compel the prosecutor to call such person as a witness, or to prove that he did not hold out any threat or induce- . ment.*^ In order, however, to free the evidence from all reason- able objection, it will be prudent, especially in important cases, to call any persons in authority, who, shortly before the confession ^ It. r. Simons, 6 C. & P. 541, per Alderson, B. In R. r. Pamenter, 12 Cox, 177, Kelly, C. B., is reported to have held that a letter written by a prisoner to his wife, and intercepted by a constable who had undertaken to post it, was Inadmissible. But this case would seem not to be laAv. ■' Post, U 009—915; R. v. Shaw, 6 C. & P. 373. per Patteson, J. 3 R. V. Thornton, 1 Moo. C. C. 27; R. r. Gibney, Jebb, C. C. 15, 17, 18, 20; R. V. Magill, cited in McNally, Ev. 38; R. v. Long, 6 C. & P. 179, perGurney, B.; Joy on Conf. 45—48; R. v. Lavin, Jr. Cir. R. 813, per Perrin, J. * R. v. Green, 5 C. & P. 312, per Gurney, B.; R. v. Arnold, 8 C. & P. 622, per Ld. Denman; R. v. O'Reilly, Ir. Cir. R. 718, per Ball, J. 5 Ante, ? 878. « R. V. Clewes, 4 C. & P. 423, per Littledale, J. ; R. v. Swatkins, id. 550, per Patteson, J.; R. r. Gibney, Jebb, C. C. 15; R. v. Courtney, 2 Crawf. & D., C. C. 63, per Ball, J. ; Joy on Conf. 59—61. (3625) 758 WHAT AMOUNTS TO A PROMISE OR THREAT. [PAET 11. was made, either had the prisoner in custody, or held any conver- sation with him." Notwithstanding the law is as above stated, many justices of the peace, both in England and Ireland, are in the habit of dissuading the culprit, with more or less earnest- ness, from disclosing any fact which may tend to establish his guilt. This practice, which is rather to be admired for romantic generosity than for wisdom, or for any beneficial consequences result- ing therefrom to the public," has been very properly condemned by several able judges, as an absurd and improper mode of shutting up one of the most valuable sources of justice and truth.^ § 883.* It has been thought that illegal imprisonment is calcu- § 806 lated to exert such influence upon the mind of the prisoner, as to justify the inference that his confessions made during its con- tinuance were not voluntary, and on one occasion, they appear on this ground to have been rejected.^ But this doctrine cannot yet be considered as satisfactorily established.'^ § 884. From the preceding observations and cases, it is clear ? 807 that a confession, to be inadmissible, must have been made in consequence of some inducement or threat, which, being held out or sanctioned by a person in authority, related to the prisoner's escape from the charge against him. Still, the question remains, what language is sufficient to constitute such inducement or threat; and here the reported decisions certainly furnish a very unsatisfactory guide. Some reason may be given for applying the rule to such words as these: — "Unless 'you give me a more satisfactory account, I will take you before a magistrate;"* "If ' See cases cited in last note. ^ Edinb. Rev., March. 1824. 3 R. V. Green, 2 C. & P. 312, per Gurney, B. ; R. v. Arnold, 8 C. & P. 622, per Ld. Denman. In R. v. Cart, Maidstone Sum. Ass. 1838, MS., Ld. Denman observed to some constables, who were called as witne.sses : — " The distinction is very clear; you are not to suppress the truth, but you are not to take any measures of your own to endeavour to extort it." * Gr. Ev. ? 2.30, almost verbatim. ^ R. V. Ackroyd, 1 Lew. C. C. 49, per Holroyd, J. « R. V. Thornton, 1 Moo. C. C. 27; 1 Lew. C. C. 49, S. C. ^ Gr. Ev. ? 220, in part. 8 R. V. Thompson, 1 Lea. 291, per Hotham, B. ; R. v. Luckhurst, Pearoe & D. 245; R. v. Richards, 5 C. & P. 318, per Bosanquet, J.; S. C. cited (3626) CHAP. XV. j WHAT AMOUNTS TO A PROMISE OR THREAT. 759 you will tell me where my goods are, I will be favourable to you; " ' " I only want my money, and if you give me that, you may go to the devil; " " " If you will not tell all you know about it, of course we can do nothing; " ^ "You are under suspicion of this, and you had better tell all you know; " * " The watch has been found, and if you do not tell me who your partner was, I will commit you to prison; " '^ " You had better split, and not suffer for all of them." * But when confessions have been rejected in consequence of such expressions as the following having been used: -— " It will be better for you to speak the truth;'''' "The inspector tells me you make housebreaking tools; if so, you had better tell the truth, it will be better for you."** "It is of no use for you to deny it, for there are the man and boy who will -swear they saw you do it;"^ " Now, be cautious in the answers you give me to the questions I am going to put to you about this watch ; " '" " Whatever you say will be taken down and used against you; " '^ " Do not say anything to prejudice yourself, as what you say I shall take down, and it will be used for you or against you at your trial ; " '^ " What you are charged with is a very heavy offence, and you must be very careful in making any statement to me, or anybody else, that may tend to injure you; but anything you can say in your defence, we shall be ready to hear, or send to assist you ; " ''^ — in as R. V. Griffiths, 2 Russ. C. & M. 832; R. v. Walsh, Ir. Cir. R. 866, per Jackson, J. 1 R. V. Cass, 1 Lea. 293, n. «, per Gould, J. ; Boyd v. The State, 2 Humph. 37. 2 R. V. Jones, R. & R. 152. ^ R. V. Partridge, 7 C. & P. 551, per Patteson, J. See, also. Guild's case, 5 Halst. 163. * R. V. Kingston, 4 C. & P. 387, per Parke and Littledale, Js. ; R. v. Cheverton, 2 Post. & Fin. 833, per Erie, C. J. * R. V. Parratt, 4 C. & P. 570, per Alderson, J.; R. v. Upchurch, 1 Moo. C. C. 465. 8 R. v. Thomas, 6 C. & P. 353, per Patteson, J. ^ R. V. Garner, 2 C. & Kir. 920; 3 Sess. Cas. 329; 1 Den. 329, S. C. 8 R. V. Fennell, L. R., 7 Q. B. D. 147; 50 L. J., M. C. 126; and 14 Cox, 607, S. C. See R. v. Mansfield, 14 Cox, 639. 9 R. V. Mills 6 C. & P. 146, per Gnrney, B. 1" R. V. Fleming, 1 Arm. M. & O. 330. " R. V. Harris, 1 Cox, 106, per Maule, J. '2 R. V. Drew, 8 C. & P. 140, per Coleridge, J. " R, V. Morton, 2 M. & Rob. 514, per id. .^ . (3627) 7G0 WHAT AMOUNTS TO A PROMISE OR THREAT. [PART 11. tbese, and the like cases, it is only too apparent, that justice and common sense have been sacrificed on the shrine of mercy. Indeed, the judges themselves have of late years come to this conclusion,' and after a solemn discussion of the subject in the Court of Criminal Appeal, they have expressly overruled the last three decisions cited above, as cases which are discreditable to the law.^ So anxious was the court at one time to exclude evidence of confes- sions, that exhortations not to tell lies, but to spea/c the truth, have been deemed likely to induce a false acknowledgment of guilt; and, consequently, admissions made after such exhortations have more than once been rejected.^ But this parodoxical opinion is now happily exploded.* § 885. Where the inducement relates to the charge against the^ § 808 prisoner, and comes from a person in authority, it is not necessary that it should be directly held out to the prisoner himself; but it will equally have the effect of excluding his confession, if there be good reason to believe that it has come to his knowledge, and has influenced his conduct Thus, where a superior clerk in the post- office said to the wife of a postman, who was in custody for opening and detaining a letter, "Do not be frightened; I hope nothing will happen to your husband beyond the loss of his situation;" the prisoner's subsequent confession was rejected, it appearing that the wife might have communicated to him the substance of this statement.^ So, where in a case of murder. Government had pub- ^ See K. V. Reason, 12 Cox, 228, per Keating, J.; R. v. Jones, id. 241. 2 R. V. Baklry, 2 Den. 430. There, a policeman, who had a prisoner in custody on a charge of felony, said to him, "Yon need not say anything to criminate yourself ; what you say will be taken down and used as evidence against you." The court held that a confession subsequently made was ad- missible. Notwithstanding this decision, some of the Irish Judges appear to be still inclined to follow the former mala j>ra.r/s. R. v. Toole, 7 Cox, 244, sed (ju. •' R. v. Shepherd, 7 C. & P. 579, per Gaselee, J. ; R. v. Enoch, 5 C. & P. 539, per Park, J. ; R. v. Wood, Jr. Cir. R. 597, per Crampton, J.; R. v. Laugher, 2 C. & Kir. 225, per Pollock, C. B. ; R. v. Bate, 11 Cox, 68G, per Montague Smith, J. * R. V. Reeve, 1 Law Rep., C. C. 362; 41 L. J., M. C. 92; 12 Cox, 179, S C; R. V. Holmes. 1 C. & Kir. 218, per Rolfe, B. ; R. v. Court, 7 C. & P. 486, per Littledale, J.; R. v. Harris, 1 Moo. C. C. 341; R. v. Baldry, 2 Den. 430, 442, R. V. Jarvi.s, 1 Law Rep., C. C. 96; 37 L. J., M. C. 1, S. C. ^ R. V. Harding, 1 Arm. M. & O. 340. (3628) CHAP. XV.] OLD PRACTICE OF TORTURE. 761 lished a handbill, offering pardon to any one of the offenders, except the person who struck the blow, who should give such information as would lead to the conviction of his accoruplices; and it appeared that the prisoner was aware of this offer, and was induced by it to make a confession, the court held that what he said could not be given in evidence.' § 886.'' The rule that the confession must be voluntary, is § 809 equally applicable to cases where the prisoner has made a statement during the preliminary inquiry before the magistrate. The practice of subjecting the accused to a compulsory examination, and even of putting him to the torture, was familiar to the Roman law,' and both these modes of proceeding were legal in Scotland so la£e as the reign of Queen Anne.^ In England, too, down to the reign of Charles the First, the rack was occasionally employed as an apt engine for wringing truth fi-om the victims of the Star Chamber and the High Commission Court; '^ and even Lord Coke, till he became a patriot, and saw political offences with the eyes of a leader of the Opposition, was prepared to wink at, if not to justify, its use;** while Lord Bacon, to his eternal infamy, did not hesitate, as Attorney- General, to superintend, in person, the torture of an aged clergyman.' However, in the year 1628, on the trial of Felton for the murder of the Duke of Buckingham, — the evidence being amply sufficient to ensure a conviction without the use of torture, and the prisoner threatening, that were he put to the rack, he might pos- sibly accuse Bishop Laud, or some other of the lords of the council as being accessories to the fact, — the judges came to an unanimous 1 E. V. Bos\Yell, C. & Marsh. 584, per Cresswell, J. See E. v. Dingley, 1 C. & Kir. 637; and E. v. Blackburn, 6 Cox, 333. '^ Gr. Ev. I 224, in part as to first six lines. * See B. Carpz. Pract. Eer. Cri., Pars iii., Quajst. 113, per tot. " The Act of 7 A., c. 21, s. 5, abolished the use of torture in Scotland. See 2 ISI'Douall, Inst. 660. For instances of the application of torture beyond the Tweed, see 6 How. St. Tr. 1217—1222, and 10 id. 687, 691, 726—747, 751— 7.")8. ^ Campion's case, cited by Weston, B., in E. i'. Cellier, 7 How. St. Tr. 1205; Peacham's case, 2 How. St. Tr. 871. " See Lady Shrewsbury's case, 2 How. St. Tr. 773, 774, n. n. ' Peacham's case, 2 How. St. Tr. 870, 871, 876. See the masterly Life of Ld. Bacon, in Ld. Cami^bell's Lives of the Chanc, 2nd vol., 339 — 341. (3629) 762 ALL CONFESSIONS MUST NOW BE VOLUNTARY. [PAET II. opinion, that " no such punishment as torture by the rack was known or allowed by our law;" ' and since that decision no attempt has been made to revive this atrocious practice.- § 887. Though torture was thus formally abolished before the § 810 middle of the seventeenth century, it was not till after the lapse of many years that the common law doctrine, nemo tenetur prodere seipsum, was fully recognised, or at least was interpreted to mean, — - as it does in the present day, — that all confessions should be strictlj' voluntary ; for no man can read the cases reported among the State trials, without observing, that, up to a comparatively modern date, persons accused of flagrant or political offences were earnestly pressed, in their preliminary examinations, to acknowledge their guilt; while, at their trial, recourse was frequently had to every artifice of cross-examination, in order to entrap them into a con- fession, or to detect some falsehood or inconsistency in the state- ments which they had made in support of their innocence. This practice, which still continues in France,^ and in other countries on the continent of Europe, and which certainly is no mean instru- ment for the discovery of truth, has been regarded both in this country and in America, during the last century, as savouring of unfairness and oppression, and has consequently been discontinued; and, though assuredly few Englishmen would wish to see this mode of proceeding re-established in all its harshness and vigour in our criminal courts, most sensible men will probably now consider that false sentiments of humanity and fair dealing have been caiTied much too far in an opposite direction. The first Acts which regulated the examination of pri- | 811 soners before the magistrates, were passed in the reign of Queen Mary ; * and these statutes, the principles of which have been ' R. V. Felton, 3 How. St. Tr. 371. 2 In R. V. Cellier, 7 How. St. Tr. 1205, Weston, B., told the jury, that no person had suffered torture in England since Campion the Jesuit, who was put to the rack in the 20th year of the reign of Queen Elizabeth. But this is a strange mistake. ^ See Comments on the case of the Due de Prasliu, in 7 Law Rev. Art. vii. * 1 & 2 Ph. & M., c. 13; 2 & 3 Ph. & M., c. 10; extended to Ireland by 10 C. 1, c. 18. (3630) CHAP. XV.] EXAMINATION OF PRISONER BY MAGISTRATE. 763 adopted in several of the United States,' were followed in England by the Act of 7 G. 4, c. 64, and in Ireland by the corresponding Act of 9 G. 4, c. 54. The statutes, however, which now define the course of practice in either country are 11 & 12 V., c. 42, and 14 & 15 v., c. 93.' The first of these two Acts, which applies to 1 See N. York Cr. Code, Part 4, tit. 3, c. 7, §§ 195—199; Bellinger's case, 8 Wend. 595, 599; Elmer's Laws of New Jersey, p. 450, ^ 6; Laws of Alabama (Toulmin's Dig.), tit. 17, ch. 3, § 2, p. 219; Laws of Tennessee (Car- ruthers and Nicholson's Dig.), p. 426; N. Carolina Rev. Stat., ch. 35, g 1; Laws of Mississippi (Aklen and Von Hoesen's Dig.), c. 70, § 5, p. 532; Laws of Delaware (Rev. Code of 1829), p. G3; Brevard's Laws of S. Carolina, vol. 1., p. 460; Laws of Missouri (Revision of 1835), p. 476; Laws of Jlichigau Territory, p. 215. See, also, Massach. Rev. Stat., ch. 85, I 25 ; Resp. v. McCarty, 2 Dall. 87, per M'Kean, C. J. ^14&15 V.,c. 93, relates to Ireland, and enacts, in § 14, clause 2, that, " Whenever the examination of the witnesses on the part of the prosecution shall have been completed, the justice or one of the justices present shall, without requiring the attendance of the witnesses, read or cause to be read to the person accused the several depositions, and then take down in writing the statement (Ac.) of such person, having first cautioned him that he is not obliged to say anything unless he desires to do so, but that whatever he does say will be taken down in Avriting, and may be given in evidence against him on his trial ; and whatever statements the said person shall then malvc in answer to the charge shall, when taken down in w^riting, be read over to him, and shall be signed by the said justice or one of the justices present, and shall be transmitted to the clerk of the Crown or peace, as the case may be, along with the depositions, and afterwards, upon the trial, may, if necessary, and if so signed, be given in evidence against the person accused, without further proof thereof, unless it shall be proved that it was not signed by the justice pur- porting to sign the same; but nothing herein contained shall prevent the prosecutor from giving in evidence any admission or confession, or other state- ment made at any time by the person accused, and which would be admissible by law as evidence against such person." "The Form given in Sch. Ac. is'as follows: — Complainant. ( Petty Sessions, district of Defendant. 1 County of A charge having been made against C. D. before the undersigned justice that [^cameof complaint, with time and place] ; and the said charge having been read to the said C. D., and the witnesses for the prosecution having been severally examined in his presence, and the said C. D. having been first duly cautioned that he was not obliged to .say anything, but that whatever he did say might be given in evidence against him upon his trial, saith as follows: Is'iatement of prisoner in his very ivords, or as nearly so as possible, and to he signed by him, if he «'///]. " Taken before me this day of in the year eighteen hundred and , at in said county. " Signed Justice of said county." (3631) 704 i:.\AMINATIOX OF PRISONER DY M.\G]ST?tATi:. [I'AI.T II. England, enacts, in § 18, that " after the examinations of all the witnesses on the part of the prosecxition 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 may say will be taken down in wi'iting, 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 be kept with the depositions of the witnesses, and shall be transmitted with them as hereinafter mentioned;" that is, "the statement of the accused" shall, together with the other documents in the case, " be delivered by the said justice or justices, or he or they shall cause the same to be delivered, to the proper officer of the court in which the trial is to be had, before or at the opening of the said court on the first day of the sitting thereof, or at such other time as the judge, re- corder, or justice, who is to preside in such court at the said trial. ' The Form given in Sched. N to the Act is as follows: — ■: A. B. stands charged before the undersigned [one] of her Majesty's Justices of the Peace in and for the [couniy] aforesaid, this day of in the year of our Lord , for that he the said A. B., on at [&c., as in the caption of the depositions] ; and the said charge being read to the said A. B., and the witnesses for the prosecution, C. D. & E. F., being severally examined in his presence, the said A. B. is now addressed by me as follows: ' 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 Avhatever you say will be taken down in writing, and may be given in evidence against you upon your trial; ' whereupon the said A. B. saith as follows : [Here state ichatever the prisoner may say, and in his very icords, as nearly as possible. Get him to sign it if he will.} "A. B. " Taken before me at the day and year first above mentioned. "S. L." This form is legalised by § 28 of the Act, but is not rendered necessary. (3632) CHAP. XV.] EXAMINATION OF PRISONER BY MAGISTRATE. 765 shall order and appoiut;"' "and afterwards, upon the trial of the said accused person, the same may, if necessary, be given in evi- dence against him, without further proof thereof , unless it shall be proved that the justice or justices purporting to sign the same did not in fact sign the same : Provided always, that the said justice or justices, before such accused person shall make any statement, shall state to him, and give him clearly to understand that he has nothing to hojDe from any promise of favour 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 on his trial, notwithstanding such promise or threat : Prpvided, never- theless, 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." ^ § 889. If the above clause be read in connexion with the Form § 812 given in the schedule to the Act,^ it would seem that, in order to render a prisoner's statement strictly valid as a statutory confes- sion, the following cix'cumstances must all have occurred. The charge must have been read to the accused;* all the witnesses must have been examined in his presence,^ and the depositions read to him after the examinations were completed;*^ he must then, and not till then, be twice cautioned by the justice; first, generally," and, secondly, as to the inefficiency of any promises or threats which may have been formerly held out to him; '^ his whole statement must next betaken down in his own words ; ^ it must M 20. 2 g 18. ^ Cited in last page, n. 1. * See Sch. 5 See Sch., and | 17 of the Act, cited ante, § 479. " See | 18. ' See § 18. As to the old law, see E. v. Green, 5 C. & P. 312 ; R. v. Arnold, 8 id. 621. ^ See first proviso in g 18. This is quite new, and is an unique specimen of absurd legislation. ^ See Sch. ; and E. v. Eoche, C. & Marsh. 341 ; E. v. Sexton, «& E. v. Mallett, cited 2 Euss. C. & M. 867. (3633) 766 EXAMINATION OF PRISONER BY MAGISTRATE. [pART II. then be read to him,' and he must be pressed for his signature/ though the Act is silent as to the effect of his refusing to sign it, or even to admit its correctness; the justice must also sign' the statement;^ and this being done, it must be kept with the depo- sitions, and be transmitted, together with them and certain other documents, to the court -where the trial is to be had, on or before the opening of such court.* § 890. Notwithstanding these minute directions, it is not easy § 813 to see how the prisoner on his trial could avail himself of any neglect of them on the part of the justice, whether intentional or otherwise; for the statement transmitted, if headed in the manner pointed out by the schedule, is made evidence against the prisoner on its mei'e production, and without any proof of the mode in which it was taken down, unless it can be shown that the signature of the justice is a forgery. \A'hether this was the intention of the Legislature may, perhaps, be doubted ; but such is the apparent effect of the language employed. It is also clear, from the last proviso which is appended to the 18th section of the Act, that any statement made by the prisoner in the magis- trate's presence, before the examinations of the witnesses for the prosecution are all completed, may be proved by parol evidence, and will be admissible against him, even though no caution has been previously given.^ § 891. The judges, as might have been expected, have felt ? 814 much embarrassment in putting a sensible interpretation on these ill drawn provisions; and the cases, as i-eported on the subject, are extremely unsatisfactory. In one,'^ IVIr. Baron Alderson is made to entertain much doubt whether, in spite of the general language of the Act, it was not necessary to prove by independent ' See ? 18 ; and 2 Riiss. C. & M. 881, 882. 2 SeeSch.; and 2 Russ. C. & M. 881, 882; R. v. Lambe, 2 Lea. 552; R. r. Thomas, id. 637 ; R. v. Foster, 1 Lew. C. C. 46 ; R. v. Hirst, id. ; R. v. Zelicote, 2 Stark. R..483 ; R. v. Pressly, 3 C. & P. 183. ^ See § 18; and R. v. Torrant, 6 C. & P. 182. * See §§ 18 & 20. * See post, p. 769, n. 10, and, also, R. v. Stripp, 7 Cox, 97 ; Pearce & D. 648, S. C. 6 II ^ Higson, 2 C. & Kir. 769. (3634) CHAP. XV.] PROOF OF PRISONER'S EXAMINATION. 767 evidence that the accused had been duly cautioned by the magis- trate, although the caption of the examination contained a positive declaration to that effect. In another,' Mr. Justice Coleridge, after consulting Cresswell, J., is said to have expressed an opinion, that the first proviso in § 18 of the Act, which relates to the special caution to be given to the accused for the purpose of removing the effect of any previous threat or inducement, was a condition precedent, and that, in the absence of any proof that it had been acted upon, the statement of the prisoner was inadmis- sible. These dicta, however, appear to be wholly unfounded; and if the case of R. v. Sansome be correctly given in Mr. Cox's Criminal Law Cases,^ they have been overruled. According to this reporter, the judges expressly determined in that case, that when an examination was transmitted by the committing magis- trate in the statutory form, it became admissible without further proof; ^ and Mr. Baron Parke went so far as to assert that, in his judgment, it would be receivable in evidence, though neither of the cautions was stated to have been given. Too much reliance, however, should not be placed on this last dictum: and until the law is more clearly defined by judicial construction, it certainly will be prudent for committing magistrates not only to adopt the form set out in the schedule to the Act, but to give the prisoner in all cases the second caution as well as the first.* § 892. Although a written examination, if it purport to be taken § 815 in conformity with the Act, and to be signed by the committing magistrate, is in strictness admissible without proof, it may still be advisable in serious cases, as a matter of caution, to call either the justice or the clerk, so that it may clearly appear that the proceedings have been conducted in the proper manner.'^ Indeed, this course may become necessary, if the document has not been drawn out in the form given in the schedule, or if it contains ' R. V. Kimber, 3 Cox, 223. '•' 4 Cox, 203, 207. See S. C. as reported in 3 C. & Kir. 332. ^ In 1 Den. 54.5, where the sa7ue case is reported, the above ruling will not be found; and this is the more remarkable as Mr. Dension was himself counsel in the cause. * R. v. Sansome, 1 Den. 545. * See R. V. Pikesley, 9 C. & P. 124; R. v. Wilshaw, C. & Marsh. 145. (3635) 7CS PROOF OF prisoner's examination, [part II. erasures or interlineations which require explanation/ If, too, the prisoner has not signed his name or mark to the paper, some witness, who was present at the inquiry, should, in prudence, be forthcoming to speak to its identity, and to prove that it was read over to the accused, and assented to by him.^ It would seem to be further necessary to the validity of an examination as evidence per se, that it should appear on the face of the document that it was taken while the prisoner was under examination on a charge of felony or misdemeanor, or of suspicion of one of those crimes, and that the justices signing it were acting as justices pursuant to statute.'^ AVhether these facts must appear by a separate caption is a point which is not yet determined. The form in the schedule gives a separate caption, but that form, though legalised, is not rendered necessary by the Act;* and under the old law, provided the examination was written on the same paper as the depositions, the heading at the commencement was held to apply to all the statements contained in the docu- ment.^ In this respect the rule agreed with that which governs examinations taken under the Poor Law Acts; for it is not neces- sary, — as was once supposed,*^ — that such examinations should have distinct captions, but it will suffice to state in the first caption the names of all the witnesses.' § 893. As the admissibility of statutory examinations without proof rests on the presumption that the justices have done their duty, it seems to follow that no evidence can be received tending to contradict or vary the statements contained in the documents as returned. This was the law before the Act under discussion was passed,^ and that Act does not appear to have introduced any change in • See R. V. Brogan, cited 2 Enss. C. & M. 887; R. v. Dwjers, id. n. p. ' See R. V. Reading, 7 C. & P. 649; R. r. Hearn, C. & Marsh. 109; R. v. Hopes, 7 C. & P. 136; 1 M. & Rob. 396, u., S. C; R. v. Haines, 2 Russ. C. & M. 886. 3 See R. r. Tarrant, 6 C. & P. 182. * ? 28 of the Act. ^ R. V. Johnson, 2 C. & Kir. 355, per Alderson, B. ; R. r. Young, 3 id. 106. 8 R. V. Ratclifife Culey, 2 Sess. Cas. 352. T R. V. St. Michael's, Coventry, 12 Q. B. 96; 3 Sess. Cas. 260, S. C. « R. f. Walter, 7 C. & P. 267; R. v. J^Iorse, 8 C. & P. 605. (3636) CHAP. XV.] PRISOXER's TXAMINATION' — PAROL EVIDENCE. T0& the practice.' Whether this presumption is of eo conclusive a character as to exclude all parol evidence, which is tendered with the view of adding to the written examination, is a question of doubt and difficulty; but as the Act renders it incumbent on the justice, not only to reduce to writing so much of the prisoner's examination as may bo material," but to take down his xchole statement," it would seem right to hold that he had done so, and that no parol evidence of any additional statement made at the same time could be received.* § 894. If however, parol evidence of such additional state- § 817 ment be admissible on the part of the prosecution, the prisoner, a fortiori, would seem entitled to pray it in aid of his defence; and this view of the law is sanctioned, not only by the case of Yenafra v. Johnson,^ but also by the authority of Mr. Starkie and Mr. Phillipps; the latter of whom, while he denies the right of the Crown, admits the right of the accused, to produce such evidence.** Whatever may be the correct rule upon this particular point, it is clear, from the last proviso which is appended to § 18 of the Act, that" a written examination will not exclude parol evidence, either of an extra-judicial confession, previously or subsequently made;^ or of a statement made before the justice on a foi'mer investigation, and not incorporated in the examina- tion returned; " or of anything incidentally said by the prisoner while the witnesses were deposing against him, even though it were addressed to the magistrate himself,'" and no caution had 1 R. r. Bond, 4 Cox, 236. ^ This was the language of the old law. See 7 G. 4, c. 64, § 3. 3 See 11 & 12 v.. c. 42, ? 18, and Sch. N., cited ante, ^ 888. * See, however, Rowland v. Ashby, Ry. & M. 232; R. r. Harris, 1 Moo. C. C. 338; Leach v. Simpson, 5 M. & W. 312, per Parke, B. ^1 M. & Roh. 316, per Gaselee, J., after consulting the judges of C. P. 6 2 Ph. Ev. 82—86; 3 St. Ev. 787. ■ Gr. Ev. § 227, in part. * R. V. Carty, Ridgway's R. 73, cited in Joy on Conf. 97, and McNally, Ev. 45; R. V. Reason, 16 How. St. Tr. 35, per Eyre, J. » R. V. Wilkinson, 8 C. & P. 662, per Littledale, J., and Parke, B. ; R. v. Bond, 4 Cox, 231; IDen. 517, S. C. '" R. r. Bond, 4 Cox, 231; 1 Den. 517; 3 C. & Kir. 337, n., S. C. ; R. r. Spilsbury, 7 C. & P. 187, per Coleridge, J.; R. t;. Johnson, per Parke, B.- (3637) 770 AVRITTKX EXAMINATION — PAKOL EVIDENCE. [PAKT II. been previously given. ^ So, if it can be proved that tbe pri- soner's examination was not reduced to writing, parol evidence of what be said before the magistrates will be received;^ though the presumption that all things were done as the law requires, renders it necessary for the Crown to give clear evidence on this point; ^ and on more than one occasion the judges seem to have thought it necessary that the magistrate or his clerk should be called to prove the negative fact.* Again, if the written examina- tion be shown to have been lost,^ or if it be wholly inadmissible under the statute by reason of irregularity, parol evidence will be received to prove what the prisoner voluntarily disclosed;*^ and in this last event of the examination being rejected for informality, it may still be used, either as a contemporaneous writing, to refresh the memory of the witness who wrote it,^ or if it be signed by the prisoner, it will be receivable at common law as his confession, the signature being first proved, and it being shown that he knew what it contained,** § 895. One species of irregularity, however, in excluding the ? 818 examination as evidence per se, prevents its being used to refresh the writer's memory, and shuts out all parol testimony of what E. v. Moore, per id. ; R. v. Hooper, per Erskine, J. ; all cited in 2 Russ. C. & M. 879. But see R. v. Weller, 2 C. & Kir. 223, per Piatt, B. Sed qu. as to this case. ' R. r. Stripp, 7 Cox, 97; Pearee & D. G48, S. C. 2 R. V. Hall, cited by Gro.se, J., iu R. v. Lamb, 2 Lea. 559; R. v. Huet, 2 Lea. 821. ^ R. V. Fearshire, 1 Lea. 202; R. v. Jacobs, id. 309; R. v. Hinxman, per Ashhurst, J., and R. v. Fisher, per Heath, J., cited id. 310, 311, n.; R. v. M'GoTern, 5 Cox, 506. * R. V. Packer, per Parke, J., and R. v. Phillips, per Bosanquet, J., both cited 2 Russ. C. & M. 876, n. p; Phillips r. AVinburn, 4 C. & P. 273, per Tindal, C. J. ^ R. v. Reason, 16 How. St. Tr. 35, per Eyre, J. « R. V. Reed, M. & M. 403, per Tindal, C. J. ' R. r. Layer, 16 How. St. Tr. 214, 215, per Pratt, C. J.; R. v. Watson, 3 C. & Kir. Ill; R. v. Watkins, per Bosanquet, J., cited n. 6, 4 C. & P. 550; R. v. Tarrant, 6 C. & P. 182, per Patteson, J.; R. v. Pressly, id. 183, per id.; R. v. Dewhurst, and R. v. Hirst, per Bayley^ J.; 1 Lew. C. C. 47; R. v. Jones, Carr. Or. L. 13, per Bay ley and Gaselee, Js., and Vaup;han, B. ; 1 Lew. C. C. 47, n. ; 4C. &P. 550, n., S. C; R. v. Bell, 5 C. & P. 162, per Gaselee, J., and Ld. Tenterden. 8 See R. V. Sansome, 4 Cox^ 203 1 Den. 545; 3 C. & Kir. 332, S. C. (3638) CHAP. XV.] EXAMINATION TAKEN IMPROPERLY ON OATH. 771 was said on the same occasion. The irregularity in question is where the examination purports to have been taken upon oath} This rule, which is supported by too many authorities to admit of dispute, rests upon two principles of law, both of which are of very questionable policy, as applied to the particular case under discussion. The first is a principle which has been several times mentioned above, namely, that the confession of a prisoner must be voluntary: and it is contended, that a statement made under oath is not so. This is certainly true in one sense, though not in that in which it is used by the advocates for exclusion. A confession not voluntary is excluded. Why? because it may be untrue. A confession made upon oath cannot be rejected on this groxmd; since it is absurd to contend, that an oath, which in all other cases is rightly considered as the most eflPectual tests of truth, should, if taken by a prisoner, be regarded as an induce- ment to falshood. But then, it is urged, nemo tenetur prodere seipsum; a prisoner should not be compelled to criminate himself. Admitted; but what then? A prisoner, though sworn, is no more bound to criminate himself, than if he were simply inter- rogated without any oath being administered to him. He has still full liberty to decline to make any explanation or declaration whatever; though if he does consent to answer the questions put to him, he may, perhaps, incur the penalties of perjury should he knowingly utter what is false.^ " But a friendless accused is not aware of the law in his favour." This may be so; but in what other case is a party at liberty to set up his ignorance of the law ? If the maxim of the common law, ignorantia legis neminem excusat, be sound, as it unquestionably is; and if, consequently, the defence of acting in ignorance cannot protect an offender even from punishment; on what principle of justice is the accused entitled to say, " I confessed my crime, and have sworn that my ' R. V. Smith, 1 Stark. R. 242, per Le Blanc, J. ; R. v. Davis, 6 C. & P. 177, per Gurney, B. ; R. v. Bentley, id. 148, per id. ; R. v. Rivers, 7 C. & P. 177, per Park, J. ; R. v. Owen, 9 C. & P. 238, per Gurney, B. ; R. v. Pikesley, id. 124, Per Parke, B., and Bosanquet, J.; R. v. Wheeley, 8 C. & P. 250, per Alderson, B. ^ This, however, seems doubtful, as the magistrate has no authority to administer such an oath. ^ 28 LAW OF EVID.— V. II. (3639) 772 EXAMINATIONS PURPORTING TO BE ON OATH. [PABT II. statement is true; but you, the jury, must not bear what I said, because I was not aware of the existence of a rule of law, which would have expressly justified me in holding my peace " ? If the practice of examining prisoners on oath be deemed inquisi- torial and harsh, let it be discountenanced, not by rejecting a confession so obtained, but by prohibiting justices from acting in this manner, or even by rendering them liable to a penalty in case of disobedience. § 896. It may be thought, at first view, that if this change were effected, the practical result would be the same; but this is not the case; since, at present, not only are all confessions made upon oath rejected, but all those rc/wc/i pttrpor^ to be so made, -^ and this leads us to the second principle of law, on which the rule under discus- sion rests. That principle is, that as the justices, in discharge of their duty, ought to make a true return of what took place before them, the court will presume that they have thus acted; and, there- fore, will not admit parol evidence to vary or contradict the written document so returned. Now, the fallacy of this reasoning is obvious. In the first place, the presumption, omnia rite esse acta, is not conclusive in ordinary cases, and should not be so in this ; and next, even supposing that it should, it does not apply. The duty of the justice is two-fold: first, to examine the prisoner without administering an oath to him; " and, secondly, to make a true retiirn of his statement. If, then, an examination be returned, which purports to have been taken on oath, the presumption that this return is true is at least counterbalanced by the opposite pre- sumption, that the justice has discharged his duty by not swearing the prisoner; and the result is, that parol evidence should be received, in order to ascertain which presumption is in accordance with the fact. The principle, that written documents shall not be varied or contradicted by parol testimony, may apply to the body of the examination, which is taken down by the justice or his clerk, and is expressly assented to by the accused; but it should not extend to the mere formal heading or conclusion of the examination, which is not, or at least need not be, read over to the > See cases cited ante, p. 771, n. \ * B. N. P. 242. (3640) CHAP. XV.] SWORN CONFESSIONS, WHEN ADMISSIBLE. 773 prisoner, or admitted to be correct by him; and a mis-statement in which may, and, in fact, notoriously does, often arise from the inadvertence or carelessness of the magistrate or his clerk. If the justice were liable to a penalty, as above suggested, for taking a prisoner's confession on oath, he would clearly be entitled, if sued or prosecuted for such penalty, to show that, though the examination purported on its face to have been taken on oath, the prisoner was not in fact sworn; and no real danger could be apprehended, but on the contrary much benefit would accrue to the administration of criminal justice, if a similar course of pro- ceeding were allowec!, when the question was whether a confession was receivable or not. However, as before stated, the authorities in favour of rejecting examinations which purport to be upon oath are so numerous and consistent, that, without the aid of the Legis- lature, little hope can be entertained that a more satisfactory rule will be adopted in practice.' § 897. Where a prisoner, on being mistaken for a witness, was I 820 partially examined upon oath, but, the mistake being discovered, the deposition was destroyed, — a subsequent statement made by him, after due caution from the magistrate, was held to be clearly admissible.- And, indeed, the rule excluding sworn confessions seems strictly confined, at common law, to the case of a statement, made by the party upon oath, while a prisoner under examination respecting the criminal charge.^ It is true that one or two deci- sions by Mr. TBaron Gurney might be cited, which seem to extend the rule somewhat further, and to render inadmissible confessions made on oaths to magistrates or coroners by parties, who, after being examined as witnesses, have themselves been committed for trial;* but these decisions have been overruled by subsequent cases.'* ^ See cases cited ante, p. 771, n. '. See, also. No. 57 of Law Mag. Vol. 28, pp. 13 — 19, where the anomalies in the present law of confessions are amus- ingly exposed. ^ R. v. Webb, 4 C. & P. 564, per Garrow, B. => See Joy on Conf. G2— G8. ♦ K. V. Lewis, 6 C. & P. 161, per Gurney, B. ; R. v. Davis, id. 177, per id.; R. V. Owen, 9 C. & P. 83, per id. See, also, n. w, in 2 Russ. C. & M. 860; and R. V. M'Hugh. 7 Cox, 483, per Jr. Cr. Ct. of App., Pennefather, B., diss. * See R. t\ Gillis, 17 Ir. Law R., N. S. 534, per O'Hagan, J.; R. v. Coote, (3641) 774- SWORN CONFESSIONS, WHEN ADMISSIBLE. [PART II. § 898. Thus, the judges have held, that, on an indictment for forging a bill of exchange, depositions of the prisoner, which had been taken on oath before commissioners of bankruptcy, after the prisoner had been charged before the mayor with forging the bill, were admissible against him; ' and in another case, where a bank- rupt had been examined before a commissioner touching some matter irrespective of his trade dealings, and had not objected to answer the questions put, his examination was held to be admis- sible evidence against him on a subsequent criminal charge.^ So, where a trader was indicted for obtaining property on credit, under the false pretence of dealing in the ordinary way of his trade, ■within four months before his liquidation,^ his examination, taken in liquidation under § 97 of the Bankruptcy Act, 1869,* was admitted in evidence against him.^ So, on a charge of arson, depositions made by the prisoner when under examination as a witness respecting the origin of the tire, have been read against him.' Again, on the trial of an indictment for conspiracy, the answers in Chancery of the defendants, made on oath by them in a suit instituted against them by the prosecutor, have been received.' An affidavit, too, has been given in evidence against a prisoner, which was sworn by him in a suit in Doctors' Commons;^ and depositions made by prisoners, when examined as witnesses against other persons on criminal charges, have several times been 4 Law Rep., P. C. 605, 606, per Sir R. Collier; 42 L. J., P. C. 47, 48; 12 Cox, 562, S. C. ' R. V. Wheater, 2 Moo. C. C. 45; 2 Lew. C. C. 157, S. C. See R. v. Cherry, 12 Cox, 32. "^ R. r. Sloggett, Pearce & D. 656; 7 Cox, 139, S. C. See, also, R. v. Scott, 25 L. J., M. C. 128; and R. v. Hillam, 12 Cox, 174. 3 Contrary to § H of the Debtors Act, 1869, 32 & 33 V., c. 62. * 32 & 33 v., c. 71. ? R. V. Widdop, 42 L. J., M. C. 9; 2 Law Rep., C. C. 3; 12 Cox, 251, S. C. « R. V. Coote, 4 Law Rep., P. C. 599; 42 L. J., P. C. 45; 12 Cox, 557, S. C. ^ R. V. Goldshede, 1 C. & Kir. 657, per Ld. Denman; R. v. Highfield, per Vaughan, B., cited 2 Russ. C. & M. 859. 8 R. V. AValker, per Ld. Ellenborough, cited by Gurney, B., in 6 C. & P. 162. (3642) CHAP. XV.] SWOKN CONFESSIONS, WHEN ADMISSIBLE. 775 admitted against themselves.' Nay, in one case, the very point decided by Mr. Baron Gurney was distinctly overruled by Chief Justice Cockburn; and a deposition was admitted against a pri- soner, who had made it before the justices while under examina- tion as a witness, and who, in consequence of its self-criminating character, had been committed to take his trial.^ So, upon a trial for manslaughter, the prisoner's deposition on oath, taken by the coroner upon the inquest, has been admitted in evidence against him.^ So, the testimony, given by a prisoner before a committee of the House of Commons, has been read against him on a criminal trial;* though this case is of little authority on the subject under discussion, as the evidence could not then have been given on oath.^ The case of R. v. Britton,® which is sometimes cited as a decision conflicting with the above proposition, is in fact no hostile authority, as the only question there determined was, that on an indictment against a bankrupt for not disclosing his effects under the commission, his balance-sheet, which was only admissible in the event of the commission being valid, could not be given in evidence to prove the petitioning creditor's debt as a part of the commission.' On the whole it seems clear, that if a prisoner, on being examined as a witness, has consented to answer questions, to which, he might have demurred as tending to criminate himself, and which, therefore, he was not bound to answer, his statement will be deemed voluntary, and, as such, may be subse- quently used against himself for all purposes,^ unless he be pro- tected by the special language of some statue.'' 1 R. V. Haworth, 4 C. & P. 254, per Parke, J. ; R. v. Tubby, 5 C. & P. 530, per Vaughan, B. ; R. v. Braynell, 4 Cox, 402. "^ R. V. Chidley & Cummins, 8 Cox, 3G5. See, also, R. v. Colmer, 9 Cox, 506, per Martin, B. =» R. V. Bateman, 4 Post. & Fin. 1068, per Martin, B., and Willes, J. * R. V. Merceron, 2 Stark. R. 366, per Abbott, J. * See per Ld. Tenterden, in R. v. Gilham, 1 Moo. C. C. 203. ^ 1 M. & Rob. 297, per Patteson and Alderson, Js. ^ Per Patteson, J., explaining that decision in R. v. Wheater, 2 Moo. C. C. 51. 8 But see R. v. Gillis, 17 Ir. Law R., N. S. 512; 11 Cox, 69 S. C; where a large majority of the Irish judges took a different view of the law. Sed qu. ^ See post, ^ 1455, as to these statutes. (3643) 776 PROPERTY FOUND IN CONSEQUENCE OF CONFESSION. [pARI 11. § 900. Although a prisoner cannot, at common law, exclude his ^ 822 own confession, on the sole ground that it was made by him while a witness under oath, yet, if he can prove that, when questions tending to criminate him were put, he had claimed the protection of the court, and had still been illegally compelled to answer, his answers cannot be given in evidence against himself.' Testimony so obtained is excluded, not, as it seems, because it may possibly be untrue, but because the right of the witness to be silent has been infringed; and it is deemed expedient, on grounds of public policy, to uphold the broad legal maxim, that no man shall be forced to criminate himself.' § 901. Notwithstanding that the statutes which prescribe the duty of coroners contain no provision for taking the examination of the accused, but simply enact, that every coroner shall put in writing the evidence given to the jury before him, or as much thereof, as shall be material, and shall certify and subscribe the same, and deliver it to the officer of the court in which the trial is to be,^ — it seems on several occasions to have been assumed, that the coroner has the same authority to take the examination of a pri- soner as a magistrate.* § 902.^ When, in consequence of information unduly obtained from the prisoner, the property stolen, or the instrument of the crime, or the body of the person murdered, or any other material fact, has been discovered, proof is admissible that such discovery was made conformably with the information so obtained. The prisoner's statement as to his knowledge of the place where the property or other article was to be found, being thus confirmed ' R. V. Garbett, 1 Den. 236; 2 C. & Kir. 474, S. C. See post, I 1453, et seq., as to what questions a witness may refuse to answer. ^ R. V. Garbett, 1 Den. 257, per Alderson, B. But see cases cited in ? 898, ante. 3 7 G. 4, c. 64, ?? 4 & 6; 9 G. 4, c. 54, |M & 6, Ir. It may be doubted whether §4 of 7 G. 4, c. 64, be not now repealed by § 34 of 11 & 12 V., c. 42. * R. V. Reid, M. & M. 403, cor. Tindal, C. J. ; R. v. Roche, C. & Marsh. 341, cor. Ld. Denman ; Brogan's case, 2 Russ. C. & M. 874, cor. Ld. Lyndhurst. ' Gr. Ev. § 231, in great part. (3644) CHAP. XV.] PROPERTY FOUND IN CONSEQUENCE OF CONFESSION. 777 by the fact, is shown to be true, and not to have been fabricated in consequence of any inducement. It is, therefore, competent to prove that the prisoner stated that the thing would be found by searching a particular place, and that it was accordingly so found; but it would not be competent to inquire whether he confessed that he had concealed it there.' Lord Eldon has laid down the rule somewhat more strictly, saying, in Harvey's case,^ .that, where the knowledge of any fact was obtained from a prisoner, under such a promise as excluded the confession from being given in evidence, he should direct an acquittal, unless the fact proved would itself have been sufficient to warrant a conviction, without any confession leading to it. But the sounder doctrine seems to be, that so much of the confession as relates distinctly to the fact discovered by it may be given in evidence, as this part at least of the statement cannot have been false.' § 903.* If \he prisoner himself delivers up the goods stolen, the I 825 fact that this was done upon inducements to confess held out by persons in authority, will afford no ground for rejecting his declarations, contemporaneous with the act of delivery, and explana- tory of its object, though they may amount to a confession of guilt.^ But whatever he may have said at the same time, not qualifying or explaining the act of delivery, must be rejected. And if, — notwithstanding the prisoner's confession, thus improperly induced, and any acts done by him in furtherance of the discovery, — the search for the property or person in question be ineffectual, no proof of either the confession or the acts can be received. The confession is excluded, because, being made under the influence of a promise, it cannot be relied upon; and the acts done under the same influence, not being confirmed by the finding of the property ' Ph. Ev. 411; R. v. Warickshall, 1 Lea. 263; R. v. Mosey, id. 265, n., per Buller, J., and Perryn, B.; R. v. Lockhart, id. 386; R. v. Gould, 9 C. & P. 364, perTindal, C. J., and Parke, B.; R. v. Thurtell, cited Joy on Conf. 84; R. V. Cain, 1 Cr. & D., C. C. 37, per Torrens, J.; Com. v. Knapp, 9 Pick. 496, 511. 2 2 East, P. C. 658. ^ R. V. Butcher, 1 Lea. 265, n. ; and see the cases cited above, n. ^ * Gr. Ev. ? 232, in part. ^ R. V. Griffin, R. & R. 151; R. v. Jones, id. 152. (3645) 778 CONFESSIONS OF ACCOMPLICES — OF AGENTS. [PAET II. or person, are open to the same objection. The influence which may produce a groundless confession may also produce groundless conduct.' § 904. A prisoner is not liable to be affected by the confessions of his accomplices;'^ and so strictly has this rule been enforced, that where a person was indicted for receiving stolen goods, a confession by the principal that he was guilty of the theft, was held by all the judges to be no evidence of that fact as against the receiver;^ and the decision, it seems, would be the same, if both parties were indicted together, and the principal were to plead guilty.* § 905.^ The same doctrine prevails in cases of agency. In general, no person is answerable criminally for the acts of his servants or agents, whether he be the prosecutor or the accused, unless a criminal design be brought home to him.*^ The act of the agent or servant may be shown in evidence, as proof that such an act was done; for a fact mugt be established by the same evidence, whether it be followed by a criminal or civil consequence; but it is a totally different question, in the consideration of criminal as dis- tinguished from civil justice, how the principal may be affected by the fact, when so established. For though the wrongful or fraudu- lent act of the agent may involve his principal civilly,' it cannot » R. V. Jenkins, R. & R. 492. * So is the Roman law. "Confessio unius non probat in prsejudicium alterius, quia alias esset in manu confitentis dicere quod vellet, et sic jus alteri qiia;situm auferre, quando omnino jura prohibent; etiamsi talis confitens esset onini exceptione major. Sed limitabis, quando inter partes convenit parere confessioni et dicto unius alterius." 1 Masc. de Prob., Concl. 486, p. 409. See ante, U 593, 594. 3 R. V. Turner, 1 Moo. C. C. 347. * Id. 348, citing an anonymous decision of Wood, B. ^ Gr. Ev. ? 234, in great part. 6 See Cooper v. Slade, 6 H. of L. Cas. 746, 793, 794, per Ld. Wensleydale. ^ Barwick v. Eng. Jt. Stock Bk., 2 Law Rep., Ex. 259, per Ex. Ch.; 36 L. J., Ex. 174, S. C; Proudfoot v. Montefiore, 2 Law Rep., Q. B. 511; 8 B. & S. 510, S. C; Moore v. Metrop. Ry. Co., 8 Law Rep., Q. B. 36; Mackay i'. Com. Bk. of New Brunswick, 43 L. J., P. C. 31; 5 Law Rep., P. C. 394, S. C; Swire V. Francis, 47 L. J., P. C. 18; Burmah Trading Corp. Lim. v. Mirza Mahomed Ally, &c., L. R., 5 Ind. Ap. 130. See Ld. Bolinbrokei'. Local Board of Health of Swindon, 34 L. J., C. P. 287. Shaw v. Port Philip Gold Min. Co., 53 L. J., Q. B. 369; L. R., 13 Q. B. D. 103, S. C. (3646) CHAP. XY.] CONFESSIONS OF AGENTS — NEWSPAPERS. 779 convict him of a crime, unless further proof be given that the principal has directed, or, at least, assented to such act.' Where it was proposed to show that an agent of the prosecutor, not called as a witness, had offered a bribe to a witness, who also was not called, the evidence was held inadmissible ; though the general doctrine, as above stated, was recognised.^ § 906. The rule thus generally laid down is open to an apparent § 827 exception in the case of the proprietor of a newspaper, who is, prima facie, criminally responsible for any libel it contains, though inserted by his agent or servant without his knowledge. But Lord Tenterden considered this case as falling strictly within the prin- ciple of the rule; for "surely," said he, "a person who derives profit from, and furnishes means for carrying on, the concern, and intrusts the conduct of the publication to one whom he selects, and in whom he confides, may be said to cause to be published what actually appears, and ought to be answerable, though you cannot show that he was individually concerned in the particular publica- tion." ^ Yet even here the defendant may prove, if he can, that the publication was made by his servant without his authority, consent, or knowledge, and that it did not arise from want of due care or caution on his part.* § 907. It remains only to be observed, that confessions, like § 828 admissions, may be inferred from the conduct of the prisoner, and from his silent acquiescence in the statements of others, made in his presence, respecting himself; ^ provided they were not made either before a magistrate, when the prisoner, from a sense of de- ' Ld. Melville's case, 29 How. St. Tr. 764; the Qdeen's case, 2 B. & B. 306, 307; ante, § 724. « The Queen's case, 2 B. & B. 302, 306—309. * R. I'. Gutch, M. &. M. 433, 437. See, further, as to the acts of agents ante, ? 115. * 6 & 7 v.; c. 96, § 7; R. r. Holbrook, L. R., 3 Q. B. D. 60; S. C. on second trial, L. R., 4 Q. B. D. 42; 48 L. J., Q. B. 113; and 14 Cox, 185, S. C. See, also, R. V. Ramsay, 15 Cox, 231. * R. V. Bartlett, 7 C. & P. 832, per Bolland, B. ; R. v. Smithies, 5 C. & P. 332, per Gaselee and Parke, Js. ; ante, ^§ 809—816. See St. Matthew, eh. 26, vv. 60—63, and eh. 27, vv. 12—14. (3647) 7S0 CONFESSIONS IMPLIED FROM ACQUIESCENCE. [pAKT II. coram, might have felt himself restrained from interposing, or under any other circumstances, which would naturally have prevented him from replying.' In the case of R. v. Newman,^ it was sought to push this doctrine to an unwarrantable length. That was an information for libel, to which truth was pleaded as a justification under the Act of 6 «fe 7 V., c. 96, and the defendant tendered evidence to prove that the very imputations contained in the libel in question had been previously published in another work, and that the prosecutor, though well aware of that fact, had taken no steps to obtain redress. The court, however, very properly rejected the evidence, as being far too vague to be received in a court of justice as any proof of acquiescence. 1 R. V. Appleby, 3 Stark. R. 33, per Holroyd, J. ; Melen v. Andrews, M. & M. 336, per Parke, B.; Joy on Conf. 77—80; ante, I 814. 2 22 L. J., Q. B. 156; 1 E. & B. 268; 3 C. & Kir. 252, S. C. (3648) CHAP. XVI.] EVID. EXCLUDED ON GROUNDS OP PUBLIC POLICY. 781 CHAPTEK XVI. EVIDENCE EXCLUDED ON GROUNDS OF PUBLIC POLICY. § 908.' The law excludes or dispenses with some kinds of evi- ? 829 dence on grounds of public policy: because it is thought that greater mischiefs would probably result from requiring or permitting their admission, than from wholly rejecting them. This rule of law has respect, in some cases, to the person testifying, and will hereafter be discussed in the chapter relating to the Competency of Witnesses.^ In other cases the rule applies to the matter con- cerning which the witness is interrogated; and it is to this branch of the rule that our attention will at present be directed. § 909. The first class of subjects which the law protects from ? 830 disclosure, includes all communications between husband and wife. "No husband," says the Legislature, "shall be compellable to dis- close any communication made to him by his wife during the marriage, and no wife shall be compellable to disclose any commu- nication made to her by her husband during the marriage."^ This wise enactment rests on the obvious ground, that the admission of such testimony would have a powerful tendency to disturb the peace of families, to promote domestic broils, and to weaken, if not to destroy, that feeling of mutual confidence, which is the most endearing solace of married life. The protection is not confined to cases where the communication sought to be given in evidence is of a strictly confidential character, but the seal of the law is placed upon all communications of whatever nature which pass between husband and wife.* It extends also to cases in which the interests of strangers are solely involved, as well as to those in which the husband or wife is a party on the record. It is, however, limited ' Gr. Ev. § 236, in part. "^ Part iii. Ch. ii. » 16 & 17 v., c. 83, § 3. * See O'Connor v. Marjoribanks, 4 M. & Gr. 435. (3649) 782 COMMUNICATIONS BETWEEN HUSBAND AND WIFE. [PART II. to such matters as have been communicated " during the marriage;" and, consequently, if a man were to make the most confidential statement to a woman before he married her, and it were afterwards to become of importance in a civil suit to know what that statement was, the wife, on being called as a witness, and interrogated with respect to the communication, would, as it seems, be bound to disclose what she knew of the matter. § 910. In interpreting the rule it may become a question I 831 whether or not it be material that the relation of husband and wife should be still subsisting at the time when the evidence is required to be given. On the one hand, the statute speaks only of husbands and wives, and makes no reference either to widowers or widows, or to parties who have been divorced; but on the other hand, the old common law rule, which precluded husbands and wives from giving evidence for or against each other, has been construed by the judges to mean, that whatever had come to the knowledge of either party by means of the hallowed confidence which marriage inspires, could not be afterwards divulged in testimony, even though the other party were no longer living.' So, where a woman, who had been divorced by Act of Parliament, and had married another person, was offered as a witness against her former husband, to prove a contract which he had made during the coverture. Lord Alvanley held her clearly incompetent, adding, with his characteristic energy, " It never can be endured, that the confidence, which the law has created while the parties remained in the most intimate of all re- lations, shall be broken, whenever, by the misconduct of one party, the relation has been dissolved." ^ § 911.^ Secondly, as regards professional communications, the § 832 rule is now well settled, that, where a bannister or solicitor is pro- ' O'Connor v. Marjoribanks, 4 ]\I. & Gr. 435 ; overruling Beveridge v. Minter, 1 C. & P. 364, and confirming ISIonroe v. Twistleton, Pea. Add. Cas. 219. See, also, Doker v. Hasler, Ry. & M. 198, per Best, C. J. "^ Monroe v. Twistleton, Pea. Add. Cas. 221 ; explained and confirmed by Ld. Ellenborough in Aveson v. Ld. Kinnaird, 6 East, 192, 193. 3 Gr. Ev. g 237, slightly. (3650)- CHAP. XVI. J COMMUNICATIONS BETWEEN SOLICITOR AND CLIENT. 783 fessionally employed by a client, all communications which pass between them in the course and for the purpose of that employment, are so far privileged, that the legal adviser, when called as a witness, cannot be permitted to disclose them, whether they be in the form of title deeds, wills,' documents, or other papers delivered, or state- ments made, to him, or of letters, entries, or statements, written or made by him in that capacity.^ After stating the rule in this general form, it seems almost needless to add, that cases laid before counsel on behalf of a client, and the opinions of counsel thereon, stand upon precisely the same footing as other professional com- munications from the client to the counsel and solicitor, or to either of them, or from the counsel and solicitor, or from either of them, to the client.^ § 912. This rule equally applies, though the solicitor be em- ? 833 ployed in the character, either of a scrivener to raise money,* or of a conveyancer to draw deeds of conveyance;^ or though the conver- sation relate only to the sale of an estate, and to the amount of the bidding to be reserved.^ In fact it extends to all communications between a solicitor and his client, relating to matters within the ordinary scope of a solicitor's daty.^ It seems, also, that the legal ^ Doe V. James, 2 M. & Rob. 47. There, a party claiming as devisee under a will, his solicitor was not allowed to produce the will, though it was sug- gested that it related also to personalty, and ought therefore to be deposited in the Eccles. Court, and to be open for public inspection. ^ Herring v. Clobery, 1 Phill. 91, 96; Cromack v. Heathcote, 2 B. & B. 4 ; Greenough v. Gaskell, 1 Myl. & K. 101. Brougham, C, was assisted in this last decision by consultation with Ld. Lyndhurst. Tindal, C. J., and Parke. J., 4 B. & Ad. 876; and the case is mentioned by Ld. Abinger, as one in which all the authorities had been reviewed, 2 M. & W. 100. See, also, Chant v. Brown, 9 Hare, 790. •^ Pearse v. Pearse, 1 De Gex & Sm. 25, per K. Bruce, V.-C. ; Jenkins v. Bushby, 35 L. J., Ch. 820. See Bargaddie Coal Co. v. Wark, 3 Macq. Sc. Cas. H. of L. 468, 488, etseq. * Turquand v. Knight, 2 M. & W. 100, per Ld. Abinger; Harvey v. Clayton, 2 Swanst. 221, n.; Anon., Skinn. 404, per Ld. Holt. But here it is necessary that the .solicitor should have been consulted as the party's own legal adviser, E. V. Farley, 2 C. & Kir. 313, 318. See post, § 923, ad fin. * Cromack i'. Heathcote, 2 B. & B. 4. « Carpmael i'. Powis, 1 Phill. 687. ^ Id. 692, per Ld. Lyndhurst. (3651) 784 PROFESSIONAL COMMUNICATIONS INADMISSIBLE. [pART II. adviser cannot be asked whether the conference between him and his client was for a lawful or an unlawful purpose,' though, if from independent evidence it should clearly appear that the communi- cation was made by the client for a criminal purpose, — as, for instance, if the solicitor was questioned as to the most skilful mode of effecting a fraud, or committing any other indictable offence,— it is submitted that, on the broad principles of penal justice, he would be bound to disclose such guilty project." Nay, it may reasonably be doubted whether the existence of an illegal purpose will not also prevent the privilege from attaching; for it is as little the duty of a solicitor to advise his client how to evade the law, as it is to con- trive a positive fraud.^ § 913. Where the professional adviser is the party interrogated, it is quite immaterial whether the communication relate to any litigation commenced or anticipated;* for, as Lord Chancellor 1 Doe V. Harris, 5 C. & P. 594, per Parke, J. 2 See R. V. Farley, 2 C. & Kir. 313; R. v. Avery, 8 C. & P. 596; Follett V. Jefferyes, 1 Sim. N. S. 17, cited post, p. 800, n. 5; ]Morningtonr. Mornington, 2 Johns. & Hem. 697; Charlton v. Coombes, 32 L. J., Ch. 284; 4 Giff. 372, S. C, per Stuart, V.-C. In Annesley i-. Ld. Anglesea, 17 How. St. Tr. 1229, Serjt. Tisdall, in argument, lays down the rule thus: — "If the witness is emplojed as an attorney in any unlawful or Avicked act, his duty to the public obliges him to disclose it; no private obligations can dispense with that universal one, which lies on every member of society, to discover every design which may be formed, contrary to the laws of societ^^ to destroy the public welfare. For this rea.son, I apprehend that if a secret, which is contrary to the public good, such a.sa design to commit treaspn, murder, or perjury, comes to the knowledge of an attorney', even in a cause wherein he is concerned, the obligation to the public must dispense with the private obligation to the client." Two of the learned judges who tried that remarkable case, Bowes, C. B., and Mounteney, B., expressed the same sentiments, see pp. 1240 — 1243. See, also, Gartside V. Outram, 26 L. J., Ch. 115, per Wood, V.-C. ; and post, §929. The Law, as stated in the text, has been recognized as sound by the Judges of Crim. App. in R. V. Cox & Railton, decided on 27th June, 1884. ^ Russell V. Jackson, 9 Hare, 392, per Turner, V.-C, who observed: — " I am very much disposed to think that the existence of an illegal purpose would prevent any privilege attaching to the communications. Where a solicitor is party to a fraud, no privilege attaches to the communications with him upon the subject, because the contriving of a fraud is no part of his duty as solicitor; and I tiiink it can as little be said that it is part of the duty of a solicitor to advise his client a.s to the means of evading the law." See, also. Kelly v. Jackson, 13 Ir. Eq. R. 129. R. v. Cox & Railton, decided by Ct. ofCrim. App., 27th June, 1884. * Ld. Walsingham v. Goodricke, 3 Hare. 124; Desborough r. Rawlins, 3 MyL & Cr. 515; Pearse v. Pearse, 1 De Gex & Sm. 25, per K. Bruce, V.-C; Sawyer (3652) CHAP. XVI.] WHERE LEGAL ADVISER INTERROGATED. 785 Brougham observed, in a case of high authority, "If ' the privilege were confined to communications connected with suits begun, or intended, or expected, or apprehended, no one could safely adopt such precautions as might eventually render any proceedings successful, or all proceedings superfluous;"^ and again, "This protection is not qualified by any reference to proceedings pending or in contemplation. If, touching matters that come within the ordinary scope of professional employment, legal advisers receive a communication in their professional capacity, either from a client, or on his account and for his benefit in the transaction of his business, — or, which amounts to the same thing, if they commit to paper, in the course of their employment on his behalf, matters which they know only through their professional relation to the client, — they are not only justified in withholding such matters, but bound to withhold them, and will not be compelled to disclose the information or produce the papers in any coui't of law or equity, either as party or as witness." ^ § 914* " The foundation of this rule," adds his lordship, " is ^ 835 not on account of any particular importance which the law attributes to the business of legal professors, or any particular disposition to afford them protection. But it is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on, without the aid of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting rights and obligations, which form the subject of all judicial proceedings." ^ If such communications were not protected, no man, — as the same learned judge remarked in another case, — would V. Birchmore, 3 Myl. & K. 572; Herring r. Clobery, 1 Phill. 91; Jones v. Pugh, id. 96; Greenough v. Gaskell, 1 Jlyl. «& K. 98; Carpmael v. Powis, 9 Beav. 16, 20, per Ld. Langdale. These cases overrule Williams v. Mudie, 1 C. & P. 158; Ry. & M. 34, S. C. ; Clark v. Clark, 1 M. & Rob. 3; Broad V. Pitt, M. & M. 233; 3 C. & P. 518, S. C ; and Wadsworth v. Hamshaw, 2 B. & B. 5. n. 1 Gr. Ev. §§ 240 and 237. == Greenough v. Gaskell, 1 Myl. & K. 103. 3 Id. 101, 102. < Gr. Ev. ? 238, verbatim. ^ Greenough v. Gaskell, 1 Myl. & K. 103 ; quoted with approbation in Russell V. Jackson, 9 Hare, 391, per Turner, V.-C. (3653) 786 WHERE LEGAL ADVISER INTERROGATED. [PAKT II. dare to consult a professional adviser, with a view to his defence, or to the enforcement of his rights; and no man could safely come into a court, either to obtain redress, or to defend himself.' § 915. The rigid enforcement of this rule no doubt operates ? 836 occasionally to the exclusion of truth; but if any law-reformer feels inclined to condemn the rule on this ground, he will do well to reflect on the eloquent language of the late Lord Justice Knight Bruce, who, while discussing this subject on one occasion, felici- tously observed: — "Truth, like all other good things, may be loved unwisely, — may be pursued too keenly, — may cost too much. And surely the meanness and the mischief of prying into a man's confi- dential consultations with his legal adviser, the general evil of infusing reserve and dissimulation, uneasiness, suspicion, and fear, into those communications which must take place, and which, unless in a condition of perfect security, must take place uselessly or worse, are too great a price to pay for truth itself." ' 2 837 § 916. Such being the reasons on which the rule is founded, its ^ application has been confined, — with perhaps questionable strict- 1 Bolton V. Corp. of Liverpool, 1 Myl. & K. 94, 95. " This rule seems to be correlative with that which governs the summary jurisdiction of the courts over attorneys. In Ex parte Aitken, 4 B. & A. 49, that rule is laid down thus: — 'Where an attorney is employed in a matter wholly unconnected with his professional character, the court will not interfere in a summary way to compel him to execute faithfully the trust reposed in him. But where the employment is so connected with his professional character as to afford a pre- sumption that his character formed the ground of his employment by the client, then the court will exercise this jurisdiction.' See, also, Ex parte Yeatman, 4 Dowl. 309. So where the communication made relates to a cir- cumstance so connected with the employment as an attorney, that the character formed the ground of the communication, it is privileged from dis- closure." Per Alderson, B., in Turquand r. Knight, 2 M. & W. 101. The Roman law rejected the evidence of the procurator and the advocate, in nearly the same cases as the common law; but not for the same reasons; the latter regarding the general interests of the community, as stated in the text, while the former seems to have considered such testimony as not credible, because of the identity of the legal adviser's interest, opinions, and prejudices with those of his client. 1 Masc. de Prob., Concl. 66 ; vol. 3, Concl. 1239; Farin. Op., Tom. 2, Tit. 6, Qua;st. 60, Illat. 5, 6. 2 Pearse v. Pearse, 1 De Gex & Sm. 28, 29. (3654) CH.iP. XVI.] CLERGYMEN AND MEDICAL MEN NOT PRIVILEGED. 7S7 ness, — to communications whicb pass between a client and his legal adviser; and the protection has not been permitted to extend to any matters communicated to other persons, though such commii- nications were made under the terms of the closest secrecy.' Thus,^ clergymen,^ and medical men * are bound to disclose any information, which by acting in their professional character they have confiden- 1 lu Wheeler v. Le Marchant, L. R., 17 Ch. D. 681; and 50^7^7 CliT 795^ Jessel, M. R., thus expounded the law: — " The principle protecting confidential communications," said his lordship, "' is of a very limited character. It does not protect all confidential communications which a man must necessarily make in order to obtain advice, even when needed for the protection of his life, or of his honour, or of his fortune. There are many communications which, though absolutely necessary because without them the ordinary busi- ness of life cannot be carried on, still are not privileged. The communica- tions made to a medical man, whose advice is sought by a patient with respect to the probable origin of the di-sease as tr) which he is consulted, and which must necessarily be made in order to enable the medical man to advise or prescribe for the patient, are not protected. Communications made to a priest in the confessional on matters perhaps considered by the penitent to be more important even than his life or his fortune, are not protected. Communications made to a friend with respect to matters of the most , delicate nature, on which advice is sought with respect to a man's honour or reputation, are not protected. Therefv)re it must not be supposed that there is any principle which says that every confidential communication, wliieh it is necessary to make in order to carry on the ordinary business of life, is pro- tected. The protection is of a very limited character, and in this country is restricted to the obtaining the assistance of lawyers, as regards the conduct of litigation or the rights to property. It has never gone beyond the obtain- ing legal advice and assistance, and all things reasonably necessary in the shape of communication to the legal advisei'S are protected from production or discovery, in order that that legal advice may be obtained safely and sufiiciently." '^ Gr. Ev. I 218, in part. ^ R. V. Gilham, 1 Moo. C. C. 186. * Duch. of Kingston's case, 11 Harg. St. Tr. 213; 20 How. St. Tr. 572, S. C; R. V. Gibbons, 1 C. & P. 97; Broad v. Pitt, 3 id. 519, per Best, C. J.; M. & M. 234, S. C. In Wilson v. Rastall, 4 T. R. 760, Buller, J., much regretted that the law of privilege was not extended to those cases, in which medical persons acquired information by attending in their professional characters; and, in Greenough v. Gaskell, 1 MyL & K. 103, Ld. Brougham, while stating that the rule was limited to legal advi.sers, observed, that " certainly it may not be very easy to discover w^hy a like privilege has been refused to others, especiallj' to medical advisers." By the N. York Civ. Code, ^ 1710, r. 4, "a licensed physician or surgeon cannot, without the consent of his patient, be examined, in a civil action, as to any information acquired in attending the patient, whicli was necessary to enable him to prescribe or act for the ])atient." A somewhat similar statute exists in Missouri, Rev. Code of 1833, p. 623, 111. 29 LAW OF EVID. — V. II. (3655) 788 CONFESSIONS MADE TO THE CLERGY. [PART II. tially acquired; and clerks,' bankers," stewards,^ confidential friends,* pursuivants of the Heralds' College,^ and, perhaps, even licensed conveyancers,* are equally obliged to reveal what has been imparted to them in confidence, except as to matters which the principal himself would not be compelled to disclose, such as his title deeds and private papers, in a case in which he is not a party. § 917.' The propriety of extending the privilege to communi- cations made to clergymen in reference to criminal conduct, has been strongly urged, on the ground that evil-doers should be enabled with safety to disburtben their guilty consciences, and by spiritual instruction and discipline to seek pardon and relief. The law of Papal Rome has adopted this principle in its fullest extent, not only, — as already intimated,^ — by excepting such confessions from the general rules of evidence, but by punishing the priest who reveals them. It has even gone further; for Mascardus, — after observing that, in general, persons coming to the knowledge of facts under an oath of secrecy are compellable as witnesses to disclose them, — states that confessions to a priest are not within the operation of the rule, since they are made not so much to the priest as to the Deity whom he represents; and he thence draws the Jesuitical con- clusion that the priest, when appearing as a witness in his private character, may lawfully swear that he knows nothing of the subject: " Hoc tamen restringe, non posse procedere in sacerdote producto in testem contra reura criminis, quando in confessione sacramentali fuit aliquid sihi dictum, quia potest dicere, se nihil scire ex eo; quod illud, quod scit, scit ut Deus, et ut Deus non produciter in testem. 1 Lee V. Birrell, 3 Camp. 337; Webb v. Smith, 1 C. & P. 337. 2 Loyd. V. Freshfield, 2 C. & P. 325, per Abbott, C. J. ^Vaillantr. Dodemead, 2 Atk. 524; 4 T. R. 759, per Buller, J.; Ld. Fal- mouth V. JIoss, 11 Price, 455. M T. R. 758, per Ld. Kenyon; Hoffman v. Smith, 1 Caines, 157, 159. ^Slade V. Tucker, L. R., 14 Ch. D. 824, per Jessel, M. R.; 49 L. J., Ch. 644, S. C. There the pursuivant had been employed in the conduct of a pro- test against a pedigree sought to be enrolled in the Heralds' College. « See per Parke, B., in Turquand v. Knight, 2 M. & W. 100. ' Gr. Ev. I 247, in great part. 8 Ante, § 879, n. \ (3656) CHAP. XVI.] COMMUNICATIONS MADE TO THE CLERGY. 789 sed lit homo, et tanquam homo ignorat illud super quo i^roducitur.''''^ In Scotland, where a prisoner in custody and preparing for his trial has confessed his crimes to a clergyman, in order to obtain spiritual advice and comfort, such confession is privileged; but this privilege is not carried so far as to include communications made confiden- tially to clergymen in the ordinary course of their duty,' Though the law of England encourages the penitent to confess his sins " for the unburthening of his conscience, and to receive spiritual conso- lation and ease of mind;" yet the minister, to whom the confession is made, is merely excused from presenting the offender to the civil magistrate, and enjoined not to reveal the matter confessed, " under pain of irregularity." ^ In all other respects he is left to the full operation of the rules of the common law, which recognise no dis- tinction between clergymen and laymen, but provide that all con- fessions and other matters, not confided to legal counsel, must be disclosed when required for the purposes of justice.* Neither peni- tential confessions made to the minister or to members of the party's own Church, nor even secrets confided to a Roman Catholic priest in the course of confession, are regarded as privileged communications.^ ' 1 Mas. de Prob., Qusest. v. n. 51; id. Concl. 377. Vide Farin. Op., Tit. 8, Qusest. 78, n. 73. 2 Tait, Ev. 386, 387; Alison, Pract. of Cr. L. 586; 2 Dickson, Ev. 937— 939. 3 Const. & Can. 1 J. 1, Can. cxiii.; 2 Gibson, Cod. p. 963. * E. V. Gilham, 1 Moo. C. C. 186. * Butler V. Moore, M'Nally, Ev. 253—255; Anon., Skin. 404, per Holt. C. J.; Du Barre r. Livette, Pea. E. 77; Com. v. Drake, 15 Mass. 161. By the N. York Civ. Code, § 1710, r. 3, " A clergyman or prie.st cannot, without the consent of the per.son making the confes.sion, be examined as to any confes- sion made to him in his professional character, in the course of discipline enjoined by the Church to which he belongs." A somewhat similar statute exists in Missouri; Eev. St. of 1835, p. 623, I 16. In Broad v. Pitt, 3 C. & P. 519; M. & M. 2.34, S. C, Best, C. J., said, that he, for one, would never compel a clergyman to disclose communications made to him by a prisoner; but that if he chose to disclo.se them, he would receive them in evidence. In E. V. Griffin, 6 Cox, 219, Alder.son, B., is reported to have gone further, and to have expressed an opinion that communications made by a prisoner to a clergyman ought not to be di.sclosed. See, also, E. r. Hay, 2 Post. & Fin. 4; Joy on Conf. 49 — 58; Jer. Taylor's Sermon on the Anniversary of Gun- powder Treason, 6 vol. of his Works, pp. 614 — 622, ed. 1828; and a very learned pamphlet by the late Mr. Badeley on the Privilege of Eeligious Con- fessions in English Courts of Justice, publ. in 1865. (3657) 790 TITLE-DEEDS — TRUSTEES — MORTGAGES. [PART II. § 918. Although the priviloge, in its full extent, applies only to g 839 the communications which pass between a client and his legal adviser,' yet, with respect to the production of title-deeds, the protection has been held applicable to the case of trustees and mortgagees, who cannot be compelled either to produce the deeds of the cestuis que trust, or mortgagors, or to give parol evidenco of their contents." It may here be laid down as a general proposition, that, whenever a party is justified in refusing to produce an instru ment, he cannot be forced to disclose its contents; and although some few dicta, or even decisions,^ to the contrary may be found, the rule as above stated may now be considered as established. To adopt an observation of Mr. Baron Alderson,* "It would be perfectly illusory for the law to say that a party is justified in not producing a deed, but that he is compellable to give parol evidence of its contents; that would give him, or rather his client through him, merely an illusory protection, if he happens to know the contents of the deed, and would be only a roundabout way of getting from every man an opportunity of knowing the defects there may be in the deeds and titles of his estate." § 919. The protection afforded to professional confidence applies ? 840 with equal force, though the client be in no shape before the court ;° and although the rule which excludes hearsay prevents this question from often arising with respect to mere oral communi- cations, it has often been discussed on occasions when a solicitor has been called upon, either by subpoena duces tecum or otherwise, to produce a document with which he has been confidentially intrusted by some stranger to the suit. In such a case, if the solicitor claims the privilege of the client, he will be protected not 1 Thomas v. Rawlings, 27 Beav. 140. 2 Davies v. Waters, 9 M. & W. 608; R. v. Upper Boddington, 8 D. & R. 726; Chichester v. M. of Donegal, 39 L. J., Ch. 694, per Giffard, L. J. See Few v. Guppy, 10 Beav. 281, n. &; 13 Beav. 457, S. C. Also, ante, ? 458. ' See Cocks v. Nash, 6 C. & P. 154, per Gurney, B. ; Marston v. Downes, 1 A. «& E. 31; 3 N. & M. 861, S. C, observed upon by Rolfe, B., in 9 M. & W. 613, 614. * Davies v. Waters, 9 M. & W. 612. ^ R. I'. Withers, 2 Camp. 578, per Ld. Ellenborough. (3658) CHAP. XVI.] SOLICITOR WITHHOLDING CLIENT'S PAPERS. 791 only from producing the deed or other paper, but from answering any question with respect to its nature; ' and although on several occasions the court has inspected the document, and pronounced upon its admissibility, according as its production has appeared to be prejudicial or not to the client,^ it seems to be now settled, that, in strict law, the judge ought not to look at the writing to see ■whether it is a document which may properly be withheld.^ The same rule applies where the documents called for are in the hands of solicitors for the trustees of bankrupts,* though it was at one time thought that their production was a matter of public duty.^ In all these cases, if the client or principal would have been entitled, had he been called as a witness, to withhold the document, the solicitor, agent, or steward cannot be compelled, though he will be permitted, to produce it;" but if both the client and the solicitor, or the principal and the agent, concur in refusing to produce the document, the party calling for it may, in such an event, give secondary evidence of its contents.' § 920.^ This protection, though confined to communications x §4^ between a client and his legal adviser,' extends to all the neces- sary organs by which such communications are effected ; and therefore an interpreter,^^ or an intermediate agent,^^ is under the ' Volant V. Soyer, 13 Com. B. 231. 2 1 Ph. Ev. 175; Doe v. Langdon, 12 Q. B. 711; Copeland v. Watts, 1 Stark. R. 95; Harris v. Hill, D. & R., N. P. R. 17, 3 Stark, R. 140, S. C; Ditcher v. Kenrick, 1 C. & P. 161; Doe v. Thomas, 9 B. & C. 288: 4 M. & R. 218, S. C. ^ Volant v. Soyer, 13 Com. B. 231. * Laing v. Barclay, 3 Stark. R. 42; Bateson v. Hartsink, 4 Esp. 43; Cohen t". Templar, 2 Stark. R. 260; Hawkins v. Howard, Ry. & M. 64; 1 C. & P. 222, S. C; Corseu v. Dubois, Holt, N. P. R. 239; Bull v. Loveland, 10 Pick. 9, 14. * Pearson v. Fletcher, 5 Esp. 80, per Ld. Ellenborough. « Hibberd v. Knight, 2 Ex. R. 11. See ante, 'i 458. ^ Ditcher v. Kenrick, 1 C. & P. 161; R. v. Hunter, 3 C. & P. 591. As to the cases where a witness may refuse to produce his deeds, or to disclose their contents, see ante, §§ 457 — 460. * Gr. Ev. I 239, in part. » Thomas v. Rawlings, 27 Beav. 140. " Du Barre v. Livette, Pea. R. 77, explained in 4 T. R. 756; Jackson v. French, 3 Wend. 337; Andrews v. Solomon, 1 Pet. C. C. R. 356; Parker v. Carter, 4 Munf. 273. " Bustros V. White, L. R., 1 Q. B. D. 423, 427, per Jessel, M. R.; Bunbury (3659) 792 INTERPRETERS, SOLICITORS' AGENTS, PRIVILEGED. [pART II. same obligation as the legal adviser himself ; and if the legal adviser has communicated with such person, he will be as much bound to silence, as if he had communicated directly with his client.' The rule also extends to a solicifor^s town or local agent' (who is considered as standing in precisely the same situa- tion as the solicitor), to a Scotch solicitor, and to a Scotch law agent practising in England;'^ and it has been held applicable to a case submitted, after the institution of the suit, to a foreign counsel, and to his opinion thereon.* Formerly it was thought that a barrister's or a solicitor's clerk was not within the reason and exigency of the rule; but as the principals, being unable to transact all their business in person, are under the necessity of employing clerks, it has since been held, that such clerks cannot be permitted to disclose facts coming to their knowledge in the course of employment, unless the barrister or solicitor himself might have been interrogated respecting them.^ So, where a plaintiff, at the instance of his solicitors, sent out a gentleman to India, for the express purpose of acting as the solicitor's agent in the collection of evidence respecting a pending suit, letters written by the agent either to the plaintiff himself or to his solicitors on the subject of the evidence, have been regarded by the court as confidential communications.^ V. Bunbury, 2 Beav. 173; Walker ?;. Wildman, 6 Madd. 47; Hooper v. Gumm, 2 Johns. & Hem. 602; Churton v. Frewen, 2 Drew. & Sm. 390; Jenkins v. Bushby, 35 L. J., Ch. 820; Reid v. Langlois, 1 M. & Gord. 627, 638, 639, per Ld. Cottenham; 2 Hall & T. 59, 73, 74, S. C. See Doe v. Jauncey, 8 C. & P. 101. 1 Carpmael v. Fowls, 9 Beav. 16, 20, 21, per Ld. Langdale; S. C 1 Phill. 692, 693, perLd. Lyndlmrst, recognising Walker v. Wildman, 6 Madd. 47. 2 Parkins v. Hawkshaw, 2 Stark. R. 239, per Holroyd, J.; Tait, Ev. 385; Goodall V. Little, 20 L. J., Ch. 132; 1 Sim. N. S. 155, S. C. ^ Lawrence v. Campbell. 4 Drew. 485. ** Bunbury v. Bunbury, 2 Beav. 173. ^ Taylor v. Forster, 2 C. & P. 195, per Best, C. J., cited with approbation in 12 Pick. 93; Foote v. Hayne, 1 C. & P. 545; Ry. & M. 165, S. C, per Abl)ott, C. J.; Chant v. Brown, 9 Hare, 790; Bowman v. Norton, 5 C. & P. 177, per Tindal C. J. ; R. v. Upper Boddington, 8 D. & R. 726, per Bayley, J. ; Mills V. Oddy, 6 C. & P. 731 ; Jackson v. French, 3 Wend. 337. « Steele v. Stewart, 1 Phill. 471 ; Cossey Lond. Bright. &c. Ry. Co., 5 Law Rep., C. P. 146: 39 L. J., C. P. 174, S. C. ; Lafone v. Falkland Islands Co., 27 L. J., Ch. 25, per Wood, V.-C; 4 K. & J. 34, S. C; Hooper v. (3660) CHAP. XVI.] party's own agents not privileged. 793 § 921. The rule of protection, however, will not be carried to § 842 any further extent; and therefore, where the directors of a joint- stock company sent agents abroad to assist in winding up the afPairs of the company, a correspondence between the directors and the agents relative to legal proceedings, which had been com- menced against the directors by certain creditors of the company, was held not to be privileged, though many of the letters had been written for the purpose of aiding the directors in their defence, and of being submitted to their solicitors.* Indeed, it may be laid down generally, in the language of Lord Cranworth, that " there is no protection as to letters between parties them- selves, or from a stranger to a party, merely because such letters may have been -written in order to enable the person to whom they were addressed to communicate them in professional confi- dence to his solicitor." § 922. As the privilege is established, not for the benefit of the ? 843 solicitor, but for the protection of the client,^ it would seem to extend to an executor in regard to papers coming to his hands as the personal representative of the solicitor.* If, however, a solicitor, in violation of his duty, should voluntarily communicate to a stranger the contents of an instrument with which he was confidentially intrusted, or should permit him to take a copy, the secondary evidence so obtained would, it seems, be admissible. Gumm, 2 Johns. & Hem. 602; Walsham v. Stainton, 2 Hem. & M. 1 ; Eoss- V. Gibbs, 8 Law Rep., Eq. 522; 39 L. J., Ch. 61, S. C; Bullock v. Corry, L. R., 3 Q. B. J). 356; 47 L. J., Q. B. 352, S. C, nom. Bullock v. Corrie. 1 Glyn V. Caulfield, 3 M. & Gord. 463, 473—475, per Ld. Truro; Anderson V, British Bk. of Columbia, 45 L. J.. Ch. 449; L. R., 2 Ch. D. 644, S. C. See Baker v. Lond. & S.-W. Ry. Co., 37 L. J., Q. B. 53; 3 LaAV Rep., Q. B. 91: 8 B. & S. 645, S. C. See post, ? 1795. ^ Goodall V. Little, 1 Sim. N. S. 155; recognised by Ld. Truro in Glyn v. Cauiaeld, 3 M. & Gord. 474; and in Betts v. Menzies, 26 L. J., Ch. 528, per Wood, V.-C. See also Smith v. Daniell, 44 L. J., Ch. 189, -where an opinion, which had been given confidentially and as a friend by Ld. Westbury on a case submitted to him, was ordered to be produced. But see Jenkins v. Bushby, 35 L. J., Ch. 820; and Hamilton v. Nott, 42 L. J., Ch. 512, per Malins, V.-C; 16 Law Rep., Eq. 112, S. C. =• Herring v. Clo1)ery, 1 Phill. 96, per Ld. Lyndhurst; B. N. T. 284, a. * Feuwick v. Reed, 1 Meriv. 114, 120, arg. (3661) 794 SOLICITOR MUST BE ACTING AS LEGAL ADVISER. [PAET II. provided that notice to produce the origiual were duly given, and the production were resisted on the ground of privilege.' Indeed/ it hds more than once been laid down, that the mere fact that papers and other subjects of evidence have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, constitutes no valid objection to their admissibility, provided they be pertinent to the issue. For the court will not notice whether they were obtained lawfully or imlawf ally, nor will it raise an issue to determine that question.^ § 923. In order to protect communications, they must have § 844 been made to the legal adviser, while he was acting, or at least while he was considered by the client as acting,* in that capacity. The rule,^ however, does not require any regular retainer, or any particular form of application or engagement, or the payment of any fees; it is enough if the legal adviser be, in any way, con- sulted in his professional character."' It would also seem that if a person be consulted confidentially, under the erroneous supposi- tion that he is a lawyer, he cannot be compelled to disclose the matters communicated.' But where a prisoner in custody on a charge of forgery wrote to a friend, requesting him " to ask Mr. G. or any other attorney " a question respecting the punishment of forgery, the letter was admitted in evidence, on the ground that it 1 Cleave I'. Jones, 21 L. J., Ex. 106, per Parke, B.; Lloyd v. Mostyn, 10 M. & W. 481, 482, per id., questioning the contrary decision of Bayley, J., in -Fisher r. Heming, cited 1 Ph. Ev. 170. In Lloyd v. Mostyn, Parke, B., likened the case to that of an instrument being stolen, and a correct copy taken, and asked whether it would not be reasonable to admit such copy ? If the client sustains any injury from such improper disclosure being made, an action will lie against the solicitor. Taylor v. Blacklow, 3 Biug. N. C. 235. 2 Gr. Ev. I 254a, in great part. ^ Legatt V. Tollervey, 14 East, 301; Jordan v. Lewis, id. 305, n. ; Doe r. Date, 3 Q. B. 619; Com. v. Dana, 2 Mete. 329, 337. * Smith V. Fell, 2 Curt. 667. There a communication was held to be privileged, which was made Ijy a party to a solicitor, under the impression that the latter acceded to a request to act as his legal adviser. ^ Gr. Ev. I 241, in part. 6 Foster v. Hall, 12 Pick. 89. See, also. Beau v. Quimby, 5 New Hamps. 94. ' Calleyi). Richards, 19 Beav. 401, 404, per Komilly, M. R., questioning Fountain v. Young, 6 Esp. 113, per Sir J. Mansfield. (3662) CHAP. XVI.] RULE OF PROTECTION WHEN CLIENT INTERROGATED. 795 did not appear that the relation of attorney and client ever sub- sisted between Mr. G. and the prisoner.' So, if a party were to go to a solicitor to discount a forged note, or to raise money on a forged will, what passed at the interview would of course not be pi-ivileged, unless, perhaps, in the event of the solicitor being con- sulted as the party's own lawyer." § 924 The question of privileged communications has hitherto I 845 been considered with respect to cases in which the legal adviser is called as a witness ; but although the privilege is, as before observed, that of the client, and not that of the professional adviser, the rule of protection was for many years laid down in less broad terms, where the client himself was the x>arty interrogated} It was indeed long since established, that, in that event, all com- munications between the solicitor and client, whether pending and with reference to litigation, or made before litigation and with reference thereto, or made after the dispute between the parties followed by litigation, though not in contemplation of, or with reference to, that litigation, were protected ; as also were communications made respecting the subject-matter in question, pending, or in contemplation of, litigation on the same subject with other persons, with the view of asserting the same right.^ If, however, communications passed between a client and solicitor before any dispute had arisen between the client and his opponent, the opponent could compel the client by a bill in equity to disclose these communications, although they related to the matters which 1 E. V. Brewer, 6 C. & P. 363, per Park, J. 2 E. V. Farley, 2 C. & Kir. 313, 317, 318. See ante, I 912; post, I 929. ^ See Maccann v. Maccann, 3 Swab. & Trist. 142, per Cresswell, J. O. * Holmes V. Baddeley, 1 Phill. 476; per Wigram, V.-C, in Ld. Walsingham V. Goodricke, 3 Hare, 124, 125, citing Bolton v. Corp. of Liverpool, 3 Sim. 467; 1 Myl. & K. 88, S. C; Hughes v. Biddulph, 4 Euss. 190; Goodall v. Little, 1 Sim. N. S. 155; Thompson v. Falk, 1 Drew. 21; Vent v. Pacey, 4 Euss. 193; Clagett V. Phillips, 2 Y. & C, Ch. E. 82; Combe v. Corp. of London, 1 id. 631. See, also, Woods v. Woods, 4 Hare, 83; Eeece v. Trye, 9 Beav. 316; Adams V. Barry, 2 Y. & C, Ch. E. 167; Knight v. M. of A^'^lte^ford, 2 Y. & C, Ex. E. 38; Curling v. Perring, 2 Myl. & K. 38; Kennedy v. Lyell, L. E., 23 Ch. D. 387, per Ct. of App. ; S. C. nom. Lyell v. Kennedy, L. E., 9 App. Cas. 81, per Dom. Proc.; 53 L. J., Ch. 449, S. C; and Nias v. North. & East. Ey. Co., 3 Myl. & Cr. 355. These cases overrule Preston v. Carr, 1 Y. & J. 175, and Newton v. Beresford, 1 You. 376. See 3 Hare, 129. (3663) 790 RADCLIFFE V. FURSMAN — MINET V. MORGAN. [PAET 11. formed the subject of the suit, except so far as they contained mere legal advice or opinions.' § 925. This doctrine was propounded in the case of Kadcliffe 'i '^^^ V. Fursman " by the House of Lords, at a time when the subject of professional confidence was not developed to the same extent as it is at the present day;* but although that decision was after- wards disapproved of by almost every judge under whose notice it was brought, and its principle was more than once successfully exposed and refuted,* it was still reluctantly followed till the year 1873, when Lord Chancellor Selborne had the hardihood to set it at nought in the important case of Minet v. Morgan.^ § 926. If a solicitor be employed for two parlies, as for mortgagor ^ 848 and mortgagee, and peruse on behalf of the former his abstracts of the title, he cannot, as against him, disclose their contents;" and where a professional man was engaged by vendor and purchaser to ^ Ld. Walsingham v. Goodricke, 3 Hare, 122, per Wigram, V.-C, reluctantly submitting to Kadcliffe v. Fursman, 2 Br. P. C. 514, Toml. ed. See, also, Penruddock v. Hammond, 11 Beav. 59; Hawkins v. Gathercole, 1 Sim. N. S. 150 ; Beadon v. King, 17 Sim. 34 ; and Greenlaw v. King, 1 Beav. 137, in which last case Ld. Langdale compelled a son and heir to discover a case, which had been submitted to counsel by his father, and had come with the estate to his hands. See, contra, Wilson v. Northampton & Banbury Junct. Ey. Co., 14 Law Rep., Eq. 477, per Malins, V.-C. See, further, Manser v. Dix, 1 Kay & J. 451, per Wood, V.-C; Macfarlan v. Rolt, 14 Law Rep., Eq. 580, per Wickens, V.-C. and Calley v. Richards, 19 Beav. 401, 405, per Romilly, M. R. 2 2 Br. P. C. 514, Toml. ed. ^ Per Wigram, V.-C, 3 Hare, 127. * See Bolton v. Corp. of Liverpool, 1 Myl. & K. 88, per Ld. Brougham; Pearse v. Pearse, 1 De Gex & Sm. 24, 25, per K. Bruce, V.-C. ; Walker v. Wildman, 6 Madd. 47; Preston v. Carr, 1 Y. & J. 175; Ld. Walsingham v. G )odricke, 3 Hare, 127—130; Bp. of Meath v. M. of Winchester, 10 Bli. 375, 455; Pearse v. Pearse, 1 De Gex & Sm. 12. See, also, two articles in Law Mag., vol. xvii., pp. 51 — 74, and vol. xxx., pp. 107 123. 5 8 Law Rep., Ch. Ap. 361; 42 L. J., Ch. 627, S. C; followed by Hall, V.-C, inTurtonr. Barber, 17 Law Rep., Eq. 329; 43 L. J., Ch. 468, S. C; and in Bacon v. Bacon, 34 L. T. 349; and by C P. D. in Mostyn v. West Mostyn Coal & Iron Co., 34 L. T. 531. See, also, Bullock r. Corry, L. R., 3 Q. B. D. 356; 47 L. J., Q. B. 352, S. C. nom. Bullock r. Corrie. 6 Doe V. Watkins, 3 Bing. N. C 421; 4 Scott, 155, S. C But see R. v. Avery, 8 C. & P. 596, cited post, § 929. (3664) CHAP. XVI.] SOLICITOR ACTING FOR OPPOSITE PARTIES. 797 prepare the deeds, and the di'aft conveyance was confidentially de- posited with him by both parties, it was held that he could not pro- duce it at the trial against the interest of the purchaser's devisees, though with the consent of the vendor.^ If, however, a solicitor, acting as such for opposite parties, has an offer made to him by the one for the purpose of being communicated to the other, he may be called upon to disclose the nature and terms of this offer at the instance of either party. ■^ And, where two persons, having a dis- pute about a claim made by one of them upon the other, went together to a solicitor, when one of them made a statement, and in- structed the solicitor to write a letter to a third party on the subject of the claim, — it was held that, in a subsequent action between these two persons, both the statement and the letter were admissible in evidence.^ So, if a wife were induced by her husband to deal with her separate interest under the advice of her husband's solicitor, he would be regarded by the client as acting for both husband and wife; and, consequently, in the event of any dispute arising between the married coupJe, each party would be entitled to call for the pro- duction, and to have full inspection, of all documents that might have come into possession of the solicitor in the course of the transaction.^ In all these cases the question would seem to be, was the communication made by the party to the witness in the character of his own exclusive solicitor? If it was, the bond of secrecy is imposed upon the witness; if it was not, the communication will not be privileged.^ § 927." The protection does not cease with the termination of the I suit, or other litigation or business, in which the communications » Doe V. Seaton, 2 A. «& E. 171; 4 N. & M. 81, S. C. '' Baugh V. Cradocke, 1 M. & Rob. 182; Cleve v. Powel, id. 228; Perry v. Smith, 9 M. & W. 681; Reynell v. Sprye, 10 Beav. 51. * Shore v. Bedford, 5 M. & Gr. 271. See, also, Griffith v. Davies, 5 B. & Ad. 502, and Weeks v. Argent, 16 M. & W. 817. * Warde v. Warde, 3 M. & Gord. 365; overruling a decision by Ld. Cran worth in the same ease, reported 1 Sim. N. S. 18. = Perry v. Smith, 9 M. & W. 682, 683, per Parke, B.; Eeynell v. Sprye, 10, Beav. 51. . « Gr. Ev. g 243, in part. (3665) 849 798 PROTECTION REMAINS FOR EVER. [PAET II. were made; nor is it affected by the party's ceasing to employ the solicitor, and retaining another, nor by any other change of relation between them, nor by the solicitor's being struck off the rolls,' nor by his becoming personally interested in the property, to the title of which the communications related,^ nor even by the death of the client. The seal of the law, once fixed upon the communications, remains for ever,^ unless it be removed either by the party himself,* in whose favour it was placed, or perhaps, in the event of his death, by his personal representative;^ and, therefore, if the client becomes a bankrupt, his trustee cannot waive the privilege without his particular permission.'' Neither does the client waive his privilege by calling the solicitor as a witness, unless he also ex- amines him in chief to the matter privileged;' and even in that case, it has been held in Ireland, that the cross-examination must be confined to the point upon which the witness has been examined in chief.^ § 928. In stating that the privilege does not terminate with the ^ 850 death of the client, care must be taken to distinguish between cases where disputes arise between the client's representatives and strangers, and those in which both the litigating parties claim under the client. In the former class of cases no doubt the protection will survive for the benefit of those who represent the client; but in the latter, it would be obviously unjust to determine that the privilege should belong to the one claimant rather than to the other. » Ld. Cholmondeley v. Ld. Clinton, 19 Yes. 268. ^ Chant V. Brown, 7 Hare, 79. •'' Wilson V. Rastall, 4 T. E. 759, per Buller, J. ; Parker v. Yates, 12 Moore, 520. But see Charlton v. Coombes, 32 L. J., Ch. 284, per Stuart, Y.-C; 4 Gifif. 372, S. C. * Merle v. More, Ry. & M. 390, per Best, C. J. ; Baillie's case, 21 How. St. Tr. 341, 358, 408. " If the client be willing, the court will compel the counsel to discover what he knows," per North, C. J., in Lea v. Wheatley, in C. B. Pasch. 30 Car. 2, cited in n. to 20 How. St. Tr. 574. See, also, Blenkinsop v. Blenkinsop, 17 L. J., Ch. 343, and Chant v. Brown, 7 Hare, 79. * Doe V. M. of Hertford, 19 L. J., Q. B. 526. 6 Bowman v. Norton, 5 C. & P. 177, per Tindal, C. J. ' Yaillant v. Dodemead, 2 Atk. 524; Waldron v. Ward, Sty. 449; Bate v. Kinsey, 1 C. M. & R. 38. 8 M'Donnell v. Conry, Jr. Cir. R. 807, per Richards, B. (3666) CHAP. XVI.] WHETHER PROTECTION EXTENDS TO CRIMES. 799 The rule, therefore, has no application in cases of testarnentary dis- positions, and as between parties claiming under the testator; and where the question was, whether certain executors were or were not trustees for the testator's next of kin, the evidence of the solicitor who prepared the will as to what had passed between him and the testator on the subject of the will, has been received on behalf of the next of kin.' § 929. Whether the protection can be removed without the ? 851 client's consent, in cases where the interests of criminal justice require the production of the evidence, may admit of some doubt.^ In one case where a party had intrusted a solicitor with a promis- sory note, and had instructed him to bring an action upon it, Mr. Justice Holroyd held that the solicitor ought not to pi'oduce the note, on the trial of a subsequent indictment against his client for forgei'y;^ and a similar decision appears to have been pronounced by the Court of King's Bench in the time of Lord Mansfield.* On the other hand, Mr. Justice Patteson has compelled a solicitor, who had been employed by a mortgagor and mortgagee to negotiate a loan between them, and had received from the former a forged will as part of his title-deeds, to produce the will on a trial of the mortgagor for forging that instrument.^ So, where a party having possessed himself of the title deeds of a deceased person, placed a forged will of the deceased amongst them, and then sent the whole to his solicitor, ostensibly for the purpose of asking his advice upon them, but really, as it seemed, that the solicitor might find the will ' Eussell V. Jackson, 9 Hare, 393, per Turner, V.-C. 2 R. V. Tylney, 18 L. J., M. C. 37; S. C, nom. E. v. Tuffs, 1 Den. 319. But this doubt is certainly not applicable to matrimonial proceedings, "which are civil proceedings, though the question at issue may involve the sin of adultery, Branford v. Branford, L. R., 4 P. D. 72; 48 L. J., P. D. & A. 40, S. C. 3 R. V. Smith, cited in 1 Ph. Ev. 171. See, also, R. v. Hankins, 2 C. & Kir. 823. * R. r. Dixon, 3 Burr. 1687. See, also, Anon., 8 Mass. 370. * R. r. Avery, 8 C. & P. 596, 599. In this case the learned judge is reported to have said that R. v. Smith was not law, but in R. v. Tylney, 18 L. J., M. C. 37; S. C, nom. R. v. Tuffs, 1 Den. 324, he intimated that this language was too strong. See, also, ante, ?§ 912, 923. (3667) 800 APPARENT EXCEPTIONS TO RULE. [PART II. and act upon it, — the judges nuauimously held, that the solicitor was bound to produce the will on the trial of his client for forgery, it not having been intrusted to him in professional confidence, even if that would have made any difference.^ Again, where a prisoner was indicted for forging a will, and it appeared that his wife had taken the will to a solicitor, and asked him to advance money upon it for her husband, which he refused to do, but took a copy of the will, the judges most properly held that such copy was admissible as secondary evidence, and that the conversation between the wife and the solicitor was not privileged." This last case, however, is scarcely an authority on either side of the question ; for the judges took the distinction tha't the solicitor consulted was not the pri- soner's own legal adviser. § 930.^ This rule may be further illustrated by reference to the cases in which the solicitor may be examined, and which are therefore somtimes mentioned as exceptions to the rule. These apparent ex- ceptions "* are, — where the knowledge was not acquired by the solicitor solely by his being employed professionally, but was in some measure obtained by his acting as a 2^<^''fU to the transaction, and the more especially so, if this transaction was fraudulent;^ or where the ' R. V. Hay ward, 2 C. & Kir. 234. See R. v. Jones, 1 Den. 166; R. v. Brown, 9 Cox, 281; and R. v. Downer, 14 Cox, 486. 2 R. V. Farley, 2 C. & Kir. 313; 1 Den. 197, S. C. ^ Gr. Ev. I 244, in great part. * Besides the exceptions here stated, the following ease may be naentioned. In a suit for taking a partnership account between solicitors, semble that the plaintiff is entitled to the discovery and production of papers material to the account, though they relate to professional business transacted for clients, and the consequent effect of their production must be that some stranger will become acquainted with matters intrusted to the partners in confidence. Brown v. Perkins, 2 Hare, 540. This case obviously rests on necessity, for otherwise no account could ever be taken between solicitors acting in partnership. ^ See Follett v. Jefferyes, 1 Sim. N. S. 3, 17, where Rolfe, V.-C, observed, " It is not accurate to speak of cases of fraud, contrived by the client and .solicitor in concert together, as cases of exception to the general rule. They are cases not coming within the rule itself, for the rule does not apply to all which passes between a client and his solicitor, but only to what passes between them in professional confidence; and no court can permit it to be said that the contriving of a fraud can form part of the professional occupa- (3668) CHAP. XVI.] APPARENT EXCEPTIONS TO RULE. 801 commiinicaLioa was made before the solicitor xvas employed a.^ such, OY-afterhis employment had ceased; — or where, though consulted by a friend because he was a solicitor, he had refused to act as such, and was therefore only applied to as a friend; — or yph ere the infor- mation was obtained, not exclusively from the client, but also from some other independent source;' — or where it could not be fairly stated that any communication had been made; 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 circumstance of his being the solicitor, but of which fact any other man, if there, would have been equally conusant (and even this has been held privileged in some of the ca?es); — or where the matter communi- cated was not in its nature x>rivate, and could in no sense be termed the subject of a confidential disclosure;^— or where it had no refer- ence to professional employment, though disclosed while the relation of solicitor and client subsisted;* — or where the solicitor, having made himself a subscribing tvitness and thereby assumed another character for the occasion, adopted the duties which it imposes, and became bound to give evidence of all that a subscribing witness can be required to prove. In all such cases, it is plain that the solicitor is not called upon to disclose matters, which he can be said to have learned by communication with his client, or on his client's behalf; matters, which were so committed to him in his capacity of solici- tor; and matters, which in that capacity alone he had come to know.^ § 931. It may here be expedient to illustrate these apparent ex- I ^53 tion of a solicitor." See, also, Charlton v. Coombe.s, 32 L. J., Ch. 284; 4 Giflf. 372, S. C; and Kelly v. Jackson, 13 Ir. Eq. R. 129. ^ Lewis V. Pennington, 29 L. J., Ch. 670, per Romilly, M. R. ; March v. Keith, 30 L. J., Ch. 127, per Kindersley, V.-C; S. C. nom. Mar.sh v. Keith, 1 Drew. & Sm. 342. 2 Brown r. Foster, 1 H. & N. 7.36, cited post, ? 934. « See Doe v. M. of Hertford, 19 L. J., Q. B. 526. * Goodall V. Little, 20 L. J., Ch. 132; 1 Sim. N. S. 155, S. C. ^ Per Ld. Brougham, in Greenough v. Gaskell, 1 Myl. & K. 104. See, aLso, Deshorongh r. Rawlins, 3 Myl. & Cr. 521, 522; Story, Eq. PI. §g 601, 602; Bolton V. Corp. of Liverpool, 1 Myl. & K. 88; Annesley v. Ld. Anglesea, 17 How. St. Tr. 1239—1244. (3669) 802 ILLUSTRATION OF APPARENT EXCEPTIONS. [PART II. ceptions somewhat more at length. Thus, if a solicitor, having been engaged in a conspiracy, be willing to turn informer, he cannot be prevented from disclosing what he knows of the transaction, though he may have been employed by some of the guilty parties in his professional character, and have acquired much of his know- ledge in consequence of that connexion ' In one case,^ usury in a mortgage was proved by the plaintiff's solicitor, who prepared the deed, and who was called by the defendant to prove the considera- tion usurious. Lord Kenyon, who admitted this evidence, assumed that the solicitor had, by his conduct, become a party to the transac- tion; but as the facts do not warrant this assumption, the case cannot be supported at the present day,^ and it is only valuable as recognising the general principle, that if a solicitor acts as a party, no knowledge he obtains will be privileged. Again, a solicitor has been compelled to disclose a confession made to him by his client before the retainer, respecting an erasure in a will ; * as also a gratuitous conversation which his client had held with him after the compromise of a suit, in which he stated that he was glad the action was settled, as the promissory note on which it was founded had been indorsed to him without consideration, and with notice that it was void as being mixed up without a lottery transaction.^ On the other hand, where a person, having possession of a deed in the character of trustee to the defendant, had first obtained a knowledge of its contents while acting as his solicitor, the knowledge thus obtained was held to be privileged s*^ and, in another case, where a solicitor became a trustee under a deed for the benefit of his client's creditors, it was held that subsequent communications made to him by the client could not be divulged.' § 932. Where a trustee for two parties had acted as solicitor for g ^54 1 1 Myl. & K. 103, 104, 109, per Ld. Brougham. 2 Damn V. Smith, Pea. i{. 108. ^ See Ld. Brougham's ohservations in 1 Myl. & K. 109. But see ante, § 929. * Cutts r. rickering, 1 Ventr. 197. ^ Cohden c. Kendrick, 4 T. R. 431. ® Davies r. Waters, 9 M. & W. 608. In that case, the witne.ss, as trustee, might equally have refused to state the contents of the deed, but it was objected in Banc that tliis point was not raised at Nisi Prius. See ante, ^ 918. ' Pritchard v. Foulkes, 1 Coop. 14. (3670) CHAP. XVI.] ILLUSTRATION OF APPARENT EXCEPTIONS. 803 one, in respect of certain disputes which had arisen between the two on the subject of the trusts, the court held that, inasmuch as he had been vohmtarily placed in a situation inconsistent with his duty as trustee for both parties, the communications between him and his client were not privileged as against the other cestui que trust.* So, where a solicitor had been confidentially consulted, but had not been professionally employed, because he was at that time acting as undersheriff, he was held bound to disclose what had been communicated to him.^ Again, in Gri£&th v. Davies,^ a witness called by the plaintiff was permitted to state a conversation, in which the defendant proposed a compromise to the plaintiff, although, when the conversation took place, the witness was attending as solicitor for the defendant; for, in this case, the knowledge gained by the witness was not by reason of its being intrusted to him in his professional character, but merely by his being present at the conversation.* So, if a solicitor, by the direction of his client, makes a proposal to the opposite party, he may be compelled to dis- close what he stated to that party, though he cannot divulge what his client had communicated to him; ^ and if communications from an adverse party be made, either directly to the solicitor for the purpose of being communicated to the client,® or to the client him- self in the presence of the solicitor,^ the solicitor is not at liberty to withhold them. Indeed, he is bound, as it seems, to produce all letters, and to disclose all information, communicated to him from collateral quarters.^ 1 Tugwell V. Hooper, 10 Beav. S48. "^ Wilson?;. Rastall, 4 T. R. 753. See Galley v. Richards, 19 Beav. 401, 404. » 5B. &Ad. 502. See, also, Shore v. Bedford, 5 M. & Gr. 271; Weeks t>.. Argent, 16 M. & W. 817. * Per Alderson, B., in Davies v. Waters, 9 M. & W. 611. * Per Parke and Patteson, Js., 5 B. & Ad. 503, commenting on and ques- tioning Gainsford v. Grammar, 2 Camp. 9. See, also, Ripon v. Davies, 2 N. «fe M. 310; and Reynell v. Sprye, 10 Beav. 51. ^ Spenceley v. Schulenburgh, 7 East, 357. There the solicitor was held bound to discover the contents of a notice to produce documents, -which he had received from the opposite solicitor. See, also, Ford v. Tennant, 32 L. J., Ch. 465, per Romilly, M. R.; 32 Beav. 162, S. C. ; Gore v. Harris, 21 L. J., Ch. 10, per Parker, V.-C. ; S. C. nom. Gore v. Bowser, 5 De Gex & Sm. 30; Paddon v. Winch, 39 L. J., Ch. 627, per James, V.-C. '' Desborough v. Rawlins, 3 Myl. & Cr. 515, per Ld. Cottenham. * Thus, a communication between a solicitor and one of his client's witnesses 30 LAW OF EVID. — V. II. (3671) 804 ILLUSTRATION OF APPARENT EXCEPTIONS. [PART II. § 933. The legal adviser must also disclose all questions put to him by his client, together with his answers thereto, provided such questions were asked in order to gain information respecting matters of fact, as distinguished from those put with the view of obtaining legal advice.^ This proposition has, on one occasion,^ been applied to circumstances which seem scarcely to have war- ranted its application. The question was, whether the client had committed an act of bankruptcy on a particular day. On that day the client inquired of his solicitor, whether he could safely attend a particular meeting of his creditors without being arrested for debt. The solicitor advised him to remain in his ofi&ce, until it was ascertained whether the creditors would engage to give him safe-conduct, and he accordingly remained there for two hours to avoid being arrested, till the solicitor returned from the meeting. The court held that what had passed between the solicitor and his client was receivable in evidence. Lord Tenterden observing, that " a man could hardly ask, as matter of law, whether he would be free from arrest while attending a voluntary meeting of creditors, though he might well ask, as matter of fact, from the perison at whose suggestion the creditors had been convened, whether any arrangement had been made with the creditors to prevent an arrest;" and his lordship added, "The solicitor gives no legal advice, his answer implying that no arrangement had been made, but that he would see at the meeting whether any could be effected; and he recommends his client, not as a legal adviser but as any agent or any friend might have recom- mended, to stay where he was till that matter of fact could be ascertained.^ as to the evidence to be given by the witness, is not privileged ; Mackenzie V. Yeo, 2 Curt. 866. But, semble, a solicitor is not bound to produce the "proof" of a witness's evidence, which he had prepared for insertion in his counsel's brief, per Bovill, C. J., in the Tichborne case, 28 Feb., 1872, MS. ' Sawyer v. Birchmore, 3 Myl. & K. 572, per Ld. Cottenham; Spenceley v. Schulenburgh, 7 East, 357; Desl)orough v. Rawlins, 3 Myl. & Cr. 515. * Bramwell v. Lucas, 2 B. & C. 743, observed upon by Ld. Brougham, in 1 Myl. & K. 113—115; and also by Ld. Cottenham, in 3 Myl. & Cr. , 520—522. 3 2 B. & C. 749, 750. (3672) CHAP. XVI.] ILLUSTRATION OF APPARENT EXCEPTIONS. 805 § 934. Again, it is no breach of professional confidence for a § 856 legal adviser to give evidence of a fact not communicated directly to him by his client, but the knowledge of which has been acquired by him during the progress of a trial. The case of Brown v. Foster ' well illustrates this proposition. There, counsel had attended before a magistrate on behalf of a man charged with embezzlement, and the prosecutor had produced a book, in which the accused, contrary to his duty, had omitted to enter a siim of money received by him. On a subsequent examination the book was found to contain the entry. The accused afterwards brought an action for malicious prosecution, and it was held at the trial, that the counsel might give evidence that the entry was not in the book at the time of the first examination, as that fact had not been communicated to him by his client, but he had become cognisant of it through his own personal observation. A solicitor may also be called, either to prove his client's handwriting, though he be acquainted with it only from having seen him sign documents in the cause ;^ or to disclose the name of the person by whom he was retained, in order to let in the declarations and admissions of the real party in interest; ^ or to discover when and to whom he parted with his client's title-deeds, and in whose possession they are.* So, for the purpose of letting in secondary evidence of the contents of a document, a solicitor will be bound to answer whether it is in his possession or elsewhere in court, even though he may have obtained it from his client in the course of communication with reference to the cause. ^ § 935. The legal adviser, too, is bound to furnish any informa- ^ 856 tion in his power which may lead to the discovery of his client's ^ 1 H. «fe N. 736. ^ Hurd V. Moring, 1 C. & P. 372, per Abbott, C. J.; Johnson v. Daverne, 19 Johns. 134; 4 Hawk. P. C, 2, c. 46, ^ 89. •'* Levy V. Pope, M. & M. 410, per Parke, J.; Brown v. Payson, 6 New Hamps. 443. * Banner v. Jackson, 1 De Gex & Sm. 472, per K. Bruce, V.-C, reluctantly yielding to Stanhope i'. Knott, 2 Svvanst. 221, n., and Kingston v. Gale, Kep. temp. Finch, 259. ^ Dwyer v. Collins, 7 Ex. R. 639; Coates v. Birch, 2 Q. B. 252; 1 G. & D. 474, S. C. ; Bevan v. Waters, M. & M. 235, per Best, C. J. ; Eicke v. Nokes, id. 303; Roupell v. Haws, 3 Fost. & Fin. 797, per Channell, B. ■ (3673) 806 ILLUSTRATION OF APPARENT EXCEPTIONS. [ PART H. address, especially if that client be a ward in Chancery, who is attempting to conceal his residence from the court.' So, also, he may be called to identify his client as the person who has put in any pleading, or sworn any affidavit, because these acts, so far from being secrets, are in their very nature matters of publicity.^ From one case it would even seem that a solicitor might be compelled to divulge the character in which his client employed him, as, for instance, whether as executor, or trustee, or on his own private account; " but, in America, it has been held, that counsel could not sfete whether they were employed to conduct an ejectment for their client, as landlord of the j^remises.* A solicitor, who has prepared a will at the instance of a party benefited by it, is not privileged to withhold from the Probate Division of the High Court any facts, which are connected with contemporaneous business transacted between the testator and himself on acccount of his client the legatee, when his opinion of the testator's capacity to make a will is in any degree founded on such facts.^ § 936. Moreover, the privilege does not attach to unnecessary I 857 communications made by a client to his legal adviser; and there- fore a prosecutor's solicitor has been allowed to state that, pending the proceedings on the indictment, his client had observed to him that he would give a large sum to have the prisoner hanged;" and, in an action brought by a solicitor for his bill, where the question was whether he had been employed by the defendant or by a third party, a statement made by the plaintiff to his solicitor, on intro- ducing such third party to him, was held to be excluded from the 1 Ramsbotham v. Senior, 8 Law Eep., Eq. 575, per Malins, V.-C. ; Burton V. Ld. Darnley, id. 576, n.; Ex parte Campbell, 5 Law Rep., Ch. Ap. 703. But see Heath v. Crealock, 15 Law Rep., Eq. 257, per Bacon, V.-C. 2 B. N. P. 284, b.; Studdy v. Sanders, 2 D. & R. 347; Doe v. Andrews, 2 Cowp. 846, per Ld. Mansfield; cited by Ld. Brougham in 1 Myl. & K. 108, overruling R. v. Watkinson, 2 Str. 1122. ' BeckAvith v. Benner, 6 C. & P. 681, per Gurney, B. * Chirac v. Reinicker, 11 Wheat. 280, 295. 5 Jones V. Goodrich, 5 Moo. P. C. R. 16, 25. « Annesley v. Ld. Anglesea, 17 How. St. Tr. 1223—1244; Cobden v. Kendrick, 4 T. R. 431, cited ante, § 931. (3674) CHAP. XVI.] ILLUSTRATION OF APPARENT EXCEPTIONS. 807 rule of privilege.^ So, if a solicitor attests an instrument which his client executes, he may be compelled, either to prove the execu- tion, or to disclose all that passed at that time, even though such evidence may establish the invalidity of the deed; for by becoming a subscribing witness he makes himself a public man, and pledges himself to give evidence on the subject, whether he be called by the party by or to whom the deed is executed, or by any other person who claims an interest in the property.^ § 937. But where the assignees of a bankrupt, in an action of § 8r)6 assumpsit brought by them, endeavoured to establish that the bankrupt had made a fraudulent conveyance to his son, and, in order to prove this transaction, called the banki'upt's solicitor. Lord Ellen borough held that, though, as attesting witness to the deed, he was bound to disclose what took place at the time of its execution, he was privileged from stating what occurred during its concoction and preparation, and could not be asked whether it had not been subsequently destroyed, if the only knowledge he had, as to its concoction, preparation or destruction, was acquired from his confidential situation as solicitor.^ So, a legal adviser cannot, as it would seem, disclose in what condition an instrument was when it was intrusted to him by his client, as whether or not it then were stamped, or indorsed, or had an erasui'e upon it; * and in an action of trover for a lease, brought by the assignees of a bank- rupt, where the question was whether the lease had been deposited 1 Gillard v. Bates, 6 M. & W. 547; 8 Dowl. 774, S. C. See, also, Calclbeck V. Boon, I. E., 7 C. L. 32. ^ Doe V. Andrews, 2 Cowp. 845; Robson i\ Kemp, 5 Esp. 53; 4 id. 235; Crawcour v. Salter, L. E., 18 Ch. D. 30, 3G, per Maliiis, V.-C; Sanford v Eemington, 2 Ves. 189. ^ Eobson t\ Kemp, 5 Esp. 52. * Wheatley v. Williams, 1 M. & W. 533. In B. N. P. 284 a, it is stated, that, " if the question were about a rasure in a deed or will, the attorney might be examined to the question, whether he had ever seen it in any other plight;" but, in Wheatley v. Williams, Ld. Abiuger observed, that this passage "must apply to a ease where the attorney has his knowledge in- dependently of any communication from the client; it cannot mean that where the attorney, coming to the client for a confidential purpose, obtains some other collateral information which he would not otherwise have pos- sessed, he can be compelled to disclose it," }). 541. See, also. Brown v. Pay- son, 6 New Hamps. 443. (3675) 808 JUDGES, ARBITRATORS, AND COUNSEL. [PABT II. with the defendant by the bankrupt before or after the bankruptcy, a solicitor, who, after the act of bankruptcy, had been applied to by the bankrupt to procure a loan, was not permitted to state whether his client had, on that occasion, brought to him the lease, for the purpose of raising money upon it.' § 938." Judges, arbitrators, and counsel form a third class of ? 859 persons, who, from motives of public policy, are perhaps not compellable to testify as to certain matters, in which they have been judicially or professionally engaged; though, like ordinary persons, they may be called upon to speak to any foreign and collateral matters, which happened in their presence, while the trial was pending, or after it was ended.^ In regard to judges of courts of record, it is considered dangerous, or at least highly inconvenient, to compel them to state what occurred before them in court; and on this ground the grand jury have been advised not to examine a chairman of quarter sessions, as to what a person testified in a trial in his court.* The case of arbitrators is governed by the same general policy ; and the courts will not disturb the deliberate decision of an ai'bitrator, by requiring him to disclose the grounds of his award, unless under very cogent circum- stances, such as upon an allegation of fraud; for Interest reipublicce ut sit finis lifiiim.^ Of course, a judge or an arbitrator may, by his own consent, be examined respecting the facts proved, or the matters claimed, at the trial or the reference;^ and an arbitrator may be asked questions for the purpose of showing that he has exceeded his powers, as, for instance, by awarding compensation for injuries not included in the matters submitted to him.' With 1 Turquand v. Knight, 2 M. & W. 98. '^ Gr. Ev. ^ 249, in part. 3 R. V. E. of Thanet, 27 How. St. Tr. 845—848; Ponsford v. Swaine, 1 Johns. & Hem. 433. * R. V. Gazard, 8 C. & P. 595, per Patteson, J. ^Johnson v. Durant, 4 C. & P. 327; 2 B. & Ad. 925, S. C. ; Ellis v. Saltan, 4 C. & P. 327, n. a ; Ponsford v. Swaine, 1 Johns. & Hem. 433; Story, Eq. PI. ?^g 599, 824, 825, u.; 2 Story, Eq. Jur. U 1457, 1498; Anon., 3 Atk. 644. ^ Martin v. Thornton, 4 Esp. 181, per Ld. Alvanley. ' D. of Buccleuch v. Met. Board of Works, 5 Law Rep., H. L. 418; 41 (3676) CHAP. XVI.] SECRETS OF STATE — INFORMERS. 809 respect to barristers, it has been held that they cannot be forced to prove what was stated by them on a motion before the court;' and the like privilege has been strenuously claimed, though not expressly recognised, where a counsel was called upon as a witness to disclose a confidential negotiation, into which, on behalf of his client, he had entered with a third party, though the client himself waived all objection to the course of examination proposed.' § 939.' A fourth class of cases, in which evidence is excluded ^ ^^^^ from motives of public policy, comprises secrets of State, or matters, the disclosure of which would be prejudicial to the public interest. These matters are such as concern the administration, either of penal justice, or of government; but the principle of public safety is in both cases the same, and the rule of exclusion is applied no further than the attainment of that object requires. Thus, in Crown prosecutions, and in informations for frauds committed against the revenue laws, witnesses for the Crown will not, on cross-examination, he permitted to disclose either the names of their employers, or the natiu-e of the connexion between them, or the names of the person from whom they received information, or the names of those to whom they gave information, whether such last- mentioned persons were magis- trates, or actually concerned in the executive administration, or were only the channel through which the communication was made to Government.* Neither can the witness be asked whether he himself was the informer.'^ " It is perfectly right," said Lord Chief Justice Eyre, in Hardy's case,'^ *' that all opportunities should be afiforded to discuss the truth of the evidence given against a prisoner; but there is a rule, which has universally L. J., Ex. 337, per Dom. Proc, S. C; 5 Law Rep., Ex. 221, per Ex. Ch.; 39 L. J., Ex. 130, S. C; 3 Law Rep., Ex. 306; 37 L. J., Ex. 177, S. C. ^ Curry v. Walter, 1 Esp. 456, per Eyre, C. J. 2 Baillie's case, 21 How. St. Tr. 358—361. ' Gr. Ev. § 250, in great part. * R. V. Watson, 32 How. St. Tr. 100—103; 2 Stark. R. 135, S. C. ; R. v. Hardy, 24 How. St. Tr. 753, 808—820; 1 Ph. Ev. 178—180. * Att.-Gen. v. Briant, 15 M. & W. 169. ^ 24 How. St. Tr, 808. (3677) 810 INFORMERS — CHANNELS OF INFORMATION. [PART II, obtained, on account of its importance to the public for the detection of crimes, that those persons, who are the channel by means of which the detection is made, should not be unnecessarily disclosed." § 940. The protection afforded by this rule will be equally I BGl upheld, though the witness, in his examination in chief, has admitted that suggestions have been made to him on the part of the Government; ^ and the doctrine has been even carried so far, that, where a witness, believing the views of certain parties to be dangerous to the State, had consulted a private friend as to what steps he should pursue, and the friend advised him to communi- cate the information to Grovernment, a majority of the learned judges held that the name of his friend could not be disclosed.^ They^ were also, in the same case, unanimously of the opinion, that all questions tending to the discovery of the channels by which the information was given to the oflficers of justice, were, upon the general principle of public convenience, to be suppressed; that all persons in that situation were protected from the discovery; and that, if an objection were raised to the question, it was no more competent for the defendant to ask who had advised the witness to give information, than to ask to whom he had given it in conse- quence of that advice, or to put any other question respecting the channel of communication.* The witness, however, may still be asked, — though little practical advantage can be gained by putting such a question, — whether the person to whom the information was communicated was a magistrate or not.^ § 941. It may well be doubted whether this rule of protection § 862 extends to ordinary prosecutions;* and even when it applies, — as ' E. V. O'Connell, Arm. & T. 178, 179. See, also, pp. 233, 240, of the same report, where the general doctrine was recognised and acted upon. 2 R. i: Hardy, 21 How. St. Tr. 808—820, Eyre, C. J., Hotham, B., & Grose, J., pro; Macdonald, C. B., & Buller, J., con. 3 Gr. Ev. ? 250, in part. * 24 How. St. Tr. 816, per Eyre. C. J. * Id 80P. fi Att.-Gen. v. Briant, 15 M. & W. 181, per Pollock, C. B.; R. v. Richard- son, 3 Post. & Fin. 693, per Cockburn, C. J. (3678) CHAP. XVI.] PROCEEDINGS OF GRAND -JURORS. 811 unquestionably it does whenever the Government is directly con cerned, — it may sometimes, if rigidly enforced, be productive of great individual hardship; since, where a witness is giving an account of what occurred at a distant period, it is obviously material to ascer tain whether he gave substantially the same account recently after the transaction; and if the object be to shake the credit of the witness, it is equally important to know whether a communication, which he asserts that he made to a certain person, was, in fact, ever so made. On the other hand, it is absolutely essential to the welfare of the State, that the names of parties who interpose in situations of this kind should not be divulged; for otherwise, — be it from fear, or shame, or the dislike of being publicly mixed up in inquiries of this nature, — few men would choose to assume the dis- agreeable part of giving or receiving information respecting offences, and the consequence would be that many great crimes would pass unpunished.* § 942.^ The opinion which seems best supported by decided cases § ^^3 and dicta, is, that the proceedings of grand jurors should, on similar grounds of public policy, be regarded as privileged commu- nications. Some persons imagine, — though it would seem errone- ously, — that the preliminary inquiry as to the guilt or innocence of a party accused ought to be secretly conducted;^ and, in furtherance of this object, every grand juror is sworn to secrecy. One reason may be, to prevent the escape of the party, should he know that proceedings were in train against him; another may be, to secure freedom of deliberation and opinion among the grand jurors, which might be impaired if the part taken by each could be made known to the accused or to the Crown; and although these reasons are clearly fallacious, since the first is answered by the fact, that most crimes are primarily investigated by an open inquiry before the committing magistrate, and the second rests on an assumption of pusillanimity and meanness, which the gentlemen who constitute ' Home V. Bentinck, 2 B. & B. 162, per Dallas, C. J.; U. S. v. Moses, 4 Wash. 726. " Gr. Ev. I 252, in part. ' In R. V. BuUard, 12 Cox, 353, Byles, J., observed, that "the grand jury- were a secret tribunal, and not bound by any rules of evidence." (3679) 812 PROCEEDINGS OF GRAND JURORS. [PABT II. the grand jury but little deserve; still, they are the best that can be furnished in support of a system, which is doubtless often pro- ductive of perjury, often of collusion, and sometimes of oppression.* § 943. The rule includes not only the grand jurors themselves, ? 8^3 but their clerk," if they have one, and the prosecuting officer,^ if he be present at their deliberations; all these being equally concerned in the administration of the same portion of penal lavp. They are not permitted to disclose what number of jurors were present when a case was brought before them, or the number or names of the jurors who agreed or refused to find the bill of indictment;* neither can they be called on the trial to explain their finding,^ or to detail the evidence on which the accusation was founded,*^ or to show that a witness has given testimony in court contrary to what he had sworn before them/ In an action, however, for a malicious indict- ^ See observations on this subject, and on the general inutility of grand juries, in Law Mag. vol. xxxi. pp. 242 — 251. 2 12 Vin. Abr., Ev. B. a. 5. ^ So decided in America, Com. i'. Tilden, cited in 2 St. Ev. 232, n. 1, by Metcalf; ISI'Lellan v. Richardson, 1 Shepl. 82. * E. V. Marsh, 6 A. & E. 236. See 4 Hawk. P. C, b. 2, c. 25, § 15. In America, grand jurors have been asked whether twelve of their number actually concurred in the finding of a bill, the certificate of the foreman not being con- clusive evidence of that fact; M'Lellan v. Eichardson, 1 Shepl. 82; Low's case, 4 Greenl. 439; Com. v. Smith, 9 Mass. 107. » E. V. Cooke, 8 C. & P. 584, per Patteson, J. « See E. V. Watson, 32 How. St. Tr. 107, per Ld. Ellenborough, and 6 A. & E. 237, arg. ; Hindekoper v. Cotton, 3 Watts, 56; M'Lellan v. Eichardson, 1 Shepl. 82; Low's case, 4 Greenl. 439, 446, 453; Burr's trial [Anon.] Ev. for deft., p. 2. ' 12 Vin. Abr. Ev. H. ; Imlay v. Eogers, 2 Halst. 347. Mr. Chitty, in his 1st vol. of Crim. Law, p. 322, states that perjury before the grand jury is indictable, and refers to his vol. on Prec, which contains nothing on the subject. Mr. Christian, also, in a note to 4 Bl. Com. 126, narrates that, at York, a grand juror, hearing a witness swear in court contrary to the evidence which he had given before the grand jury, told the judge, " and the witness was committed for perjury, to be tried uiion the testimony of the gentlemen of the grand jury." What became of this case does not appear. By the N. York Cr. Code, ? 267, "Every member of the grand jury must keep secret, whatever he himself, or any other grand juror may have said, or in what manner he, or any other grand juror, may have, voted on a matter before them." | 268. "A member of the grand jury may, however, be required by any court to disclose the testimony of a witness (3680) CHAP. XVI.] PROPERTY TAX COMMISSIONERS — PETTY JURORS. 813 ment, Lord Kenyon is reported to have allowed the plaintiff to call one of the grand jury, in order to prove that the defendant was the prosecutor,' and a similar course was pursued on another occasion without opposition." § 944. In illustration of this subject it may be added, that the ? 863 clerk of the Property Tax Commissioners has been held bound to produce in a court of justice his official books, and to answer all questions respecting the collection of the tax, though he had been sworn, on entering office, not to disclose anything he should learn in that capacity, without the consent of the Commissioners, or unless by force of some Act of Parliament.^ § 945.* On similar grounds of public policy, and for the pro- ^ 864 tection of parties against fraud, the law excludes the testimony of traverse or petty jurors, when offered to prove mistake or viis- behaviour by the jury in regard to the verdict. Thus, where a motion was made to amend the postea by increasing the damages, the court refused to admit an affidavit sworn by all the jurymen, in which they stated their intention to have been to give the plaintiff such increased sum.^ So, also, on several occasions, affidavits that verdicts have been decided by lot have been rejected on motion for new trials, whether such affidavits were sworn by individual jury- men,** or by strangers, stating the subsequent admissions of jurors to themselves,^ or even that a declaration had been made by one examined before the grand jury, for the purpose of ascertaining whether it is consistent with that given by the witness before the court; or to disclose the testimony given before them by any person, upon a charge against him for perjury in giving his testimony, or upon his trial therefor." This appears to be the common-sense view of the matter. ' Sykes v. Dunbar, 2 Selw. N. P. 1081. 2 Freeman v. Arkell, 1 C. & P. 137, cor. Park, J. ^ Lee V. Birrell, 3 Camp. 337, per Ld. Ellenborough. * Gr. Ev. § 252, in part. ^ Jackson?'. Williamson, 2T. R. 281. ^ Vasie v. Delaval, 1 T. K. 11; Owen v. Warburton, 1 N. K. 326; Heyes V. Hindle, per Q. B. in M. T., 1863, MS.; Little v. Larrabee, 2 Greenl. 37, 41, n. ^ Straker v. Graham, 4 M. & W. 721 ; The State v. Freeman, 5 Conn. 348* Meade v. Smith, 16 Conn. 346. (3681) 814 PROCEEDINGS IN PARLIAMENT — SECRETS OF STATE. [PART II. juror ia the bearing of his fellows in open court after the verdict had been pronounced.' In all cases of this kind, the court must obtain their knowledge of the misconduct complained of, either from the officer who had charge of the jury," or from some other person who actually witnessed the transaction.'^ But, although a juryman's affidavit of what occurred in the jury-box during the trial cannot be received, it is admissible to explain the circumstances under which he came into the box.* § 946. On a like principle of public policy, no witness, — whether § 865 he be a Peer, a Member of the House of Commons, an officer of either House, or a shorthand writer, — can be forced, without the permission of the House having been first obtained, to disclose in a court of justice what took place xcithin the walls of Parliament, or to relate any expressions or arguments that may have been used by one of the members in the course of debate;^ and although he may probably be asked as to the fact, whether or not a member spoke upon a particular subject of discussion,^ he may decline to answer any question relating to the manner in which the votes were given on a division.' § 947.* On similar grounds, the official transactions between the g 866 heads of the deparhnents of Government and their subordinate officers, are, in general, treated as secrets of State.^ Thus, commu- nications between a colonial governor and his attorney -general, on the condition of the colony or the conduct of its officers,'" or between such governor and a military officer under his authority;" the re- 1 Burgess v. Langley, 5 M. & Gr. 722; Raphael v. Bk. of England, 17 Com. B. 161. ^ 5M. & Gr. 725, per Cresswell, J. 3 Vasie v. Delaval, 1 T. R. 11, per Ld. Mansfield. * Bailey t'. Macauley, 13 Q. B. 815, 829. * Plunkett V. Cobbett, 29 How. St. Tr. 71, 72; 5 Esp. 136, S. C, per Ld. Ellenborougli; Chubb v. Salomons, 3 C. & Kir. 75, per Pollock, C. B. 6 Plunkett V. Cobbett, 29 How. St. Tr. 71, 72; 5 Esp. 136, S. C. ^ Chubb V. Salomons, 3 C. & Kir. 75. ® Gr. Ev. ^ 251 , in great part. ^ By the N. York Civ. Code, § 1710, r. 5, "a public oificer cannot be examined as to communications made to him in official confidence, when the public interests would suffer by the disclosure." 1" Wyattw. Gore, Holt, N. P. R. 299. " Cooke V. Maxwell, 2 Stark. R. 183. (3682) CHAP. XVI.] BUSINESS OF DEPARTMENTS OF G0YERN:MENT. 815 port of a military commission of inquiry, made to the commander- in-chief; ' the report of a collision at sea, made by the captain of one of the ships to the Lords Commissioners of the Admiralty ; ^ the report submitted to the Lord Lieutenant of Ireland by an Inspector General of the prisons ; ^ and the correspondence between an agent of the Government and a Secretary of State;* or between the Directors of the East India Company and the Board of Control, under the old law;^ or between an officer of the Customs and the Board of Commissioners,** — are confidential and privileged matters, which the interest of the State will not permit to be revealed. The President of the United States, and the Governors of the several States, are not bound in America to produce papers or disclose information communicated to them, when, in their own judgment, the disclosure would, on public considerations, be inexpedient.' And the same doctrine, as it would seem, prevails in England, whenever Ministers of State are called as witnesses for the purpose of producing public documents.^ § 948. If, however, the Minister, instead of attending personally ? at the trial, should send the required papers by the hands of a subordinate officer, the judge would probably examine them himself, and would compel their production, unless he were satisfied that they ought on public grounds to be withheld.^ When the law is 1 Home V. Bentinck, 2 B. & B. 130 ; 4 Moore, 563, S. C. ; Beatsou v. Skene, 29 L. J., Ex. 430; 5 H. & N. 838, S. C; Dawkins v. Ld. Rokeby, 8 Law Rep., Q. B. 255, per Ex. Ch.; 42 L. J., Q. B. 63, S. C. 2 H. M. S. Bellerophon, 44 L. J., Adm. 5. 3 M'Elveney v. Connellan, 17 Ir. Law R., N. S. 55. * Anderson v. Hamilton, 2 B. & B. 156, n. ; 8 Price, 244, n.; and 4 Moore, 533, n. S. C; 2 Stark. R. 185, per Ld. Ellenborough, cited by the Att.-Gen.; Stace v. Griffith, 6 Moo. P. C, N. S., 18; Marbury v. Madison, 1 Cranch, 144. 5 Smith V. E. India Co., 1 Phill. 50; Rajah of Coorg v. East India Co., 25 L. J., Ch. 345; Wadeer v. E. India Co., 8 De Gex, M. & G. 182. « Black V. Holmes, Fox & Sm. 28. ^ 1 Burr's trial, 186, 187, per Marshall, C. J.; Gray v. Pentland, 2 Serg. & R. 23. » Beatsnn v. Skene, 29 L. J., Ex. 430; 5 H. & N. 838, S. C. 9 Id.; Dickson v. E. of Wilton, 1 Fost. & Fin. 425, per Ld. Campbell. See, however, as to this last case, Dawkins ii. Ld. Rokeby, 8 Law Rep., Q. B. 272, 273, per Kelly, C. J., pronouncing the judgment of the Ex. Ch. (3683) 866 816 INDECENT EVIDENCE. [pART II. restrained by public policy from enforcing the production of papers, the like necessity restrains it from doing what would be the same thing in effect, namely, receiving secondary evidence of their con- tents.' It has, however, been held, that, in an action of trespass brought against the governor of a colony, a military officer under his control might be asked in general terms, whether he did not act by the direction of the defendant, though the written instructions could not be given in evidence." But communications, though made to official persons, are not privileged, where they are not made in the discharge of any public duty; such, for example, as a letter by a private individual to the chief secretary of the postmaster- general, complaining of the conduct of the guard of the mail towards a passenger.^ § 949.* The law excludes, on public grounds, a fifth species of § 867 evidence, namely, that which is indecent, or offensive to public morals, or injurious to the feelings of third persons; the parties themselves having no interest in the matter, except what they have impertinently created. The mere indecency of disclosures does not suffice to exclude them, where the evidence if necessary for the purpose of civil or criminal justice; as, on an indictment for a rape; or on a question upon the sex of one claiming an estate tail, as heir male or female; or upon the legitimacy of one claiming as lawful heir; or on a petition for dissolution of marriage, for judicial separation, or for damages on the ground of adultery.^ In these and similiar cases the evidence is necessary, either for the proof and punishment of crime, or for the vindication of rights existing before, or independent of, the fact sought to be disclosed. But where the parties have impertinently interested themselves in a question, tending to violate the peace of society by exhibiting an innocent third person in a ridiculous light, or to disturb his peace ' Gray v. Pentland, 2 Serg. & R. 23, 31, 32, per Tilghmau, C. J., cited with approbation in Yoter v. Sanno, 6 Watts, 166, per Gibson, C. J. See, also, Stace V. Griffith, 6 Moo. P. C, N. S. 18, and see ante, ^ 918. 2 Cooke V. Maxwell, 2 Stark. R. 183, per Bayley, J. * Blake v. Pilford, 1 M. & Rob. 198. * Gr. Ev. ^ 253, almost verbatim. s See 20 & 21 V., c. 85, U 16, 27, 33. (3684) CHAP. XVI.] now FAR PARENTS CAN BASTARDIZE ISSUE. 817 and comfort, or to offend public decency by the disclosures which its decision may require, the evidence will not be received. Of this sort are wagers ' or contracts respecting the sex of a third person,^ or upon the question whether an unmarried woman has had a child.* § 950. In like manner, when the legitimacy of a child is the I 8^8 question in dispute, the testimony of the parents, that they have or have not had connexion, has, — on the same grounds of decency, morality, and policy, — been, until recent times, uniformly rejected by the judges.* This rule, — which, it now seems,^ has not been indirectly superseded, either by § 3 of the Act of 32 & 33 Vict, c. 68,*^ or by two modern decisions,' which were at one time supposed to have had that effect, — excludes not only all direct questions respecting access, but all questions which have a ten- dency to prove or disprove that fact, unless they are put with a view to some different point in the cause; ^ and it applies to the depositions of the parents equally with their viva voce testimony.^ 1 No wager is now recoverable, 8 & 9V., c. 109, § 18. See Higginson v. Simpson, 46 L. J., C. P. 192; Diggle v. Higgs, L. R., 2 Ex. D. 422; Hampden V. Walsh, L. R., 1 Q. B. D. 189; Read v. Anderson, L. R., 10 Q. B. D. 100; 52 L. J., Q. B. 214, S. C, per maj. in Ct. of App., 53 L. J., Q. B. 532; Trimble v. Hill, L. R., 5 App. Cas. 342, per Pr. C; 49 L. J., Pr. C. 49, S. C. ^ Da Costa v. Jones, 2 Cowp. 729. * Ditchburn v. Goldsmith, 4 Camp. 152. If the subject of the action is friv- olous, or the question impertinent, and this is apparent on the record, the court will not proceed at all in the trial. Brown v. Leeson, 2 H. Bl. 43; Henkin v. Gerss, 2 Camp. 408. But see Hussey v. Crickett, 3 Camp. 1G8. * Goodright v. Moss, 2 Cowp. 594; Legge v. Edmonds, 25 L. J., Ch. 125; Cope V. Cope, 1 M. & Rob. 269, 272—274, per Alderson, B. ; 5 C. & P. 604, S. C. ; Wright v. Holdgate, 3 C. & Kir. 158, per Cresswell, J.; R. r. Luffe, 8 East, 193, 202, 203; R. v. Rook, 1 Wils. 340; R. v. Reading, Cas. temp. Hardw. 79; R. V. Mansfield, 1 Q. B. 444; 1 G. & D. 7 S. C; Anon. v. Anon., 22 Beav. 481; 23 Beav. 273, S. C, giving a more accurate note of the judgment; Com. v. Shepherd, 6 Binn. 283. See ante, ? 649. ^ Guardians of Nottingham v. Tomkinson, L. R., 4 C. P. D. 343; 48 L. J., M. C. 171, S. C. " Cited post, ^ 1355. ' In re Rideout's Trusts, 10 Law Rep., Eq. 41; 39 L. J., Ch. 192, S. C; Re Yearwood's Trusts, 46 L. J., Ch. 478, per Hall, V.-C. ; L. R., 5 Ch. D. 545, S. C. « Wright V. Holdgate, 3 C. & Kir. 158; R. v. Sourton, 5 A. &E. 180, 185, 188, 189. In this last case, with the view of proving non-access, the father was asked whether, at a particular time, he did not live 100 miles from his wife, and cohabit with her sister. Held, this question could not be put. ^ Goodright v. Moss, 2 Cowp. 592, per Ld. Mansfield; Cope v. Cope, 1 M. & Rob. 272—274, per Alderson, B.; Atchley v. Sprigg, 3 New R. 360; 33 L. J., Ch. 345, S. C. ;per Kindersley, V.-C, explaining Plowes v. Bossey, 31 L. J., Ch. 601; Re R— 's Trusts, 39 L. J., Ch. 192. (3685) 818 HOW FAR PARENTS CAN BASTARDIZE ISSUE. [PART II. Neither is it affected by the circumstance, that, at the time of the examination of one of the parents, the other is dead; because the rule has been established, not simply on the ground that the ' tendency of such evidence is to promote connubial dissension, but on the broad basis of general public policy.' But this rule does not preclude the parents from proving that the supposed marriage was either invalid," or valid,^ or that their children were born before or after its celebration, though the effect of such evidence is, in the first and third case, to bastardize the issue, and, in the others, to establish its legitimacy. ■* For this purpose, too, their declarations or their old answers in Chancery are admissible evidence.^ § 951. It is clear, also, that in a case of bastardy, a married I woman may, when the fact of her husband's non-access has already been proved by independent evidence, confess her adulterous con- nexion with another person, and thus enable the justices, in the event of her testimony being corroborated in some material par- ticular,^ to make the order of maintenance.' But this exception to the general rule of exclusion is founded on necessity; since the fact, to which she is permitted to testify, is probably within her own knowledge and that of the adulterer alone. ^ It may here be added, — as the point has been considered worthy of discussion, — that in an action against a husband for the price of necessaries supplied to his wife while living alone, the wife is an admissible witness for the defendant to prove that she has committed adultery, and that, consequently, the defendant is not responsible for her maintenance." Such evidence, though strictly legal, is of coiu-se open to comment, not only as coming from a polluted source, but as the possible result of collusion between the husband and the wife for the purpose of defeating the plaintiff's claim.'" 1 E. V. Kea, 11 East, 132. " In re Darcys, 11 Ir. Law R., N. S. 298. » R. V. Bramley, 6 T. R. 330; Standen v. Standen, Pea. R. 32. * Goodright v. Moss, 2 Cowp. 591, and the cases referred to in Ld. Mans- field's judgment, 593, 594. * Id. « 35 & 36 v., c. 65, ? 4; .36 V., c. 9, ^ 5; 8 & 9 V., c. 10, | 6. ' R. V. Reading, Cas. temp. Hardw. 79; 1 Bott, 439, S. C. ; Cope v. Cope, 1 M. & Rob. 273, n. a; Legge v. Edmonds, 25 L. J., Ch. 125. ^ R, V. Luife, 8 East, 293, per Ld. Ellenborough.^ » Cooper V. Lloyd, 6 Com. B., N. S. 519. ^'> Id. 525, per Willes, J. (3686) 868 CHAP. XVII.] TWO WITNESSES REQUIRED TO PROVE TREASON. 819 CHAPTER XVII. MATTERS NOT PROVABLE BY A SINGLE WITNESS. § 952.' Under this head it is not proposed to go into an ex- i 869 tended consideration of the Statutes of Treason, but only to mention briefly some instances in which those Acts, and some other statutes and rules of law, have regulated particular cases, taking them out of the operation of the general principles, by which they would otherwise be governed. Thus, in regard to treason and misprision of treason, though by the common laAV these crimes were sufficiently proved by one credible witness,^ it has been deemed expedient to enact, that no person shall be indicted, tried, or attainted thereof, but upon the oaths and testimony of two laivful witnesses, either both to the same overt act, or one to one and the other to another overt act of the same treason, unless the- accused shall willingly without violence, in open court, confess, the same ;^ and further, that if two or more distinct treasons- of divers heads or kinds shall be alleged in one indictment, one- witness produced to prove one of these treasons, and another another, shall not be deemed to be two witnesses to the same treason.* § 953. This protective rule, — which in England has remained § 870 in its present state since the. days of King William III., and in Ireland was adopted in the year 1821, — has been incorporated, with some slight variation, into the constitution of America,^ and may > Gr. Ev. I 255, in part. 2 Fost. C. L. 233; M'Nally, Ev. 31; R. v. Clare, 28 How. St. Tr. 887, 924; Woodbeck v. Keller, 6 Cowen, 120. * As to the confession, see ante, ? 866. * 7 W. 3, c.3,U 2, 4, extended to Ireland by 1 & 2 G. 4, c. 24. * " No person stiall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court. ' ' Const. U. S. Art. 3, ? 3; Laws U. S., vol. 2, ch. 36, ^ 1. 31 LAW OF EVID.— V. II. (3687) 820 TWO WITNESSES REQUIRED TO PROVE TREASON. [pART II, be met with in the statutes of most, if not all, of the States in the Union. The first notice that we have of this rule, is in a repealed Act of the time of Henry VIII., ' and from the language there employed it appears probable, that the original reason for its adoption was that stated by Lord Nottingham on Lord Strafford's trial: — " Anciently all or most of the judges were churchmen and ecclesiastical persons, and by the canon law, now and then in use all over the Christian world, none can be condemned of heresy but by two lawful and credible witnesses; and bare words may make a heretic, but not a traitor, and, anciently, heresy was treason ; and from thence the Parliament thought fit to appoint, that two wit- nesses ought to be for proof of high treason." ^ § 954. Its continuance in modern times may perhaps be ascribed, ? 871 in part, to the obstinacy with which men cling to established forms of proceeding; in part, to the duty of allegiance, which may be supposed to counterpoise the information of a single witness;^ and, in part, to the heinousness of the crime of treason, which raises a presumption of innocence in favour of the accused, while the counter- presumption, that on so serious a trial no witness would be guilty of criminative perjury is forgotten.* But, possibly, the best reason for the regulation is, that, on state trials, the prisoner has to contend against the whole power of the Crown; that this power is especially liable to abuse in times of excite- ment and danger; that the law of treason is ill-defined, and worse understood; and that the consequences of a conviction, both to the accused and to his family, were, until very recently,'^ savage and revolting. § 955. Notwithstanding the above* rule, any collateral matter, § 872 not conducing to the proof of the overt acts, may be proved by the testimony of a single witness, by the extrajudicial confession of the prisoner, or by other evidence admissible at common law.'' ^ 25 H. 8, c. 14. ' T. Ray. 208. 3 4 Bl. Com. 358. * 3 Benth. Ev. 391, 392. 6 33 & 34 v., c. 23, U 1, 31. 6 Fost. C. L. 242; 1 East, P. C. 130. (36as) CHAP. XVII.] PROOF CONFINED TO OVERT ACTS CHARGED. 821 For instance, on an indictment for treason in adhering to the Queen's enemies, the fact that the prisoner is a subject of the British Crown may be established by his admission, or by the testimony of one witness.^ § 956.^ In treason and misprision of treason, no evidence can ^ 873 be given of any overt act which is not expressly laid in the indictment.^ But the meaning of this rule is, not that the whole detail of facts shall be set forth, but that no overt act amounting to a distinct independent charge, though falling under the same head of treason, shall be given in evidence, unless it be expressly laid in the indictment, or unless it conduce to the proof of any of the overt acts, which are laid.* For instance, in Layer's case,^ the prisoner's correspondence with the Pretender was allowed to be read in evidence, as tending directly to prove one overt act laid namely, the conspiring to depose the King and to place the Pretender on the throne, though this correspondence was a sub- stantive treason in itself,*^ and was not charged as an overt act in the indictment; and, on the same ground, the publication of the Pretender's manifesto by Mr. Deacon was read against him in 1746, as strongly proving with what intention he had joined the rebel army, and as supporting the overt act laid in the indictment of marching in a warlike manner to depose the King.' On the other hand, when Captain Vaughan was indicted for adhering to the King's enemies, and the overt act laid was his cruising on the King's subjects in the Loyal Clancarty, the court rejected evidence of his cruising in another vessel; as, if it were true, it would be no sort of proof of the act for which he was then to answer.^ 1 R. r. Vaughan, 15 How. St. Tr. 535, per Ld. Holt; Fost. C. L. 240, S. C. ^ Gr. Ev. I 256, in part as to first six lines. ^ 7 W. 3, c. 3, § 8. This sect, is not incorporated in the Irish Act of 1 & 2 G. 4, c. 24, but as the rule is also recognized at common law, this would seem to be immaterial. * Fost. C. L. 245; 1 East, P. C. 121—123. 5 16 How. St. Tr. 220—223; Fost. C. L. 245, 246, S. C. « By 13 W. 3, c. 3, § 2. ■^ R. v. Deacon, Fost. C. L. 9; 18 How. St. Tr. 366, S. C; R. v. Wedder- burn, Fost. C. L. 22; 18 Hoav. St. Tr. 425, S. C. » R. V. Vaughan, 15 How. St. Tr. 499, 500; Fost.; C. L. 246, S. C. (3689) 822 PROOF CONFINED TO OVERT ACTS CHARGED. [PART II. § 957.' This rule is not peculiar to trials for treason; though, in consequence of the oppressive character of some former prose cutions for that crime, it has been deemed expedient expressly to enact it in the later statutes of treason. It is nothing more than a particular application of the well known doctrine, that the proof must correspond with the allegations, and be confined to the point in issue.^ The issue in treason is, whether the prisoner committed that crime by doing one or more of the treasonable acts stated in the indictment; as in defamation the question is, whether the defendant injured the plaintiif by maliciously uttering any of the slanders laid in the statement of claim; and evidence of collateral facts is admitted or rejected on the like principle, in either case, according as it does or does not tend to establish the specific charge. Therefore the declarations of the prisoner, and seditious language used by him, are admissible in evidence as explanatory of his conduct, and of the nature and object of the conspiracy in which he was engaged.^ And in support of the overt act of treason in the county mentioned in the indictment, other acts of treason, though done in other counties, may be given in evidence; subject, however, to be ultimately rejected, if the overt act, in corroboration of which they are tendered, is not proved to have been done in the county as laid.* § 958. It remains to be noticed in connexion with this subject, that the protective provisions of the Statutes of Treason^ do not apply to the particular class of treasons, which consists in com- passing or imagining the death or destruction, or any bodily harm tending to the death or destruction, maiming or wounding, of the Queen, where the overt act or acts alleged shall be the assassina- tion of her Majesty, or any attempt to injure in any manner what- soever her Royal person; or to the misprisions of any such treason; but in all the cases the accused shall be indicted, arraigned, » Gr. Ev. ? 256, in part. ^ Ante, ^ 218, 298. ' R. V. Watson, 2 Stark. R. 132—135. * R. V. Layer, 16 How. St. Tr. 164; R. v. Deacon, 18 id. 367; Fost. C. L. 9, 10, S. C; R. V. Vane, 6 How. St. Tr. 123—129; 1 East, P. C. 125, 126. 6 7 A. c. 21; 7 W. 3, c. 3 ; 6 G. 3, c. 53, § 3. (3690) CHAP, XVII.] NUMBER OF WITNESSES TO PROVE PERJURY. 823 tried and attainted, in the same manner, and according to the same course and order of trial, and upon the like evidence, as if he stood charged with murder; though upon conviction, judgment shall be given, and execution done, as in other cases of high treason.' § 959.^ It seems to have been formerly thought, that, in proof ^ 876 of the crime of perjury, two witnesses were necessary;^ but this strictness, if it was ever the law, has long since been relaxed; the true principle of the rule being merely this, that the evidence must be something more than sufficient to counterbalance the oath of the prisoner, and the legal presumption of his innocence.* The oath of the opposing witness, therefore, will not avail, unless it be corroborated by material and independent circumstances; for otherwise, there would be nothing more than the oath of one man against another, and the scale of evidence being thus in one sense balanced, it is considered that the jury could not safely convict.^ So far the rule is founded on substantial justice.* But it is not precisely accurate to say, that the corroborative cir- cumstances must be tantamount to another witness; for they need not be such as that proof of them, standing alone, would justify a conviction, in a case where the testimony of a single witness would suffice for that purpose.^ Thus, a letter wi'itten by the defendant, contradicting his statement on oath, will render it unnecessary to call a second witness.* Still, evidence confirmatory of the single ' 39 & 40 G. 3, c. 93; 1 & 2 G. 4, c. 24, ^2, Ir.; 5 & 6 V., c. 51, ^ 1. § 2 of this last Act makes it a higli misdemeanor to discharge or aim fire-arms, or throw or use any offensive matter or weapon, with intent to injure or alarm her Majesty. 2 Qj._ ^.v ^ 257, in part. ^ This is said to have been the opinion of Ld. Tenterden; 3 St. Ev. 860, n. q.; ' R. V. Champney, 2 Lew. C. C. 259, per Coleridge, J. * See E. t;. Lee, cited 2 Euss. C. & M. 650. * 4 Bl. Com. 358; E. v. Gaynor, 1 Crawf. & D., C. C. 142; Jebb, C. C. 362, S. C; E. V. Braithwaite, 8 Cox, 254, 444, per Watson, B., and Hill, J.; 1 Fost. & Fin. 638, S. C. « E. V. Yates, C. & Marsh, 139, per Coleridge, J. ' E. V. Gardiner, 8 C. & P. 737, per Patteson, J. ; 2 Moo. C. C. 95, S. C. ; E. V. Shaw, L. & Cave, 579; 10 Cox, 66; 34 L. J., M. C. 169, S. C. * R. V. May hew, 6 C. & P. 315, per Ld. Denman. See, also, E. v. Towey, 8 Cox, 328. (3691) 824 AMOUNT OF PROOF IN CASES OF PEIUURY. [PAET II. accusing witness in some slight particulars only, will not be sufficient to warrant a conviction; ' but it must at least be strongly corroborative of his testimony;" or, to use the quaint but energetic language of Chief Justice Parker, " a strong and clear evidence, and more numerous than the evidence given for the defendant."' § 960.* When several assignments of perjury are included in ^ H77 the same indictment, it does not seem to be clearly settled, whether, in addition to the testimony of a single witness, corro- » borative proof must be given with respect to each; but the better opinion is that such proof is necessary; and that too, although all the perjuries assigned were committed at one time and place.^ For instance, if a person, on putting in his schedule in the Bankruptcy Court, or on other the like occasion, has sworn that he has paid certain creditors, and is then indicted for perjury on several assignments, each specifying a particular creditor who has not been paid, a single witness with respect to each debt will not, it seems, suffice, though it may be very difficult to obtain any fuller evidence.*^ § 961.^ The principle, that one witness, with corroborating g 878 circumstances, is sufficient to establish the charge of perjury, leads to the conclusion, that icithout any icitness directly to dis- prove tvliat is sworn, circumstances alone, when they exist in a ' R. V. Yates, C. & Marsh. 139, per Coleridge, J.; E. v. Boulter, 2 Den. 396; 3 C. & Kir. 236, S. C. = R. V. Champney, and R. v. Wigley, 2 Lew. C. C. 258, 259, n., per Cole- ridge, J.; Jorden v. Money, 5 H. of L. Cas. 231,232, per Ld. Brougham; Woodheck v. Keller, 6 Cowen, 118, 121, per Sutherland, J. 2 E. V. Muscot, 10 Mod. 194. See The State v. Molier, 1 Dev. 263, 265; The State V. Hayward, 1 Nott & M'C. 547; Clark's Exors. v. Van Reimsdyk, 9 Cranch., 160. * Gr. Ev. § 257 a, nearly verbatim. » E. V. Virrier, 12 A. & E. 324, per Ld. Denman. But see R. v. Hare, 13 Cox, 174. « R. V. Parker, C. & Marsh. 639, 645—647, per Tindal, C. J. In E. v. Mudie, 1 M. & Eob. 12s, 129, Ld. Tenterden, under similar circumstances, refused to stop the case, saying that if the defendant was convicted he might move for a new trial. He was, however, acquitted. ' Gr. Ev. ^ 258, in part. (3692) CHAP. XVII.] WHAT EVIDENCE NECESSARY TO PROVE PERJURY, 825 documentary shape, may combine to the same effect; as they may combine, though altogether unaided by oral proof, except the evidence of their authenticity, to prove any other fact connected with the declarations of persons or the business of life. In accordance with these views, it has been held in America that a man may be convicted of perjury on documentary and circum- stantial evidence alone, — first, where the falsehood of the matter sworn to by him is directly proved by written evidence springing from himself, with circumstances showing the corrupt intent ; secondly, where the matter sworn to is contradicted by a public record, proved to have been well known to the prisoner when he took the oath; and thirdly, where the party is charged with taking an oath, contrary to what he must necessarily have known to be true; the falsehood being shown by his own letters relating to the fact sworn to, or by any other writings, which are found in his possession, and which have been treated by him as containing the evidence of the fact recited in them.' § 962.^ If the evidence adduced in proof of the crime of perjury § ^79 consists of tiL'o opposing statements by the prisoner, and nothing more, he cannot be convicted. For if one only was delivered under oath, it must be presumed, from the solemnity of the sanction, that the declaration was the truth, and the other an error, or a falsehood; though the latter, being inconsistent with what he has sworn, may form important evidence, with other circumstances against him.^ And if both the contradictory state- ments were delivered under oath, there is still nothing to show 1 U. S. V. Wood, 14 Pet. 430, 440—442. In this case, under the hitter head of the rule here stated, it was held that, if the jury were satisfied of the corrupt intent, the prisoner might well be convicted of perjury in taking, at the custom-house in New York, the " owner's oath in cases where goods, wares, or merchandise have been actually purchased," upon the evidence of the invoice^ book of his father, John Wood, of Saddleworth, Eng., and of thirty-five letters from the prisoner to his father, disclosing a combination between them to defraud the Government of the United States, by invoicing and entering the goods shipped at less than their actual cost. The whole of this case deserves an attentive perusal. '^ Gr. Ev. g 259, in great part. ^ See Alison, Cr. L. 481. (3693) 826 WHAT EVIDENCE NECESSARY TO PROVE PERJURY. [pAET II. which of them is false, when no other evidence of the falsity is given.' If, indeed, it can be shown that, before making the statement on which perjury is assigned, the accused had been tampered with," or if any other circumstances tend to prove that the statement offered as evidence against the prisoner was true, a legal conviction may be obtained; ^ and provided the nature of the statements was such, that one of them must have been false to the j)risoner''s knoivledge, slight corroborative evidence would pro- bably be deemed sufficient. But it does not necessarily follow that because a man has given contradictory accounts of a trans- action on two occasions, he has therefore committed perjury. For cases may well be conceived in which a person might very honestly swear to a particular fact, from the best of his recol- lection and belief, and might afterwards from other circumstances be convinced that he was wrong, and swear to the reverse, without meaning to swear falsely either time.^ Moreover, when a man 1 R. V. Wheatland, 8 C. & P. 238, 241, per Gurney, B. ; R. v. Gaynor, 1 Crawf. & D., C. C. 142; Jebb, C. C. 262, S. C, R. v. Harris, 5 B. & A. 926. ^ Anou., per Yates, J., Ld. Mansfield, "Wilmot and Aston, Js., concurring; 5 B. & A. 939, 940, n. See the observations of Mr. Greaves on this case, in 2 Russ. C. & M. 653, n. ^ R. V. Kuill, 5 B. & A. 929, 930, n.; R. v. Hook, Dear. & Bell, 606; 8 Cox, 5, S. C. * Per Holroyd, J., in R. v. Jackson, 1 Lew. C. C. 270. This very reasonable doctrine is in perfect accordance with the rule of the Crim. Law of Scotland, as laid down by Mr. Alison, in his excellent treatise on that subject, in the following terms: — "When contradictory and inconsistent oaths have been emitted, the mere contradiction is not decisive evidence of the e.xistence of perjury in one or other of them; but the prosecutor must establish which was the true one, and libel on the other as containing the folsehood. "VNliere depositions contradictory to each other have been emitted by the same person on the same matter, it may with certainty be concluded, that one or other of them is flilse. But it is not relevant to infer perjury in so loose a manner; but the pro.secutor must go a step further, and specify distinctly which of the two contains the falsehood, and peril his case upon the means he possesses of proving perjury in that deposition. To admit the opposite course, and allow the prosecutor to libel on both depositions, and make out his charge by comparing them together, without distinguishing which contains the truth and which the falsehood, would be directly contrary to the precision justly required in criminal proceedings. In the older practice this distinction does not seem to have been distinctly recognised; but it is now justly considered indispensable that the perjury should be specified as existing in one, and the other deposition referred to in viodum prohationis, to make out, along with other circumstances, where the truth really lay." See Alison, Cr. L. 476. (3694) CHAP. XVII.] CORROBORATION OF W03IEN IN BASTARDY CASES. 827 merely swears to the best of his memory and belief, it of course requires very strong proof to show that he is wilfully perjured.' § 963. The rule requiring something more than the testimony I 880 of a single witness on indictments for perjury, is confined to the proof of the falsity of the matter on which the perjury is assigned. Therefore, the holding of the court, the proceedings in it, the ad- ministering the oath, the evidence given by the prisoner, and, in short, all the facts, exclusive of the falsehood of the statement, which must be proved at the trial, may be established by any evi- dence that would be sufficient, were the prisoner charged with any other offence." Moreover, when several facts must be proved to make out an assignment of perjury, each of these facts may, in strict law, be established by the uncontroverted testimony of a single witness. For instance, if the false swearing be that two persons were together at a certain time, and the assignment of perjury be that they were not together at that time, evidence by one vntness that at the time named the one person was at London, and by another witness that at the same time the other person was in York, will be sufficient proof of the assignment of perjury.^ § 964. In cases of bastardy, a man cannot be adjudged to be the § 881 putative father of an illegitimate child on the single testimony of the mother; but before an order of affiliation can be made by the petty sessions,* or confirmed by the quarter sessions,^ the mother must not only be a witness,*^ but her evidence must be corroborated,^ ill some viaterial jicirticalar, by other testimony, to the satisfaction of the justices ; and the order will be bad, if it does not allege that the confirmatory evidence was material.* This rule has been wisely established, in order to protect men from accusations which profli-. gate, designing, and interested women might easily make, and which, » Per Tindal, C. J., in R. v. Parker, C. & Marsh. 645, ^ 2 Russ. C. & M. 651; 2 Hawk., P. C. c. 46, ? 10. 3 R. V. Roberts, 2 C. & Kir. 614, per Patteson, J. * 35 & 36 v., c. 65, H; 36 V., c. 9, g 5. * 8 & 9 V., c. 10, ? 6. « R. V. Armitage, 7 Law Rep., Q. B. 773; 42 L. J., M. C. 15, S. C. ' See Hodges v. Bennett, 5 H. & N. 625; 29 L. J., M. C. 224, S. C. « R. V. Read, 9 A. & E. 619; 1 P. & D. 413, S. C. (3695) 828 CORROBORATIVE PROOF, WHEN REQUIRED. [PART II. howevei' false, it might be extremely difficult to disprove. Still, the rule must not be strained so as to render corroboration necessary with respect to the actual begetting of the child, but it will suffice if any evidence be forthcoming calculated to raise a probability that illicit intercourse may have taken place, as, for example, proof of acts of familiarity between the mother and the putative father, though these may have occurred long prior to the date when the child was begotten.' § 964a. In actions for breach of promise of marriage the plaintiff, though now an admissible witness, cannot recover a verdict on his or her uncorroborated testimony, but some other material evidence in support of the promise must be forthcoming.^ Again, no order for the removal of a pauper, in respect of a settlement acquired by three years residence in a parish, can be made " upon the evidence of the person to be removed, without such corroboration as the justices or court may think sufficient." ^ § 965. On several occasions it has been asserted in more or less authoritative language, that the Chancery Division of the High Court cannot act on the unsupported testimony of any person in his own favour.* Were this doctrine, however, submitted to the Court of last resort, it would probably not be upheld in its integrity;^ though cases may sometimes occur, — as, for example, if a verbal promise by a deceased person were sought to be established by the uncorroborated statement of the promisee, — in which a judge would undoubtedly be justified in refusing to pronounce a decree without additional evidence.'* In the recent case of Finch v. Finch,' the > Cole V. Manning, 46 L. J., M. C. 175; L. R., 2 Q. B. D. 611, S. C. 2 32 & 33 v., c. 68, §2. See Hickey v. Campion, I. R., 6 C. L. 557; Bessela v. Stern, L. R., 2 C. P. D. 265, per Ct. of App. ; 46 L. J., C. P. 467, S. C. * 39 & 40 v., c. 61, ? 34; R. v. Abergavenny Union, L. R., 6 Q. B. D. 31; 50 L. J., M. C. 1, S. C. * Down I'. Ellis, 35 Beav. 578; Grant v. Grant, 34 Beav. 623; Nunn v. Fabian, 35 L. J., Ch. 140; Hartford v. Power, I. R., 3 Eq. 602. 5 See U. falsely called J. v. J., 1 Law Rep., P. & D. 461. ^ Rogers v. Powell, 38 L. J., Ch. 648, per James, V.-C; Hartford v. Power, I. R., 3 Eq. 602. ^ L. R. 23 Ch. D. 267. (3696) CHAP. XVII.] PROOF REQUIRED IN ECCLESIASTICAL COURTS. 829 exception just referred to was recognised by the Court of Appeal as a practice which ought still to prevail when judges sat as jurymen to determine facts, and the Court held at the same time that the rule was applicable to cases of debts as well as to cases of gifts. Sir George Jessel, however, with characteristic accuracy, guarded and limited his decision by distinctly pointing out, that the rule was one of mere practice, and not of strict law.' § 966. In the Ecclesiastical Courts the testimony of a single I 883 witness, though omni exceptione major, is insufficient to support a decree, when such testimony stands unsupported by what the civilians pedantically call " adminicular circumstances." " This doctrine was in former days productive of much injustice,^ but it is now of little practical importance, as the spiritual courts have, by a series of legislative improvements, been shorn of their jurisdic- tion, — first, over suits for defamation,* — then, over suits for brawl- ing,^ — next, in relation to the grant and revocation of probates of wills and letters of administration, and to all matters and causes testamentary,® — and lastly, in respect of divorces a mensa et thoro, suits of nullity of marriage, suits of jactitation of marriage, suits for restitution of conjugal rights, and, indeed, all causes, writs, and matters matrimonial.^ In the Probate and Divorce Division of the High Courts, whether for England or Ireland, the rules of evidence observed in the old superior Courts of Common Law are applied to the trial of all questions of fact.^ It seems, however, that in pro- secutions under the Church Discipline Act," the Court of Arches will still be guided by the old ecclesiastical rules as to evidence, and 1 L. R. 23 Ch. D. 271. ^ Doaelliin v. Doiiellan, 2 Hagg. Ec. R. 144 (SuppL); Simraonds ?'. Sim- monds, 5 Ec. & IMar. Cas. 324, 340—347, per Dr. Lushington; id. G Ec. & ]\Iar. Cas. 578, per Sir H. Fust; Crompton v. Butler, 1 Cons. R. 460; Hutchins v. Denziloe, 1 Cons. R. 181, 182. ^ See cases cited and discussed in 2nd ed. of this work, H 883 — 886. * 18 & 19 v., c. 41, as to England; 23 & 24 V., c. 32, as to Ireland. 5 23 & 24 v., c. 32, both in England and Ireland. 6 20 & 21 v., c. 77, I 3; 20 & 21 V., c. 79, § 5, Ir. ' 20 & 21 v., c. 85, I 2. 8 20 & 21 v., c. 77, I 33; 20 & 21 V., c. 79, § 38, Ir.; 20 & 21 V c. 85, § 48; 34 & 35 V., c. 49, I 8, Ir. » 3 & 4 v., c. 86. (3697) 830 CORROBORATION OF ACCOMPLICES. [PAKT II, will require the testimony of a single witness to be corroborated at least to a certain extent.* § 967. It remains only to mention tlie case of accomplices, who are usually interested,' and always infamous, witnesses, and whose testimony is admitted from necessity, it being often impossible, without having recourse to such evidence, to bring the principal offenders to justice. The ^ degree of credit, which ought to be given to the testimony of an accomplice, is a matter exclusively within the province of the jury. It has sometimes been said, that they ought not to believe him, unless his testimony is corroborated by other evidence; and, without doubt, great caution in weighing such testimony is dictated by prudence and reason. But no positive rule of law exists on the subject; and the jury may, if they please, act upon the evidence of the accomplice, even in a capital case, without any confirmation of his statement.* It is true that judges, in their discretion, generally advise a jury not to convict a prisoner upon the testimony of an accomplice alone; and although the adoption of this practice will not be enforced by a Court of Keview," its omission will, in most cases, be deemed a neglect of duty on the part of a judge.^ Considering, too, the respect which is always paid by the jury to such advice from the bench, it may be regarded as the settled course of practice, not to convict a prisoner, excepting under very special circumstances, upon the uncorroborated testi- mony of an accomplice.' The judges do not, in such cases, withdraw the cause from the jury by positive directions to acquit, but they only advise them not to give credit to the testimony. ^ Berney v. Bp. of Norwich, 36 L. J., Ec. C. 10, per Pr. C. This case seems to overrule Burder v. O'Neill, 2 New R. 551. ''It used to be " a popular saying, that they fished for prey, like tame cormorants, with ropes round their necks." Macaulay's History of Engl., vol. 1, ch. 5, p. 666. 3 Gr. Ev. § 380, in great part. * E. V. Stubbs, 25 L. J., M. C. 16; Pearce & D. 555, S. C; R. v. Hastings, 7 C. & P. 152, i)er Ld. Denman; R. v. Jones, 2 Camp. 132, per Ld. Ellen- borough; 31 How. St. Tr. 315, S. C; R. v. Atwood, 1 Lea. 464; R. v. Durham, id. 478; R. v. Dawber, 3 Stark. R. 34; R. v. Sheehan, Jebb, C. C. 54; R. V. Jarvis, 2 M. & Rob. 40. s R. V. Boye.s, 30 L. J., Q. B. 302; 1 B. & S. 311, S. C. « R. V. Barnard, 1 C. & P. 88; R. v. Wilkes, 7 C. & P. 273. ' R. V. Gallagher; 15 Cox, 289, 318. (3698) CHAP. XVII.] CORROBORATION OF ACCOMPLICES. 831 § 968. It has been stated, that this practice is not applicable to § 888 cases of misdemeanor; ^ but there appears to be no foundation, either in reason or law, for such a distinction between misdemeanors and felonies; and, in fact, the distinction, if it ever existed, no longer prevails." Still, the extent of corroboration will of course depend much upon the nature of the ci'ime,^ and the degree of moral guilt attached to its commission; and if the ofiPence be one of a purely legal character, as for instance, the non- repair of a highway, — or if it imply no great moral delinquency, as the fact of having been present at a prize-fight,* which unfortunately terminated in manslaughter,^ — the parties concerned, though in the eye of the law criminal, will not be considered such accomplices as to render necessary any confirmation of their evidence. Neither, in actions to recover penalties, does the law apprehend any danger from the mere fact of jurors being left, without any special caution from the bench, to weigh the uncorroborated testimony of an accomplice.^ § 969.^ But although on criminal trials it is the settled practice g 889 to require other evidence in corroboration of that of an accomplice; yet the manner and extent of the corroboration required are not so clearly defined. Some judges have deemed it sufiicient, if the wit- ness be confirmed in any material part of the case; others have . been satisfied with confirmatory evidence as to the corpus delicti only; but others, with more reason, have thought it essential that corroborative proof should be given of the prisoner having actually participated in the offence; and, when several prisoners are tried, that confirmation should be required as to all of them, before all can be safely convicted.* This last is undoubtedly now the pre- vailing opinion; the confirmation of the witness, as to the com- 1 Per Gibbs, Att.-Gen. arg. in R. v. Jones, 31 How. St. Tr. 315. => R. V. Farler, 8 C. & P. 106. ^ R. V. Jarvis, 2 M. & Rob. 40, 52, per Gurney, B. See R. v. Cramp, 14 Cox, 390, where the prisoner was charged with attempting to produce abor- tion, and the woman was called as a witness. * See R. V. Coney, L. R., 8 Q. B. D. 534; 51 L. J., M. C. 66, S. C; and 15 Cox, 46. ^ R. V. Hargrave, 5 C. & P. 170, per Patteson, J. ; R. v. Young, 10 Cox, 371. « M'Clory v. Wright, 10 Ir. Law R., N. S. 514, 519, per Keogh, J.; Magee tJ. Mark, 11 id. 449. ' Gr. Ev. | 381, in great part. « R. V. Stubbs, 25 L. J., M. C. 16; Pearce & D. 555, S. C. (3699) 833 CORROBORATION OF ACCOMPLICES. [PAKT II. mission of the crime, being considered no confirmation at all, as it respects the prisoner. For, in describing the circumstances of the offence, he may have no inducement to speak falsely, but on the contrary every motive to declare the truth, if he wishes to be be- lieved when he shall afterwards endeavour to fix the crime upon the prisoner.' § 970. This doctrine has been well explained by the late Lord ^ 890 Abioger. " It is a practice," said his lordship, in a case of night- poaching,^ " which deserves all the reverence of the law, that judges have uniformly told juries that they ought not to pay any respect to the testimony of an accomplice, unless the accomplice is corro- borated in some material circumstance. Now, in my opinion, that corroboration ought to consist in some circumstance that affects the identity of the party accused. A man who has been guilty of a crime himself will always be able to relate the facts of the case, and if the confirmation be only on the truth of that history, without identifying the persons, that is really no corroboration at all. If a man were to break open a house and put a knife to your throat, and steal your property, it would be no corroboration that he had stated all the facts correctly, that he had described how the person did put a knife to the throat, and did steal the property. It would not at all tend to show that the party accused participated in it.* * * The danger is, that when a man is fixed, and knows that his own guilt is detected, he will purchase impunity by falsely accusing others." If two or more accomplices are produced as witnesses, they are not deemed to corroborate each other; but the same rule is applied, and the same confirmation is required, as if they were but one.^ The testimony, too, of the wife of an accomplice will not be considered corroborative of the evidence of her husband.* § 971.^ To one class of persons, apparently accomplices, the rule § 891 ^ R. V. Farler, 8 C. & P. 106, per Ld. Abinger; R. v. Wilkes, 7 C. & P. 272, per Alderson, B.; R. v. Moores, id. 270; R. v. Addis, 6 C. & P. 388, per Patteson, J.; R. v. Wells, M. & M. 326, per Littledale, J.; R. v. Sheehan, Jebb, C. C. 54; R. v. Carey, id. 203. "" R. v. Farler, 8 C. & P. 107, 108. * R. V. Noakes, 5 C. & P. 326, per Littledale, J.; R. t'. Jlagill, Ir. Cir. R. 418, per Perrin, J. * R. v. Neal, 7 C. & P. 168, per Park, J. ^ Gr. Ev. I 382, almost verbatim. (3700) CHAP. XVII.] CORROBORATION OF INFORMERS. 833 requiring corroborative evidence does not apply; namely, persons who have entered into communication with conspirators, but who, in consequence of either a subsequent repentance, or an original de- termination to frustrate the enterprise, have disclosed the conspiracy to the public authorities, under whose direction they continue to act with their guilty confederates, till the matter can be so far ma- tared as to insure their conviction. The early disclosure is con- sidered as binding the party to his duty j and though a great degree of disfavour may attach to him for the part he has acted as an m- former,^ yet his case is not treated as that of an accomplice.^ ^ Valore. '"But these are called Informers; men that live By treason, as Rat catchers do by poison." Beaumont's "Woman Hater." Act V., Sc. 2. 2 R. V. Despard, 28 How. St. Tr. 489, per Ld. Ellenborough. (3701) ^ f'.i v| ^^ N^ .^^ liY UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 843 388 o '" 1 i